In India, for parties to seek a divorce needs to send a legal notice to the opposite party as a first step in the divorce procedure. A divorce notice is a document being sent by one party to the another mentioning details desiring at seeking divorce along with mentioning reason for the same. It is a form of formal communication indicating the intention of a party to terminate a marriage. The details in the divorce include reasons for seeking a divorce, a possible recourse, maintenance, custody of the child, distribution and disposal of property, etc.
Usually, a notice is served by way of courier, a registered post or certified mail. It all depends on the facilities and prevailing laws in the respective place and the religion of the parties. It is the first step towards the termination of a marriage between two parties. There are other important conditions and requirements to be fulfilled before passing a decree for divorce.
What Happens When A Divorce Notice Is Not Received?
The parties willing to terminate his/her marriage can directly file a petition before the respective court in spite of sending a legal notice before approaching the court. Thus, a situation might arise that the opposite party might not divorce notice to summon in the court. There are the below-mentioned assumptions to a situation when no divorce notice is received:
- In cases where the divorce notice is not duly served, the reasons might be sending the notice to the wrong address or when the respondent is not present at the given address. Thus, there is a need to send the divorce again to the proper address cautiously.
- If such notice is not served to the opposite party due to the fault of the plaintiff, then the court is empowered to impose a cost on the plaintiff for postponing the hearing.
- If there is a situation when the divorce notice is served at the last minute to the opposite party, then the court has the power to adjourn the date of proceedings and order the parties to be present on a new date of hearing.
- When such divorce notice is served duly to the opposite party but if such person does not appear before the court willfully, then the court has the power to pass an ex-parte decree in favour of the plaintiff. An ex-parte decree has the same validity and enforceability just as a normal bi-parte decree.
What Is An Ex-Parte Decree?
An ex-parte decree is passed when either party to a case is not present after summons has been served to him/her. An ex-parte decree is passed in the cases of a contested divorce. A contested divorce is a different method than a mutual divorce where both the parties to marriage mutually decide to terminate their marriage. If the summon is served to the opposite party to be present before the court on a specific date for the divorce proceedings and either party to the proceedings absents himself/herself and does not appear before the court on the said date then the court is empowered to pass an ex-parte decree against the party who does not appear before the court. This rule has been stated under Order 9, Rule 6 of the Code of Civil Procedure, 1908[1].
Remedies against Ex Parte Divorce Decree
There are certain remedies available to the party against whom an ex-parte decree has been passed. These remedies are as follows:
- The party against whom
the decree has been passed can request the court to set aside such decree on
the below-mentioned grounds stated under Order 9 Rule 13 of the Code of Civil
Procedure, 1908:
- In cases where the summons is not duly served to the opposite party, or
- The respondent was prevented from being present before the court for proceedings on the said date for some reasonable cause.
If any of the above two conditions are found to be true and a satisfactory reason has been given by the opposite party, then the ex-parte decree will be set aside and its validity will become null and void. The reasonable cause has not been defined by the law but a cause is said to be reasonable when there occurs a situation which is beyond the control of the party to the divorce case. It depends upon the judges and circumstances of the case to decide which reason is reasonable and which is not. Any negligence on the part of a party for not being present in the court is not considered a reasonable cause.
As per Rule 13 of Order 9, the party willing to set aside a divorce decree can appeal for the same within 30 days from the date on which the order was passed.
- Another remedy available to the party who is willing to set aside an ex-parte decree for divorce can make an appeal as per the provisions stated under Section 96 of the Code of Civil Procedure, 1908. Such an appeal is called a first appeal and if such an application for appeal is rejected by the court then such an appeal becomes null and void.
Conclusion
A petition for divorce is filed before the court to seek divorce. But there might occur certain circumstances where a divorce notice is not received by the opposite party. In case, where a party is not present before the court willfully, then the court has the power to pass an ex-parte decree. Also, the Acts prevailing in India have certain remedies for the person who wishes to set aside an ex-parte decree.
Also Read:
Section 148A Of Code Of Civil Procedure – Right To Lodge A Caveat Petition
