ORDER :

Shree Chandrashekhar, J.

Kumari Khushbu whose marriage was solemnized with Shekhar Kumar Swarnkar in the year 2014 is aggrieved by the order dated 18th August 2018 passed in Original Suit No. 89 of 2018 (in short, “Restitution Suit”).

2. By the aforesaid judgment dated 18th August 2018 the Restitution Suit filed by the respondent was allowed ex-parte against the appellant.

3. In the order dated 18th August 2018, the Family Court has recorded as under:

“9. Three essential conditions for Section 9 of HMA

Firstly, one party must have withdrawn from the society of the other,

secondly, the withdrawal must be without any reasonable reason,

and thirdly, the aggrieved party applies for the restitution of conjugal rights.

10. On close scrutiny of the ex-parte evidence brought on record through affidavit in this case, it is is clear that

The defendant is legally married wife of the plaintiff. Out of their conjugal union a daughter was born, who is about 3 years old.

Presently, the defendant is not residing with the plaintiff rather she has been residing at her parental place.

The plaintiff and his witnesses have consistently stated that they did not know the reason behind the defendant's departure from her matrimonial house.

The plaintiff and his witnesses have consistently stated that they tried at their level best to take defendant to her matrimonial house but she refused to come.

The defendant has not come in this court even having received notice to put her stand.

11. Marriage is just not only a ceremony; it also includes various marital duties and legal rights associated with it. One of the fundamental purposes of marriage is that the spouses live together and one spouse is entitled to the society and comfort. A cause of action, therefore, arises when one party to the marriage withdraws from the society of the other without reasonable and just cause and excuse would be proceeded against by the other in the court of law praying for a decree of restitution of conjugal rights. The expression 'conjugal rights' connotes two ideas:

i. Right of couple to have each other's society, and

ii. Right to marital association

12. In the case at hand, which is being heard as ex-parte, there is obviously nothing on record to reveal that the defendant has any legal cause to deprive the plaintiff from his conjugal rights. Hence, in the aforesaid circumstances, it is hereby ordered that the suit be and the same is decreed ex-parte. A decree of restitution of conjugal rights is granted to the plaintiff. The defendant is directed to join the company of the plaintiff within 60 days from the date of preparation of decree. …..................”

4. Ms. Ayushri, the learned counsel for the appellant has contended that the ex-parte judgment by the Family Court is liable to be set aside on the ground that there was no material before the Family Court to hold that summons was duly served upon the appellant on 21st May 2018.

5. The original records of the Restitution Suit have been called from the lower Court and we have perused the same. The Family Court has recorded its satisfaction about service of summons in the order dated 28th June 2018 which reads as under:

“28.06.2018 : Case called on. Plaintiff files his attendance and present in the court.

Tracking report of notice issued through speed post to the defendant, shows that item has been delivered to the addressee on 21.05.2018. On the basis of this report it is hereby held duly served.

Notice has been served to the plaintiff on 21.05.2018 and it shows that notice has been served one month earlier sufficient opportunity has been given to the defendant for his appearance.

Hence it is hereby ordered to be proceeded ex-parte. Put up on 05.07.18 for plaintiff evidence ex-parte.”

6. A mere glance at the aforesaid order reveals that on the basis of a tracking record the Family Court has considered delivery of summons upon the appellant valid. Before that day, the suit was kept pending awaiting appearance of the appellant and, qui