• Regarding divorce summons

I sent. a divorce summons to my wife to her father house but she was no there the court has acknowledged and the lawyer said it's ok but as her family member took the summons not her would it make. Difference if she decided not to go to the court dates and if after I got a ex party divorce would that be valid can she do anything after eg challenge that she didn't take the summons and didn't know about the dates etc I am a NRI and can she trouble me when I come to India? Plz advise
Asked 1 month ago in Family Law from United Kingdom
Religion: Hindu

1 Pray before court for alternate mode of service by newspaper publish the notice in newspaper once it is published then she will not have defence that she has not received the notice.

Shubham Jhajharia
Advocate, Ahmedabad
24271 Answers
96 Consultations

5.0 on 5.0

The court has acknowledged that she got the summons. Her father took the notice. She cannot take this plea that she was not informed.

If she decides not to come the court will give you ex parte divorce.

In that case she may appeal against it but she would have to state some reasonable grounds for not attending the court.

Rahul Mishra
Advocate, Lucknow
7938 Answers
15 Consultations

5.0 on 5.0

It is served if the same is her last known address. You will get exparte divorce

Prashant Nayak
Advocate, Mumbai
18517 Answers
34 Consultations

4.6 on 5.0

1. once you got the exparte decree, you can remarry, if you wish, after the passage of the stipulated appeal time,

2. she can always file a set aside the exparte order application but the same will have no adverse effect against you

3. service to her father, publication in the newspaper will be sufficient 

 

Suneel Moudgil
Advocate, Haryana
2063 Answers
3 Consultations

4.7 on 5.0

If you have your wife's email and whatsapp, kindly scan all petitions and send it, in whatsapp, when blue tick happens take screenshot and colour print and submit in court and yes if any other person has taken it on her behalf, it means accepted.

Aveek Bose
Advocate, Kolkata
1117 Answers
7 Consultations

4.7 on 5.0

Procedure regarding service of summons is provided in Rules 9 to 31 of Order V of Civil Procedure Code. Rule 12 provides that wherever it is practicable, summons shall be served on defendant in person, unless he has an agent empowered to accept service. Service of summons on adult member of the family of defendant is sufficient in the circumstances provided in Rule 5 of Order V, which reads as follows:

"15. Where service may be on an adult member of defendant's family:-- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him."   

2)

Thus it can be seen that before serving summons on an adult member,

(i) all efforts should be made to serve the summons at the residential address of the defendant,

(ii) in the event of his absence there, the possibility of his availability at the residence should be ascertained. If on such inquiry, it is assured that there is no likelihood of the defendant being found at the residence within a reasonable time, and if he has not empowered any agent to accept the summons on his behalf, the process server can serve the summons, on an adult memberavailable at his residential address.

 

3) court can award you exparte divorce if wife does not appear in court 

 

4) however your decree may not be valid in India unless divorce is granted n one of grounds recognised by HMA 

Ajay Sethi
Advocate, Mumbai
74388 Answers
4450 Consultations

5.0 on 5.0

In your case summon was served properly and legally. So your wife can not challege the exparte order to set aside on ground of summon not received by her.

Kallol Majumdar
Advocate, Kolkata
2507 Answers
4 Consultations

5.0 on 5.0

1. Summons duly served at a Address and received by respondent party or bonafide family members, are legally construed as "Summons Served" by the Court and is considered as irrefutable and final, as far as legal proceedings are concerned. 

2. Ex-Parte Divorce Decree, by virtue of the above, shall remain non-challengable and final even if issued in UK and is legally & absolutely enforceable in India, without any further legal references, whatever

3. As far as wife's trouble is concerned, in India, it is very very easy to frame a false charge /crime and make the case linger on for several years.  There is really no solution to all this.  

Hemant Agarwal
Advocate, Mumbai
4307 Answers
23 Consultations

5.0 on 5.0

Divorce order passed in the foreign court is not valid in the India. Only the Mutual Consent Divorce performed in foreign court are valid in the India.

Ganesh Kadam
Advocate, Pune
9590 Answers
80 Consultations

4.9 on 5.0

1. The family members are lawful agent of the litigant and the summons received by the family ember or even servant of the party is considered to be a valid service of summons.

2. Once the court is satisfied with the summons of the suit , it can fix the ex aprte hearing of the same and pass the decree if merit of the case so demands.

3. After passing of the ex aprte decree the respondent can challenge the same either by preferring an appeal on merit of the decree or apply for setting aside the decree on the issue of service of service of summons as permissible under Order 9 Rule 13 of CPC.

