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Why Ex Parte Divorce is a Real Thing

Divorce can be of two types, one is a contested divorce and the other is a mutual consent divorce.  In case of a mutual consented divorce, both the husband and the wife are ready to take a divorce while in the case of a contested divorce one of the party files for a divorce. An ex parte divorce can be granted only in the case of a contested divorce.

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The term ex parte means without the presence of the other party. In an ex parte divorce proceeding, only one party is present. The other party either refuses to participate or cannot be located. Nobody can be forced to be in a marriage, and hence the court passes the ex parte order when the other party refuses to cooperate and attend the court proceeding even after receiving the summons or notice.

A well-qualified divorce can help you proceed in an ex parte hearing. For e.g. If a wife staying in Chandigarh files a divorce petition against her husband who even after receiving a summon, knowingly, refrains from attending the court proceedings, then with the help of some good divorce lawyers in Chandigarh, she can request the court for an ex parte hearing.

Grounds for an Ex Parte Divorce

An ex parte decree is a decree passed in the absence of the other party. A situation might arise in which a person knowingly refuses to sign the divorce papers or refrain from appearing before the court even after repeated notices and reminders or the person cannot be located even after all the possible attempts, in this case the court proceeds ex parte (without his presence) against that person. An ex parte order is passed by the court to ensure that the rights of the party is not jeopardised at the cost of the other party.

An ex parte order is passed by the court under Civil Procedure Code on the following grounds-

  • As per O8R5(2) and O8R10 – if the opposite party fails to file a written statement within the time specified by court (30 days or 90 days or time specified by court) then the court has the power to proceed ex parte against that party.
  • As per O9R6(1)(a) of CPC – if it is proved that the summons/notice of appearance was duly served, and the party filing the suit appears while the other party fails to appear, the court can proceed ex parte against the other party.
  • As per O9R7 of CPC– where the court adjourns the hearing as ex parte and the opposite party appears on or before the date of hearing and assigns a good cause for non-appearance, then the court will proceed as if he had appeared on the first hearing itself. But, if the opposite party fails to appear or assign a good cause for his previous non-appearance, then the court can proceed ex parte.

Burden of Proof for an Ex Parte Order

The burden of proof that the summons was duly served on the opposite party is on the party who has filed the suit.  This can be proved with the help of an advocate. The documents that support the argument that the summons was duly served include an affidavit, report of process server. It can be argued that the opposite party is deliberately not responding or attending the court proceedings or that even after repeated attempts, the party filing the suit is unable to locate the other party or any other sufficient cause.

Validity of an Ex Parte Order

The legal validity, enforceability and operation of an ex parte decree is similar to that of any other bi- parte decree.  The court weights the evidences and facts provided by the party filing the case and on the basis of that passes the order. If the party filing the case is able to prove the facts then the court may pass an ex parte order or dismiss the suit. The court in an ex parte divorce order can also decide upon the issue of child custody and alimony.

Remarriage after an Ex Parte Divorce

In the case of Chandra Mohini Srivastava v Avinash Prasad Srivastava[1], the court held that any party after obtaining a divorce can re marry only after the period for filing an appeal or the period for filing an application to set aside the ex parte decree has lapsed. If an appeal has been filed by the opposite party, then it must wait till the appeal is decided by the court. The party in whose favour the court has passed an ex parte decree must wait for 30-9 0days from the date of passing the decree by the court.

Also Read: 3 Ways to Thrive as a Single After a Breakup

Setting Aside of an Ex parte Decree/ Appeal

An application to set aside an ex parte decree can be filed under O9R13. The grounds for setting aside an ex parte decree include:

  • In a case where summons was not duly served
  • In a case where defendant was prevented from sufficient/good cause from appearing where the fact called for hearing.

Even an appeal against an ex parte order can be filed under section 96(2) as an ex parte order is a final order and not an interlocutory order.

So, if the other party cannot be located from long or is refusing to cooperate, then the aggrieved party can request the court for an ex parte divorce with the help of his/her lawyer. It is imperative to prove in these cases that the opposite party is deliberately not accepting the summons or is not appearing in the court even after receiving the summons. The ex parte order passed by the court is a final order and has the same validity like another bi-partite order.

[1] (1967) 1 SCR 864.

Salman Zafar

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