The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 363 of 2023 [An appeal challenging the dismissal order dated 29.09.2023 passed in CMA No.89 of 2015 under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure, by seeking to set aside the ex-parte order dated 20.07.2009 passed by the learned Judge, Family Court, Cuttack in C.P. No.95 of 2009] Smt. Ruby @ Bishnupriya Beura @ Samal …. Appellant -Versus- Pradeep Kumar Beura …. Respondent For Appellant : M/s. Durga Prasad Pradhan, P.R. Ray, Advocates. For Respondent : M/s. Rabindra Nath Panda, A.K. Panda, R. Singh & A.K. Rana, Advocates. ---------- CORAM: HON’BLE MR. JUSTICE MANASH RANJAN PATHAK AND HON’BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO ---------- J U D G M E N T ------------------------------------------------------------------------------------- Decided on : 18.09.2025 ------------------------------------------------------------------------------------- PER MRUGANKA SEKHAR SAHOO, J. Page 1 of 10 1. The Appellant wife before this Court challenges the order dated 29.09.2023 which is alien to a judgment and decree passed by the learned Judge, Family Court, Cuttack in C.P. No. 95 of 2009 allowing the petition
Legal Reasoning
ex-parte against the Appellant who was the Defendant-Opposite Party in the C.P. 2. Pursuant to our order dated 02.09.2025, both the parties are present in person before the Court, i.e. Pradeep Kumar Beura, Respondent-husband in the marriage and Ruby @ Bishnupriya Beura @ Samal, Appellant-wife in the marriage. This Court took note of the fact that till 02.09.2025 the matter is being adjourned repeatedly for no justifiable cause. After the appeal was placed for consideration, for the first time it was listed on 06.04.2024. On the said date, the following order was passed -
Legal Reasoning
“1. Mr. Pradhan, learned advocate appears on behalf of appellant and prays for liberty to rectify defect by omission in the petition, in Court. 2. Leave is granted for the defect being rectified in Court, to be countersigned by Court Master. 3. List on 15th April, 2024.” 3. On 15.04.2025 the following order was passed – “1. Mr. Pradha, learned advocate appears on behalf of appellant-wife. He submits, his client is aggrieved by order dated 29th September, 2023 of the Family Court, dismissing the application for setting aside ex-parte order dated 20th July, 2009, dissolving the marriage. The appeal has been filed in time. 2. Appellant will put in requisites for issuance of notice of appeal. The lower Court record be called for. 3. List on 8th May, 2024.” Page 2 of 10 4. The matter was adjourned, as prayed by the learned counsel for the parties, to 22.04.2025. Again similar order was passed at the instance of the learned counsel for both the parties on 30.06.2025. Thereafter the matter was adjourned on the prayer of the learned counsel for the Respondent to 16.07.2025. On 16.07.2025 the learned counsel for both the parties joined to adjourn the matter to 05.08.2025. On 05.08.2025, on being stated by the learned counsel for the parties before us, we have recorded the following order – “1. It is stated by the learned counsels for the parties that there has been a talk of compromise between the parties to settle the matter amicably. 2. List this matter on 2nd September, 2025, as prayed for.” 5. Thereafter, again the learned counsel for the parties sought for adjournment on 02.09.2025. However, the following order was passed – 1. The matter is pending since April, 2025. The appellant- wife has challenged the order passed ex-parte judgment against her by the learned Judge, Family Court, Cuttack in Civil Proceeding No.95 of 2009 and also under challenge by her is the subsequent order dated 29.09.2023 passed in CMA No.89 of 2015, wherein the petition filed by wife-petitioner under Order-9, Rule-13 of the Code of Civil Procedure for setting aside the ex-parte decree was also rejected. Despite pendency of the matter for about five months, no steps have been taken by the learned counsel for the parties and the matter is being repeatedly adjourned. On 05.08.2025, the matter was adjourned at the instance of the learned counsel appearing for the appellant on the purported ground of compromise between the parties. 