W.P.(C) No. 19888 of 2022 p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19888 of 2022 An application under Articles 226 and 227 of the Constitution of India. Madhusmita Kar …. Petitioner Versus Sarada Prasanna Nanda …. Opposite Party Advocates appeared in the case : For Petitioner : Mr. K.C. Rajguru Mohapatra, Advocate For Opp. Party: Mr. Rabindra Kumar Prusty, Advocate CORAM: THE HON’BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO J U D G M E N T ------------------------------------------------------------------------------------- Decided on 11th February, 2026 ------------------------------------------------------------------------------------- PER MRUGANKA SEKHR SAHOO, J. 1. The writ petition has been filed under Articles 226 and 227 of the Constitution of India challenging the order dated 11.03.2022 and the subsequent orders passed by the learned Judge, Family Court, Cuttack in C.P. No.823 of 2021. The C.P. has been filed by the husband in the marriage under Section 13(1) (i-a) and (i-b) of the Hindu Marriage Act,1955 seeking dissolution of the marriage solemnized between him and the opposite party-wife. W.P.(C) No. 19888 of 2022 p. 2 2. The issue raised before this Court requires adjudication by exercising power conferred on this Court under the Article 227 of the Constitution of India. 3. After notices were issued by the learned Judge, Family Court by order dated 06.12.2021 in both ways, the matter was posted to 09.02.2022 for service return and the following order was passed: “Order, Dtd.09.02.2022 Adv. for petitioner files hazira. S.R. backs unserved. Ld. Counsel filed a memo along with postal receipt and postal tracking report. Put up on 11.03.2022 for P.A.” (sic) On 11.03.2022, the following order was passed: “Order, Dtd.11.03.2022 Adv. for petitioner files hazira. Petitioner is present and files an affidavit to sufficient the service through postal. Perused the tracking report. Item delivery confirmed vide consignment No.R0740449729IN. Hence, service through postal is held to be sufficient. On calls OP is found absent. Hence, OP is set exparte. Put up on 07.04.22 for exparte hearing.” Thereafter, on 07.04.2022, the following order was passed: “Adv. for petitioner files hazira. Put up on 02.05.22 for exparte hearing.” (sic) 4. Learned counsel for the opposite party refers to the order dated 02.05.2022 to submit that the opposite party had appeared on the said date through the learned counsel. On the said date 02.05.2022 learned Family Court had posted the matter for ex parte hearing to 27.06.2022. 5. On perusal of the above orders passed by the learned Judge, Family Court, apparently the learned Family Court has W.P.(C) No. 19888 of 2022 p. 3 referred to delivery of postal article to be treated as sufficiency of notice on the opposite party. 6. Significantly, the learned Family Court has itself also observed that the notice has been returned is back unserved by its order dated 09.02.2022. 7. The decision of the Division Bench of this Court in Subasini Behera @ Sethi v. Subrat Behera: MATA No.285 of 2023 dated 31.10.2025 dealt with a similar situation where after the postal article was delivered the learned Court proceeded treating same as sufficiency of notice. Application was filed by the opposite party stating on oath that she had never received notice. This Court sought for instruction/information from the postal authority and they responded stating that they did not have a mechanism to confirm the service on the person concerned as the records at the issuing post office was not maintained to that extent. In such view of the matter, in Subasini (supra) the contention of the opposite party that she had not received notice was accepted. 8. In the case at hand after inferring from the postal tracking report that the postal article has been delivered, the learned Judge, Family Court has proceeded to set the opposite party ex-parte and even went on to post the matter for ex-parte hearing on the self same date by order dated 02.05.2022. On 27.06.2022 the learned Judge, Family Court has proceeded to hear the matter as the petitioner has been examined as P.W.1 and he had marked Exts.1 and 2 on his behalf. W.P.(C) No. 19888 of 2022 p. 4 9. Order 5 of the Code of Civil Procedure deals with issue and service of summons. Rules 9, 16, 18 and 19 of Order 5 provides thus: “9. Delivery of summons by Court.—(1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him in such manner as the Court may direct. (3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court: Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff. (4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule 21 shall not apply. (5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had W.P.(C) No. 19888 of 2022 p. 5 refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1). 16. Person served to sign acknowledgment.— Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. 18. Endorsement of time and manner of service.— The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons. 19. Examination of serving officer.—Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.” W.P.(C) No. 19888 of 2022 p. 6 10. Evidently, the learned Judge, Family Court has recorded that the service through the court has been returned unserved. Therefore, in considered opinion of this Court, whether the provisions of Order 5 Rule 9 sub-rule 3 and 5 has been complied with need not be gone into by this Court. Concededly, Order 5; Rules 16, 18 and 19 have not been followed/applied in the present case. 11. Learned counsel for the opposite party takes a fair stand regarding the aforesaid legal position as would follow from the reading of the provisions contained in the Order 5 of CPC regarding issue and service of summons. 12. In view of the above discussions, having heard the learned counsel for the parties and considering in detail the material available on record and applying the provisions of Order 5 of CPC, the order dated 11.03.2022 setting the opposite party ex-parte is set aside and quashed. The proceeding before the learned Judge, Family Court, Cuttack is restored to the stage as it was on 11.03.2022. The subsequent orders passed would have no consequence in view of the fact that now the opposite party in the C.P. is directed and shall appear before the learned Family Court on 16.03.2026. 13. From the said date,i.e. 16.03.2026, the matter shall be treated to be at the stage of passing of the order dated 09.02.2022, however treating the opposite party to be participating in the proceeding. 14. It is directed that both the parties to the petition shall cooperate with the learned Judge, Family Court in taking up of the matter for effective adjudication and expeditious disposal. W.P.(C) No. 19888 of 2022 p. 7 15. The writ petition is disposed of with the aforesaid observations and directions. 16. The learned counsel for the petitioner shall produce the copy of this order before the learned Judge, Family Court, Cuttack to do the needful at his end. Urgent certified copy be issued as per Rules. Mruganka Sekhar Sahoo Judge Orissa High Court, Cuttack The 11th February, 2026/Jyostna