IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.568 of 2009 AMRITA PRIYA, D/O UMENDRA NATH PANDEY, R/O VILL.- BABHANGANWA, P.S.- BARAHARA, DISTT.- BHOJPUR. AT PRESENT C/O INDU BHUSHAN TIWARY, C.K.ROAD (NALAPAR) TARI, TOWN- ARA, DISTT.- BHOJPUR ………… OPPOSITE PARTY - APPELLANT Versus SATISH KUMAR, S/O DHARAM RAJ KISHORE UPADHYAY, R/O VILL.- JARHAN, P.S.- TILAUTHU, DISTT.- ROHTAS. AT PRESENT HOUSE NO. S/334, AT & P.O.- DALMIANAGAR, P.S. DEHRI, DISTT.- ROHTAS ………………………………. PETITIONER – RESPONDENT. ----------- For the Appellant:- Mr. Siddharth Harsh, Advocate. For the Respondent:- Mr. Narendra Kumar and Mr. Tej Narayan Singh, Advocates. ----------- 4. 13.01.2010. In this appeal challenge is to the order dated 12.01.2009 passed by the learned Principal Judge, Family Court, Rohtas at Sasaram. 2. The respondent – husband filed an application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights making certain allegations. Alternatively a prayer was made for divorce. As the wife did not appear in the proceeding, there was paper publication. Eventually, as is manifest, an ex parte order came to be passed by the learned Family Judge allowing the application of restitution of conjugal rights. 3. Mr. Siddharth Harsh, learned counsel 2 appearing for the appellant submitted that the ex parte order passed by the learned Family Judge is unsustainable inasmuch as there had been no notice and the paper publication was not in a widely circulated newspaper. It is also urged by him that the husband has treated her with intolerable cruelty and a criminal proceeding under Section 498A of the Indian Penal Code has been registered against him at the instance of the wife. 4. Mr. Narendra Kumar, learned counsel for the husband – respondent submitted that the order of the learned Family Judge should be affirmed and the appellant should be directed to live with her husband. 5. Having heard learned counsel for the parties and regard being had to the submissions put forth and keeping in view that the order was passed ex parte, we are inclined to set aside the order and direct for fresh adjudication by the learned Principal Judge, Family Court, Rohtas at Sasaram and, accordingly, the order stands set aside. 6. As agreed to by the learned counsel for the parties, the husband and the wife shall appear before the 3 learned Family Judge on 08.02.2010 and the said court shall dispose of the application by the end of March, 2010. The disposal of the case shall be intimated to the Registry of this Court. 7. The Miscellaneous Appeal is, accordingly, allowed. There shall be no order as to costs. Dilip ( Dipak Misra, C.J. ) ( Shiva Kirti Singh, J. )