IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 Mat.Appeal.No. 534 of 2011() ----------------------------------------- OP (G&W).49/2007 OF FAMILY COURT, ALAPPUZHA .................... APPELLANT/RESPONDENT -------------------------------------- NAZEER HUSSAIN, S/O.KASSIM HUSSAIN, NAZEER MANZIL, PIPE LANE ROAD, PEROORKKADA, PEROORKKADA VILLAGE. BY ADV. SRI.G.SUDHEER, SMT.M.JAYASREE. RESPONDENT/PETITIONER ---------------------------------------- SHAHIDA, D/O.ABDUL GAFOOR, JAMEELA MANZIL, VATTAYAL WARD, ALAPPUZHA, PIN-688 001. BY THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs Thottathil B.Radhakrishnan & N.K.Balakrishnan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = Mat.Appeal No.534 of 2011 & I.A.No.1463 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 14th day of July, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.This matrimonial appeal, with an application for condonation of delay of 797 days, is filed against an order by which the custody of a female child is given to the mother. The child was 5 years when the application was filed in 2007. The father of the child contested the proceedings by filing counter affidavit. He authorised his brother with a power of attorney and went to the Gulf countries. Later, the case was transferred to Family Court, Alappuzha from Family Court, Thiruvananthapuram. The Family Court, Alappuzha noticed that neither the appellant before us nor his power of attorney holder appeared in the Family Court at Alappuzha. Yet, apart from the MA534/11 -: 2 :- proof affidavit of the mother of the child, the Court ascertained the views of the child also and found that the options of the child along with the materials on record, including the evidence of the mother, justified the continued custodial order in favour of the mother. 2.We may note that the parties were before the High Court in connection with some earlier proceedings and the child was put in the custody of the mother for 15 days with a direction to the parties to appear before the Family Court and during course of proceedings, the child was in the custody of the maternal grand father. In so far as family laws are concerned, we may notice that the parties are Muslims. 3.One serious objection that the appellant-father had was the apprehension that the girl child would be persuaded to join the film world. The impugned order takes care of that aspect also. The Family Court has also interdicted any such MA534/11 -: 3 :- activity without prior permission of the Family Court. With such safety being provided as per the order, we find that there is no ground to entertain the appeal on merits. Having looked into the merits of the appeal, we are satisfied that the best interest of the child has been taken due care of by the Family Court. 4.Now, the only statement in paragraph 3 of the affidavit accompanying the application for condonation of the enormous delay of 797 days is that since the appellant was working abroad he was not able to make arrangements to file appeal in time and that the respondent had assured him that she will hand over the child to him in the beginning of the academic year 2011 and that he did not file appeal believing her words. The respondent is now married to somebody else. Having seen the quality and content of the allegations between them before the court below, we are not persuaded to think that the appellant could have rested with any such assurance by the MA534/11 -: 4 :- mother of his daughter. We do not find any ground to accept the explanation for the delay. No sufficient cause is shown to condone the delay. Resultantly, we dismiss the application seeking condonation of delay and as its consequence, reject the appeal. Thottathil B.Radhakrishnan, Judge. N.K.Balakrishnan, Judge. Sha/1607