Mamta Kumari vs Shubham Kumar

Per Sujit Narayan Prasad, J.

The instant appeal under section 19(1) of the Family Courts Act, 1984 is directed against the judgment dated 02.08.2022 and the decree signed on 12.08.2022 passed in Original Case No.760 of 2021 by the learned Addl. Principal Judge, Addl. Family Court No.II, Dhanbad (in short, learned Family Judge) whereby and whereunder the marriage between the appellant-wife, namely, Mamta Kumari and the respondent-husband, namely, Shubham Kumar has been dissolved by a decree of divorce on the ground of cruelty.

The brief facts of the case as per the pleadings made in the plaint having been recorded by the learned Family Judge, needs to be referred herein as:

It is averred that on 11.09.2020 the petitioner went to bring back the respondent but she refused and even she denied to cohabit with him. The conduct of the respondent inflicting immeasurable mental agony and torture amounts to cruelty upon the petitioner.

Aggrieved with the aforesaid judgment and decree by which divorce has been granted ex-parte on the ground of cruelty in favour of the petitioner (respondent herein), the present appeal has been preferred by the respondent-wife (appellant herein).

The following grounds have been taken on behalf of the appellant-wife:

The learned counsel for the appellant-wife, on the strength of the aforesaid grounds, has urged that the impugned judgment and decree, having been passed in violation of the settled principles of law and procedure, warrant interference by this Court. It is submitted that the matter be remitted to the learned Family Judge for fresh adjudication, after affording due opportunity of hearing to the appellant-wife, so that the lis may be decided on merits in accordance with law.

Submission of the learned counsel for the respondent-husband:

While on the other hand, the learned counsel appearing for the respondent-husband has taken the following ground to defend the impugned judgment and decree:

Learned counsel for the petitioner-husband, relying upon the aforesaid grounds, has submitted that the instant appeal does not merit interference and, therefore, deserves to be dismissed. It is urged that the decree of divorce passed by the learned Family Judge is based upon due consideration of the material available on record and does not suffer from any legal infirmity warranting appellate intervention.

We have heard the learned counsel for the parties, the finding recorded by the learned Family Judge in the impugned judgment as also the trial Court records.

The issue which requires consideration is that as to whether in a case where a party had chosen not to appear, is it available for the Court of Law to come to the conclusion straightway without answering the issues in a proceeding like of such nature where the procedure as available under the Civil Procedure Code is to be applied.

This Court, before answering the aforesaid issue, needs to refer herein the admitted fact as per the material available on record.

The fact about the non-appearance of the appellant-wife is not in dispute and only on the basis of the evidence adduced on behalf of the petitioner (respondent herein), the learned Family Judge has come to the conclusion that the respondent (appellant herein) has acted cruelty upon the petitioner and on this ground a decree for divorce was granted ex-parte in favour of the petitioner by dissolving the marriage.

Now, re-adverting to the rival contentions, it is submitted on behalf of the appellant-wife that the impugned judgment has been assailed on the ground that the same has been passed ex-parte, without adherence to the mandatory procedure for effecting valid service of notice. It is further urged that the learned Family Judge, while deciding the lis, failed to frame the requisite issues for proper adjudication, thereby vitiating the proceedings.

The learned counsel appearing for the respondent-husband although has tried to defend the impugned judgment passed by the learned Family Judge holding the case to be ex-parte proceeding, but has submitted that she is not in a position to rebut the issue of pending proceeding going on in between both the parties in the Court of the learned SDJM, Hazaribagh.

But, the question herein which requires consideration is that if in such circumstances, what is required for the Court to do in order to do substantive justice in absentia of either of the parties.

It needs to refer herein that the primary function of a Court is to adjudicate the dispute between the parties on the basis of substantial justice. A court's duty is to deliver substantial justice, meaning ensuring fair outcomes based on merits. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizens under personal, property and other laws. The procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify the miscarriage of justice.

The sole ground as has been taken by the appellant-wife that the impugned judgment and decree have been passed ex-parte and, as such, we have not gone through the issue on merit, rather we have concentrated ourselves on the issue of the fact that as to whether the impugned judgment and decree can be said to be ex-parte or not.

