'Irregularity In Service' No Ground to Set Aside Ex Parte Divorce Decree: Calcutta HC

Kolkata: The Calcutta High Court has held that a mere irregularity in the service of summons cannot be a ground to set aside an ex parte divorce decree under Order IX Rule 13 of the Code of Civil Procedure, where the defendant is shown to have had knowledge of the pendency of the suit and sufficient time to contest it.

A Division Bench of Justices Sabyasachi Bhattacharyya and Supratim Bhattacharya dismissed an appeal filed by a wife against an order of the Additional District Judge, First Court, Alipore, which had refused to set aside the ex parte decree of divorce obtained by her husband.

The appellant/wife's application under Order IX Rule 13 to recall the ex parte decree had been dismissed on contest, prompting the present appeal along with a connected application. Before the High Court, her counsel argued that the husband, immediately after obtaining the decree, had issued an eviction notice to her New Town address, which showed that he was aware of her whereabouts even though no summons of the matrimonial suit had ever been served there. It was further argued that the trial court had erroneously recorded that she was served at both addresses, that she had no knowledge of the suit until much later, and that the Trial Judge wrongly relied on an admission supposedly made by her regarding the pendency of the divorce proceedings.

According to the appellant, the suit had in fact been renumbered, and the husband had cited the old number in his written objection to her maintenance application, which misled her and prevented her from tracing the case. It was also contended that substituted service under Order V Rule 20 of the Code had been resorted to without complying with the mandatory pre-requisites of the earlier provisions of Order V, and that the process server had never been examined to verify due service.

Appearing for the respondent/husband, learned senior counsel relied on the second proviso to Order IX Rule 13 read with the Supreme Court's decision in Parimal v. Veena alias Bharti, (2011) 3 SCC 545, to submit that the proviso is mandatory in nature and that the true test is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing. It was pointed out that a copy of the husband's written objection in the wife's maintenance proceeding, disclosing the pendency of the matrimonial suit, had been served on her counsel as early as August 28, 2014, whereas the Order IX Rule 13 application came to be filed only in 2017, leaving the delay unexplained. Reliance was also placed on an unchallenged order of the Trial Court recording its satisfaction that due efforts had been made to serve summons and that substituted service under Order V Rule 20 was warranted, which, it was submitted, had attained finality.

The Court found force in the respondent's submissions. It noted that the appellant's claim of ignorance was belied by the written objection filed by the husband in her Section 125 Cr.P.C. maintenance proceeding, a copy of which was served on her counsel on August 28, 2014, and which expressly disclosed the pendency of the matrimonial suit before the District Judge, Alipore. The suit had since been renumbered upon transfer to the Additional District Judge, First Court, but the Court held that the appellant's explanation for not tracing it was unconvincing, since anyone searching under the original number could readily have obtained the current number and status of the case. Having had this information as far back as 2014, the appellant could not credibly claim ignorance of the suit, yet she took no steps to contest it until after the ex parte decree had already been passed.

Turning to the second proviso to Order IX Rule 13, the Court explained that it is couched in mandatory negative language, barring a court from setting aside an ex parte decree merely on the ground of irregularity in service where it is satisfied that the defendant had notice of the date of hearing and sufficient time to appear and contest the claim. While specific knowledge of the exact hearing date could not be traced from the record, the Court held that knowledge of the pendency of the suit since 2014 was sufficient to attract the bar. The Court observed:

“Although the specific knowledge of the defendant/appellant about the date of hearing is not found from the materials before us, nonetheless, it has been established beyond doubt that the appellant had knowledge of the pendency of the suit at least in the year 2014, from the written objection filed by the respondent to her maintenance application.”

Applying Parimal v. Veena, the Court noted that the wife had not attempted to establish fraud or collusion in the process of substituted service, nor had she sought to examine the postal peon or summon any document from the post office to challenge the service. Since she had chosen not to appear and contest service at the relevant stage, there was, the Court held, no occasion for the Trial Court to have examined the postal peon on its own. The presumption of correctness attaching to judicial acts, including the Trial Court's finding that due efforts were made to serve summons before directing substituted service, had not been rebutted. The Court held:

“Even otherwise, such allegations are confined to the domain of ‘irregularities’ in service of summons at best, thus coming within the mischief of the second proviso to Order IX Rule 13 of the Code.”

On the New Town address, the Court held the argument to be beside the point, since it was the appellant's Baruipur address, disclosed by her in her own Section 125 Cr.P.C. application and never amended, at which substituted service had actually been effected. Finding no illegality, factual error, or infirmity in the impugned order, the Court held that the ratio in Parimal v. Veena squarely applied and dismissed the appeal, thereby affirming the order dated August 26, 2025 passed by the Additional District Judge, First Court, Alipore, in Miscellaneous Case No.2 of 2017. The connected application was also dismissed, with no order as to costs.

Appearances: Mr. Hafizur Rahaman, Ms. Santi Das, and Mr. V.K. Raj appeared for the appellant. Mr. Piush Chaturbedy, Senior Advocate, and Mr. Debasish Purkait appeared for the respondent.

Case Title: Smt. Bipasha Paria @ Mondal v. Sri Kanak Kanti Paria | F.M.A. 259 of 2026 with I.A. CAN 1 of 2026