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 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 Mat.Appeal.No. 234 of 2006() ---------------------------- OP.246/2005 of FAMILY COURT, MALAPPURAM .................... PETITIONER : RESPONDENT ------------------------- ABDUL JALEEL, S/O.VALANGATTIL MUHAMMED ALI, KARUVAMBAYI CENTER, NHAMANGAD, CHAVAKKAD, THRISSUR DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT : PETITIONER ------------------------- HASEENA, D/O.IBRAHIM, KANJIRAPARAMBIL HOUSE, PURANGU, PONNANI, MALAPPURAM DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ C.M.Appl.No.1510 of 2006 & Mat.Appeal No.234 of 2006 ------------------------------------- Dated this the 9th day of November, 2009 ORDER/JUDGMENT BASANT, J. This petition is to condone the delay of 107 days in filing an appeal. The appeal in turn is directed against an order passed under the Dissolution of Muslim Marriage Act granting divorce to the respondent/wife. 2. There is a long delay of 107 days. The delay is not on account of any wilful laches, it is contended. What is the precise reason for the delay is not explained except that the petitioner/appellant was under financial constraints. 3. We are satisfied that the reason shown for condonation of the delay is not sufficient, adequate or justified. The appellant/husband was admittedly employed abroad. We are not persuaded to agree that the delay deserves to be condoned. 4. However, in our anxiety to ensure that the dismissal of the prayer for condonation of delay does not result in miscarriage of justice, the learned counsel for the petitioner/appellant was requested to explain the nature of the C.M.Appl.No.1510 of 2006 & Mat.Appeal No.234 of 2006 2 grievance before us. The wife had claimed maintenance from the husband. The husband in such proceedings claimed that there has already been a divorce. The wife at that stage did not accept the divorce and contended that the divorce is not in accordance with law. The court accepted the said contentions and held that there is no valid divorce and the husband is liable to pay maintenance to his wife. 5. The matter dragged on. The wife perhaps realised the futility of continuing the fight. She came to court with another application. In that she prayed that the earlier divorce may be declared to be valid and legal. Alternatively she prayed that the marriage may be dissolved. Declaration was not given to the petitioner/wife therein as requested by her. However the court found that the petitioner/wife therein is entitled for a decree for dissolution of marriage under Section 2 of the Dissolution of Muslim Marriage Act. The appellant/husband now, contrary to his own earlier contentions, raises a plea that the divorce should not have been granted. We cannot for a moment lose sight of the fact that it was he who contended that there was valid divorce earlier and he was not interested in continuing the relationship with the wife. It will be, according to us, a traversity of justice to C.M.Appl.No.1510 of 2006 & Mat.Appeal No.234 of 2006 3 condone the delay and admit this appeal. The appeal has no merit whatsoever. Significantly the appeal lacks bona fide also. We are not, in these circumstances, persuaded to condone the delay of 107 days in filing this appeal. 6. Service is complete. But there is no appearance for the respondent. Notwithstanding her non appearance before this Court, we are satisfied that the delay does not deserve to be condoned. 7. This petition is, in these circumstances, dismissed. Consequently the Matrimonial Appeal shall stand rejected as barred by limitation. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-