Calcutta High Court Upholds Ex Parte Divorce Decree Despite Irregular Service, Says Wife Knew Of Suit Through Maintenance Case

The Calcutta High Court has dismissed a wife's appeal seeking to set aside an ex parte divorce decree, holding that mere irregularities in the service of summons cannot be a ground to recall the decree when the defendant had prior knowledge of the matrimonial proceedings.A Division Bench of Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya affirmed the order of the Additional District Judge, Alipore, refusing to set aside the ex parte divorce decree under Order IX Rule 13 of the Code of Civil Procedure (CPC).The appellant-wife challenged the dismissal of her application under Order IX Rule 13 CPC, contending that she had never been properly served with summons in the matrimonial suit and came to know of the ex parte divorce decree only much later. She argued that although the husband was aware of her New Town address—as evidenced by an eviction notice issued immediately after obtaining the divorce decree—he deliberately failed to serve summons at that address.She also contended that the trial court wrongly resorted to substituted service under Order V Rule 20 CPC without first exhausting the mandatory modes of ordinary service. Further, she argued that the process server or postal official was never examined to establish valid service of summons.The husband opposed the appeal, relying on the second proviso to Order IX Rule 13 CPC and the Supreme Court's decision in Parimal v. Veena alias Bharti (2011) 3 SCC 545. He argued that the wife had knowledge of the matrimonial proceedings since August 2014, when his written objection in the wife's maintenance case under Section 125 CrPC specifically mentioned the pendency of the divorce suit.Court's FindingsThe High Court found merit in the husband's contention that the wife was aware of the divorce proceedings long before filing the Order IX Rule 13 application.The Bench noted that the husband's written objection in the maintenance proceedings, served upon the wife's advocate on August 28, 2014, expressly referred to the pending matrimonial suit before the District Judge at Alipore. Although the suit was subsequently renumbered after transfer, the Court rejected the wife's argument that mentioning the original case number misled her.The Court observed that anyone making a search using the original filing number could easily ascertain the current number and status of the transferred case. Therefore, the wife could not legitimately claim ignorance of the proceedings.Irregular Service Not Enough Under Order IX Rule 13Relying on Parimal v. Veena, the Division Bench reiterated that the second proviso to Order IX Rule 13 is couched in mandatory language and prohibits courts from setting aside an ex parte decree merely because of irregularities in the service of summons if the defendant had notice of the proceedings and sufficient opportunity to contest them.The Court observed: "The mere irregularity in compliance of the pre-requisites under Order V Rule 19 and the prior provisions cannot be resorted to by the appellant to have an order under Order IX Rule 13 of the Code in view of the second proviso thereto."The Bench held that the alleged defects in substituted service, including the non-examination of the postal peon, were at best procedural irregularities. It also noted that the wife herself had made no effort to summon or examine the postal official to challenge the service.The Court further held that judicial orders directing substituted service carry a presumption of correctness, which the appellant failed to rebut. It observed that the Baruipur address—where attempts at service were made—had been furnished by the wife herself in her maintenance proceedings and had never been updated.Finding no legal or factual error in the trial court's decision, the High Court dismissed the appeal and affirmed the order refusing to set aside the ex parte divorce decree.Case: Smt. Bipasha Paria @ Mondal v. Sri Kanak Kanti Paria, FMA 259 of 2026 Click here to read order

Calcutta High Court Upholds Ex Parte Divorce Decree Despite Irregular Service, Says Wife Knew Of Suit Through Maintenance Case

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Calcutta High Court Upholds Ex Parte Divorce Decree Despite Irregular Service, Says Wife Knew Of Suit Through Maintenance Case

Srinjoy Das

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