The procedure for the service of summons abroad has seen significant judicial development in India. A three-judge Bench of the Kerala High Court recently had restricted the direct service of summons on parties residing abroad, mandating the procedure prescribed in The Hague Convention, 1965 (“the Convention”). The Kerala High Court's judgment, specifically in Charuvila Philippose Sundaran Pillai and Another v. P.N. Sivadasan and Others , relied on Order 5 Rule 25 of the Code of Civil Procedure (CPC). This rule allows parties to directly serve a foreign party via postal and electronic means. The court held that simply signing the Convention does not render the provisions of the CPC ineffective, thus affirming the permissibility of direct service to foreign parties under certain circumstances.
The court's sole objective was to reduce the time period to serve a party residing abroad and to harmonize domestic law with international law. The direct service process under the Convention through the Central Authority can take approximately 6-8 months.
Harmonizing Domestic and International Law
The Bench placed great emphasis on the need for domestic law to be in consonance with international law. It observed that in case of any contravention, International Law shall supersede domestic law, provided the domestic provision is not in complete contravention of the international one. When it comes to procedural law, however, the Courts should not readily infer a conflict.
Scope of India's Reservation to Article 10
The High Court specifically examined the scope of India's reservation to Article 10 of the Convention, which permits direct service via postal channels. The court observed that India's objection to Article 10 is limited to the extent that India is the destination state. The reservation does not waive the right of an Indian citizen to serve a foreign party directly through postal and electronic means in other destination states, provided that state has not objected to it.The court concluded that the power to directly serve a party residing abroad, as per Order 5 Rule 25, cannot be considered foreclosed after the enactment of the Hague Convention.
Criteria for "Deemed Service"
The key issue arises when determining whether the service can be considered "deemed served". To harmonize the CPC and the Convention, the court established the following principles regarding "deemed service":
- Electronic Service: Direct service via electronic mode, as per Order 5 Rule 25, is permissible; however, if the Defendant fails to appear, this cannot be considered "deemed service" because there is no declaration of endorsement of service. This is merely a chance taken to see if the Defendant appears.
- Postal Service: If a proper postal arrangement is carried out for the specific country and the summons is returned back unserved at the proper address of the foreign party, the Court has the power to proceed further.
- Mandatory Hague Procedure: If the party fails to comply with the aforementioned two circumstances (electronic or returned postal service), then it becomes necessary to follow the procedure prescribed in the Hague Convention.
Overruling of Mollykutty v. Nicey Jacob and Others
The 2018 Division Bench judgment of the Kerala High Court in Mollykutty v. Nicey Jacob and Others , which had previously mandated strict adherence to the Convention and restricted direct service, was overruled only to the extent that it restricted direct service of summons. The Mollykutty judgment had reasoned that direct postal or electronic service could not be considered "properly addressed" and "duly sent" if no acknowledgment was received, thereby preventing a declaration of "deemed service".
Background and The Hague Convention
India acceded to The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965, on November 23, 2006, and it entered into force on August 1, 2007.
Central Authority
The Ministry of Law and Justice, Department of Legal Affairs has been designated as the central authority responsible for the transmission and service of judicial documents in civil and commercial matters upon individuals residing in foreign contracting parties to the Convention.
The Ministry issued procedural guidelines via an Office Memorandum dated August 18, 2011, mandating strict compliance with the Convention's provisions. Courts like the Bombay High Court and the Delhi High Court have historically relied on this Office Memorandum, upholding the procedure prescribed under Articles 3 to 6 of the Convention.
Procedure per The Hague Convention
The process of service under the Convention (Articles 3 to 6) is as follows:
- Request Submission: Requests must be forwarded from the concerned Court to the Joint Secretary of Legal Affairs, Ministry of Law and Justice, with a covering letter.
- Required Documents: The request must include the prescribed 'Request Form,' 'Warning,' and 'Summary of the Documents to be served,' all in duplicate, along with the original notice/summons and a copy of the petition.
- Timeframe and Details: The process requires providing more than four months' time for service. The complete name and full address of the party must be furnished (P.O. Box or Passport Number are insufficient).
- Translation: Documents must be translated into the official language of the destination country, wherever necessary (e.g., non-English speaking countries like China or Arabian countries).
- Specific Country Procedures: Different countries may have specific procedures or charge a fee for the service process, such as the USA, Canada, and Australia. The details of these are typically available on the Hague Conference on Private International Law website (www.hcch.net).
In light of the most recent judgment, serving a party residing abroad directly through postal and electronic channels now permissible.
Author is an Advocate. Views Are Personal.