Respondent declared exparty in section 9 HMA case.

Rakesh Kumar (Querist) 01 September 2017 This query is : Resolved
I have filed a petition u/s 9 of HMA. My wife (respondent) was decalred exparty. Now the case was fixed for exparty evidence. Plz suggest me next procedure of exparty evidence and in future what action i will be taken.

Rakesh Kumar
Mob. No. 9466912153.

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Ms.Usha Kapoor (Expert) 02 September 2017
Your ex-wife can definitely challenge the ex-parte divorce granted to you however, setting aside decree passed Ex-parte against the defendant / respondent is never so easy as the onus lies on the defendant / respondent to prove that not only the summons was not duly served on him / her or that he / she was prevented by any "sufficient cause" from appearing when the suit was called on for hearing.

As far the first part the service of summon through Registered Post, Court Process server, Newspaper publication, affixing of summons outside the door of the house/shop/office of the defendant/respondent are various modes which are carried out first by the trail court before proceeding Ex-parte against the defendant/respondent.

More so the Court after making order for Ex-parte proceedings record the evidence of the Plaintiff/Petitioner, consider the Plaint/Petition in question and based on the facts and circumstance pass any Ex-parte order/decree, it not that just immediately after passing order for ex-parte proceeding the order/decree is being passed, what this means the sufficient time is given for the defendant/respondent to come forward at any of these stages to get the ex-parte proceeding order revoked but if still such person is not doing so than he/she cannot be allowed to take advantage of his/her wrong and prevent the Plaintiff/Petitioner to avail the relief from the court.

As far if the summon was served upon such defendant/respondent but he/she was prevented to be present on the date fixed for his/her appearance, than in such case what has to be seen what was the "sufficient cause" for doing so, it not that such person avoids his/her appearance in the court without any "sufficient cause" , the court has to be satisfied for the reason or cause this person gives for the nonappearance.

In such cases it has been mostly decided by the Supreme Court as well many High Courts in India the spouse against whom ex-parte decree of divorce is passed is not getting much relief as far revoking the decree of divorce is concerned, maximum financial relief in the form of cost may be allowed to such spouse but that too depending on the facts and circumstance not in every case.

You can also let in oral and documentary evidence to prove your case in court and mark documentary evidences as exhibits even in exparte proceedings as is usual in a contested case of divorce by both husband and wife as I already discussed above.

Unless your wife's exparte decree of your divorce proceeding set aside by the court by showing sufficient cause for her non appearance the exparte decree mayn't be set aside and against which within the limitation period she doesn't file an appeal Exparte decree becomes final thus paving the way for your second marriage if you want.