Rajasthan High Court Quashes Ex-Parte Divorce Granted To Wife Based On Refusal Of Court Notice By Husband's Mother In His Absence

Rajasthan High Court held that refusal of service of notice by any person other than the noticee themselves or their agent cannot be considered refusal in the eye of law.

The court held thus while quashing an ex-parte divorce decree granted by family court in the wife's favour after noting that the court notice was refused by the husband's mother in his absence. 

The division bench of Justice Dinesh Mehta and Justice Sandeep Taneja was hearing a man's appeal against an ex-parte divorce decree granted by the Family Court to the wife, after treating service of notice to be complete by observing that the envelope which was sent by the registered post has returned with the note of 'refusal'.

The high court said:

"A refusal for the purpose of service of notice should be taken to be a sufficient service, if such refusal is by the addressee or by the noticee himself/herself. A denial by any other person other than the noticee or his agent, including the mother to receive or accept the notice on someone else's behalf cannot be said to be a refusal in the eye of law". 

It was contended by the appellant husband that even though the envelope, sent by the registered post, was returned with the note “refusal”, the report of the process server clearly mentioned that the notice was offered to the appellant's mother who stated that her son had gone out of station.

It was submitted that the mother had stated that she not aware when the appellant would return, and that she would not accept any envelope that related to  court proceedings. It was argued that this could not have been treated as refusal of notice by the appellant.

On the contrary, it was argued by the counsel for the respondent wife that refusal by appellant's mother, being a major family member, was rightly taken as sufficient service by the Family Court.

After hearing the contentions, the high court Court said, "According to us, such stand of the appellant's mother cannot be said to be a 'refusal' by the appellant, more particularly, when the notice was not at all offered to the noticee - the appellant". 

"A perusal of the letter/report dated 04.08.2023 sent by the Additional District Judge makes It abundantly clear that the concerned party was not served. Said letter/report dated 04.08.2023 is also available in the record of the Family Court. If the report sent by the Additional District Judge was considered in the backdrop of the facts obtaining, the report of the registered post ought not to have been take to be a refusal of the notice" it added. 

The court said that the envelope that was sent on the correct address did not mention who refused to take the notice. Secondly, perusal of the original envelope containing notice reflected that there was endorsement of postman on the same indicating that on six different occasions the address was approached.

The Court opined that the fact that the address was approached 6 times, was indicative of the fact that the addressee was not at the address. Further, the stance taken by the appellant's mother could not be taken as refusal by the appellant, especially when the notice was not at all offered to the appellant.

The Court also stated that there was nothing on record to show that the appellant had authorized his mother as his agent to receive the postal on his behalf. Hence, the Family court could not have drawn an inference that the notice was served upon the appellant.

Reference was made to the Supreme Court case of Gujarat Electricity Board and Ors. v Atmaram Suhomal Poshani in which it was held that there was a presumption of service of a letter sent under registered cover, if the same was returned back with a postal endorsement that the addressee refused to accept. Then the burden to rebut this presumption was on the party challenging this service.

The Court held that this burden was effectively discharged by the appellant since on previous six occasions, the notice was never tendered upon him or his authorized agent. And his mother could not be presumed to be an agent. When she categorically refused to accept the notice on the ground that she was uncertain when her son would return.

In this background, the ex-parte proceedings by the Family Court resulting in a divorce decree was set aside.

Accordingly, the appeal was allowed.

Case Title: X v Y

Citation: 2025 LiveLaw (Raj) 334

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