2. Today, the matter is mentioned at the beginning for adjournment by the learned counsel for the appellant, Mr. Pradhan and Mr. A.K. Rana, learned counsel for the Page 3 of 10 respondent stating that there would be an out of Court settlement between the parties. On being asked, what could be the out of Court settlement in the matter, where the wife challenges the ex- parte decree of divorce and order rejecting prayer for restoration of the petition for hearing the wife, no response is coming from the learned counsel for the appellant or the respondent. 3. In such view of the matter, we feel it appropriate the parties should appear before the Court in person on 18th September, 2025 marked at 2.00 pm. Registry shall forwarded copy of this order along with the notice to appear in person to the concerned parties by Speed Post as well as through the office of the Court i.e. learned Judge, Family Court, Cuttack. 4. List this matter on 18th September, 2025, marked at 2.00 pm. Learned counsel for the parties are also requested to intimate respective parties the website copy of this order. Registry shall ensure the records of the C.P. No.95 of 2009 as well as CMA No.89 of 2025 be kept ready for reference by this Court on the next date.” 6. Being skeptical about the statement made at the Bar and the general pattern being the matter repeatedly adjourned for about one & half years and since no proposal was coming forth for any settlement repeatedly suggested by the learned counsel for the parties and adjournments being taken on several occasions, we have directed both the parties to remain present in person before this Court. The matter is marked at 2.00 PM and is taken up today. 7. We had interacted with both the Appellant and the Respondent in the language they understand, i.e. Odia. They are identified by their respective counsel and their credentials are also verified by the staff as per the system at entry point of the Court. Page 4 of 10 8. The appellant Smt. Ruby @ Bishnupriya Beura @ Samal states before this Court, which is also recorded as part of the proceeding in hybrid mode, that she wants to return to her matrimony. Thereafter we interacted with the Respondent-husband in the marriage; he states that, he has been staying separate from the Appellant-wife for the last sixteen years and he does not want to resume the matrimony any further. When we asked about the reasons for staying separate, he referred to the ex-parte decree he has obtained against the appellant. He further stated that he does not want to join the matrimony again, as he has been tortured. 9. We have decided to hear the matter finally, as the matter is kept pending being repeatedly adjourned by both the counsels and on many occasions stating before the Court that there is possibility of settlement between the parties. In such manner, the matter cannot be kept pending before the Court being adjourned repeatedly though already taken up by Court on seven occasions over a period of more than seventeen months. 10. We had asked the learned counsel for the Respondent to place the matter before us, as the Respondent was the Petitioner in the petition before the learned Family Court. Learned counsel for the Appellant was not called upon to address argument. The decree being ex-parte granted to the Respondent, we had raised the following queries to be answered by the learned counsel for the Respondent – (i) Whether Issues have been framed and settled in terms of Order XIV of the Code of Civil Procedure ? (ii) Whether the evidence adduced by the Petitioner, i.e. Respondent herein, has been evaluated by the learned trial court to grant decree of divorce ? Page 5 of 10 As a matter of fact, the above gross irregularities are found in the judgment and decree granted ex-parte, which is in the form of ‘order’ dated 20.07.2009. The reasoning portion of the order passed by the learned Judge, Family Court, Cuttack is reproduced herein – “……On going through the averments of the petitioner and the unchallenged sworn testimony of the petitioner, there is nothing to disbelieve the prayer for decree of divorce. Hence it is ordered.