The Hon’ble Apex Court in the case of Sugandhi v. P. Rajkumar, (2020) 10 SCC 706 has specifically observed that the procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation, relevant paragraph of the aforesaid order is being quoted as under:

In the case of Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2 SCC 155 the Hon’ble Apex court has observed that “Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations. Law's finest hour is not in meditating on abstractions but in being the delivery agent of full fairness. This divagation is justified by the need to remind ourselves that the grammar of justice according to law is not little litigative solution”.

Justice is nothing but a manifestation of the truth. It is truth which transcends every other action and when procedural law stands in the way of the truth, the Court must find a way to circumvent it. Similarly, when substantive law, as it appears, does not facilitate the emergence of the truth, it is the paramount duty of the Court to interpret the law in light of its teleos. Such an exercise is warranted in a higher degree, particularly while considering a social welfare legislation, reference in this regard be made to the judgment passed by the Hon’ble Apex Court in the case of Om Prakash @ Israel @ Raju @ Raju das Vs. Union of India & Anr. 2025 INSC 43.

In the instant case, it is manifest from a bare perusal of the order-sheet dated 25.03.2022, that the petitioner-husband (respondent herein) had filed the registered postal receipt together with the track report, which purportedly records confirmation of delivery on 09.03.2022. Thereafter, on 26.04.2022, the learned Family Court, relying solely upon the said track report, proceeded to conclude that service stood affected and accordingly resolved to proceed ex-parte.

This Court is constrained to observe that the learned Family Judge failed to advert to the sensitivity inherent in matrimonial disputes, and by merely presuming valid service on the strength of the track report, adopted a course which cannot be said to be in due conformity with the settled principles governing service of notice. The presumption so drawn, without deeper scrutiny, does not inspire judicial confidence and falls short of the procedural fairness expected in family litigation.

Further, the law is well settled that if in a case of ex-parte decree, the issue is also required to be framed even a respondent has not appeared. In the case of Makhan Lal Bangal v. Manas Bhunia, (2001) 2 SCC 652, wherein the importance of framing issues was emphasised upon. The Hon’ble Apex Court in Makhan Lal Bangal (supra) has held that framing issues is an imperative stage in any civil proceedings as it narrows down the scope of trial by separating wheat from the chaff. Therefore, the real dispute between the parties is determined and the conflict between the parties is narrowed.

It is a settled proposition that even where a defendant defaults in appearance or omits to file a written statement, the Court cannot dispense altogether with the formulation of points for determination. The judicial duty persists to identify the material issues, however obvious they may appear, and to furnish a reasoned adjudication thereon.

The mere act of granting a decree ex-parte, without framing or addressing the points in controversy, constitutes a material irregularity in the exercise of jurisdiction. The Court must, therefore, either frame fresh points for determination or recite the issues already arising from the pleadings, and thereafter proceed to record its findings with reasons. Such discipline ensures that even in default proceedings, the decree rests upon judicial scrutiny rather than mechanical presumption.

It is apposite to underscore that the very purpose of framing issues is to crystallize the rival pleadings of the parties and to delineate the points requiring adjudication. Such formulation ensures that the evidence adduced is directed to the matters actually in controversy, thereby enabling the Court to render a determination that qualifies as proper adjudication in the eyes of law.

Absent the framing of issues, the adjudicatory process risks degenerating into a perfunctory exercise, bereft of the structured analysis mandated by procedural law. The discipline of issue-framing thus serves as the fulcrum upon which the fairness and legality of the trial rests.

The issue of non-appearance is admitted one but even in such circumstances, the Court since is to do substantive justice and if the party has appeared and taken the plea by filing written statement then the consideration ought to have been there, then only it will be said to be proper consideration of the issues for the purpose of doing substantive justice.

In the present case, it clearly emerges that while adjudicating the suit for divorce, the learned Family Judge, without framing any issue either on cruelty or desertion, proceeded to evaluate the evidence adduced on behalf of the respondent-husband and, on the strength thereof, concluded that the petitioner-husband was entitled to a decree of divorce on the ground of cruelty. Such an approach, resting upon evidence without the discipline of issue-framing, cannot be regarded as a righteous or legally sustainable method of adjudication.

