This article is written by Prabha Dabral. The article discusses the concept of ex parte divorce in detail. It talks about the procedure, validity, and grounds under which an ex parte divorce is passed. The article also discusses instances when ex parte divorce can be set aside.
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In civil suits, whenever a suit is filed in a court, the defendant receives a notice regarding his appearance before the court. However, in certain circumstances, the defendant fails to appear on the day fixed for the hearing. In such a situation, the court has the power to pass an ex parte order against the defendant under Order 9 Rule 6 of the Civil Procedure Code(CPC), 1908 (hereinafter referred to as “CPC”). But is it applicable in divorce cases too?
The legal dissolution of marriage can be extremely stressful for both the husband and the wife. Along with the emotional stress and strain, separation gives various legal rights to each of the spouses. For example, rights related to property ownership, custody of a child, legality of subsequent marriage, etc. Once a divorce is granted, all these rights come up. But what happens if the defendant refuses to cooperate and does not appear before the court? Can a divorce be granted to a party solely on the basis of non-appearance of the other party? This article answers this question and talks about the provisions relating to it.
The term ex parte is a Latin legal term. Originally it was “ex par-tay”, but popularly it is known as ex parte. The literal meaning of the term ex parte is ‘in the absence of the other party’. An ex parte divorce occurs when one spouse fails to appear in court despite being given due notice.
Divorce can be categorised into two types, namely
A mutual consent divorce implies that both the parties i.e. husband and wife mutually agree and express their consent for peaceful separation. On the other hand, in a contested divorce, only one of the parties consents to the divorce.
A party has to appear before the court once a summons has been served as per Order 9 Rule 1 of CPC. Sometimes in a contested divorce proceeding, the defendant does not appear in the court. His/Her non-appearance can be due to various reasons. For example, if he/she refuses to cooperate, it is difficult or inconvenient for the plaintiff to contact him/her, he/she is out of the country or is unavailable for any other reason. Such situations delay the divorce procedure. So, when the defendant does not appear and summons have been served, the Court has the power to grant divorce irrespective of the absence of the other spouse.
Though the decision is made in the absence of the other party, it does not mean that the rights and interests of the absent party will not be considered. The court is supposed to give a decision that is reasonable and just, considering the interests of both parties. After an ex parte order has been passed, if the defendant presents a satisfactory reason for his/her absence before the court, then the ex parte decree can be set aside. This remedy can be availed by filing an application to set aside the ex parte decree under Order 9 Rule 13. There is another way to set aside the ex parte decree. The defendant can file an appeal against the decree under Section 96(2) of the Code before a special bench of the High Court.
A married couple who wants separation can move on with their separate lifestyles even without going to court. But when a marriage ends this way, it leaves a number of decisions uncertain. For example, decisions regarding maintenance, issue of custody of children, rights of inheritance, etc. consequently, it is wise to go through the divorce process. Along with the distribution of wealth, it helps in setting up child custody, parenting schedules when there are children between the parties, etc.
However, in certain situations despite the applicant party providing sufficient notice to the other party, their non-appearance for varied reasons often delays the court proceedings. The non-appearance of the other party can be due to various reasons. Reasons like he/she resides in a different state, he/she refuses to come to the court, or it is inconvenient for the spouse to contact him/her, etc. Hence, the law offers ex parte divorce so that the case can continue even if there is only one party attending the court.
These divorces normally arise in two situations-
In case any of the above situations arise, the divorce proceedings do not get delayed. And despite the obstinacy or absence of the other spouse, the spouse who filed for the divorce can get a divorce through an ex parte order.
There are situations where the defendant either refuses to participate or can’t be located even after all the possible attempts. In such a case, the court may proceed with the ex parte order against the defendant so that his non-appearance does not jeopardise the plaintiff’s rights.
The grounds for an ex parte order are mentioned under Order 9 Rule 6 of the Code. They are as follows-
When it is proved that the summons was duly served and the defendant still does not appear, it attracts the provision under Order 9 Rule 6(1)(a). Hence, the suit will be heard ex parte. In order to attract this provision, the spouse who is filing for the divorce must ensure that the summons regarding the divorce petition is duly served to the other spouse. The party must prove that he/she has made all the necessary efforts to notify the other about the petition.
