Application to Set Aside Divorce Dismissed as Wife Failed to Prove Lack of Knowledge of Proceedings
In a significant ruling, the Calcutta High Court dismissed an appeal by Smt. Bipasha Paria @ Mondal, challenging an ex parte divorce decree obtained by her husband, Sri Kanak Kanti Paria. The division bench comprising Justices Sabyasachi Bhattacharyya and Supratim Bhattacharya upheld the trial court's decision, emphasizing the mandatory nature of the second proviso to Order IX Rule 13 of the Civil Procedure Code (CPC), 1908.
The appellant sought to set aside the divorce decree, arguing she was unaware of the proceedings due to irregular service of summons. However, the court found substantial evidence indicating she had notice of the suit's pendency. The court noted that the respondent had mentioned the divorce proceedings in a written objection filed in a separate maintenance case initiated by the appellant under Section 125 of the Criminal Procedure Code.
The appellant's claim that she was misled by an erroneous suit number in the respondent's documentation was dismissed. The court observed that the original suit number was sufficient for her to ascertain the case's status. Despite opportunities to contest the proceedings, the appellant failed to act until after the decree was passed.
The judgment reaffirmed the presumption of correctness attached to judicial acts, including the court's satisfaction with substituted service under Order V Rule 20 CPC. The appellant's failure to examine the process server or postal peon further weakened her case.
In line with the Supreme Court's precedent in Parimal vs. Veena (2011), the court highlighted that the second proviso to Order IX Rule 13 CPC precludes setting aside a decree based on irregularities in summons service if the defendant had notice and ample time to respond. The court concluded that the appellant's arguments were insufficient to overturn the trial court's findings.
Ultimately, the appeal (F.M.A. 259 of 2026) was dismissed, affirming the trial court's order dated August 26, 2025. The connected application, CAN 1 of 2026, was also dismissed. The court's decision underscores the importance of timely and proactive engagement in legal proceedings to avoid adverse outcomes.
Bottom line:-
Application under Order IX Rule 13 CPC to set aside an ex parte decree of divorce was dismissed as the appellant (wife) failed to establish lack of knowledge of the proceedings despite evidence showing she had notice of the pendency of the suit. The court emphasized the mandatory nature of the second proviso to Order IX Rule 13 CPC, which bars setting aside an ex parte decree on the ground of irregularity in service of summons if the defendant had notice of the proceedings and sufficient time to appear.
Statutory provision(s): Order IX Rule 13 CPC, Order V Rule 20 CPC, Section 125 of the Criminal Procedure Code
Bipasha Paria @ Mondal v. Kanak Kanti Paria, (Calcutta)(DB) : Law Finder Doc id # 2941017
