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 14TH OCTOBER 2009 / 22ND ASWINA 1931 Mat.Appeal.No. 676 of 2009 ---------------------------- OP.133/2004 of FAMILY COURT, KANNUR .................... APPELLANTS/PETITIONERS 2 & 3 ------------------------------------------- 1. KANDOTH CHALIL SMITHA, AGED 27 YEARS, D/O.RAGHAVAN, BEEDI WORKER, RESIDING IN A.K.NIVAS, KAITHACHAL, MANGATTIDAM AMSOM, DESOM, THALASSERY TALUK. 2. NIVEDYA (MINOR) AGED 7 YEARS, REPRESENTED BY MOTHER AND NATURAL GUARDIAN KANDOTH CHALIL SMITHA, D/O.RAGHAVAN, A.K.NIVAS, KAITHACHAL, MANGATTIDAM AMSOM, DESOM, THALASSERY TALUK. BY ADV. SRI.N.K.KARNIS RESPONDENTS: PETITIONER & RESPONDENTS 2 & 3 --------------------------------------------- 1. MULLOLI SHAYI, S/O.VASU, AGED 31 YEARS, COOLIE, RESIDING AT KATTILPURAYIL HOUSE, MANGATTIDAM AMSOM, DESOM, THALASSERY TALUK. 2. KAIPRATH SURENDRAN, S/O.KUNHIRAMAN, AGED 41, COOLIE, RESIDING IN KUZHIYIL HOUSE, MANGATTIDAM AMSOM, DESOM, THALASSERY TALUK. 3. KUNNUMAL SHIJU, S/O.KUMARAN, AGED 22, NO OCCUPATION, RESIDING IN PARAMBATH HOUSE, MANGATTIDAM AMSOM, DESOM, THALASSERY TALUK. ADV. SRI.K.V.PAVITHRAN FOR R1 SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R1 SMT.R.S.ASHA FOR R2 & 3 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== C.M. APPLN. NO. 2485 OF 2009 & MAT APPEAL NO. 676 OF 2009 ============================ DATED THIS THE 14TH DAY OF OCTOBER 2009 ORDER/JUDGMENT Basant,J. The C.M.Application is to condone the delay of 650 days in filing a matrimonial appeal. The appeal in turn challenges a decree granted by the Family Court in favour of the first respondent herein declaring that he is not husband of the first appellant and the father of the second appellant. 2. It is contended that financial difficulties of the appellants is the cause for the delay in filing the appeal. 3. This application was stoutly opposed by the first respondent. He contends that there is absolutely no justifiable reason for the condonation of the delay. The decision of paternity has been taken by the court below on the basis of a DNA test report proved by examining the Scientist. It is further submitted that as regards the alleged marriage also, no satisfactory Mat Appeal 676/2009 -2- evidence whatsoever was adduced. The learned counsel for the respondents contends that this is evidently a case where the appellants gracefully accepted the decision of the Family Court and did not want to challenge the order. But later when a connected matter filed by the first respondent herein claiming damages from the first appellant herein and others came up in the list for hearing and disposal, this appeal has been filed, without any bona fides, contends the learned counsel for the respondents. 4. The learned counsel for the 1st respondent submits that on the strength of the impugned order which has become final after the elapse of the period for appeal, the first respondent has got married on 30-3-2008 and is now residing with his wife and a child born in that matrimony. Reopening the stale claim would cause great inconvenience, difficulty and harassment to the first respondent , he urges. 5. We have considered all the relevant aspects. We are not persuaded to agree that there is sufficient reason to condone the long and inordinate delay of 650 days in filing the appeal. In coming to the conclusion, we take note of the nature of the Mat Appeal 676/2009 -3- findings and the subsequent course of conduct adopted by the first respondent. We are, in these circumstances, satisfied that this application to condone the delay cannot be accepted. 6. In the result, this application is dismissed. Consequently Mat Appeal shall stand rejected as barred by limitation. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.