IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 Mat.Appeal.No. 884 of 2009() ---------------------------- OP.120/2005 of FAMILY COURT, KASARAGOD .................... PETITIONER(S): APPELLANT/PETITIONER ----------------------------------- U.MOHAMMED AGED 40 YEARS, S/O. SOOPI, BUSINESSMAN, RESIDING NER IRSHAD JUMA MASJID, IRSHAD NAGAR, UDAYAWAR VILLAGE KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): --------------- MARIAMMA, AGED 32 YEARS, D/O. LATE S.A.MOHAMMED, R/AT NEAR SHIRIYA JUMA MASJID, SHIRIYA P.O., SHIRIYA VILLAGE, KASARAGOD TALUK AND DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * C.M.Appl.No.3292 of 2009 & Mat.Appeal No.884 of 2009 ---------------------------------------- Dated this the 18th day of November 2009 O R D E R & J U D G M E N T Basant,J This petition is to condone the delay of 862 days in filing a Mat.Appeal. The appeal in turn challenges a decree for divorce granted in favour of the respondent/wife under the provisions of the Dissolution of Muslim Marriage Act. It is submitted that the delay of 862 days occurred on account of reasons beyond the control of the appellant. The specific reason urged is that he was employed abroad at the relevant time and was able to come back only recently and after such return to India, this appeal has been filed. 2. We have not ordered notice to the respondent. We have heard the learned counsel for the petitioner. We are not at all satisfied that there is sufficient reason to justify the prayer for condonation for the long and enormous delay of 862 days. We are satisfied that the delay does not deserve to be condoned. The reasons urged are far from satisfactory and cannot justify C.M.Appl.No.3292 of 2009 & Mat.Appeal No.884 of 200 2 the prayer for condonation of the long delay. 2. In our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in miscarriage of justice, we have requested the learned counsel for the appellant/petitioner to explain the nature of the challenge which the petitioner/appellant wants to mount against the impugned order granting divorce. Divorce is claimed under Section 2 (viii) a and (f) of the Dissolution of Muslim Marriage Act. Marriage is not disputed. It is contended that on 13/1/2000, the respondent left the wife at her parental home and did not maintain her or make any enquiries about her. He has contracted another marriage and is living with his second wife. Though maintenance was ordered under Section 125 Cr.P.C, he did not pay maintenance to his wife. The appellant had allegedly indulged in habitual cruelty against his wife which made life miserable to her. She was unable to endure the cruelty any longer. The appellant had appeared before the court below. He was represented by a counsel. Subsequently, he chose not to appear. It was, in these circumstances that, in his absence, the impugned order was passed. The court below has placed C.M.Appl.No.3292 of 2009 & Mat.Appeal No.884 of 200 3 reliance on the unchallenged oral evidence of PW1, the wife and Ext.A1 marriage certificate produced by her. There is no contention that there has been no second marriage. 3. Taking all the relevant circumstances into account, we are satisfied that the impugned order does not result in any miscarriage of justice also. We are, in these circumstances, satisfied that the prayer for condonation of the long delay of 862 days does not deserve to be condoned. 4. In the result, the petition for condonation of delay is dismissed. Consequently, Mat.Appeal 884/09 shall stand rejected as barred by limitation. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr C.M.Appl.No.3292 of 2009 & Mat.Appeal No.884 of 200 4 C.M.Appl.No.3292 of 2009 & Mat.Appeal No.884 of 200 5 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009