After the summons is served, the defendant shall present a written statement of his defence. It shall be filed within 30 days from the date of service of summons as per Order 8 Rule 1. In case the opposite party fails to file a written statement within the specified time period, the court has the power to proceed with an ex parte order under Order 8 Rule 10 of CPC.
When the party who had filed the suit proves that the summon/ notice was duly served, and if the opposite party still does not appear, the court may hear the suit ex parte and pass a decree against the defendant under Order 9 Rule 6(1)(a) of CPC.
The court has the power to adjourn the hearing as ex parte. In a situation, where the opposite party appears on the hearing date and shows sufficient cause (for example, summons not duly served) for his or her non-appearance, the court may proceed with the case as if the party appeared on the first hearing. But if the opposite party does not appear or fails to give a good cause, then the court proceeds with an ex parte order under Order 9 Rule 7 of CPC.
There is no particular procedure for an ex parte divorce. Once a contested divorce is filed in the court and the opposite party does not appear in the proceeding, the divorce can be passed as an ex parte decree.
The time taken for finalising the ex parte divorce usually depends upon the complexity of the case. The procedure involves sending the summons to the opposite party, waiting for the reply, if any, and recording statements. Once the court is satisfied that no response is being made by the defendant, despite being served with notice/summon, the court proceeds with ex parte decree. So it may take a few months, or in some cases, several years.
Following are the steps for an ex parte divorce proceedings:
The divorce procedure begins with one of the spouses filing the divorce petition in the Family Court. The petition can be filed on the grounds mentioned under Section 13 of the Hindu Marriage Act, 1955. This is the provision for divorce sought by either the husband or wife when they can not agree on one or more divorce-related issues in their marriage.
The petition should clearly state the facts and the reason for such divorce. The petition includes relevant information like the name of the parties, address, information about children, property, etc. Along with all this information, the petition also includes the affidavits, vakalatnama and other relevant documents.
After reviewing the petition, if the court is satisfied and decides to proceed, it issues a summons to the opposite party to appear on the set date with his/her lawyer.
Summons are governed under Sections 27 to 29 of CPC. The purpose of the summons is to provide information to the defendant about the institution of the suit. Section 27 of the Code states that summons must be dispatched to the defendant within 30 days from the date of institution of the suit. As per Order 5 Rule 1, the defendant has 30 days from receiving the summons to appear before the court and file the written statement.
If the opposite party receives the summons and does not respond within the specified time (i.e. 30 days), the Court can grant an ex parte divorce to the party after considering the rights of both parties.
On a set date, the Court will give its decision and issue an ex parte divorce decree. The aggrieved party will have 3 months from the date of the order to file an appeal against this decree. The ex parte divorce will be effective on the date specified in the decree.
An ex parte divorce is not different from a contested divorce. Therefore, an ex parte divorce decree is lawful for either party to the marriage. Section 15 of Hindu Marriage Act does not make any distinction between a contested and an ex parte decree of divorce. This section clearly states that either party to the marriage can marry again if no appeal is filed within the period of limitation.
The enforceability of an ex parte order is similar to any other order of the court. The court passes the order by weighing the evidence and the facts provided by the party who has filed the case. Hence, if the plaintiff is able to prove the facts, the court has the power to proceed ex parte order against the defendant.
This type of divorce is often seen as a violation of the right to a fair hearing. But that is not the case. The defendant is given chances to appear and when he still doesn’t appear the ex parte order is passed. The reasoning behind this is that once a valuable right has accrued in favour of one party because of the negligence or inaction of the other party, it would be unreasonable to take away that valuable right from that party. The ends of justice can only be achieved when justice is done to both parties equally. Recently, in the case of Smt. Jyoti Verma vs. Prashant Kumar Verma (2023) Allahabad High Court has held that principle of natural justice (right to hearing) will not be defeated if the ex parte divorce was granted after continued absence of the wife. This case is discussed in detail under this article, refer this.
However, if later the defendant comes to the court with sufficient cause for his absence, the court can set aside the order as well.