Devajyoti Barman
Advocate, Kolkata
19515 Answers
277 Consultations

5.0 on 5.0

Hi

Yes Ex-Parte divorce is valid. 

Yes she would be having a 30 days limitation period to appeal against the Ex-Parte order.

Thanks

Rahul Jatain
Advocate, Rohtak
2320 Answers
4 Consultations

4.9 on 5.0

Dear Sir,       

  In civil case summons, those who have filed the case against you gets an upper hand and there is high probability they will be benefited with ex-parte order.                                                            

A summon is a court order to an individual to appear in court at a specified time and place. A summon may be issued in both criminal and in civil cases. A summon is also served to production of things in front of Court.

Ways to serve summons

  1. It should be served to person if the person is not at his place then at that time it can served to any family member but a servant cannot be counted as family member. If summon is received by any person then it should be signed by that person.
  2. It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
  3. It shall be affixed in some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
  4. A copy thereof shall be affixed to some conspicuous part of the court house;
  5. The court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which person resides

If after serving summons that person is not coming in front of Court then the property of that person can be proclaimed. There is different rules related to proclamation in India.

Netravathi Kalaskar
Advocate, Bangalore
4953 Answers
25 Consultations

4.8 on 5.0

In Divorce case the notices to respondent will be issued by concern family court on payment of process by the court approaching party. It seems you have filed and sent the show cause notice to the parental house of your wife who was not there but however the court notice was received by her  parental side relatives and the court was accepted the service of court notice/ summons. Here the acceptance by the Hon'ble Court is important and crucial. Once court held the service of summons on your wife is proper and considered the same it will proper and hold good.

   If in case your wife challenge the same in future you have to prove that the same address is her parents house and you may defend the same by submitting any proof of address of her parents house viz., PAN card, Aadhar, Ration, DL, electricity bill or any address correspondence etc., ( any of them).

 

Your wife may challenge the ex-parte divorce within stipulated time limitation period as per Indian Limitation Act. You have to wait for completion of appeal period of such ex-parte divorce granted by concerned family court for taking further steps marrying etc., 

 

If you obtain divorce from concerned Hon'ble Family Court even though it is exparte its valid divorce and stand good and your wife cannot take any action or trouble you.

Lakshmi Kanth
Advocate, Hyderabad
446 Answers
15 Consultations

4.7 on 5.0

Where u applied for divorce ? If in UK than ex parte UK court divorce decree not valid in India. 

She can challenge the order in India and can file DV case in India. You are NRi and not foreign citizen so may face trouble if she file case.

If divorce applied in India than ex parte divorce is valid but she can apply to set aside ex parte decree with in 30 days of order.

 


If she is living with her parents, summons are served .

Yogendra Singh Rajawat
Advocate, Jaipur
18433 Answers
22 Consultations

4.6 on 5.0

Dear Sir,

There here clear rules regarding the service of the summons and in case the summon is received by her family members, then it is a valid service. 

Ganesh Singh
Advocate, NEW DELHI
4398 Answers
9 Consultations

4.5 on 5.0

Dear Sir,

It all depends upon the decision of  Family Court. If family court decides that such service on her relative sufficient and proceed by placing her exparte then such decision and all subsequent orders of the Court are binding on her. Make sure that such endorsement is accepted by the court as duly and properly served. If not get issue a paper advt. in local paper as per  the procedure laid under order 5 rule 20 of cpc after seeking permission of the court, which ends the issue once for all. Nothing to bother too much in this matter.

================================================================Order V Rule 20 of Civil Procedure Code

Rule 20. Substituted service.—(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous
part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

[(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.]


(2) Effect of substituted service.—Service substituted by order of the Court shall be as effectual as ifit had been made on the defendant personally.
(3) Where service substituted, time for appearance to be fixed.—Where service is substituted by order .

Kishan Dutt Kalaskar
Advocate, Bengaluru
5279 Answers
171 Consultations

5.0 on 5.0

1. Her family member has acknowledged the Summons sent to her, for and on her behalf.

 

2. The Court has already accepted it as good service.

 

3. So, if she complaints later on stating that she has not received the summons, it might not be accepted by the Court.

 

4. However, it will be prudent on your part to file an application before the Court praying for leave for publishing the said Summons in local News papers to be 100% perfect in making good service of the Summons and stay safe in case she takes up the issue of non receipt of Summons later on.

