Del HC | Wife’s application seeking setting aside of ex-parte decree of Judicial Separation dismissed on treating refusal to receive summons as due service

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ. dismissed an appeal filed by the appellant-wife against the order of the Family Court whereby her application under Order 9 Rule 13 read with Section 151 CPC for setting aside of the ex-parte decree of judicial Separation passed in favour of the husband was rejected.

Marriage of the parties to this matter ran into rough weather and the husband filed a petition under Section 10 of the Hindu Marriage Act, 1955 seeking Judicial Separation froths wife. The petition proceeded ex-parte against the wife and a decree of Judicial separation was passed. Thereafter, the wife filed an application under Order 9 Rule 13 read with Section 151 CPC for setting aside the said decree,  claiming that she had never been served. The application was, however,  rejected by the Family Court. Aggrieved thereby, the wife filed the present appeal.

S.S. Panwar, Advocate represented the appellant-wife. Per contra, Navin Kumar Chaudhary, Advocate, appeared for the respondent-husband.

The High Court noted that the trial court dealing with the petition seeking the relief of Judicial Separation had recorded that the notice of the petition issued by the ordinary process was refused by the father of the appellant. It was also noted that the summons despatched by registered cover was refused by the appellant herself and the said refusal on her part to accept service of the notice, was deemed to be an effective service upon her. The court observed that the evidence produced by the appellant was not sufficient to establish that she was in the hospital and had no opportunity to refuse the process of the Court as contended by her.

It was further noted that the address of the appellant being correct, the Family Court rightly drew a presumption of deemed service as contemplated under Section 27 of the General Clauses Act, 1897, to conclude that the appellant was duly served and had failed to contest the petition.

Accordingly, finding no error in the impugned order, the High Court dismissed the appeal.[Ritu v. Sandeep Kumar Prashar, 2019 SCC OnLine Del 9940, decided on 03-09-2019]

Join the discussion

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.