Advocates:
['NIKHILESH KR CHATTERJEE', '', 'SHIV PRASAD', 'RITA KUMARI', '', 'NEETU SINGH', 'SHRIYA', 'RAJLAKSHMI MISHRA']

IN THE HIGH COURT OF JHARKHAND AT RANCHI

(Civil Appellate Jurisdiction)

First Appeal No. 48 of 2019

Khushbu Devi @ Kumari Khushbu, wife of Shekhar Kumar Swarnkar,

daughter of Shankar Prasad Sah, resident of Pachna Road, Lakhisarai,

PO&PS Lakhisarai, District Lakhisarai, Bihar

......Appellant

Versus

Shekhar Kumar Swarnkar, son of Hirender Prasad Swarnkar, resident of

Dalkuan Gali, College Road, PO Sahibganj, PS Sahibganj (T), District

Sahibganj, Jharkhand

..... Respondent

---------------

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant

: Ms. Ayushri, Advocate

For the Respondent

: Mrs. Rajlakshmi Mishra, Advocate

---------------

O R D E R

02^nd November 2022

Per, Shree Chandrashekhar, J.

Kumari Khushbu whose marriage was solemnized with

Shekhar Kumar Swarnkar in the year 2014 is aggrieved by the order dated

18^th August 2018 passed in Original Suit No. 89 of 2018 (in short,

“Restitution Suit”).

2.

By the aforesaid judgment dated 18^th August 2018 the

Restitution Suit filed by the respondent was allowed ex-parte against the

appellant.

3.

In the order dated 18^th 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Firstly, one party must have withdrawn from the society of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

2 First Appeal No. 48 of 2019

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 21^st May 2018.

5.

The original records of the Restitution Suit have been called

f