Decision
ORDER The case of the petitioner is allowed ex-parte. The marriage between the petitioner and the Opposite Party solemnized on 26.02.2008 is hereby dissolved by a decree of divorce. No cost.” 11. It is, inter alia, contended by the learned counsel for the Respondent that the ‘order being passed ex parte’, the learned trial court did not give its reasons, did not frame or settle the issues, nor did the trial court delve into the evidence on record. In our considered opinion, such proposition of law is incorrect. The correct proposition of law is, even in ex-parte orders / judgments, though no judgment has been passed by the trial court, it is the duty of the trial court to deal with the pleadings, evidence on record, frame and settle the issues and give its finding diligently on each of the aspects. The rules framed by the High Court of Orissa, i.e. Special Rules of the High Court of Judicature under the Hindu Marriage Act, 1955, does not provide or contemplate any such procedure as suggested by the learned counsel for the Respondent. The Family Courts Act 1984 being a Special Act provides for the procedure to be followed by the Family Courts, as defined in Section 2(d) and Section 3. Chapter-IV of the Family Courts Page 6 of 10 Act provides for the procedure that contains Section 10, which is reproduced hereunder – to 10. Procedure generally – (1) Subject the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)], before a Family Court shall be deemed to be a civil Court and shall have all the powers of such Court. xx xx xx xx xx 14. Application of Indian Evidence Act, 1872 – A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872). 15. Record of oral evidence – In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record. 16. Evidence of formal character on affidavit – (1) The evidence of any person where such evidence is of a formal character, may be given by affidavit and may subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court. (2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit. Page 7 of 10 17. Judgment – Judgment of a Family Court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision. 12. Though it may somewhat look naïve on our part to reproduce the first principles, but we are doing so because we are presented with a situation where the procedure prescribed by the law is not followed by the learned trial court. We find that the provisions of the Code of Civil Procedure 1908 made applicable by Section 10 of the Family Courts Act, 1984 has not been followed. Order XX Rule 5 of the C.P.C. provides – Order-XX, Rule (5). Court to state its decision on each issue – In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit. Order XIV Rules 1, 2, 3 of the C.P.C. provides – Order – XIV, Rule 1. Framing of issues – (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue. Regarding applicability of Indian Evidence Act, i.e. Section 14 of the Family Courts Act provides Evidence Act is applicable to arrive at a conclusion from the evidence, i.e. a fact is proved, disproved or not Page 8 of 10 proved. Section 17 of the Family Courts Act provides for judgment, as we have quoted above. 13. Having gone through the order (rendered by the learned Judge, Family Court dated 20.07.2009), we have to observe that the judgment does not contain the concise statement of the case. It does not contain point for determination. The order does not contain the decision on the points for determination nor any reasons assigned for such decision. After discussing the pleadings and statement to certain extent made in the plaint before the learned Judge, Family Court, without at all referring to any evidence rendered by the plaintiff and also absolutely without any reasons, the order has been passed containing about three lines only. 14. In our considered view, the impugned order which is akin to a judgment under Family Courts Act and the Code of Civil Procedure has to be and is hereby set aside and C.P. No.95 of 2009 in the file of the learned Judge, Family Court, Cuttack is directed to be dismissed. 15. Now, coming to the CMA No.89 of 2015 filed under Order 09 Rule 13 of the C.P.C. by the appellant herein arising out of C.P. No.95 of 2009 disposed of by order dated 20.07.2009 has to be dealt with. One of the striking features of this case is that an ex-parte judgment and decree in a matrimonial case has been rendered by the court by a single page order. The Court has been honest to the extent that it has not mentioned the said order to be a judgment and decree. 16. Prayer was made by the Appellant invoking the powers under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure to set aside the ex-parte order dated 20.07.2009. Since we have already set aside the order dated 20.07.2009 purportedly to have been passed as judgment and decree in C.P. No.95 of 2009, the necessary conclusion would be that the Page 9 of 10 CMA No.89 of 2015 is allowed. The order dated 29.09.2023 in CMA No.89 of 2015 passed by the learned Judge, Family Court, Cuttack is hereby set aside. Costs reluctantly made easy against the Respondent. 17. Regarding the today’s judgment pronounced in the open Court in presence of the learned counsels for both the parties as well as in presence of the Appellant and the Respondent, we have explained both the parties in the language they understand, i.e. Odia, relating to the decisions made in this Appeal. Modified appellate decree be drawn accordingly. Judge (Manash Ranjan Pathak) Judge (Mruganka Sekhar Sahoo) High Court of Orissa, Cuttack. The 18th Day of September, 2025. S.K. Parida, ADR-cum-APS. Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 24-Sep-2025 12:41:22 Page 10 of 10