The term ‘sufficient cause’, refers to the legal determination that a sufficient reason exists to support the case. This term is often interpreted by various High Courts and the Supreme Court of India. In simple words, it means that there was no mala fide intention on the defendant’s part and he/she has not acted in any negligent manner. There is a slight point of difference between a ‘good cause’ and ‘sufficient cause’. The requirement of a ‘good cause’ is that it is complied with a lesser degree of proof than that of ‘sufficient cause’. Moreover, the term ‘sufficient cause must be within the concept of reasonable time and proper conduct of the party.
This expression would be considered to be factually correct, depending upon the bona fide nature of the explanation. If the explanation given by the defendant does not lack bona fides, then the court may condone the delay. But if the court is of the view that the explanation is concocted and that there has been negligence on the part of the defendant, the court may not condone the delay. Moreover, if a party has presented a reasonable cause, he/she is not entitled to the condonation of delay as a matter of right. This is because, to exercise this discretionary jurisdiction, proof of a sufficient cause is necessary.
Hence, the court must be satisfied with the reason that the party gives for his/her absence, so an ex parte decree can be set aside. There can be certain scenarios that act as sufficient causes for the same. For example, summons not duly served to the defendant, plaintiff has not paid the fees, the postal address being incorrect or changed, the defendant not getting enough time to appear before the court, etc.
In the case of Gauhati University v. Shri Niharlal Bhattacharjee (1995), the Supreme Court held that the limitation period began only when the appellant had knowledge of the ex parte decree. Since summons were not duly served properly, the limitation period began when he got to know about the decree.
Once the limitation period has expired, any application (i.e. for setting aside ex parte order) presented after that must be accompanied by an application seeking condonation of delay explaining the sufficient cause for such delay. After the condonation of delay application is decided, only then the court exercises the power of deciding the main application.
In another case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others (2013), the Supreme Court held that there should be a liberal and justice oriented approach while dealing with an application of condonation of delay. It was observed that courts are obliged to remove injustice and not legalise it. Hence, the term sufficient cause should be understood in its proper perspective and purpose.
In addition, some more guidelines were given by the Court in this case for the present day scenario. They are as follows:
The Court also observed that in cases of delay, there is a possibility of some lapse on the part of the litigant. So, that reason alone is not enough to reject the plea of condonation of delay. In such cases, the court must show some consideration to the suitor provided that the explanation is free from mala fides. While condoning delays, the courts should not forget the opposite party. It should also be kept in mind that he/she would also have incurred large litigation expenses. The Court gave a salutary guideline that when the courts condone the delay due to negligence on the part of the applicant, the opposite party should be compensated for its loss.
The decree of divorce breaks a marital tie and makes the couple competent to remarry. Even if it is an ex parte decree of divorce, the parties forfeit the status of husband and wife with respect to each other. Hence, each of them becomes legally competent to remarry provided that no appeal is filed within the specific time period.
The Supreme Court of India has held a landmark judgement regarding remarriage after an ex parte divorce in the case of Chandra Mohini Srivastava v. Avinash Prasad Srivastava (1967). In this case, it was held that remarriage can happen only if the period for filing an appeal or an application to set aside the ex parte order has lapsed. And in case an appeal has been filed by the opposite party, then the person can remarry only after the appeal is decided by the court. Recently, in the case of Seema Devi vs. Raneeit Kumar Bhagat (2023), Delhi High Court upheld the second marriage of a man while saying that Section 15 of the Hindu Marriage Act does not differentiate between the contested decree and ex parte decree for divorce. For a detailed analysis of this case, refer this.
After an ex parte order is passed against the defendant, he/she has the option to file an application to set it aside in that court which has passed the ex parte as per Section 106 of the Code. To do that, he has to file an application under Order 9 Rule 13 of CPC. The following are the main reasons for setting aside an ex parte order-
The court, if satisfied by the reason given, may order for setting aside the decree upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit under the provision of Order 9 Rule 13 of the Code.
As per Order 9 Rule 14 of the Code, the court shall not set aside a decree without serving a notice to the opposite party.
The benefit of remedy is available to those who are vigilant and not those who are negligent towards their rights. Hence, there are remedies available to the applicants against an ex parte order. They are as follows:
In this case, the husband, after being granted an ex parte divorce decree, married another woman. Later, his divorced wife filed an application to set aside the decree. Along with that, she gave an application for condonation of delay of 48 days as during the hearing of the case, she had delivered a baby through a caesarean operation. Here, the family court set aside the ex parte divorce and allowed the application of the wife.
