Report No. 140
4.10. Ex parte decree in matrimonial cases.-
Incidentally, while dealing with the question of service by registered post. It may be proper to mention that there is a conflict of decisions on the question whether an ex parte decree passed in a matrimonial case, can be set aside by applying the provisions of Order 9, rule 13 of the Code of Civil Procedure. Most of the High Courts have answered the question in the affirmative.1
However, the ruling of a single Judge in a Gauhati case has answered the question in the negatives.2 It appears that in a Supreme Court case, it was assumed that Order 9, rule 13, C.P.C. will apply. But some difficulty arose in that case because of an appeal having been filed. Once an appeal has been preferred against an ex parte decree, Order 9, rule 13 cannot apply.3
The Mysore High Court has also applied the provisions of Order 9, rule 13 to matrimonial proceedings.4
In a Karnataka case an ex parte decree obtained by the husband for divorce was sought to be set aside. The court held the application to be maintainable, even though the husband had died. The High Court pointed out that if the right is denied to the wife, then her status would be seriously affected and her property rights would also be seriously affected.5
1. Dr. Mithilesh Kumar Srivastata v. Sara) Kumari Srivastava, (1987) 1 HLR 378 (All) (reviews case law).
2. Anjan Kumar Kataki v. Meenakshi Sarma, AIR 1985 Gau 44.
3. Rani Choudhury v. Lt. Col Surajjit Choudhury, AIR 1982 SC 1397.
4. Tirukappa v. Kamlamma, AIR 1966 Mys 1.
5. Iravva v. Sivappa, (1987) 2 HLR 312 (317, 318), paras. 12 to 14 (Karr).