Wife's Plea to Set Aside Ex Parte Divorce Fails After Court Finds She Knew of Suit Since 2014

The Calcutta High Court dismissed a wife's appeal against refusal to set aside an ex parte divorce decree, holding that her knowledge of the matrimonial suit since 2014 barred relief under Order IX Rule 13's second proviso.

A Division Bench of the Calcutta High Court, comprising Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya, on 14 July 2026 dismissed an appeal by a wife who sought to set aside an ex parte divorce decree passed against her. The wife had filed an application under Order IX Rule 13 of the Code of Civil Procedure before the Additional District Judge, First Court at Alipore, which was dismissed on 26 August 2025. Her appeal in FMA 259 of 2026 was taken up directly for final adjudication upon admission. The court found that the wife had knowledge of the pendency of the matrimonial suit at least since August 2014, through a written objection served on her advocate in a connected maintenance proceeding — over two and a half years before she filed the Order IX Rule 13 application in 2017. That finding, read with the mandatory second proviso to Order IX Rule 13, proved fatal to her case.

The Dispute Before the High Court

The respondent/husband had obtained an ex parte divorce decree in Matrimonial Suit No. 174 of 2013 (originally filed as Matrimonial Suit No. 2465 of 2013 before being re-numbered upon transfer to the Additional District Judge, First Court at Alipore). The appellant/wife subsequently filed Miscellaneous Case No. 2 of 2017 before that court, seeking to set aside the decree under Order IX Rule 13 on the ground that she had no knowledge of the suit and that summons had never been served on her.

The Trial Court dismissed that application on contest. The wife then approached the Calcutta High Court in FMA 259 of 2026, accompanied by CAN 1 of 2026 for interim relief. The Division Bench admitted the appeal, then immediately took it up for final hearing given the narrow issues involved.

Arguments Raised by the Wife

Counsel for the appellant advanced several interlinked contentions. The centrepiece was that summons for the matrimonial suit was never served on the wife at her New Town address, which was known to the husband — evidenced, it was argued, by the fact that immediately after obtaining the ex parte decree, the husband issued an eviction notice to that very New Town address. The wife contended that the Trial Court's recording that she was served at both addresses was therefore erroneous.

On delay in filing the Order IX Rule 13 application, counsel argued that the wife had no knowledge of the suit during the relevant period and filed the application promptly upon acquiring such knowledge.

A further argument was directed at the procedure for substituted service. It was contended that the Trial Court resorted to Order V Rule 20 without prior compliance of the earlier mandatory provisions under Order V, and that the court bailiff or process server was never examined to establish that due service had in fact been effected. The absence of such examination, it was urged, vitiated the entire service process.

On the question of the written objection filed by the husband in the wife's maintenance case (Case No. M-93 of 2013 / Case No. 33 of 2013) before the Judicial Magistrate at Baruipur, the wife argued that the husband had mentioned only the original suit number 2465 of 2013, not the re-numbered suit number 174 of 2013. This, it was said, was misleading and prevented her from locating the correct suit.

The Husband's Defence

Senior counsel for the respondent/husband relied on the second proviso to Order IX Rule 13 and the Supreme Court's decision in Parimal v. Veena alias Bharti, reported at (2011) 3 SCC 545. That proviso, couched in mandatory negative language, stipulates that no court shall set aside an ex parte decree merely on the ground of an irregularity in service of summons if the court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

The husband placed on record the written objection filed in the maintenance proceeding. Its first page showed that a copy was served on the advocate for the appellant on 28 August 2014. Paragraph 16 of that written objection disclosed the pendency of Matrimonial Suit No. 2465 of 2013 before the District Judge at Alipore. The Order IX Rule 13 application was not filed until 2017 — approximately two and a half years later. On this basis, the husband argued that the delay remained entirely unexplained.

The husband also pointed to Order No. 8 dated 4 July 2014, by which the Trial Court had recorded its satisfaction that due efforts had been made to serve summons on the wife and directed substituted service under Order V Rule 20. Since the wife had not challenged that order, it had attained finality and could not be reopened through the Order IX Rule 13 application.

How the Bench Reasoned

The Division Bench found sufficient force in the husband's arguments and rejected each of the wife's contentions.

On the question of knowledge, the court accepted the written objection in Case No. M-93 of 2013 as conclusive. The document showed that a copy was served on the wife's advocate on 28 August 2014, and paragraph 16 of that objection specifically named the pending matrimonial suit. The court held that the wife could not feign ignorance of the suit from that date onwards.

The argument that the original suit number (2465 of 2013) rather than the re-numbered suit number (174 of 2013) was disclosed was dismissed as specious. The bench observed that anyone searching in the Alipore court with the original filing number could readily obtain the current number and status of the suit. The court's words were direct: “merely by searching in the Alipore court with the previous number of the suit, anybody and everybody could obtain information as to the current number thereof.” Accordingly, disclosing the original number was not misleading.

The court then applied the second proviso to Order IX Rule 13. While specific knowledge of the date of hearing was not established from the materials, the bench held that knowledge of the pendency of the suit since 2014 was established beyond doubt. Under the second proviso, as reiterated in Parimal v. Veena, irregularities in service of summons cannot ground an Order IX Rule 13 application where the defendant had notice of the suit and sufficient time to contest it. The wife's wait until the suit was decreed ex parte, despite knowing of it in 2014, placed her squarely within the mischief of that proviso.

On the non-examination of the court bailiff or postal peon, the bench drew directly from Parimal v. Veena. In that case, the Supreme Court had observed that the wife had neither sought to prove fraud or collusion with the postman nor summoned any documents from the post office. The Calcutta High Court found the factual parallel apt: the appellant/wife in the present case sought to rely on the non-examination of the postal peon but had herself made no endeavour to have him examined. Since the wife had chosen not to appear in the suit and contest service at the relevant time, there was no occasion for the court to examine the postal peon. Non-examination in those circumstances could not vitiate the substituted service.

The court also held that the presumption of correctness attached to judicial acts applied to the Trial Court's order directing substituted service. That presumption had not been rebutted. Even treating the service deficiencies as established, they amounted at best to “irregularities” in service — which the second proviso expressly covers.

A final point addressed by the bench concerned the wife's argument that summons was not served at her New Town address. The bench held this was neither here nor there: summons had been sought to be served, and substituted service had been effected, at the Baruipur address — the address disclosed by the wife herself in her Section 125 application, which she had never amended.

Outcome

The Division Bench found no illegality, legal error, or factual error in the order of the Additional District Judge, First Court at Alipore dated 26 August 2025 in Miscellaneous Case No. 2 of 2017. FMA 259 of 2026 was dismissed on contest and the impugned order was affirmed. CAN 1 of 2026 was also dismissed consequentially. No order as to costs was made.