IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 Mat.Appeal.No. 84 of 2007() --------------------------- OPGW.130/2005 of FAMILY COURT, MANJERI .................... APPELLANT/PETITIONER: ------------------------------------ K.P.YOONUS, S/O. MUHAMMEDKUTTY, AGED 25 YEARS, KOLINTEPURAKKAL HOUSE, RAYIRIMANGALAM AMSOM, TIRUR TALUK, TANUR P.O., MALAPPURAM DISTRICT. BY ADV. SRI.TOM JOSE RESPONDENT(S): RESPONDENT: --------------------------------------------------- PALLIPPARAMBATH JUMAILATH, D/O. ALI MUSLIAR, AGED 19 YEARS,CHENNARAPERUNTHIRUTHI HOUSE, CHENNARA P.O., TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.V.V.ASOKAN, SMT.S.AMINA. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- CMA No.349/2007 & MAT Appeal No.84 of 2007 ------------------------------------------- Dated this the 23rd November, 2010 ORDER/JUDGMENT Basant, J. This petition is to condone the delay of 617 days in filing the Matrimonial Appeal. The appeal in turn is directed against an order dismissing the application to appoint the petitioner as the guardian of his child. 2. We are not satisfied that there is any justifiable reason to condone the long delay of 617 days. We have perused the proceedings and we find that as early as on 5.7.2007, the bench which dealt with the matter had directed the appellant to file a fresh affidavit properly explaining the delay. No affidavit has been filed so far. We are not satisfied that the delay deserves to be condoned. The learned counsel for the appellant presses for further time to file a fresh affidavit, as already directed. We are not satisfied that any further time need be granted for filing such further affidavit to explain the delay. MAT No.84 of 2007 2 3. We are satisfied that the delay does not deserve to be condoned. We further note that the impugned order passed was an ex parte order. The child was born on 20.4.2003. The petition for custody of the child was filed in early 2005. The same was disposed of later in May 2005. The prayer for custody was rejected. The impugned order further directs that the appellant/father shall have the opportunity to see the child occasionally. It was directed that he shall be at liberty to go to the house of the respondent, the mother of the child to see the child. 4. We have looked into the facts only to satisfy ourselves that the dismissal of the petition for condonation of delay does not result in failure or miscarriage of justice. We are satisfied that the appeal itself is without any merit. We make it clear that the option of the appellant to file a fresh petition for custody of the child shall remain unaffected by the dismissal of this appeal as a long period of five years has now elapsed from the date of the impugned order. 5. Consequently, the application for condonation of delay is dismissed. The appeal shall, hence, stand rejected MAT No.84 of 2007 3 as barred by limitation. The dismissal and rejection are subject to the observation made above that this dismissal/rejection will not stand in the way of the appellant approaching the court below afresh for custody of the child if changed circumstances justify such request. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE css/