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The Court held that refusal of a summons by the mother of an adult son, without a clear finding on her authority, does not constitute sufficient service under the CPC
The family court had treated a registered envelope marked “refused” as sufficient proof that the husband had declined to receive the summons, and consequently, granted divorce to the wife.
The Rajasthan High Court recently quashed an ex-parte divorce decree granted by a Bhilwara family court, observing that the notice of summons was never validly served on the husband and that the trial court acted in undue haste while deciding the matter.
The Court held that refusal of a summons by the mother of an adult son, without a clear finding on her authority, does not constitute sufficient service under the Code of Civil Procedure (CPC).
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A division bench of Justice Dinesh Mehta and Justice Sandeep Taneja allowed an appeal filed by the husband against the ex-parte judgment and decree dated September 15, 2023, passed by the family court in Bhilwara. The family court had granted a decree of divorce in favour of the respondent-wife under Section 13 of the Hindu Marriage Act, 1955.
The central point of contention raised by the appellant-husband, through his counsel, was the flawed nature of the service of summons, which led to him being proceeded against ex-parte.
The family court had treated a registered envelope marked “refused” as sufficient proof that the husband had declined to receive the summons, and consequently, granted divorce to the wife.
The High Court found that the service report and supporting documents clearly showed that the summons was never offered to the appellant himself. Instead, the envelope was offered to his mother, who had reportedly told the process server that her son was away in Ahmedabad and that she would not accept court papers. Despite this, the family court considered the refusal sufficient and proceeded ex parte on August 18, 2023, barely two days before concluding the hearing.
Calling this a “clear case of non-application of mind,” the bench noted that the family court had overlooked a crucial report from the Additional District Judge, Sabarkantha (Gujarat), dated August 4, 2023, which confirmed that the appellant had not been served.
“A refusal for the purpose of service of notice can be treated as sufficient only if made by the addressee or his authorised agent. A denial by any other person, including a family member, does not amount to valid service,” the High Court observed.
The Court also analysed the original envelope containing the summons and found postal endorsements showing multiple delivery attempts, on July 15, 17, 18, 19, 20 and 21, 2023, indicating that the addressee was not present at the given address. It said this pattern contradicted the family court’s conclusion that the appellant had refused the notice.
Rejecting the argument of the wife’s counsel that refusal by an adult family member amounted to due service, the High Court referred to Order V Rule 9 of the Code of Civil Procedure, which governs the service of summons. It noted that the acknowledgment of refusal must bear the signature of the defendant or an authorised agent, neither of which was the case here.
The bench distinguished the Supreme Court’s 2007 ruling in C.C. Alavi Haji v. Palapetty Muhammed, cited by the wife’s counsel, clarifying that it dealt with statutory notice under the Negotiable Instruments Act, 1881, and not with the service of summons in civil proceedings.
Drawing support from decisions of the Kerala and Madhya Pradesh High Courts, the judges reiterated that postal delivery to a family member cannot be equated with personal service of summons on the defendant.
Holding that the husband had successfully rebutted the presumption of service, the bench concluded that both the ex parte proceedings and the resulting decree were “contrary to law and facts”.
Consequently, the High Court quashed the family court’s orders dated August 18 and September 15, 2023, restoring the husband’s right to defend the divorce petition. The Court directed the parties to appear before the family court on November 3, 2025, where the appellant will be permitted to file his written statement.
The bench also directed that no fresh notice be issued, and the trial should proceed in accordance with law after granting both sides an opportunity to present their case.
About the Author
Salil Tiwari, Senior Special Correspondent at Lawbeat, reports on the Allahabad High Court and courts in Uttar Pradesh, however, she also writes on important cases of national importance and public interests fr…Read More
Salil Tiwari, Senior Special Correspondent at Lawbeat, reports on the Allahabad High Court and courts in Uttar Pradesh, however, she also writes on important cases of national importance and public interests fr… Read More
October 07, 2025, 19:29 IST
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