It further transpires from the record that before the learned Family Court, neither the petitioner-husband nor his witnesses made any specific disclosure regarding the pendency of Bishungarh P.S. Case No.68 of 2022, registered under Sections 498A, 354/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act, against the petitioner and his family members. In contradistinction, the appellant-wife has categorically pleaded in the present appeal that the said criminal case was pending at the relevant time.

The appellant-wife has, in paragraphs 16 and 17 of her memorandum of appeal, specifically averred that upon the petitioner being granted bail in the aforesaid criminal case on the ground of divorce, she first became aware of the institution of Original Suit No.760 of 2021 and of the passing of the impugned ex-parte judgment and decree. This sequence of events establishes that the petitioner-husband deliberately withheld disclosure of the pendency of the criminal proceedings before the learned Family Court, thereby frustrating proper service of notice upon the respondent-wife (appellant herein). Such suppression of material facts strikes at the root of fair adjudication and renders the ex-parte decree vulnerable to challenge.

On the basis of discussion made hereinabove, it is thus evident that the learned Family Judge did not take adequate steps to secure the appearance of the respondent, nor was the rightful approach adopted. Instead, reliance was placed upon the tracking report indicating item delivery at the instance of the petitioner, on the basis of which the absence of the respondent (the appellant herein) was treated as admitted by the learned Family Court.

The procedure for service of notice is already available in the Civil Procedure Code and there is also the process for substituted mode of service of notice in a situation where the addressee is not found to be present upon which the earlier notice has been sent. But, in this case, it appears from the perusal of the order sheet and the impugned judgment particularly paragraph 3 that no concrete effort has been taken by the learned Family Court for affecting the service of notice by taking the substituted mode of service of notice.

This Court is, therefore, of the view that the approach adopted by the learned Family Judge in proceeding ex-parte against the respondent cannot be regarded as proper. The impugned judgment has been passed on the basis of deemed acceptance of notice, and the respondent/appellant now seeks to assail the said order, giving rise to the present appeal.

A perusal of the impugned judgment further reveals that even while deciding the matter ex-parte, the learned Family Court omitted to frame any issue. Although the framing of issues may not, in every circumstance, be a mandatory requirement, yet, as discussed in the preceding paragraphs, the absence of such formulation deprives the adjudicatory process of the structured analysis demanded by law.

This Court, in view of the aforesaid discussion, is of the view that the judgment impugned suffers from perversity.

At this juncture it needs to refer herein that the word ‘perverse’ has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:

This Court, upon due consideration of the legal connotation of the term “perversity” and in light of the foregoing discussion, is of the considered view that the impugned judgment and decree fall squarely within the ambit of perversity.

Consequently, such a decree cannot be permitted to stand, and in exercise of appellate jurisdiction, this Court finds sufficient cause to interfere with the same.

In view thereof, the impugned judgment dated 02.08.2022 and the decree signed on 12.08.2022 passed in Original Case No.760 of 2021 by the learned Addl. Principal Judge, Addl. Family Court No.II, Dhanbad are hereby quashed and set-aside.

Accordingly, the matter is remitted to the Learned Additional Principal Judge, Additional Family Court No. II, Dhanbad, by revival of Original Suit No. 760 of 2021 to its original file, so that the dispute may be adjudicated afresh on its own merits in accordance with law.

Both parties are directed to cause their appearance before the Learned Additional Family Court No. II, Dhanbad within a period of four weeks from today.

The Learned Additional Family Judge No. II, Dhanbad shall thereafter proceed to frame the requisite issues and decide the matter strictly in accordance with law, ensuring that sufficient opportunity of hearing is afforded to both sides.

With the aforesaid observation and direction, the instant appeal stands disposed of.

Pending I.As, if any, stands disposed of.

(Sujit Narayan Prasad, J.)

I Agree.

(Sanjay Prasad, J.)

(Sanjay Prasad, J.)