The cases where no divorce notice is received, the rationale[1] that may be given in this situation are, where:
1. Divorce notice to summon in the court is not duly served;
2. Divorce notice to summon in the court is not duly served due to plaintiff’s fault;
3. Divorce notice to summon in the court is served last- minute;
4. Divorce notice to summon in the court is duly served but the party wilfully not appears.
In the first case, where the divorce notice to summon is not duly served due to reasons like wrong address, absence of the respondent on the given address etc., then the notice must cautiously be sent again to the respondent.
In the second case, where divorce notice is not duly served due to plaintiff’s fault, the court has the power to impose cost on the plaintiff for the postponement of the hearing.
In the third case, where the divorce notice to summon is served last-minute, then the court must adjourn the date of the proceedings and provide parties with the new date of hearing.
In the fourth case, where even after the notice to summon in front of the court is duly served to the respondent but the respondent chooses not to appear in front of the court for the divorce proceeding, then the court is empowered to pass an ex parte divorce decree in favour of the plaintiff. The legal validity, enforceability and operation of such decree is similar to any bi-parte decree.[2]
Ex parte Divorce:
This type of divorce is awarded by the courts usually in contested divorce and not in mutual divorce. When the other party (respondent), after the notice to summon is being served, doesn’t appear in the court for the proceedings, in simple words, where a respondent/ defendant absents himself from the court on the date of hearing mentioned in the summons duly served on him, the court is allowed under Order 9, Rule 6(1)(a)[3]of the Code of Civil Procedure, 1908 to proceed ex parte and to pass a decree against such defendant thereon.[4]
In the recent judgment of the Allahabad High Court, on 8th May 2020, the division bench granted ex-parte divorce to the Husband. In this case, the wife was served notices by the High Court by the ordinary process as well as by the way of publication in newspapers, but she chose not to participate in the hearing.[5] The Division Bench relied on the precedents set in the cases of Vinita Saxena vs. Pankaj Pandit[6], Naveen Kohli vs. Neelu Kohli[7], Samar Ghosh vs. Jaya Ghosh[8]and many others to judge the case and hence the divorce was granted.
Remedies against Ex parte Divorce Decree:
The remedies available to the respondents are:
a) Set aside the decree of divorce: The conditions on the basis of which the decree can be set aside under Order 9 Rule 13 are:
- The summons was not properly served to the respondent;
- The respondent, due to a reasonable cause, was prevented from appearing in the proceedings of the court.
When the summons is not cautiously served, the proceedings of ex parte divorce will become null and void. Where a satisfactory reason is disclosed, the decree of divorce shall have to be set aside. The term ‘reasonable cause’ has no exact definition and it intends something which is beyond the control of a party and no hard and fast rule can be laid down to cover all possible cases and each case ought to be judged upon its specific circumstances, and where the absence of the party is not intended, ex parte divorce should not be endorsed. The cases of negligence are not covered under ‘reasonable cause’.
Note: Under Order 9 rule 13, appeal to set aside the decree of divorce must be made within 30 days of the order, under Article 164 of the Limitation Act, 1908.
In RRD vs RS[9], relying on the Supreme Court decision in Bhanu Kumar Jain v. Archana Kumar[10], the court said that, “apart from questioning the correctness or otherwise of an order posting the case for ex parte hearing, the defendant has to show sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date.” In RRD v. RS case, the wife/ appellant couldn’t produce the sufficient cause for delay in filing the application under Order IX Rule 13 of the CPC, nor there was an application seeking condonation of delay of more than 4 years and 5 months. Consequently, the Family Court appropriately dismissed the application under Order IX Rule 13 of the CPC.
b) An appeal under section 96 of the Code of Civil Procedure is also a remedy against the ex parte divorce decree. This is known as the first appeal. If an application to set aside the ex parte divorce is already rejected by the Court then this appeal stands void.
References
[1]Rule 6 Order IX of Code of Civil Procedure 1908 “Procedure when the only plaintiff appears”
(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-
(a) When summons duly served- if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte;
(b) When summons not duly served- if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time- if it is proved that the summons was served on the defendant, but not in sufficient time to enable him, to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.
[2]Dommaraju, Premchand. “Divorce and Separation in India.” Population and Development Review, vol. 42, no. 2, 2016, pp. 195–223., www.jstor.org/stable/44015635. Accessed 29 May 2020.
[3]Rule 6(1)(a) of Order IX of Code of Civil Procedure 1908
(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-
(a) When summons duly served- if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.
[5] Law Street Journal; https://lawstreet.co/judiciary/allahabadhc-divorce-to-husband/
[6]Appeal (civil) 1687 of 2006.
[7]Appeal (civil) 812 of 2004.
[8]Appeal (civil) 151 of 2004.
[9] 2019 SCC OnLine Del 7446
This Article Written by Vartika Srivastava, Student of Symbiosis Law School, NOIDA.
Also Read: Discuss Various Grounds of Divorce Under The Hindu Marriage Act 1955
