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Home › Ex Parte Divorce
Practice Guide · 4 September 2026

Ex Parte Divorce: How Decrees Are Passed and How They Are Set Aside

A divorce granted in a spouse's absence is not necessarily final — but the window to attack it is short and the stakes include a second marriage.

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Every year, Delhi's Family Courts decree a significant number of divorces ex parte — in the absence of the respondent spouse. Sometimes the absence is deliberate; often it is the product of defective service, an old address, or notice sent while the spouse was abroad. The law gives the absent spouse real remedies, but they are time-bound, and the situation becomes dramatically more complicated if the successful spouse remarries in the meantime. This article explains both sides of the ex parte decree.

How a divorce comes to be decreed ex parte

Family Courts follow the Code of Civil Procedure through Section 10 of the Family Courts Act, 1984. When a respondent fails to appear despite service, the court may proceed ex parte under Order IX. The petitioner still has to prove the matrimonial ground — cruelty, desertion, adultery or another ground under Section 13 of the Hindu Marriage Act — through evidence, ordinarily by affidavit and a short deposition. An ex parte decree is therefore not a default judgment in the western sense; it is a decree on evidence, tested only lightly because no one contradicted it.

That is exactly why service is the pressure point. Courts scrutinise the service record carefully before proceeding ex parte, and appellate courts scrutinise it again when the decree is challenged. Substituted service — by publication in a newspaper or affixation — is meant to be a last resort after genuine attempts at personal service, not a shortcut.

The absent spouse's three remedies

Order IX Rule 13 CPC. An application to the same Family Court to set aside the decree, on proof that summons was not duly served or that sufficient cause prevented appearance. This is the primary and usually the fastest remedy.
Appeal under Section 19, Family Courts Act. A first appeal to the High Court of Delhi against the decree itself, attacking both the ex parte procedure and the merits of the ground. The two remedies address different defects and can be pursued with care as to election and disclosure.
Review, in narrow cases. Where an error is apparent on the face of the record, review before the Family Court remains available, though it is the least common route.

What persuades a court to set aside

Service defects. Summons to an address the petitioner knew was outdated; publication in a newspaper the respondent could never have seen; refusal endorsements without independent witness.
Documented incapacity. Hospitalisation, posting abroad, imprisonment — supported by records, not assertions.
Promptness. Courts weigh how quickly the respondent moved after learning of the decree. Knowledge followed by months of silence is fatal more often than the original absence.
A real defence. While not strictly required, showing that the respondent has a substantial defence to the matrimonial ground makes the discretion easy to exercise.

Respondents who learn of a matrimonial case informally — through relatives, or a maintenance notice referring to the divorce — should appear at once rather than waiting for formal service. Courts treat proven knowledge as the start of the clock, whatever the state of the service record.

The remarriage complication

Section 15 of the Hindu Marriage Act allows either party to remarry once the decree can no longer be appealed — that is, after the appeal period expires without an appeal or after an appeal fails. A spouse who remarries within the challenge window takes a calculated risk: if the ex parte decree is later set aside, the first marriage stands revived while a second marriage has intervened, generating litigation on every front. Courts have had to balance the equities in such situations case by case, and the uncertainty itself is the best argument for waiting out the statutory period — and for the challenging spouse to file within it.

For petitioners: decree-proofing the case

Serve at every known address, including workplace and email where permitted.

Exhaust personal service before seeking substituted service, and place all attempts on record.

Lead full evidence on the matrimonial ground even in the respondent's absence.

Wait out the appeal period before acting on the decree.

An ex parte matrimonial decree obtained on solid service and full evidence usually survives; one built on a thin service record usually does not. Which side of that line a case falls on is knowable in advance — and is where the effort should go. This article is general information and not legal advice on any individual matter.

Frequently Asked Questions

What is the time limit to set aside an ex parte divorce decree?

An application under Order IX Rule 13 CPC is ordinarily to be filed within thirty days of the decree, or of knowledge of the decree where summons was not duly served. Condonation of delay is possible but must be earned with a concrete, documented explanation. An appeal under Section 19 of the Family Courts Act is the parallel remedy, also time-bound.

On what grounds is an ex parte decree set aside?

Two, essentially: summons was not duly served, or the respondent was prevented by sufficient cause from appearing. Defective service is the strongest ground — service at an old address, refusal recorded without a witness, or substituted service ordered without genuine attempts at personal service all feature regularly.

Can the spouse who obtained the decree remarry immediately?

Section 15 of the Hindu Marriage Act permits remarriage only once the period for appeal has expired without an appeal, or an appeal filed has been dismissed. A remarriage rushed through during the challenge window is fraught: if the decree is later set aside, serious complications follow for everyone involved, including the new spouse.

Does setting aside the decree revive the marriage?

Yes. If the ex parte decree is set aside, the divorce petition stands restored to the Family Court file and the parties are relegated to the position before the decree — the marriage subsists and the petition is tried on merits, usually with directions for expeditious disposal.

Note: This article is general information about the law and is not legal advice. It does not create an advocate-client relationship. The position stated is as at 4 September 2026 and may have changed since. Readers should verify any provision or decision referred to against the official text and seek advice on their own circumstances.