The Supreme Court has set aside an ex-parte decree of divorce granted in 2009, holding that an endorsement of “intimation not received” on a returned postal cover cannot be construed as a refusal of service by the party. The Court emphasized that in cases of alleged refusal, strict compliance with Order V Rule 19 of the Code of Civil Procedure (CPC) is mandatory.
The Bench, comprising Justice Aravind Kumar and Justice N.V. Anjaria, allowed the appeal filed by the wife against the order of the High Court of Madhya Pradesh, which had upheld the ex-parte divorce decree obtained by the husband.
Background of the Case
The parties solemnized their marriage on February 15, 2002, and a son was born from the wedlock. Due to matrimonial discord, the respondent-husband claimed to have issued a notice on July 15, 2009, seeking a mutual consent divorce. Subsequently, he filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955, at Khandwa, Madhya Pradesh.
The Trial Court ordered the issuance of summons on September 9, 2009, via both ordinary process and registered post. On receipt of an unserved postal cover, the Trial Court proceeded ex-parte on November 18, 2009, and granted a decree of divorce on November 30, 2009.
The appellant-wife contended that she was unaware of these proceedings. She claimed that after the initial notice in July 2009, the issues were resolved, and the parties continued their relationship. She stated she was “shell-shocked” upon receiving a legal notice on May 30, 2019, informing her of the ex-parte decree. Consequently, she filed an application under Order IX Rule 13 of the CPC to set aside the decree, along with an application under Section 5 of the Limitation Act, 1963, for condonation of delay.
The Trial Court allowed her applications, setting aside the ex-parte decree. However, the husband appealed to the High Court, which reversed the Trial Court’s decision. The High Court opined that the notice sent to the wife had been refused by her and that she could not plea ignorance after 10 years to reopen concluded proceedings.
Supreme Court’s Analysis
The Supreme Court scrutinized the High Court’s findings regarding the service of notice. The Bench observed that the High Court “grossly erred” in not noticing the mandate of Order V Rule 19 CPC.
On Service of Notice
The Court examined the returned postal cover, which bore the endorsement: “On giving information, not received Sd/- 26/10”.
Interpreting this endorsement, the Bench observed:
“This would clearly indicate that the serving officer who intended to serve the registered post article on the petitioner, had not served the article, but had left an intimation as contemplated under the postal regulations to the addressee calling upon her to collect the postal article. This by no stretch of imagination can be held as refusal on the part of the petitioner-wife.”
Furthermore, the Court pointed out a procedural lapse by the Trial Court. Although the Trial Court had ordered simultaneous notice through the court process (Bailiff), there was no mention of the Bailiff’s report in the orders of the lower courts.
The Court held:
“That apart, there being violation of the mandate of Rule 19 CPC, the service of notice on wife could not have been held as complete or sufficient by the High Court.”
On Condonation of Delay
Addressing the delay in filing the application to set aside the decree, the Court reiterated the principles laid down in the judgment of Collector, Land Acquisition, Anantnag and Anr. v. Mst Katiji and Others, AIR 1987 SC 1353. The Bench emphasized that “sufficient cause” is the paramount consideration, not merely the length of the delay.
Quoting the precedent, the Court noted:
“When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.”
The Court concluded that the Trial Court had correctly exercised its jurisdiction in condoning the delay after finding a “fragrant violation” of Order V Rules 17 and 19 CPC.
Decision
The Supreme Court allowed the appeal and set aside the impugned order of the High Court. The Court observed that the appellant-wife, being ignorant of the divorce proceedings due to insufficient service, had rightly invoked Section 5 of the Limitation Act.
The Bench ordered:
“Accordingly, impugned order is set aside and the appeal is allowed. The parties are at liberty to work out their rights before the trial court with regard to maintenance, if they are so advised.”
Case Details:
- Case Title: Jyotsna Kanoongo v. Shailendra Kanoongo
- Case No: Civil Appeal No. of 2025 (@SLP (C) No. 21693/2025)
- Coram: Justice Aravind Kumar and Justice N.V. Anjaria
- Cited Case: Collector, Land Acquisition, Anantnag and Anr. v. Mst Katiji and Others, AIR 1987 SC 1353
