Divorce without wife’s appearance, Chhattisgarh High Court restores her plea

The high court was hearing the woman’s appeal against a family court’s refusal to condone the delay in her plea seeking to set aside the ex parte divorce decree.

The Chhattisgarh High Court has restored a woman’s right to challenge an ex parte (from one side) divorce decree, ruling that the family court failed to properly serve her before dissolving the marriage in her absence. The ruling noted that the family court did not make sufficient efforts to deliver the notice directly before resorting to newspaper publication and proceeding without her.

Justices Parth Prateem Sahu and Sachin Singh Rajput were hearing the woman’s appeal against a June 23, 2025 order of the family court, which had rejected her application seeking condonation of delay in filing a plea to set aside the ex parte judgment and decree of divorce passed against her on April 25, 2024.

“Any of the parties shall not be made to suffer an order without being an opportunity of hearing,” the high court said on September 11, holding that the family court had hastily passed the ex parte decree without serving the woman and without following the procedure prescribed under the Code of Civil Procedure.

The case arose from a marriage solemnised on July 2, 2021, in Aurangabad, Bihar, according to Hindu rites and rituals. The husband filed the divorce proceedings before the family court on January 9, 2024, seeking dissolution of the marriage.

Justices Parth Prateem Sahu and Sachin Singh Rajput directed both parties to appear before the family court on October 12, 2026. (Image enhanced using AI)

Examining the events leading to the ex parte decree, the high court noted that the divorce petition was filed on January 9, 2024, and the family court issued notice to the woman by ordinary and registered post at the address given in the petition.

The notice, however, was returned unserved, with the February 22, 2024 order sheet recording that she was not found on inquiry. The husband then sought newspaper publication, which the family court allowed, fixing April 2, 2024, for her appearance.

The husband produced the February 29, 2024 newspaper notice on April 2. The woman did not appear, so the family court proceeded ex parte and later passed the divorce decree on April 25, 2024. The woman said she learnt about the decree only on November 18, 2024, when her husband produced it during counselling in her pending maintenance case in Aurangabad, Bihar. She obtained certified copies on November 27 and filed her application to set aside the ex parte decree on December 2, along with a plea to condone the delay beyond the 30-day limit.

The family court rejected the woman’s plea to condone the delay, finding inconsistencies in her account of when she learnt about the divorce decree and holding that she had not shown sufficient cause. Her application to set aside the ex parte decree was therefore treated as time-barred.

The court said that substituted service cannot be ordered mechanically. There must be material showing that the defendant was deliberately avoiding service or that ordinary service was otherwise not possible. “Such an order cannot be passed in a mechanical or routine manner,” the court said.

The high court also questioned the basis for the family court’s conclusion that the woman was deliberately avoiding service. The divorce case was filed only on January 9, 2024, yet when the summons returned unserved on February 22, the family court recorded that notices had been repeatedly issued and assumed she was avoiding service.

The high court found that this was not supported by the record. It said the family court should have issued a fresh summons and made further efforts to serve her before resorting to substituted service. It also noted that the husband, being her spouse, could have visited her parental home.

Relying on an earlier Supreme Court ruling, the high court said substituted service must be a last resort, after ordinary methods of service have been exhausted. It concluded that the family court had proceeded hurriedly without following the procedure required by law.

The high court then considered the woman’s explanation for the delay in filing her application to set aside the ex parte decree and found her explanation plausible and held that sufficient cause had been shown for condoning the delay. The court also referred to the principle that applications for condonation of delay should receive a liberal, pragmatic and justice-oriented approach, while the conduct of the party seeking relief must also be considered. The high court ordered the estranged couple to appear before the family court on October 12.