The Calcutta High Court has dismissed an appeal filed by a woman seeking to set aside an ex parte divorce decree, holding that she had prior knowledge of the matrimonial proceedings but failed to take timely steps to contest them. The Division Bench ruled that alleged irregularities in the service of summons alone were insufficient to reopen the decree when the record showed she was aware of the pending case.
Background of the Case
The appeal arose from an order rejecting the wife's application under Order IX Rule 13 of the Code of Civil Procedure (CPC), which allows a court to set aside an ex parte decree in certain circumstances.
The appellant argued that the divorce petition had never been properly served upon her. She claimed that her husband knew she was residing at her New Town address but did not ensure that summons were served there. She also contended that substituted service under Order V Rule 20 CPC was ordered without complying with the mandatory requirements for ordinary service and that the process server was never examined.
The husband opposed the appeal, arguing that the wife had knowledge of the matrimonial proceedings long before filing her application and had failed to explain the delay. He relied on the Supreme Court's decision in Parimal v. Veena alias Bharti to submit that an ex parte decree cannot be set aside merely because of an irregularity in service when the defendant already had notice of the proceedings.
Court's Observations
After examining the record, the Division Bench found that a written objection filed by the husband in maintenance proceedings under Section 125 of the Criminal Procedure Code had specifically referred to the pending matrimonial suit. That document had been served on the wife's advocate in August 2014, well before she filed her application under Order IX Rule 13 in 2017.
Rejecting the wife's argument that the case number mentioned in the written objection had become outdated after the matter was renumbered, the Court observed that the original case number was correctly disclosed and that she could have easily verified the current number and status of the case.
The Bench observed,
“The appellant/wife cannot feign ignorance of the pendency of the suit”, noting that she had sufficient opportunity to ascertain the details of the proceedings but did not do so.
The Court further held that the second proviso to Order IX Rule 13 CPC is mandatory and prevents courts from setting aside an ex parte decree solely because of defects or irregularities in the service of summons where the defendant had notice of the proceedings.
Referring to the Supreme Court's ruling in Parimal v. Veena, the Bench also held that the alleged non-examination of the postal employee did not invalidate the substituted service, particularly when the appellant herself had not taken steps to challenge the service at the relevant time.
Decision
Finding no legal or factual error in the trial court's order, the Calcutta High Court dismissed the appeal and affirmed the order refusing to set aside the ex parte divorce decree.
The connected application was also dismissed, with no order as to costs.
Case Details
Case Title: Smt. Bipasha Paria @ Mondal v. Sri Kanak Kanti Paria
Case Number: F.M.A. 259 of 2026 (IA No. CAN 1 of 2026)
Judge: Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya
Decision Date: 14 July 2026
