When court should not set aside exparte decree of Divorce?

Parimal v. Veena, (2011) 3 SCC 545
Civil Procedure Code, 1908
Or. 9 R. 13 and Or. 5 R. 20 - Ex parte decree of divorce - Application for setting aside of - Mandatory requirements and
factors to be considered - Sought on grounds of fraud and collusion in obtaining decree, non-service of notice even by
substituted service and appellant husband not disclosing fact of grant of divorce during maintenance proceedings - Said
application dismissed by trial court but allowed by High Court in absence of ``sufficient cause'' - Impermissibility - Held,
second proviso to Or. 9 R. 13 makes it obligatory for appellate court not to interfere with an ex parte decree unless it
meets the statutory requirement - Issue of service of summons or whether there was ``sufficient cause'' for wife not to
appear before court not dealt with, nor findings recorded thereon by trial court set aside - High Court erroneously held
that presumption of service of notice stood rebutted by a bald statement made by wife that she was living at different
address, with her brother, which was duly supported by him - High Court erred in not appreciating facts in correct
perspective as substituted service is meant to be resorted to send notice to the last known address where party had
been residing - Also High Court took into consideration conduct of appellant husband subsequent to passing of ex parte
decree, which was not permissible - No attempt made to establish that there had been fraud or collusion between
appellant husband and postman - It was nobody's case that National Herald daily did not have a wide circulation in Delhi
or in the area where respondent wife was residing with her brother - Hence, ex parte divorce decree restored - Further,
as appellant had remarried in 1991 and had two major sons, respondent wife awarded Rs 10 lakhs lump sum amount as
maintenance, 

Civil Procedure Code, 1908
Or. 9 R. 13 second proviso - Ex parte decree - Setting aside of - Exercise of power as to - Held, second proviso
mandatory in nature - It is not permissible for court to allow the application in utter disregard of terms and conditions
incorporated therein, 
Civil Procedure Code, 1908
Or. 9 R. 13 - Ex parte decree - Setting aside of - ``Sufficient cause'' - Meaning and test for - Held, test to be applied is
whether defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his
best to do so - It is such cause for which defendant could not be blamed for his absence - ``Sufficient cause'' is a
question of fact, 
Evidence Act, 1872
Ss. 114 Ill. (f), 16 and 101 & 103 - Burden of proof -Provision placing burden on party asserting particular fact -
Presumption of service by registered post under S. 114 Ill. (f) - Reiterated, burden to rebut said presumption is on party
challenging factum of service,
Civil Procedure Code, 1908
Or. 41 Rr. 31 & 33 and S. 96 - First appeal - Powers of court disposing of such appeal - Proper exercise of - Held, first
appellate court should not disturb and interfere with valuable rights of parties which stand crystallised by trial court's
judgment, without opening whole case for rehearing, both on question of facts and law,

Print Page