How can I challenge a divorce decree if I did not appear in court?

The presence of both parties is considered essential in our judicial system for fair adjudication in matrimonial proceedings. However, there are situations where one spouse refrains from appearing before the Court despite being served with summons. This leads the Court to proceed ex parte and decide the case based solely on the evidence of appearing party. In divorce cases, this can affect the personal status, property and maintenance rights, custody issues. To deal with such issues Indian law allows a spouse who was absent to challenge such decrees within specified time limits.

UNDERSTANDING AN EX PARTE DIVORCE DECREE

A decree passed in the absence of one party is referred to as ex parte decree. In the context of divorce, it means that the Court has dissolved the marriage without hearing the defence of the absent spouse. An ex parte decree is legally binding and enforceable. While the decree is valid, the defendant can seek to have it set aside by giving the justifiable reasons for non-appearance, such as illness, absence of service of summons and any other unavoidable circumstances.

GROUNDS FOR CHALLENGING AN EX PARTE DIVORCE DECREE

There are 2 primary grounds given under Order IX Rule 13 of CPC for setting aside an ex parte decree:

1.Improper Service of Summons -If the summons are not duly served, the defendant may apply to the Court by which the decree was passed for an order to set it aside.

2.Sufficient Cause for Non-Appearance -If the defendant provides any sufficient cause which prevented him for appearing before the Court he may apply for an order to set it aside.

• In addition, the aggrieved party may file an appeal even if the service of summons was proper under Section 96(2) CPC, if the decree is flawed on the merits.

LEGAL PROVISIONS AND REMEDIES

There are 3 primary remedies available for challenging an ex parte divorce decree:

1.Application Under Order IX Rule 13 CPC -This is filed in the same Court that passed the decree and if the Court is satisfied that summons was not duly served or there was sufficient cause for non-appearance, it can set aside the decree and reinstate the divorce proceedings giving the absent spouse an opportunity to submit their arguments.

TIME LIMIT- 30 days from the date of knowledge of decree.

SUPPORTING EVIDENCE- Proof of improper service or sufficient cause.

2.Appeal under Section 96(2) CPC -This section specifically grants the right to appeal an ex parte decree on merits and it also allows the appellant to argue that the evidence or legal reasoning in the original decree was flawed regardless of the absence.

TIME LIMIT -90 days from the date of the decree.

SCOPE -Wider than Order IX Rule 13, as it allows review of facts and law.

3.Review Petition under Order XLVII CPC -A review can be sought in the same Court which passed the decree for the purpose of reconsidering its own judgment or order and remove the error apparent on its face.

TIME LIMIT -30 days from the date of the decree.

PROCEDURE FOR FILING AN ORDER IX RULE 13 APPLICATION

1.Obtain Certified Copy -Obtain the certified copy of the decree and judgment on the basis of which application under Order IX Rule 13 can be filed.

2.Draft the Application -Draft the application by stating the reasons for non-appearance, citing relevant grounds and attaching evidence.

3.Submit the Application -Submit the application along with an affidavit and supporting documents.

4.Hearing -The Court will issue notice to the other party, and after giving an opportunity of being heard to both the parties decide whether to restore the case.

IMPORTANCE OF LIMITATION PERIOD

The limitation period plays a crucial role in ensuring justice is delivered efficiently and fairly. Itsets clear deadlines within which legal actions must be initiated preventing indefinite uncertainty. Even a small delay requires a separate application under Section 5 of Limitation Act,1963 for condonation. Courts protects the rights of those who are vigilant towards their rights.

PRACTICAL CONSIDERATIONS

· Evidence is key -Evidence must be provided in support of the application. Unsupported claims of non-receipt of summons rarely succeed.

· Avoid parallel remedies -Filing both an appeal and a Order IX Rule 13 application simultaneously must be avoided.

CASE LAW

Nanda Dulal Pradhan and Anr. Versus Dibakar Pradhan and Anr .(2022)

Facts

In this case, several notices and summons were served to the defendant and the defendant still fails to file the written statement. The Trial Court passed an ex parte decree against the defendant. The defendant filed an application under Order IX Rule 13 CPC to set aside the decree which was refused by the Trial Court and the High Court. The defendant then filed the appeal to the Supreme Court.

Judgement

The Supreme Court held that the defendant was not allowed to file the written statement as he missed several opportunities. However, the defendant was allowed to participate in the suit and make submission.

CONCLUSION

Audi alteram partem is one of the principles of natural justice which means ‘no one should be condemned unheard’ but ex parte divorce decree can significantly impact the rights and status of an absent spouse which is violation of principles of natural justice. So, the remedies are given under Order IX RULE 13 CPC, appeal under Section 96(2) CPC and review petition under Order XLVII to ensure fair justice to the party having sufficient cause for non-appearance.

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