IMPORTANT POINT
The legal principle established is that substituted service of summons should be a last resort, and the court must ensure that there are valid reasons to believe that the defendant was evading service before ordering substituted service.

JUDGMENT :

Sushil Kukreja, J.

The appellant, who was the respondent before the learned Principal Judge, Family Court, Hamirpur, H.P. (hereinafter referred to as the “learned Court below”) has maintained the instant appeal under Section 19 of the Family Court Act, against the order dated 28.07.2021, passed by the learned Court below, in HMA Petition No. 264 of 2017 RBT 320/2019, with a prayer to set-aside the same by allowing the instant petition.

2. The brief facts of the case are that the respondent herein, who was the petitioner before the learned Court below (hereinafter referred to as “the petitioner”) filed a petition under Section 9 of the Hindu Marriage Act, 1955 (for short “the Act”) seeking restitution of the conjugal rights. As per the petitioner, he and the respondent (appellant herein) solemnized marriage on 16.07.2009, according to Hindu Rites and customs and out of their wedlock two children, i.e., a boy and a girl, were born. During the pregnancy of the respondent, she shifted to her parental home and the petitioner regularly not only visited her but also provided every possible assistance to her. The respondent, even after the delivery, did not come to her matrimonial house, despite the repeated efforts of the petitioner to bring her back. The petitioner further averred that he moved an application to Pardhan, Gram Panchayat, Jhaniara, but ultimately the respondent refused to accompany him and as the respondent did not permit him to meet his children, he filed a petition seeking restitution of conjugal rights.

3. The respondent, despite her service by way of publication in daily newspaper ‘Amar Ujala’, did not appear to contest the case and she was proceeded against as ex parte.

4. The learned Court below framed the following issues:

“1. Whether the petitioner is entitled to the restitution of conjugal rights? OPP

2. Relief.”

After deciding issue No. 1 in favour of the petitioner, the petition was allowed ex parte.

5. Feeling aggrieved, the respondent (appellant herein) filed the instant appeal under Section 19 of the Family Court Act, against the impugned judgment with a prayer for setting-aside the same by allowing the instant petition.

6. The learned counsel for the appellant contended that the service effected upon her was not proper and she was never served properly, as such, the impugned order dated 28.07.2021 as well as the subsequent proceedings arising out of the same are void ab initio and the same deserves to be quashed and set-aside. Conversely, the learned counsel for the respondent contended that the learned Court below has rightly passed the orders dated 26.03.2021 and 28.07.2021 after properly appreciating the facts and law.

7. We have heard the learned Counsel for the appellant, learned counsel for the respondent and carefully examined the entire record.

8. The question which arises for consideration before this Court is as to whether the respondent was served before the learned Trial Court properly in accordance with law or not. The perusal of the record reveals that on 23.01.2020 the case file was received by the Family Court from the Court of learned JMIC, Court No. 2, Hamirpur, H.P., and thereafter notices were ordered to be issued to the parties returnable for 19.02.2020 on which date the counsel for the petitioner appeared, however, the respondent could not be served for want of correct address. Thereafter, the case was listed on 05.06.2020 and due to lockdown declared by the Government of India, the matter was adjourned for 17.07.2020 as per Notification No. HHC/RG/C-19D/2020-10 dated 16.04.2020 and on 17.07.2020 as per Notification No. HHC/RG/C-19/2020-26 dated 10.07.2020, the matter was again adjourned for 24.08.2020. On 24.08.2020 notice was ordered to be issued to the respondent for 25.09.2020, on which date the respondent could not be served for want of correct address and the learned Court below ordered that correct address be filed and fresh notice be issued to the respondent returnable for 0