The Rajasthan High Court, in a significant ruling on procedural law, has held that serving a court summons to a soldier on his WhatsApp number is insufficient and cannot be the basis for passing an ex-parte order. The Court reiterated that the mandatory procedure of sending the summons to the soldier’s Commanding Officer, as prescribed under the law, must be followed to ensure a fair opportunity of hearing.
The decision was delivered by a single-judge bench of Justice Anoop Kumar Dhand while allowing a criminal revision petition filed by an Indian Army personnel. The Court set aside an ex-parte order passed by the Family Court, Karauli, which had directed the petitioner to pay monthly maintenance of ₹12,000 to his wife.
Background of the Case
The petitioner, Deevan Singh, an Army personnel, challenged an order dated 07.06.2024, passed by the Family Court, Karauli. The order was passed on an application filed by his wife, Vikesh (respondent No. 2), under Section 125 of the Code of Criminal Procedure (Cr.P.C.) seeking maintenance.
The Family Court had issued summons to the petitioner on three different occasions, but the order sheets indicated that the summons were never served. Subsequently, a summons was sent via a WhatsApp message to the petitioner’s mobile number. The Family Court, treating a screenshot of this message as sufficient proof of service, proceeded ex-parte against the petitioner and passed the maintenance order.
Arguments of the Parties
The counsel for the petitioner argued that he was serving in a “treacherous High Altitude area” due to operational exigencies and was not properly served notice of the proceedings. It was contended that the procedure adopted by the Family Court was in direct contravention of the mandatory provisions laid down in Order 31 Rule 5 of the General Rules (Civil & Criminal), 2018, and Order V Rule 28 of the Code of Civil Procedure (CPC). These rules specifically mandate that court processes for a soldier, sailor, or airman must be sent to their Commanding Officer. This is to ensure that sufficient time is given to make arrangements for relieving the concerned person so they may appear in court. The petitioner submitted that by relying solely on a WhatsApp message, the court denied him a sufficient opportunity to present his case, leading to the erroneous ex-parte order.
Opposing the petition, the counsel for the respondent-wife argued that the petitioner had knowledge of the proceedings through the WhatsApp summons and had deliberately chosen not to appear before the Family Court. It was submitted that the Family Court committed no error in passing the ex-parte order, as the petitioner could not claim ignorance of the case filed against him.
Court’s Analysis and Findings
After hearing both parties and perusing the record, Justice Dhand framed the central question for consideration: “‘Whether service of summons upon a person, who is posted as Soldier, Sailor or Airman in the Armed Forces, sent upon his WhatsApp number can be treated as sufficient for proceeding ex-parte against him ?’.”
The Court referred to the specific legal provisions governing the service of summons on members of the Armed Forces. It quoted Order 31 Rule 5 of the General Rules (Civil & Criminal), 2018, which states:
“Process of officer, soldier, sailor or airman, shall be sent for service to his Commanding Officer, together with a copy to be retained by the person concerned, in such cases, sufficient time shall be given to make arrangements for relieving the concerned person.“
The Court also cited the parallel provision in Order V Rule 28 of the CPC. Justice Dhand observed that a plain reading of these provisions makes it clear that it is “mandatory for the Presiding Officer/Process Server to send the summons for service to his Commanding Officer of such Soldier, Sailor or Airman”.
The High Court took note of a certificate dated 24.12.2024, issued by the Captain Officiating Adjutant for the Commanding Officer, which confirmed that the petitioner’s battalion was “involved in Operational exigencies in treacherous High Altitude Area upto September, 2024.” The impugned order, however, was passed on 07.06.2024.
Based on these facts and the clear mandate of the law, the Court concluded that the service of summons via WhatsApp could not be deemed sufficient. The judgment stated:
“Hence, under such circumstances, the service of summons upon the petitioner on his WhatsApp mobile number cannot be treated as sufficient in view of the mandate contained under Order 31 Rule 5 of the General Rules (Civil & Criminal), 2018 and under Order V Rule 28 CPC.“
The Court further held that the Family Court’s failure to adhere to the mandatory procedure resulted in a denial of natural justice. “In the considered opinion of this Court, the petitioner has been prevented with sufficient cause for giving his personal appearance before the Family Court,” Justice Dhand noted, adding that the impugned order was passed in “gross violation of the principles of natural justice, as no reasonable opportunity of hearing was provided to the petitioner.”
Decision
Holding that the Family Court’s order was not sustainable in the eyes of law, the Rajasthan High Court quashed and set aside the order dated 07.06.2024. The matter has been remitted to the Family Court for a fresh decision after affording a due opportunity of hearing to both parties. The High Court directed that the fresh order be passed expeditiously, preferably within four months.
Finally, the Court directed the Registrar (General) to circulate a copy of the order among all Judicial Officers in the State, including those in Family Courts, to ensure compliance with the correct procedure in the future.
