IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 Mat.Appeal.No. 283 of 2010 ---------------------------- OP.464/2007 of FAMILY COURT,KOZHIKODE .................... APPELLANT/RESPONDENT. ------------------------------------ MALAYIL SUBAIR, S/O.ABDULLA, MALAYIL VEEDU, PENMURI AMSOM, PARAMBIL DESOM, VILLIAMPALLY POST, VADAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNA MANI RESPONDENT/ PETITIONER. --------------------------------------- PULIKANDIYIL RASIYA, D/O.MAMMU, KUMANKOTTU AMSOM, NADAPURAM, VADAKARA TALUK, KOZHIKODE DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== C.M. Application NO. 885 OF 2010 & MAT APPEAL NO. 283 OF 2010 ============================ DATED THIS THE 17TH DAY OF MAY 2010 JUDGMENT Basant,J. This appeal is directed against an ex parte order granting divorce in favour of the respondent-wife under the provisions of the Dissolution of Muslim Marriage Act. 2. The impugned order was an ex parte order. The court below in the absence of any contest relied upon the proof affidavit filed by the appellant and proceeded to pass the impugned decree. The appeal has been filed with a petition to condone the delay of 517 days. 3. Called upon to explain why the appellant has chosen to file this appeal and not apply to get the ex parte order set aside, the learned counsel for the appellant only prays that this appeal and the petition for condonation of delay may be dismissed as withdrawn without any fetter on his right to apply before the court below to get the ex parte order set aside. MAT APPEAL NO. 283/2010 2 4. We accept the said prayer of the learned counsel for the appellant. The appellant is given permission to withdraw this appeal and the petition for condonation of delay. This appeal and the petition for condonation of delay are dismissed as withdrawn. Needless to say, the dismissal of this appeal and the petition for condonation of delay as withdrawn shall not affect the right of the appellant to move the court below to get the ex parte order set aside in accordance with law, subject of course to the law of limitation. We make it clear that we are not intending to express any opinion on the entitlement of the appellant to get the ex parte order set aside. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. MAT APPEAL NO. 283/2010 3