Krishna Kishore Ganguly
Advocate, Kolkata
24025 Answers
659 Consultations

5.0 on 5.0

She can challenge the exparte divorce at a later stage when she comes to know that an exparte divorce has been granted due to her non appearance.

She can file a petitioin seeking to set aside the exparte decision.

However she may have to file it within 30 days from the date of decision or else she may have to file another application under section 5 of the limitation act seeking to condone delay in approaching court for setting aside the decision in the main petition granting  exparte divorce.

T Kalaiselvan
Advocate, Vellore
64348 Answers
834 Consultations

5.0 on 5.0

- Order V Rule 15 of CPC , provide for service of summons on adult male or female member of the family in case the defendant is absent, i.e. if any major family member receive court notice /summons of court in the absence of defendant , then it considered that the summon has been served upon the defendant. 

- Since , her family member has already received the summons , then the knowledge has already passed to her . 

- Hence, if she will not appear on the fixed date of hearing before the court, then court will pass ex-parte decree of divorce . and this decree is valid for all purposes . 

- Limitation period for filing an application for setting aside an ex parte decree is 30 days from the date of knowledge of the decree.

- Therefore, after lapsing of 30 days from the date of passing decree , she cannot set-aside the decree , because the summons has already served ,and knowledge has already passed to her . 

Mohammed Shahzad
Advocate, Delhi
2488 Answers
33 Consultations

5.0 on 5.0

1. If summons are served to family of your wife then it would be deemed served to your wife if she is in contact with her family. 

2. Court can proceed Ex-parte against your wife if she doesn't come to court personally or through her pleader.

3. For double checking that summons are served to your wife you can also send summons through whatsapp and email to your wife and provide copy of delivery of summons in court. 

4. Once you get Ex-parte divorce then your wife can only trouble you by filing appeal in High court for that you can move a caveat application in High court.

Mohit Kapoor
Advocate, Rohtak
7885 Answers
2 Consultations

5.0 on 5.0

Summons can be delivered to a family member of the respondent wife as per the relevant provision of civil procedure code

So it's completely fine

Your job to notify her about the filing of the divorce petition is hence complete

Yusuf Rampurawala
Advocate, Mumbai
5105 Answers
31 Consultations

5.0 on 5.0

If the notice is served on the adult member of her family it can be considered by the court, however, it is court's discretion to consider it proper service or may ask you to send the notice once again.

If court considers the same  as proper service of notice on her, court will grant you exparte divorce, thereafter, on completion of appeal period you can remarry.

Further, if summon is through India Courts it is valid but if it is from foreign court, the provisions of Hindu Marriage Act needs to be coplied.

Yes, she can file application to set aside the exparte decree.

S Srinivasa Prasad
Advocate, Hyderabad
1867 Answers
7 Consultations

5.0 on 5.0

You have to serve her atleast twice through normal mode as the court would order, thereafter you will have to file an application for substituted service through affixation and publication in newspaper. If she fails to appear even after substituted service the court will order the proceedings to be ex-parte against her. It should take around two more hearings to get it ex parte.

Mohammed Mujeeb
Advocate, Hyderabad
15449 Answers
7 Consultations

4.5 on 5.0

Hi 

Since the notices were sent to the last known residential address of the person, in law, the court can still proceed to hear the divorce proceedings and decide ex-parte.

Also it will be in your interest to ask permission of the court for substituted service (summons through news paper) under Order V, Rule 20(1), of the Code of Civil Procedure to be issued so that in case your wife does not appear on the hearing dates, the court can grant ex-parte divorce decree and even if she appears in the court at a later date with a prayer for setting aside ex-parte decree, the courts shall not grant her prayer for setting aside on the grounds that 

1) Summons were received at her last known address and 

2) Additionally paper publication of summons was also issued . 

Hope this information is useful. 

Rajgopalan Sripathi
Advocate, Hyderabad
1817 Answers
337 Consultations

5.0 on 5.0

Hello,

As her family member received it, it will be a good service and on absence of your wife the case will run ex parte.

Regards

Swarupananda Neogi
Advocate, Kolkata
1626 Answers
4 Consultations

4.7 on 5.0

She cannot take that clearly at a later stage as the duly served at her parents home and the court has also acknowledged the same. In case she has any other address which is in your knowledge, you can send the summons to her on that address as well.

Siddharth Jain
Advocate, New Delhi
5442 Answers
61 Consultations

5.0 on 5.0

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