Chinmayee Kumari Padhi vs Manoranjan Mishra

Mr. Mohapatra, learned advocate appears on behalf appellant-wife and submits, direction in paragraph 4 of our order dated 28th March, 2024 was complied with by the Registry. There is noting to that effect. He presses for hearing and adjudication of the appeal. Respondent-husband goes unrepresented.

Sufficiency of service on respondent-husband was recorded by our earlier order dated 26th February, 2024. We reproduced below paragraphs 1 and 2 therefrom.

“1. Mr. Mohapatra, learned advocate appears on behalf of appellant-wife and submits, on earlier occasion there was direction for issuance of notice of appeal.

The postal article has been returned with endorsement ‘Addressee refused. Returned to sender’. Such is good service.

The lower Court record is available.

List on 7th Mach, 2024.”

We also reproduce paragraph 4 from our order dated 28th March, 2024.

“1. Registry is directed to communicate website copy of this order through the Family Court to the learned advocate, who had represented respondent-husband there. Note be made confirming the communication.”

The Family Court has by letter dated 12th April, 2024 enclosed service report containing, inter alia, acknowledgement of receipt dated 10th April, 2024 made on memo dated 4th April, 2024 of Superintendent, First Appeal Section. In view of aforesaid, we proceed to take up the appeal.

Mr. Mohapatra submits, impugned judgment dated 20th December, 2022 was made ex parte against his client but ordered that the proceeding filed by petitioner-husband seeking divorce against respondent-wife was allowed on contest. Thereby his client was prevented from applying to the Family Court for setting it aside on plea it was made ex parte. He submits, it would appear from impugned judgment itself that no contest from side of his client stood recorded therein. He relies upon two sentences in impugned judgment. The sentences are reproduced below. First is a sentence from paragraph 4 of impugned judgment.

“ ... ... ... The evidence adduced by the petitioner on oath also remains unchallenged at present as the respondent did not prefer to contest the suit. ... ... ...”

Second is a sentence from paragraph 6 in impugned judgment, reproduced below.

“... ... ... In the instant case, the respondent has not availed the opportunity granted to her to cross-examine P.Ws. to refute their assertions as she failed to file her written statements and contest the case. ... ... ...”

He submits, impugned judgment be set aside directing remand.

Before us respondent-husband has chosen to go unrepresented inasmuch as, inter alia, he refused service of notice of appeal. As such, there is no opposition to appellant’s prayer for remand, on contention she would want to be heard. The facts and circumstances thus present a fit case for remand.

Impugned judgment is set aside with direction for remand. The Registry will forthwith communicate this order to the Family Court and said Court will thereupon notice the parties on fixing date of hearing. The hearing on remand will resume by opportunity given to appellant-wife to file evidence-in-chief, not later than 24th June, 2024. Thereupon, appellant-wife will avail opportunity to cross-examine, after which she and her party witnesses may be cross-examined. We make it clear, on notice given by the Family Court, if the evidence-in-chief on side of appellant-wife is not filed by 24th June, 2024, the direction for remand will automatically stand recalled and impugned judgment restored. Upon the trial resuming on remand, the Family Court is requested to expeditiously dispose of the case without granting unnecessary adjournments.

The appeal is disposed of.

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