2025:JHHC:16099-DB 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No. 101 of 2024 --------- Nilam Devi, aged about 32 years, wife of Manoj Kumar Saha, Daughter of Chhotu Prasad Saha, presently resides at Namaste Road, Borio, P.O. + P.S. Borio, District-Sahibganj, Jharkhand. .…… Appellant/Defendant Versus Manoj Kumar Saha, son of Nakul Chandra Saha, resident of Village- Dangapara, P.O.-Dangapara, P.S.-Hiranpur, District-Pakur. ……. Respondent/Plaintiff --------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR ---------- For the Appellant : Mr. Ranjan Kr. Singh, Advocate For the Respondent : Mr. Diwakar Jha, Advocate ----------- 07/Dated: 19th June, 2025 1. The instant appeal filed under Section 19(1) of the Family Courts Act is directed against the order dated 22.02.2023 and decree dated 04.03.2023 passed by learned Principal Judge Family Court, Pakur in Original Suit No. 60 of 2022. 2. The ground has been taken on behalf of the appellant-wife that the judgment passed by the learned Family Court is not sustainable in the eyes of law since the said judgment has been passed ex-parte. 3. The judgment since has been passed ex-parte, as such, the delay has been caused in filing the instant appeal, therefore, the delay condonation application was filed by invoking the jurisdiction of this Court under Section 5 of the Limitation Act, 1963, 4. This Court, vide order dated 12.06.2025 in I.A. No. 6010 of 2024 filed under Section 5 of the Limitation Act, 1963, had allowed the said interlocutory application. 5. Learned counsel for the appellant-wife has submitted that once the Court has come to the conclusion that the proceeding has been concluded by passing the judgment impugned without taking proper recourse of the service of notice upon the appellant-wife, as such, the impugned judgment needs interference for hearing afresh from its initiation. 2025:JHHC:16099-DB 2 6. Learned counsel for the respondent-husband has submitted that since this Court has already passed the order on 12.06.2025 in I.A. No. 6010 of 2024 while condoning the delay on the ground of judgment impugned being ex-parte, as such, no further argument is required on his part. 7. This Court has heard the learned counsel for the parties and gone through the impugned judgment. 8. The sole ground has been taken that the judgment is ex-parte, as such, the appellant-wife has not been provided opportunity to defend her case and hence, the impugned judgment needs interference. 9. We have gone through the record once again, however, we have already taken into consideration the issue that the judgment has been passed said to be ex-parte and while considering the said ground, this Court has found that the proceeding of the case as ex-parte has been considered to be not proper as would be evident from paragraphs-15 to 24. For ready reference, the said paragraphs are being reproduced as under: “15. This Court on the basis of the aforesaid legal proposition and in order to come to the conclusion that as to whether the appellant-wife has been able to show the cause said to be sufficient in condoning the delay has gone through the Trial Court Records. This Court has also gone through the paragraph no.3 of the impugned judgment wherein the reference of the order dated 01.12.2022 has been made by which the learned Family Judge has posted the matter for ex-parte hearing on consideration of the fact that the respondent-husband has filed an undertaking along with the certificate of the concerned Post Office showing the service of notice said to be received by the appellant-wife. The same has been considered to be a ground for posting the matter for ex-parte hearing. 16. This Court has also gone through the order since beginning, i.e, the day when the divorce suit being Original Suit No.60 of 2022 was admitted and notice was issued to the appellant-wife vide order dated 28.06.2022. Thereafter, the proceeding of the original suit was waited for service report and appearance of appellant-wife. It appears that on 26.08.2022 the service report was not available and, as such, the matter was posted by the learned Family Judge on 19.09.2022. The order dated 19.09.2022 also reflects that the service of notice was not received and, hence, for waiting the same the matter was posted on 16.11.2022. It also appears from the order dated 16.11.2022 that the service report was not received till that day and, hence, the matter was posted on 01.12.2022. 17. On 01.12.2022 the plaintiff-husband has appeared and filed an undertaking along with the certificate of the concerned Post Office showing the service of notice said to be served upon the appellant- wife. 2025:JHHC:16099-DB 3 18. The learned Family Judge based upon the aforesaid undertaking and the certificate of the concerned Post Office has posted the matter for ex-parte hearing. 19. From the order dated 26.08.2022 upto the order dated 16.11.2022 the service report was not received by the Court having not available on record but the access was given to the plaintiff by accepting the application said to be an undertaking along with the certificate of the Borio Post Office in support of service said to be received by the appellant-wife. 20. But this Court is of the view that while accepting the same and taking note in the order dated 1.12.2022 before posting the matter for ex-parte hearing, it was the bounded duty of the learned Family Judge to ascertain itself as to whether the notice has effectively been served upon the appellant-wife or not. 21. It further appears from the order dated 28.6.2022 the day, when the notice was issued while admitting the suit and the direction was upon the plaintiff-husband to file necessary requisites within a week. On doing so the Office Clerk was directed to issue summons upon the appellant-wife but it is not evident from the order dated 28.6.2022 as to whether the summons which was directed to be issued on the basis of the order of issuance of notice was through the registered post or the ordinary process. The bearing of the said reference is necessary in view of the acceptance of the submission of the respondent-husband who has given an undertaking along with the certificate of the Borio Post Office. 22. The question is that when there is no reference of the notice to be issued through the registered mode and, as such, for what reason such certificate has been given by the Borio Post Office and that has been accepted by the learned Family Judge. It requires to refer herein that even accepting the fact that there is no reference of registered mode and if the notice has been issued summoning the appellant-wife, even if it will be presumed that the same will be presumed to be issued under the ordinary process and the mode of service of notice through the special messenger and in that context there is no need to have a certificate to be issued by the concerned Post Office. 23. The learned Family Judge has not taken into consideration the aforesaid aspect of the matter while accepting the notice said to be served upon the appellant-wife before posting the matter ex-parte. 24. In view of the above, this Court is of the view that the reason of posting the matter ex-parte hearing after giving a reasoning that even after service of notice the appellant-wife has not appeared in that proceeding cannot be said to be proper.” 10. This Court once has considered the judgment to be ex-parte, as such, hearing of the suit requires to be done afresh so that the appellant-wife may be able to defend/contest her case on merit. 11. This Court, considering the aforesaid fact, is of the view that the impugned judgment needs interference. 12. Accordingly, the order dated 22.02.2023 and decree dated 04.03.2023 passed by learned Principal Judge Family Court, Pakur in Original Suit No. 60 of 2022, is hereby quashed and set aside. 2025:JHHC:16099-DB 4 13. The Original Suit No. 60 of 2022 is revived to its original file. 14. Learned Family Judge is directed to proceed afresh by providing opportunity to the appellant-wife to file written statement and thereafter proceed in accordance with law by providing opportunity to both the parties to lead evidence on their respective part and contest the case. 15. Learned counsel for the appellant-wife has undertaken to put appearance of the appellant-wife herself or through her counsel within 15 (fifteen) days from today. 16. Accordingly, the instant appeal stands disposed of with the aforesaid observation and direction. (Sujit Narayan Prasad, J.) (Rajesh Kumar, J.) Saurabh/- A.F.R.