Valid service of notice is mandatory for ensuring a fair trial. Failure to secure appearance through appropriate procedures constitutes a miscarriage of justice.

JUDGMENT :

1. The instant appeal under Section 19(1) of the Family Court Act, 1984is directed against the judgment dated 15.7.2023 and decree dated 28.7.2023, passed by the learned Principal Judge, Family Court, Sahibganj in Original Suit No. 63 of 2022, whereby and whereunder, the judgment has been passed with the decree of restitution of conjugal rights in favour of the plaintiff and against the defendant.

2. The brief facts of the case leading to filing of the petition filed under Section 281 of the Mohammedan Law by the plaintiff/respondent needs to be referred herein which are as under:

The Nikah between the parties was solemnized on 22.3.2015 according to Muslim rites and rituals. After marriage, the defendant came to her matrimonial house. After sometime of the marriage the wife started harassing the plaintiff physically and mentally and gradually she made illicit relationship with one Mantu Shing @ Ravi Shankar Singh. It is further stated that on 24.07.2016, the defendant went to her maike after taking money, clothes and jewellaries. Even though, he forgave her all the evils the plaintiff states that he made efforts to bring back the wife but to no avail. The plaintiff is still ready to keep his wife. He had gone to the parental house of the defendant on 20.02.2022 and requested her to live with him but the defendant assaulted him with fist and slaps. The plaintiff had gone to the parental house of the defendant on 24.07.2016, 13.03.2022 and 14.03.2022 in order to bring her back. The plaintiff is still ready to keep his wife-defendant but the defendant is adamant and reluctant to come back. It is alleged that the wife-defendant left the husband-plaintiff without any reasonable cause and despite efforts refused to come back. The cause of action for the suit arose on 14.03.2022 when the defendant-wife refused to co-habit with the husband-plaintiff without any lawful cause.

Arguments advanced on behalf of the appellant:

3. The learned counsel appearing on behalf of the appellant has submitted that the judgment and decree passed by the learned Family Judge on the basis of consideration of five witnesses, namely, PW-1 Md.Asif Ali, PW-2 Md.Yasim Alam @ Golu, PW-3 Md. Sayeed, PW-4 Md.Jeb Alam and PW-5 Md.Imam Hussan.

4. It has further been contended that while passing the judgment and decree the learned family judge has not provided any opportunity to the defendant/appellant to defend the case as she has never received any notice and she had no knowledge about the present case.It has been submitted that although notices have been issued twice but only on the basis of tracking report the notice has been acceptedto be validly served and the learned Family Judge has held the proceeding to be ex-parte by making a remark that even after issuance of notice upon the defendant-appellant herein, the defendant did not appear.

5. It has further been contended that the learned Family Judge has taken the issue very casually and without ascertaining the proper service report and even by not asking the party to go for the substituted service of notice, has held the proceeding to be ex-parte and passed the impugned judgment/decree contrary to her interest and, as such, vital rights have been taken away from the defendant-appellant to defend herself. Therefore, the impugned judgment/decree is fit to be quashed and set-aside.

Arg