The husband then filed an appeal in the Kerala High Court stating that he had remarried after the decree of divorce was granted. And that the application to set aside the decree had become infructuous.
The Kerala High Court noted that the appellant had remarried after receiving the notice of the application to certify the decree. The Court held that the remarriage of a spouse would not render the application of the opposite spouse as infructuous. It further held that the application of the opposite spouse must be considered on its own merit notwithstanding the remarriage of the husband.
In this case, the couple married as per Hindu rites and rituals at Lucknow. After the marriage, the husband got to know that their marriage happened without the consent of his wife and that she was forced to marry him and hence, she was not happy with it.
His wife tried to commit suicide but failed due to the family intervention. She even told him that she wanted a divorce from him. Hence, the husband filed a divorce petition on the grounds that his wife is mentally unstable. He also added that his wife’s mother pressurised her and threatened her to stay in the marriage. And this constant duress had worsened her mental state. Later, in the pleadings before the court, the wife had also admitted the same.
Hence, the husband filed for a divorce petition in the family court, Lucknow under Section 12 of the Hindu Marriage Act, 1955 in 2012. The defendant accepted all the averments in her written statement (WS). Later she withdrew her WS and filed another one.
The Principal Judge, Family Court issued notices to the respondent (i.e. his wife) but she did not appear. As a consequence, the Court ordered ex parte against the wife in 2015 and later dismissed the suit. The husband filed an appeal in the Allahabad High Court against the dismissal of his petition seeking divorce.
The division bench of the Allahabad High Court mentioned that this Court was directed to summon the record of the lower court. But the record was not available.
The counsel of the appellant submitted that he would argue only on the facts narrated in the judgment of the lower court. Hence, the case was heard in the absence of the lower court records.
The bench observed that there is no sense for the appellant and the respondent to live together and that their matrimonial bond is beyond repair. The Court further held that the appellant is entitled to the relief of dissolution of marriage. Hence, divorce was granted on the grounds of irretrievable breakdown of marriage.
In this case, several notices and summons were served to the defendant. The defendant still fails to file the written statement. The Trial Court passed an ex parte order in this case. The defendant applied under Order 9 Rule 13 to set aside this order. The application was refused by the Trial Court and the High Court. The defendant then filed an appeal to the Supreme Court.
The Supreme Court held that since the defendant missed several opportunities, the defendant was not allowed to file the written statement. However, the defendant was permitted to participate in the suit and make submissions.
In this case, the husband filed for a divorce on the grounds of cruelty under Section 13(1)(ia) and desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955. As per the procedure, the summons were issued to the wife, which she refused to accept. So, due to her non-appearance in the court’s hearing, an ex parte divorce was granted to the husband.
After 18 months of this order, the wife filed an application under Order 9 Rule 13 of CPC to set aside the ex parte decree. She alleged that neither the summons was issued to her nor she refused to accept it. She claimed that she received the divorce decree only after a copy of the decree was filed for maintenance proceedings. To this, the husband replied that the wife knew about the divorce proceeding and that he had already remarried to another woman.
The Additional District Judge of Delhi dismissed the application filed by the wife on the grounds that the wife knew about the proceedings. So, her contention, of not being duly served, cannot be accepted. The wife then filed an appeal in the Delhi High Court against this order.
The Delhi High Court held that the Additional District Judge had rightly passed the order as there was no irregularity in serving the summons. The Court also observed that it is clear, through her admission during the cross-examination, that she had been served with the summons and that she had handed over the copy of the divorce petition to her advocate.
Moreover, the Court observed that Section 15 of the Hindu Marriage Act, 1955 does not differentiate between a contested divorce decree and an ex parte divorce decree. Hence, even in an ex parte decree of divorce, it shall be lawful for either of the parties to remarry if no appeal is filed against the decree within the limitation period.
The Court upheld the legality of the second marriage of the husband, as the appeal was filed by the wife after the limitation period of 30 days had expired.
In this case, a couple filed a joint petition for the dissolution of their marriage. The suit was dismissed on the grounds of non-appearance of the wife (i.e. appellant). The husband after that filed a matrimonial petition in the Family Court. His wife received the notices and appeared to file the written statement. She continued to appear in the Court till the issues were framed. After that, she started abstaining from the Court proceedings. She even failed to avail the opportunity of the cross-examination of PW2. So,12 dates were fixed for the cross-examination, and she still did not appear. Hence, the Court closed the date for the cross-examination.
