Rajasthan High Court Quashes Divorce Decree Over Flawed Summons Delivery
The Rajasthan High Court sets aside ex-parte divorce, holding that husband's mother's refusal of notice is not proper service
The Rajasthan High Court at Jodhpur bench recently set aside an ex parte divorce decree granted by a Bhilwara family court, holding that a refusal to accept court notice by the husband’s mother could not be treated as valid service of summons upon the husband himself.
The division bench of Justices Dinesh Mehta and Sandeep Taneja allowed a civil miscellaneous appeal filed by the husband against the decree of divorce passed on September 15, 2023, in favour of his wife under Section 13 of the Hindu Marriage Act, 1955. The family court had proceeded ex parte against the husband, concluding that he had refused to accept court notice.
The High Court found that the Family Court No. 1, Bhilwara, had drawn a presumption of valid service on the basis of a registered envelope returned with the endorsement “refused". However, the bench observed that the envelope did not disclose who had refused to take the notice and that the record revealed the notice was offered to the appellant’s mother, not the appellant himself.
According to the appellant’s counsel, the process server’s report, which was submitted in Gujarati and translated for the appeal, stated that the appellant’s mother informed the server her son had gone to Ahmedabad and declined to accept the envelope, recognising it to be related to court proceedings. The bench held that such a refusal could not be deemed a refusal by the appellant and, therefore, could not constitute proper service.
Court also relied on a report dated August 4, 2023, from the Additional District Judge, Sabarkantha at Himmatnagar, Gujarat, which explicitly recorded that the appellant was not served. The bench remarked that had the family court considered this report, it would not have treated the postal endorsement of “refusal” as valid service.
“The refusal for the purpose of service of notice should be taken to be a sufficient service if such refusal is by the addressee or by the noticee himself. A denial by any other person other than the noticee or his agent, including the mother, cannot be said to be a refusal in the eye of law,” the bench observed.
Distinguishing the decision of the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555, cited by the respondent-wife’s counsel, court held that it pertained to the Negotiable Instruments Act and was inapplicable to civil summons governed by the Code of Civil Procedure. Referring to Order V Rule 9(5) CPC, the division bench clarified that the law recognises refusal only when it comes directly from the addressee or an authorised agent.
The High Court also cited similar findings of the Kerala and Madhya Pradesh High Courts, which had ruled that service by registered post on an adult family member cannot be treated as proper service upon the defendant.
Concluding that the family court had acted in haste and ignored material evidence, the bench quashed both the ex parte proceedings dated August 18, 2023, and the decree of divorce passed on September 15, 2023.
The matter has been remanded to the family court, with directions for both parties to appear on November 3, 2025, and for the husband to be given an opportunity to file his written statement.
Court further directed that no fresh notice was required to be issued, and the family court should proceed in accordance with law after granting the appellant sufficient opportunity to contest the divorce petition.
Case Title: Xxx vs Yyyy
Order Date: September 25, 2025
Bench: Justices Dinesh Mehta and Sandeep Taneja