ORDER : Goutam Bhaduri, J. 1. This appeal is against the order dated 23.09.2022 passed by the learned Principal Judge, Family Court, Ambikapur in the Civil Suit No.113-A/2022, wherein an application was filed by the respondent husband to claim the custody of daughter namely Habiba under Section 8 of the Guardian and Wards Act, 1890 was allowed. 2. The respondent-husband filed an application by stating that out of the wedlock, which happened in the year 2007, three children were born and since the marriage sailed in troubled water, the parties separated and during such course, the appellant-wife joined her parental home along with the daughter. The respondent-husband alleged that despite all effort made, the wife did not join back the company of the husband along with the children, as such, an application for custody of the children was filed. Apart from it, different matrimonial proceedings, which were going on in between the parties, the custody of the children was sought for on the ground that certain criminal cases were also registered against the appellant/wife and in the event of her arrest, the custody of the child would be in jeopardy. 3. The Family Court held that on 02.07.2022, the registered notices issued to the appellant were unserved and subsequent notice was issued on 23.07.2022, but she remained absent. Thereafter, on 14.09.2022, summons by way of paper publication was made. The appellant wife remained absent, as such, she was proceeded ex parte on 22.09.2022, the Family Court recorded the statement of the father and ex parte order of custody of the child was passed in favour of the respondent-father, hence this appeal. 4. Learned counsel for the Appellant would submit that the notice of service of summons were never served and in the meanwhile, the custody of the child was forcefully taken by the respondent-husband and as a result thereof, Habeas corpus petition was filed before the High Court of Allahabad. During such pendency, the ex parte order of the Family Court was passed. So, the Hon’ble High Court of Allahabad observed the same on the basis of order of Family Court. Therefore, the custody of the child cannot be justified in hands of respondent and the proceeding itself, on which, custody of the child is held by the father is illegal. 5. So, the Hon’ble High Court of Allahabad observed the same on the basis of order of Family Court. Therefore, the custody of the child cannot be justified in hands of respondent and the proceeding itself, on which, custody of the child is held by the father is illegal. 5. Per contra, learned counsel for the respondent would submit that after service of notice, when the appellant did not appear, there being no other course left open. Since, the appellant did not choose to appear, ex parte proceedings were drawn. He would further submit that while the case of custody was pending, the child voluntarily came into the custody of the respondent-father, which has been recorded in the affidavit. Therefore, the order passed by the learned Family Court is well merited and do not call for any interference. 6. We have heard learned counsel for the parties and perused the record of the learned Family Court carefully. 7. Against the ex parte order of custody, the appellant herein has preferred this appeal. No application was filed to set aside the ex parte order before the Family Court. However, the appellant was at liberty either to file an appeal or file an application for setting aside the ex parte order, which is well settled proposition as laid down by the Supreme Court in the case of Bhanu Kumar Jain vs. Archana Kumar and another, reported in AIR 2005 SC 626 . Therefore, in order to find out as to whether the Family Court was justified in proceeding ex parte, we went through the record of the Family Court. The record would show that an application for custody of the child was filed on 06.05.2022, meaning thereby, on the date when the application was filed, the minor child was not in the custody of the respondent. 8. Order sheet of the case would show that the registered notices were issued on 23.07.2022 and order sheet of 17.08.2022 would show that the registered notice issued to the appellant was not served. A perusal of the record would show that the registered notice was returned back unserved with an endorsement that the lock was found over the gates and the appellant-wife was not found in the given address. Under these circumstances, an application was preferred to serve the appellant-wife by paper publication. A perusal of the record would show that the registered notice was returned back unserved with an endorsement that the lock was found over the gates and the appellant-wife was not found in the given address. Under these circumstances, an application was preferred to serve the appellant-wife by paper publication. The learned Family Court allowed the such application and photocopy of one paper “Amar Ujala” is placed on record, wherein the publication of summons were made for appearance of the appellant-wife on 14.09.2022. The order sheet would show that on 14.09.2022, the paper publication was placed before this Court. However, the Family Court did not proceeded ex parte on that date and the case was further fixed for 22.09.2022 for appearance of the appellant/wife on 22.09.2022. On 22.09.2022 the Court proceeded ex parte on the ground that the Appellant/wife did not appear and on the earlier occasion, the registered notice issued shows that the house is locked and after awaiting the appearance, since she did not appear, then, ex parte proceedings were drawn. 9. As of now, we are not inclined to appreciate the way, ex parte proceedings were drawn. The Family Court did not proceeded ex parte on 14.09.2022, but, instead fixed the date for appearance of the appellant/wife on 22.09.2022. The publication of the summons was in the daily news paper “Amar Ujala”. It is not clear whether such paper was circulating in the area, where the appellant/wife was residing at that time. The circulation of paper “Amar Ujala” was paper of national repute having large circulation is not clear. Therefore, the publication of the summons in the newspaper is considered to be a weak type of service of notice. 10. The Supreme Court in the matter of Union of India vs. Ram Charan (deceased) through his Legal Representatives, reported in AIR 1964 SC 215 , time and again has laid down proposition while considering such service of the summons and evaluating the sufficient cause that the Court should not be overstrict and we failed to appreciate as to on what basis, earlier notices were issued to the wife/appellant and as to how, the learned Family Court proceeded ex parte, when nothing was on record to show that the appellant avoided the service of summons. 11. 11. A perusal of order sheet dated 22.09.2022 would further show that on the date, an application for deletion of the name of minor child was filed, the same was allowed and the name of minor child was deleted. The unamended petition of the Family Court would show that the minor was arrayed as an individual capacity through her mother, but separate notice was not issued to her. However, on the subsequent date, name of minor was deleted and entire tenure of parties were changed. Therefore, even for the sake of argument, it is admitted that the notices were issued and served of unamended petition, when the nature of the petition was completely changed by amendment and the deletion of one of the party, for such changed event of sequence, notice ought to have been issued to the existing party, after the amendment was carried out. 12. The statement of the Respondent was recorded on 22.09.2022 and on the same date, he states that the custody of the child named, Habiba was with him on that date. We are unable to appreciate such facts, if such custody was already obtained by the husband before 22.09.2022, how the proceedings for custody and guardianship was further continued. That issue is still open to be adjudicated. The facts remains that on 06.05.2022, admittedly, the minor child was not in custody of the husband, therefore, the petition was filed for the custody and declaration of guardianship. At this stage, we would not like to deliberate upon the personal law, which governs the custody of a minor girl child under the Mahomedan Custom as it postulates that till girl child attains the puberty, normally the custody would be with the mother. However, the welfare of the child is paramount, which needs to be considered by the learned Family Court. However, the welfare of the child is paramount, which needs to be considered by the learned Family Court. At this stage, we also do not want to deliberate on the facts that as to whether the restitution under Section 144 of C.P.C. to be applied in exercise of inherent power of the Court as we are inclined to set aside the ex parte judgment and decree and the maxim actus curiae neminem gravabit is left open to be invoked at the will of the parties, as held by the Full Bench of Allahabad High Court in the matter of Gangadhar and others vs. Raghubar Dayal and others, reported in AIR 1975 Allahabad 102 (Jai Berham vs. Kedar nath, AIR 1922 Privy Council 269), if so advised. 13. In the result, we allow the appeal and set aside the ex parte judgment and decree dated 23.09.2022 passed by the learned Family Court. The party shall appear before the Family Court on 21.08.2023.