A month later, the appellant filed an application for the recall of the ex parte proceedings. The application was dismissed as she again did not appear before the Court. As a result, the Court proceedings were heard ex parte and the judgement was pronounced.
The appellant filed an application for the condonation of delay setting up a ground of illness. The medical papers presented by her could not bring out any real obstruction faced by her.
The learned Additional Principal Judge, Family Court rejected the application on the grounds that he had not felt satisfied with the cause shown for the delay.
The appellant then filed an appeal in the High Court under Section 19 of the Family Courts Act, 1984.
The Allahabad High Court observed that the learned Court had passed a reasoned order considering all the details of the proceeding and the conduct of the appellant. Since the previous behaviour of the appellant clearly depicts her negligence, she is seen as responsible for the delay in the case.
It was further observed that the case was fixed twice for ex parte hearing and the learned court has taken a lenient view on that. However, the appellant continued to cause delay. Hence, she had tried to take undue advantage of the principle of natural justice that is exercised by courts.
The Court held that if one party negligently or deliberately causes delay, he/she can not be allowed to take advantage of that delay. Though every party should be given the opportunity of hearing before passing the order, it can not be used to defeat the ends of justice.
The principles of natural justice are the basic fundamentals of fair judgment. It ensures fairness and equity in the decision-making process. One of its principles is ‘audi alteram partem’, which means ‘to hear the other party’ or ‘no one should be condemned unheard’. However, sometimes one party suffers as a result of the other party being thoroughly negligent in implementing its rights and remedies, i.e. when a party abstains from appearing before the court. It becomes unreasonable to deprive the first party of a right that has accrued to it in law because of his/her acting vigilantly. In a situation like this, the court can not proceed further without giving an opportunity to the party to present their statements. Hence, the concept of ex parte divorce comes into the picture. It is based on a similar ideology/premise aiming to provide for justice.
Just like any other court proceeding, a divorce proceeding commences when both parties appear before the court. The concept of appearance and non-appearance of parties is mentioned under Order 9 of CPC. It discusses the consequences of the disappearance of a party and the remedies that one can avail of if any order is passed against him/her. If both the parties are not present, then the court dismisses the suit. If the defendant fails to appear before the court, the court sends a summons to the defendant. If the defendant ignores it, then the court will pass an ex parte decree. There are certain remedies provided to the defendant to set aside the ex parte decree. If the defendant presents a sufficient cause for his/her non-appearance, the court may set aside the decree as well.
One can say that a fair chance is given to both parties to present their case. But if any of the parties deliberately fails to cooperate, then they might face adverse effects for the same. Therefore, the court through the concept of ex parte divorce ensures that no prejudice is caused to the rights and interests of any party.
Divorce is a lengthy process. Divorce cases in India may take from months to years. The courts try to complete these cases in 3 to 4 years by making speedy trials in contested divorce cases.
There is no particular procedure for an ex parte divorce. For this, one has to file for a contested divorce. Then it will become an ex parte only if the opposite party does not appear in the hearing of the court.
In this situation, the divorce case will be posted for the petitioner’s ex parte evidence. And on the specified date, the statement will be recorded, and the matter will be posted for further orders. Then, divorce decree will be granted by an ex parte order.
When the husband and wife divorce. And if neither of them file an appeal against it within 90 days of the order. Both the husband and wife have all the rights to remarry. But if either of the parties files an appeal within the set time period, then the opposite party cannot remarry till the petition for appeal is dismissed.
In case, the husband and wife take divorce by mutual consent, neither of them has a right to appeal against divorce. So, here, both husband and wife can remarry after the divorce is granted.
In an ex parte divorce, one can file an application to set aside the order only if the absent party has a valid reason to justify his or her non-appearance. If the court finds the reason valid enough, it can set aside the divorce decree. If in between this procedure, the opposite party gets the order to stop the second marriage then the other party cannot marry again. But if the party gets remarried after the ex parte order and then the opposite party gets the order to stop the second marriage. In this case, the second marriage will be considered valid.
