An application under Order 9 Rule 13 CPC to set aside an ex-parte decree cannot succeed when the applicant fails to provide evidence of non-service or unauthorized representation, especially where the record demonstrates clear awareness of legal proceedings and active participation through counsel.

Order

23/03/2026

1. Appellant-wife has preferred this appeal under Section 19 of the Family Court Act, assailing the final order dated 18.02.2020 dismissing her Application No.26/2019 (CIS No.464/2019) filed under Order 9 Rule 13 CPC by Family Court, Dholpur, whereby and whereunder judgment and decree of divorce dated 20.07.2018, passed ex-parte in favour of respondent-husband and against appellant-wife, has been declined to be set aside.

2. We have heard counsel for both the parties and perused the record, made available before this Court.

3. Factual matrix of appeal, in nutshell as culled out from the record is that marriage between parties was solemnized on 15.02.2012 at Kasganj according to Hindu Rites and Ceremonies. Admittedly, no child was born to the parties out of this wedlock. After marriage, matrimonial acrimony accrued between parties and husband filed a divorce petition under Section 13 of the Hindu Marriage Act on 04.01.2016 before the District and Sessions Judge, Dholpur seeking dissolution of marriage on the ground of cruelty. The divorce petition was replied on behalf of wife through Advocate Mr. O.P. Tyagi on 24.05.2017 before the Court of District and Sessions Judge, Dholpur. Later on divorce petition was transferred to Family Court, Dholpur on 26.08.2017 and again notice of divorce petition was published in newspaper but when wife did not appear, ex-parte proceedings drawn against her and after recording evidence of husband, Family Court passed judgment dated 20.07.2018 and dissolve the marriage solemnized on 15.02.2012 on the ground of cruelty.

4. The judgment and decree of divorce dated 20.07.2018 was ex-parte, hence, wife filed an application under Order 9 Rule 13 CPC before Family Court, Dholpur on 19.11.2019. In the application seeking to set aside ex-parte judgment and decree of divorce, wife took a plea that summon(s) of divorce petition were never served upon her and that she neither engaged any Advocate Mr. O.P Tyagi nor filed any reply to the divorce petition. She also averred that her address, as mentioned in the divorce petition is incorrect and when she came to know about the ex-parte judgment and decree of divorce, she filed this application.

5. Application filed by wife was replied by husband and contended that wife has left his company and matrimonial home after marriage on 22.11.2014 and is staying with another person namely Mr. Anand Singh. It was further pointed out by husband that the address of his wife as mentioned in the divorce petition is correct and same, as was mentioned by her in criminal proceedings filed under Domestic Violence Act, moreover, she was well aware about the pendency of divorce proceedings and through Advocate, she has filed reply therein. Husband also referred the criminal proceedings initiated by wife, implicating his entire family and urged that the application filed by wife, seeking to set aside ex-parte decree is not only delayed but also suffers from malafides and as such, is liable to be dismissed.

6. It is noteworthy that appellant-wife did not choose/opt to adduce any evidence in support of her application under Order 9 Rule 13 CPC. The fact averred by her that her signature on the reply of divorce petition dated 24.05.2017 was forged, has not been established by any evidence nor the fact that Advocate Mr. O.P. Tyagi who filed reply to the divorce petition on her behalf was not authorized by her has been proved. As far as address of respondent-wife, as mentioned in the divorce petition and as admitted by her is concerned, both addresses are same which is “Kamla Market, Sahawar Gate, kasganj U