The court emphasized the necessity of proper service of summons in divorce proceedings, ruling that failure to comply with procedural requirements invalidates ex parte judgments.

JUDGMENT :

ALOK KUMAR PANDEY, J.

The present appeal is directed against the judgment dated 03.03.2021 and decree dated 08.03.2021 passed in Divorce Case No. 126 of 2011 by the Court of Principal Judge, Family Court, Nalanda at Bihar Sharif whereby marriage between the parties has been dissolved by passing decree of divorce.

2. Briefly stated the facts of appellant's case is that appellant is said to have legally wedded wife of respondent and marriage between both the parties solemnized on 19.06.1996 according to Hindu Rites and Custom at Village- Shiv Nagar, P.S.-Parwalpur, District-Nalanda. It is alleged that during course of happy conjugal life for eleven years i.e. 1996 to 2007, both parties were blessed with sons, namely, Kundan Kumar and Saurav Ganguli. It is further averred that appellant's husband came in contact with one lady, namely, Sunita Kumari and later, respondent married with Sunita Kumari in the year 2008 and started misbehaving and neglecting with the appellant and also torturing her physically and mentally. It is further averred that respondent changed his address and started living in a rented house at Mohalla-Gandhi Nagar, P.S.-Laheri, District-Nalanda. It is further alleged that appellant requested several times and tried to lead conjugal life with the respondent but of no avail. It is further alleged that appellant filed Maintenance Case No. 34(M)/ 2009 against the respondent which was allowed by order dated 10.04.2012 and respondent was directed to pay Rs. 3,000/-per month to the appellant and said order was modified on 18.07.2018 and respondent was directed to pay Rs. 2,500/-more i.e. total Rs. 5,500/-per month. It is further averred that respondent is a man of means and possesses 13 Bigha agricultural land and he also works as a Developer. It is further alleged that being annoyed by virtue of the order passed in maintenance case, the respondent filed Divorce Suit No. 126 of 2011 against the appellant-wife and obtained ex parte judgment and decree in his favour by judgment dated 03.03.2021 and decree dated 08.03.2021 by obtaining false and incorrect service report in collusion with process server and the postal peon. It is further alleged that no notice or summon has been served upon the appellant personally and without affording any opportunity to appellant ex parte judgment dated 03.03.2021 and decree dated 08.03.2021 has been passed dissolving the marriage of the appellant. Hence, the present miscellaneous appeal.

3. Learned counsel for the appellant-wife submitted that impugned judgment and decree passed by Principal Judge, Family Court suffers from non compliance of cardinal principle of natural justice as the appellant has not been given opportunity of being heard. Learned counsel further submitted that two service reports clearly establish that no summon/notice has been served upon the appellant and impugned judgment and decree has been passed in absence of knowledge of the appellant. Learned counsel further submitted that so far as publication of notice in gazette is concerned, it has been published in 'Prabhat Khabar' which is not a popular/leading daily newspaper and as such it is not expected from the appellant to read such newspaper. It is further submitted that it is also incorporated in Civil Procedure Code itself that notice/summon to be published in leading daily newspaper circulated in that particular territorial area.

4. Learned counsel for the respondent submitted that judgment and decree has been passed by the Principal Judge, Family Court by taking all the proper steps from issuing notice to paper publication as per legal requirement but the appellant did not turn up despite being the best effort taken by the court. It is further submitted that respondent has clearly proved the case that appellant-wife has left her matrimonial house without any reasons since the year 2008 and since then she is living separately. It is further submitted that family court came to conclusion that respondent