Family Court Act, Section 19 – Hindu Marriage Act, 1955, Section 9 – Code of Civil Procedure, 1908 – Order 5 Rule 20 – restitution of conjugal rights – Ex parte order – Service of Summons – Substituted Service – Newspaper Publication – Compliance with Procedure – Requirement of Court’s Satisfaction – Setting Aside of Order – The appellant, aggrieved by the order of the Family Court granting restitution of conjugal rights ex parte, filed an appeal under Section 19 of the Family Court Act.
The respondent had filed a petition under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights, alleging that despite marriage and the birth of two children, the appellant refused to return to the matrimonial home.
The respondent was proceeded against ex parte as she failed to appear despite service by publication in the newspaper.The appellate court found that the service of summons via newspaper publication was not in accordance with the law as the court failed to satisfy itself regarding the respondent’s evasion of service.
Referring to Order 5 Rule 20 of the Code of Civil Procedure, the court emphasized that substituted service through newspaper publication is an exception to the normal mode of service and should only be ordered when other modes of service have been exhausted, and there are reasons to believe that the defendant is evading service.
Citing precedent, the court reiterated that the order for substituted service must indicate the court’s due consideration of the provisions of Order 5 Rule 20. Consequently, the appellate court set aside the impugned order and remanded the case to the lower court for proper consideration in accordance with the law, directing both parties to appear before the lower court on a specified date.(Para 14)
HIGH COURT OF HIMACHAL PRADESH
2024 STPL(Web) 140 HP
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Suman Sharma Vs. Sanjeev Kumar Sharma
SHIMLA FAO (FC) No. 42 of 2021-Decided on 18-04-2024
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