Case Note & Summary
The appeal arose from a special leave petition under Article 136 of the Constitution against an order of a learned Single Judge of the Karnataka High Court, which had allowed a revision petition and set aside an ex parte divorce decree. The dispute concerned an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 filed by the respondent widow to set aside an ex parte decree of divorce obtained by her husband during his lifetime. The appellant, the deceased husband's mother, claimed to be his legal representative and opposed the application. The husband had filed a Hindu Marriage Petition under Section 13(1)(i-b) of the Hindu Marriage Act, 1955, seeking divorce on the ground of desertion, and the trial court passed an ex parte decree on 15.12.1989. The husband later filed a suit for permanent injunction against the respondent, and the respondent was served with summons in that suit on 1.3.1990. The husband died on 26.5.1990. Thereafter, on 3.7.1990, the respondent filed Miscellaneous Case No.102 of 1990 under Order IX Rule 13 CPC along with an application for condonation of delay, alleging that she came to know of the ex parte decree only on 31.3.1990 and that she was never served in the divorce petition. The trial court dismissed the application as time-barred on 27.7.1991. Aggrieved, the respondent filed Revision Petition No.3683 of 1991 under Section 115 CPC before the High Court. The High Court allowed the revision, condoned the delay, set aside the ex parte decree, and restored the Hindu Marriage Petition for fresh disposal. The appellant challenged this order before the Supreme Court. The appellant contended that substituted service under Order V Rule 20 CPC was validly effected; the respondent had knowledge of the ex parte decree at least from 1.3.1990 when she was served in the injunction suit; there was no sufficient cause for condonation; and, in the alternative, the application under Order IX Rule 13 CPC had abated because divorce proceedings were a personal cause of action and the right to sue did not survive after the death of the decree-holder husband. The respondent argued that the revision should be treated as an appeal under Order XLIII Rule 1(d) CPC, that substituted service was improper as ordinary service under Order V Rules 12, 15, and 17 CPC was never attempted, and that as an illiterate woman she could not have read the newspaper publication about the divorce petition. She also contended that the application did not abate because the ex parte divorce decree had serious consequences, including stigma and loss of proprietary rights in her husband's property, and therefore the right to sue survived. The Supreme Court held that the order rejecting an application under Order IX Rule 13 CPC in a case where the decree was appealable under Section 28 of the Hindu Marriage Act, 1955 was itself appealable under Order XLIII Rule 1(d) CPC, and the revision petition could be treated in substance as a miscellaneous appeal, giving the High Court appellate jurisdiction to reappreciate facts. The Court found that substituted service had been resorted to almost automatically without attempting ordinary service, and that the respondent, being an illiterate woman, had no knowledge of the divorce proceedings. It concluded that sufficient cause existed for condoning the delay and that the ex parte decree was effectively a nullity because there was no proper service. On the maintainability question, the Court held that although a divorce petition is based on a personal cause of action, the right to challenge an ex parte divorce decree did not abate on the death of the husband because the decree stigmatized the wife and deprived her of proprietary rights; the application was therefore maintainable. The Supreme Court dismissed the appeal and upheld the High Court's order, observing that substantial justice had been done by giving the wife an opportunity to contest the divorce petition.
Headnote
A) Civil Procedure - Substituted Service - Order V Rule 20 and Order V Rules 12, 15, 17, Code of Civil Procedure, 1908 - Substituted service must be resorted to as a last resort only when defendant cannot be served in ordinary way and court is satisfied defendant is avoiding service; in the present case it was granted almost automatically without attempting ordinary service, so service on illiterate respondent was invalid - Held that ex parte decree passed without proper service could not bind respondent and delay in filing application to set aside was condonable (Paras not mentioned). B) Civil Procedure - Appealable Orders - Order XLIII Rule 1(d), Code of Civil Procedure, 1908 - An order under Order IX Rule 13 CPC rejecting an application to set aside an ex parte divorce decree is appealable as a miscellaneous appeal and a revision filed against such order may be treated in substance as an appeal - Held that High Court had appellate jurisdiction to reappreciate facts and set aside Trial Court's dismissal (Paras not mentioned). C) Limitation - Condonation of Delay - Order IX Rule 13, Code of Civil Procedure, 1908 - An illiterate woman living in a different town could not know about divorce petition by newspaper publication; lack of knowledge constitutes sufficient cause for delay - Held that Trial Court erred in rejecting application as time-barred; High Court rightly condoned delay in interest of justice (Paras not mentioned). D) Hindu Marriage Act - Matrimonial Proceedings - Section 13(1)(i-b), Section 28, Hindu Marriage Act, 1955 - A decree granting divorce, whether ex parte or bipartite, is appealable under Section 28; setting aside an ex parte divorce decree has serious consequences for wife's status and inheritance rights, so right to sue survives death of husband - Held that application under Order IX Rule 13 CPC filed by wife after death of decree-holder husband was maintainable and did not abate, despite personal cause of action, because ex parte decree stigmatized wife and deprived her of proprietary rights (Paras not mentioned). E) Constitutional Law - Scope of Article 136 - Constitution of India - Supreme Court does not interfere under Article 136 when substantial justice has been done and opportunity given to wife to contest divorce petition that had terminated against her without hearing - Held that High Court's discretionary order condoning delay and setting aside ex parte decree was justified and appeal dismissed (Paras not mentioned).
Issue of Consideration
Whether the High Court could treat the revision petition as an appeal and set aside the trial court's dismissal; whether the delay in filing the Order IX Rule 13 CPC application was properly condoned; whether substituted service on the respondent was valid; and whether the application under Order IX Rule 13 CPC abated on the death of the decree-holder husband.
Final Decision
The Supreme Court dismissed the appeal and upheld the High Court's order. It held that the revision petition was in substance a miscellaneous appeal under Order XLIII Rule 1(d) CPC, that the substituted service was invalid, that sufficient cause existed for condoning the delay, and that the application under Order IX Rule 13 CPC did not abate on the death of the husband because the ex parte divorce decree had serious adverse consequences for the wife's status and property rights.
Law Points
- Substituted service is a last resort
- ex parte decree without valid service is a nullity
- delay condonation for illiterate woman
- revision treated as appeal under Order XLIII Rule 1(d) CPC
- right to sue survives death of decree-holder in matrimonial cause when property rights affected
- Article 136 interference only for substantial injustice.
