Shaiqua Zarin vs Irshad Alam

The appeal is under Section 19(1) of the Family Courts Act, 1984 directed against the judgment dated 12.03.2025 and decree dated 25.03.2025 passed in Matrimonial Case No.18 of 2023 by the learned Principal District Judge, Khunti whereby and whereunder the petition filed under Section 281 of Mulla’s Principles of Mohammedan Law read with Section 7 of the Family Courts Act preferred by the respondent-husband against the appellant-wife, has been allowed by passing a decree of restitution of conjugal rights.

This Court, while hearing the learned counsel for the appellant, had issued notice upon the respondent vide order dated 8^th June, 2026. The notice has been received personally by the respondent-husband and by taking note of the same, this Court has passed an order on 20.07.2026.

It is evident from the order dated 20.07.2026 that even after service of notice, the respondent has not appeared and hence the case has been decided to be proceeded.

The appeal was barred by limitation of 82 days for which the delay condonation application under Section 5 of the Limitation Act, 1963 was preferred being I.A. No. 13931 of 2025.

This Court has allowed the aforesaid application and condoned the delay of 82 days in filing the appeal.

The appeal was heard on merit and the trial court record was called for.

The case was directed to be posted on 24.08.2026, thereby the case has been listed today on Board.

The factual aspect, before dealing with the ground upon which the present appeal has been preferred, needs to be referred herein which reads as under :-

The petitioner's case in nutshell is that the marriage between the petitioner and the respondent has been solemnized on 15.01.2021 in accordance with Muslim Hanafi Sunni law and rituals in presence of family members and relatives of both the parties at Milan Palace at Ranchi.

It is stated that after their marriage both the parties lived together as husband and wife and one girl child namely Ayeza Irsad was born out of their wedlock on 14.11.2021 at Laxmi Nursing Home, Hinoo, Ranchi.

It has been alleged by the petitioner/husband (respondent herein) that on 23.05.2022 the respondent/wife (appellant herein) left her matrimonial house along with their child namely, Ayeza Irsad without informing the petitioner and without his consent as per her own will and thereafter started living at her parent's house situated at Hindpiri, Ranchi. The petitioner tried his level best for Bidai of the respondent but no fruitful result came out and on telephonic call father of the respondent told him that respondent will not go with the petitioner and it will be decided in the month of August.

It is stated that since November 2021 to 23.05.2022 while the respondent was at her husband's house, she never attended her husband and cohabited with him and suddenly on 23.05.2022 the respondent left the house of the petitioner along with their girl child. Thereafter a local meeting was also convened before the Panchayat to resolve the disputes between the parties but all went in vain.

It is stated that petitioner filed an application before the DLSA, Khunti and notice was issued to the respondent and after receipt of the notice she appeared before the DLSA Khunti and matter was referred for mediation but due to non-cooperative attitude of the respondent mediation failed.

It is stated that when the petitioner went to respondent's house to bring her then she told him that she is in love with another person and therefore she does not want to go with her husband.

It is stated that petitioner had sent legal notice to the respondent on 27.04.2023 through his lawyer requesting therein to return back to her matrimonial home at Khunti and lead happy conjugal life with him but she did not come back, hence under the compelling circumstances the petitioner has filed the suit for restitution of conjugal right before the learned Family Court .

After proper service of Notice through registered post and publication in the Newspaper the respondent-wife did not put in her appearance before learned Family Court to contest the suit, accordingly, vide order dated 09.01.2025 ex parte proceeding was fixed against her and accordingly the learned Family Court has allowed the suit in favour of petitioner/husband(respondent herein) against which the present appeal has been preferred.

The sole ground taken by the appellant in filing the instant appeal is that the judgment has been passed without affording the opportunity of hearing to the appellant by posting the matter for ex parte proceeding vide order dated 09.01.2025.

Heard learned counsel for the appellant at this stage.

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.

In the instant appeal. the respondent since has not appeared, as such, this Court cannot wait for indefinite period for the appearance of the respondent, rather, it is the duty of the Court to bring to the notice of the parties to the litigation regarding the filing of the matter so that the opportunity to defend the case may be availed.

Considering the aforesaid fact, notice has already been issued to the respondent vide order dated 8^th June, 2026 and even after service of notice, as has been taken note in the order dated 20.07.2026, the respondent has chosen not to appear, this Court, in absence of the respondent also, has disposed of the interlocutory application being I.A. No. 13931 of 2025 condoning the delay of 82 days.

The respondent has not shown any interest in putting his appearance even at this stage and, as such, this Court is of the view that the matter is to be disposed of in absence of the respondent since the respondent has chosen not to represent his case.

The sole ground has been taken by the learned Counsel for the appellant that the judgment passed is ex parte but without following the procedure which would be evident from the order dated 09.01.2025 passed by the learned Family Court.

This Court, in order to appreciate the aforesaid argument, has already called for the trial court records.

This Court has gone through the various orders passed by the learned Family Judge, particularly, the order dated 15.06.2023, 01.12.2023 and 19.01.2024 wherein steps were directed to be taken which was to be taken by the respondent, the petitioner/plaintiff before the learned Family Judge.

The learned Family Judge has accepted the plea having been taken on behalf of the respondent-husband of service of notice upon the appellant herein who was respondent in the original court.

The learned Family Judge thereafter has passed an order on 09.01.2025 by which case was fixed on 27.01.2025 for ex party evidence, for ready reference, the order dated 09.01.2025 is being referred herein: -

This Court has failed to understand from the order dated 09.01.2025 and previous orders as available in the trial court record that on what basis the learned Family Judge has taken note in the order by referring of acceptance of notice by the respondent, the appellant herein, in absence of any service report which is not available in the order-sheet or else in the trial court record.

Therefore, this Court is of the view that coming to the conclusion for setting the proceeding ex parte as per the order dated 09.01.2025, appears to be mechanical one.

The law is well settled that if any litigation is being filed by any party, then it is the bounden duty of the court to try to secure the appearance of the rival contesting party and for which the notice is required to be issued as per the process as stipulated in the Code of Civil Procedure.

Issuance of notice is to provide an opportunity to contest the case and, as such, it is not merely a formality and it cannot be a formality because if any lis is being preferred before any adjudicator, then right is to be decided and it will be unjust and improper for the adjudicator/court of law to proceed in such a mechanical manner without taking any effective steps to secure the appearance of the contesting party as the facts of the present case reflects herein.

It needs to refer herein that 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, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Sugandhi v. P. Rajkumar, (2020) 10 SCC 706.

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.

The factual aspect which is being now raised in the present memo of appeal is that the appellant does not wishes to live with the respondent but without providing any opportunity, by passing the ex parte judgment, the impugned judgment has been passed directing to resume the conjugal relation.

The ground has been taken that if the opportunity would have been granted then all the evidences and the material facts based upon which the appellant-wife does not intend to live with the husband, the respondent herein, would have been brought to the notice of the court.

The fact remains that the court of law can proceed by setting the proceeding ex parte but before doing that the effective steps to secure the appearance of the contesting party (s) is mandatorily to be taken which is lacking in the present case which is to be based upon the procedure as laid down in the Code of Civil Procedure. But without following the mandate of the procedure as laid down in the Code of Civil Procedure, the proceeding has been set ex parte vide order dated 09.01.2025 and thereafter the impugned judgment has been passed which caused serious miscarriage of justice to the appellant.

This Court, considering the aforesaid fact, is of the view that the impugned judgment is not sustainable in the eyes of law and same is perverse in nature.

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:

Thus, from the aforesaid it is evident that if any order made in conscious violation of pleading and law then it will come under the purview of perverse order. Further