The main legal point established in the judgment is that the Family Court must ensure proper service of notice to the respondent, as per legal requirements, before proceeding with an ex parte judgment.

JUDGMENT :

Sujit Narayan Prasad, J.

1. This appeal is directed against the judgment dated 28th June, 2017 passed by the learned Principal Judge, Family Court, Seraikella-Kharsawan, whereby and whereunder the suit filed by the husband, namely, Rajesh Kumar, against the respondent—Smt. Kiran Devi (the appellant herein) under Section 13(1)(ib) of the Hindu Marriage Act for divorce, has been decreed by granting judicial separation instead of divorce.

2. The brief facts of the case as per the pleading made in the present appeal which requires to be enumerated, reads hereunder as:

On 3rd June, 2016, the respondent—Rajesh Kumar filed a matrimonial suit for decree of divorce under Section 13(1) (ib) of the Hindu Marriage Act before the learned Principal Judge, Family Court, Seraikella-Kharsawan stating therein that the appellant-Kiran Devi and respondent—Rajesh Kumar are a legally married couple and their marriage was solemnized on 26th June, 2009. Out of their wedlock a son was born and according to the respondent the appellant tried to keep the husband as Ghar Jamai for which the respondent expressed his inability. The respondent has alleged that the appellant created an awkward situation by deserting the respondent at several occasions and deserted the respondent finally on 5th October, 2010.

Thereafter, the respondent made several efforts to bring the appellant back but all went in vain. The cause of action for the suit arose on 26th September, 2009, the date of solemnization of marriage and again on 5th October, 2010, the date when the appellant finally left the house of the husband/respondent. Thereafter a matrimonial suit being Matrimonial Suit No.23 of 2016 was filed on 3rd June, 2016 and it was admitted on 11th August, 2016. Notices were served to the wife/appellant through Nazarat and registered post and also published in daily newspaper i.e., New Ispat Mail, however, in spite of all the notices, the respondent did not appear and thereby an ex-parte judgment was passed on 28th June, 2017 and decree was signed on 7th July, 2017, which is the subject matter of the instant appeal. The appeal has been filed solely on the ground that the suit has been decreed exparte.

3. Mr. Shravan Kumar, learned counsel appearing for the appellant has submitted that the appellant is having no knowledge about filing of the suit, since, no notice has ever been served upon her and, as such, the decree since has been passed without an opportunity to defend, the decree is fit to be set aside.

It has been submitted by referring to paragraph 3 of the impugned judgment that the learned family court has come to the conclusion by taking into consideration the steps having been taken about sending the notice to the respondent through Nazarat and registered post and thereafter it was published in daily newspaper, namely, New Ispat Mail, but even in spite of that the respondent did not appear, therefore, the suit has been proceeded for ex-parte hearing vide order dated 4th May, 2017.

It has been submitted by learned counsel that the learned family court has only considered the steps having been taken through Nazarat or registered post or publication in the daily newspaper but the court should have taken endeavor for service of notice by asking the husband, the plaintiff to the suit, for service of notice to the appellant personally but having not taken such step, the aforesaid step deeming the notice to have been validly served, cannot be said to be proper finding by the learned Family Court by posting the suit for the ex parte hearing.

4. Mr. Rajesh Kumar Singh, learned counsel appearing for the respondent, while on the other hand, has submitted that it is incorrect on the part of the appellant to take the ground that the notices have not been served.

It has been submitted by him that all the steps as per the law have been taken for securing the appearance of the respondent— wife (the appellant herein), as would appear from paragraph 3 of the impugned judgment, but