MS. NIDHI CHAUDHARY @ NIDHI MALLICKversusSHRI VIKAS CHAUDHARY

       HIGH COURT OF JUDICATURE AT ALLAHABAD

                  FIRST APPEAL No. - 425 of 2025

Ms. Nidhi Chaudhary @ Nidhi Mallick
                                                     .....Appellant(s)

                               Versus
Shri Vikas Chaudhary
                                                   .....Respondent(s)

Counsel for Appellant(s)          :   In Person, Sudhanshu Pandey,
                                      Ugrasen     Kumar    Pandey,
                                      Vishakha Pande
Counsel for Respondent(s)         :   Dileep Kumar Pandey

Along with :
1.    First Appeal No. 1135 of 2025:
      Nidhi Choudhary
                                  Versus
      Vikas Choudhary


Court No. - 29
                 HON'BLE ARINDAM SINHA, J.
                 HON'BLE SATYA VEER SINGH, J.

                       (Per Arindam Sinha, J.)

1. Two appeals are before us. Both have been filed by appellant,
who was wife in the marriage dissolved on ex-parte judgment
dated 28th October, 2024 of the Family Court. First Appeal
no.425 of 2025 is appeal against the ex-parte judgment. It was
filed on delay, condoned and admitted. First Appeal no.1135 of
2025 is appeal against subsequent judgment dated 8th September,
2025 of the Family Court rejecting appellant's application for
condonation of delay and setting aside the ex-parte judgment,
inter-alia, on the ground of embarrassment since, the earlier
appeal already stood admitted and we had called for the record.
Mr. Sudhanshu Pandey, learned advocate appears on behalf of
appellant and Mr. Dileep Kumar Pandey, learned advocate for
respondent.

2. We think that dealing with First Appeal no.425 of 2025 will
lead to disposal of both appeals. Said appeal was heard by us on
                                                         FAPL No. 425 of 2025
                            2


22nd May, 2025 on appellant appearing in person. We reproduce
below paragraphs 3 to 6 from order made that day.

     "3. It appears from impugned judgment, parties got married
     on 22nd October, 2023. We infer so because claim in
     respondent's petition was to declare the marriage dated 22nd
     October, 2023, as null and void. It further appears, it was
     second marriage for both parties. Respondent was successful
     in obtaining finding from the Family Court that appellant
     had not duly obtained dissolution of the marriage from her
     first husband, one Naru Gopal Singh. The judgment was
     made ex parte against appellant on the Family Court having
     earlier on 15th October, 2024 found sufficiency of service.
     4. Before the Family Court, there were several documents
     tendered by respondent. They are, inter alia, photos of
     wedding of appellant and her alleged former husband-Naru
     Gopal Singh, their rent agreement executed in year 2013,
     documents relating to several cases under Information
     Technology Act, 2000 and provisions in Indian Penal Code,
     1860, pending in Court of Metropolitan Magistrate, Calcutta
     as well as Tis Hazari Court, Delhi. Based on the
     documentary evidence, the Family Court concluded in favour
     of respondent, to declare the marriage void.
     5. We reproduce below paragraph-6 from our order dated
     15th May, 2025.
     "Appellant is relying on decree dated 5th July, 2023
     dissolving her prior marriage on mutual consent in context of
     her subsequent marriage to respondent having been declared
     null and void. We require English translation of impugned
     judgment to be made by the Registry on or before adjourned
     date."
     Appellant, at that hearing, had handed up judgment dated
     5th July, 2023 as also decree of said date made by the
     Principal Judge, Family Court, West District, Tis Hazari
     Court, Delhi in H.M.A no.1942 of 2023 (Manish Ahuja and
     Nidhi Ahuja @ Nidhi Mallik) under section 13-B(2) of Hindu
     Marriage Act, 1955.
     6. It appears from said judgment dated 5th July, 2023,
     appellant and said Manish Ahuja had a daughter from their
     marriage. There was agreement for permanent alimony at
     Rs.30 lakhs to be paid to appellant. There is no mention of
     aforesaid cases under Information Technology Act, 2000 nor
     Indian Penal Code, 1860. It follows, Manish Ahuja and Naru
                                                    FAPL No. 425 of 2025
                           3

     Gopal Singh are separate persons."

3. On the subsequent appeal filed and the record of the case
earlier called for, we perused the order-sheet regarding service.
We see that the process server said, he found appellant outside
the house. She took the summons, read the contents and returned
it to him. There followed paper publication and then ex-parte
hearing and the judgment. Appellant thereafter said, on discovery
she protested against the statement made by the process server. It
is sufficient to say that the discovery was prior to 15th May,
2025, when she had moved her delayed appeal against the
impugned ex-parte judgment. We have no reason to disbelieve
the process server. This goes against appellant.

4. Nevertheless, it will appear from reproduced paragraphs 3 to 6
of order dated 22nd May, 2025 that the Family Court while
passing impugned ex-parte judgment found the facts to be, for
both parties it was second marriage. Appellant has produced
decree dated 5th July, 2023 of concerned Family Court dissolving
her first marriage. It was prior to solemnization of marriage with
respondent. He, however, alleged and obtained impugned ex-
parte judgment on contention appellant's first marriage was
subsisting, when she got married to him. Appellant's conduct in
not receiving the summons can be mitigated by award of costs.
She needs an opportunity to adduce evidence. Rule 33 in order
XLI, Code of Civil Procedure 1908 gives ample power to the
appellate Court to make, inter-alia, any order or to make such
further or other decree or order as the case may require.

5. Impugned ex-parte judgment dated 28th October, 2024 is set-
aside in appeal. The matrimonial case is restored to the Family
Court on direction upon appellant to pay Rs.10,000/- as cost to
respondent. The payment must be tendered to Registrar General
along with website copy of this order. It is be made by 16th
February, 2026. Omission to tender the payment by 16th
February, 2026 will cause automatic recall of this order with
consequence of dismissal of both appeals. Registry will
communicate this judgment after 16th February, 2026 and by
23rd February, 2026, to the Family Court.
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                                                                   4


                                        6. Both the appeals are disposed of.

                                        7. Mr. Sudhanshu Pandey submits, the Family Court at
                                        Bulandshahar does not have jurisdiction. Both parties are
                                        presently residing at Gautam Buddh Nagar, Uttar Pradesh. Upon
                                        payment of cost for the restoration, appellant will be at liberty to
                                        either take up the point of jurisdiction as a contention or apply for
                                        transfer, as she may be advised.

                                        January 28, 2026
                                        Kpy
                                                                                         (Arindam Sinha,J.)



                                                                                       (Satya Veer Singh,J.)




Digitally signed by :-
KAVLESHWAR PRASAD YADAV
High Court of Judicature at Allahabad