IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 Mat.Appeal.No. 255 of 2006() ---------------------------- OP.270/2002 of FAMILY COURT,KOZHIKODE .................... APPELLANT/1ST RESPONDENT. ---------------------------------------- P.RAJAN, AGED 68 YEARS, S/O.CHANDU, VADEKKE KOLLAMPARAMBIL, ANNASSERY AMSOM DESOM, P.O.ANNASSERY, KOZHIKODE. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS : PETITIONERS & 2ND RESPONDENT. -------------------------------------------- 1. UNNOOLI, AGED 52 YEARS, D/O.THIRUMALA, CHOLAKKAL HOUSE, P.O.PERUMANNA, PERUMANNA AMSOM DESOM, KOZHIKODE. 2. P.NALINI, AGED 23 YEARS, D/O. UNNOOLI, CHOLAKKAL HOUSE, P.O.PERUMANNA, PERUMANNA AMSOM DESOM, KOZHIKODE. 3. SALINI, AGED 16 YEARS, D/O. UNNOOLI, CHOLAKKAL HOUSE, P.O.PERUMANNA, PERUMANNA AMSOM DESOM, KOZHIKODE. 4. SALINA, AGED 15 YEARS, D/O. UNNOOLI, CHOLAKKAL HOUSE, P.O.PERUMANNA, PERUMANNA AMSOM DESOM, KOZHIKODE. (RESPONDENTS 3 & 4 ARE REPRESENTED BY THEIR MOTHER 1ST RESPONDENT). 5. PADMAVATHI, AGED 44 YEARS, D/O.ACHUTHAN NAIR, VADEKKE KOLLAMPARAMBIL, ANNASSERY AMSOM DESOM, P.O.ANNASSERY, KOZHIKODE. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ C.M.Appl.No.1582 of 2006 & Mat.Appeal No.255 of 2006 ------------------------------------- Dated this the 26th day of November, 2009 ORDER/JUDGMENT BASANT, J. This petition is to condone the delay of 397 days in filing a matrimonial appeal. The appeal in turn is directed against the grant of an ex parte decree to recover an amount of Rs.17,000/- as past maintenance for respondents 2 to 4, who are admittedly the children of the petitioner/appellant. 2. It is submitted that the delay in filing the appeal occurred on account of reasons beyond the control of the petitioner/appellant. Illness of the petitioner/appellant is the alleged reason. Nothing has been produced to substantiate the said alleged reason. At any rate, we are not satisfied that there is sufficient reasons existing to justify the prayer for condonation of the inordinate and gross delay of 397 days in filing the appeal. The petition for condonation of delay therefore only deserves to be dismissed. 3. However, in our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in C.M.Appl.No.1582 of 2006 & Mat.Appeal No.255 of 2006 2 failure/miscarriage of justice, we requested the learned counsel for the petitioner/appellant to explain the nature of the challenge which the petitioner/appellant wants to raise against the impugned order. The learned counsel submits that the petitioner/appellant had suffered an order obliging him to pay maintenance to the claimants, his children, under Section 125 Cr.P.C. Payments were not made as per that order. In these circumstances, the claimants felt, instead of attempting to execute the order, to claim past maintenance from the petitioner/appellant herein, that they can claim amounts in the O.P as past maintenance though they were already clothed with an order entitling them to claim the same amount as maintenance by order under Section 125 Cr.P.C. We wanted the counsel to explain what is the nature of the challenge that can be there in these circumstances. The counsel contends that the petitioner/appellant wants to raise the contention that he was ill and did not have the income to pay the amount. 4. We are not in any way satisfied that the impugned exparte order results in any failure or miscarriage of justice. C.M.Appl.No.1582 of 2006 & Mat.Appeal No.255 of 2006 3 5. In the result, the petition for condonation of delay is dismissed. Consequently Mat.Appeal No.255 of 2006 shall stand rejected as barred by limitation. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-