IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 704 of 2010()
1. MOIDEEN.K.P., AGED 35 YEARS,
... Petitioner
Vs
1. KADEEJATH KUBRA, AGED 21 YEARS,
... Respondent
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :13/09/2010
O R D E R
R.BASANT & M.L.JOSEPH FRANCIS, JJ.
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C.M.Appl.No.20191 of 2010 &
Mat.Appeal No.704 of 2010
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Dated this the 13th day of September, 2010
ORDER/JUDGMENT
BASANT, J.
This petition is to condone the delay of 1074 days in filing a
matrimonial appeal. The appeal in turn is directed against an
order directing dissolution of marriage of the
petitioner/appellant with the respondent herein under the
provisions of the Dissolution of Muslim Marriage Act on an
application filed by the respondent herein.
2. Marriage is admitted. There is a delay of 1074 days.
The petitioner/appellant is admittedly remarried. Called upon to
explain the inordinate delay of 1074 days, the learned counsel
for the petitioner/appellant submits that the delay of 1074 days
occurred as the appellant was abroad and he was not aware of
the proceedings before the Family Court. The impugned order
shows that the respondent was served and he was set exparte.
No application has been filed to set aside the exparte order.
3. We are not satisfied that sufficient reasons have been
shown to justify the long and inordinate delay of 1074 days in
Mat.Appeal No.704 of 2010 2
filing the appeal. The plea that the appellant was not aware of
the proceedings ought to have been raised in an application to
set aside the exparte order under Order IX Rule 13 C.P.C. No
such application has admittedly been filed. We do not find
sufficient reasons to condone the long delay of 1074 days. In our
anxiety to ensure that the dismissal of the application for
condonation of delay does not result in any miscarriage of
justice, we requested the learned counsel for the appellant to
explain the grounds on which the appellant wants to assail the
impugned order. Except that he was wrongly set exparte by the
Family Court, no other contentions are raised on merits.
4. Before the court below, there was only the oral
evidence of PW1. Her evidence sufficiently and amply justifies
the impugned decree for divorce. Admittedly the appellant is
married again and the grievance of the respondent was that she
was not being treated equitably after the second marriage of the
appellant. In the light of the decision in Abdurahiman v.
Khairunneessa [2010 (1) KLT 891], the application of the
respondent is sufficient to found a decree for divorce under
Section 2(viii)(f) of the Dissolution of Muslim Marriage Act. On
merits, the impugned order appears to be absolutely justified
Mat.Appeal No.704 of 2010 3
and the same does not warrant interference at all. The very fact
that the appellant did not come to know of the impugned order of
divorce in favour of the respondent for a period of 1074 days
eloquently declares the amount of interest that he has shown for
the respondent, his wife. We are satisfied that the rejection of
the prayer for condonation of delay shall not result in any failure
or miscarriage of justice.
4. In the result:
a) C.M.Appl.No.20191 of 2010 for condonation of a delay
of 1074 days in filing the Matrimonial Appeal is dismissed;
b) Consequently the Mat.Appeal shall stand rejected as
barred by limitation.
(R.BASANT, JUDGE)
(M.L.JOSEPH FRANCIS , JUDGE)
rtr/