Concurrent findings in ex parte divorce proceedings warrant no interference in second appeal absent perversity.

The respondent-husband instituted H.M.P. No. 18 of 2023 under Sections 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955, alleging mental cruelty and desertion by the appellant-wife.

The parties had allegedly lived together for only about 15 days and had remained separate for more than three years.

The trial court found that notice had been served personally upon the appellant through the Court Bailiff, but she did not appear or contest the proceedings.

The husband, his mother and a neighbour gave evidence, which remained uncontroverted because the appellant did not cross-examine them.

The Principal Senior Civil Judge, Bhachau, consequently passed an ex parte decree of divorce on 10 May 2024.

The appellant’s Regular Civil Appeal No. 3 of 2024 was dismissed by the Second Additional District Judge, Bhachau, on 29 January 2026, affirming the decree.

The appellant thereafter filed the present second appeal under Section 100 of the Code of Civil Procedure, contending that the First Appellate Court had failed to re-appreciate the evidence and that she ought to have been granted an opportunity to contest the divorce proceedings.

Whether the courts below erred in proceeding ex parte and in refusing to grant the appellant a further opportunity to contest the divorce proceedings, despite service of notice.

Whether the First Appellate Court failed to frame and determine the necessary points regarding desertion and mental cruelty and failed to re-appreciate the evidence.

Whether the second appeal raised any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure with the concurrent findings of the courts below.

The Court applied Sections 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955, which provide mental cruelty and desertion as grounds for divorce.

Under Section 100 of the Code of Civil Procedure, a second appeal lies only on a substantial question of law, and concurrent findings of fact ordinarily cannot be disturbed unless they are perverse, grossly erroneous, or contrary to settled legal principles.

Relying on Sunil Poddar v. Union Bank of India, the Court held that an ex parte decree cannot ordinarily be set aside where the defendant had notice of the proceedings and sufficient time to appear and answer the claim, even if there was an irregularity in service.

The Court further relied on Russi Fisheries (P) Ltd. v. Bhavna Seth, 2026 SCC OnLine SC 555, and the authorities referred to therein, for the principle that findings of fact cannot be reopened in second appeal absent perversity or a clear error of law.

The High Court found that the appellant had been personally served with the divorce proceedings and had sufficient time to appear, but voluntarily chose not to contest them; no satisfactory explanation for her non-appearance was offered.

The evidence of the husband and his supporting witnesses therefore remained unchallenged, and the concurrent finding that the appellant had deserted the respondent and subjected him to mental cruelty was not shown to be perverse.

The First Appellate Court had framed points concerning the propriety of the ex parte proceedings and the correctness of the trial court’s decree and had answered those points with reasons.

Since the appellant had principally sought another opportunity of hearing before the Appellate Court and had not pressed for re-appreciation of the evidence on cruelty and desertion, the High Court held that the Appellate Court was not required to determine an unargued issue independently.

No substantial question of law arose under Section 100 CPC.

The concurrent findings on service of notice, the appellant’s deliberate non-appearance, desertion and mental cruelty were left undisturbed.

The connected Civil Application for stay was consequently disposed of, with no order as to costs.