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Home › Ex Parte Divorce Reopened
Rajasthan High Court · 2 November 2026

Served on the Father, Binding on No One: Ex Parte Divorce Decree Reopened

The husband had remarried on the strength of an ex parte decree; the Division Bench held that summons never personally reached the wife — and sent the divorce petition back for a contested trial.

In Smt. Rekha v. Sh. Sukhdev (D.B. Civil Miscellaneous Appeal No. 2520/2024, neutral citation 2026:RJ-JD:53780-DB, order dated 2 November 2026), a Division Bench of the Rajasthan High Court at Jodhpur — Justices Yogendra Kumar Purohit and Arun Monga — allowed a wife’s appeal against the Family Court’s refusal to set aside an ex parte divorce decree. The decisive fact was undisputed: summons in the husband’s cruelty-based divorce petition was never served on the wife personally; it went to her father, at a time when she was living with her mother at her maternal grandparents’ home. The decree fell, and the Family Court must now hear her.

The case in one view

CaseSmt. Rekha v. Sh. Sukhdev, D.B. Civil Miscellaneous Appeal No. 2520/2024
Citation2026:RJ-JD:53780-DB
BenchJustices Yogendra Kumar Purohit and Arun Monga, Rajasthan High Court at Jodhpur
Order dated2 November 2026
BelowFamily Court order of 29 July 2024 dismissing the wife’s application under Order IX Rule 13 read with Section 151 CPC
OutcomeAppeal allowed; ex parte divorce decree set aside; fresh contested proceedings directed

How the decree came about

The husband petitioned for divorce under Section 13 of the Hindu Marriage Act, alleging cruelty and desertion. The wife never appeared; ex parte proceedings were drawn, and an ex parte decree of divorce followed in January 2021. Her account was simple: she did not know. The summons had been served on her father — but she was not living with her parents at the relevant time; she was with her mother at her maternal grandparents’ house. In March 2022 she applied under Order IX Rule 13 CPC to set aside the decree, citing lack of knowledge and the pandemic. The Family Court rejected her application in July 2024, and she appealed.

The Division Bench’s reasoning

The court’s analysis begins and ends with service. “It has remained undisputed that the service of summons was not effected personally upon the appellant” (para 8). Since the wife was living apart from her parents, service on the father was not sufficient to bind her (para 9); and the COVID-19 period supplied a further explanation for the time taken to apply (para 10). The operative direction: “The learned Family Court shall proceed afresh in the matter by granting an opportunity to the appellant to defend herself” (para 11).

The remarriage complication: the husband resisted the application by pointing to his second marriage, evidenced by an Arya Samaj certificate. That could not cure the service defect — and the certificate itself is under challenge in the wife’s pending Section 11 HMA petition and a Section 156(3) CrPC proceeding. A spouse who remarries on the strength of an ex parte decree, while the period for challenging it is alive, assumes the risk that the decree — and with it the lawfulness of the remarriage — may unravel.

Service in matrimonial cases: why the rules bite harder

Order V CPC requires service on the party personally, or on an authorised agent; service on an adult family member is a fallback hedged with conditions, and a parent at a different address is not a substitute for the party herself. Matrimonial litigation sharpens the point: husband and wife in conflict often know exactly where the other resides, and summons routed to the natal family home of an estranged wife — a address she may have left — invites precisely this result. Family Courts, for their part, are expected to scrutinise service reports before proceeding ex parte in a case that will dissolve a marriage; the consequences of a false step are measured in remarriages, children and years.

Practical guidance

  • Petitioners: invest in service. Personal service, speed-post to the actual residence with tracking, and where permitted, court-sanctioned substituted service after genuine attempts — shortcuts create decrees that cannot be safely acted upon.
  • Do not remarry on a fresh ex parte decree without legal advice on the limitation and knowledge rules; the apparent finality can be illusory.
  • Respondents who discover an ex parte decree: move immediately under Order IX Rule 13, plead the date and mode of knowledge with precision, and support the actual-residence case with documents (ration card, Aadhaar address, school records, electoral rolls).
  • Pandemic-period delays continue to receive sympathetic treatment where they genuinely explain the gap — but they supplement, not replace, a sound explanation.

The appeal restores the matter to where it should have begun: a contested hearing, both parties present, on the merits of the marriage’s alleged breakdown. Whatever the eventual outcome, it will now rest on evidence tested in the presence of both spouses — which is what a decree changing personal status requires.

Frequently Asked Questions

Why was the ex parte decree set aside?

Because service of summons was not effected personally on the wife — the court recorded this as undisputed. Service on her father could not substitute for service on her when she was living apart from her parents, with her mother at her maternal grandparents' house. Without proper service, the foundation for proceeding ex parte never existed.

What about the delay in applying under Order IX Rule 13 CPC?

The ex parte decree was of January 2021 and the wife applied in March 2022, citing lack of knowledge and the COVID-19 pandemic. The court accepted that the pandemic period was a further cause of delay, consistent with the view that limitation runs from knowledge of the decree where summons was never duly served.

The husband had remarried — did that save the decree?

No. He relied on an Arya Samaj certificate of a second marriage, but the remarriage could not validate a decree obtained without serving the first wife; indeed her petition under Section 11 HMA and a Section 156(3) CrPC proceeding concerning that certificate are pending. A remarriage during the window in which the decree is vulnerable is at the remarrying spouse's risk.

What happens now?

The Family Court must proceed afresh in the divorce petition, granting the wife the opportunity to defend herself. The merits of the husband's cruelty and desertion allegations remain open; what the appeal decided is only that she was never lawfully brought before the court the first time.

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 7 November 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.