IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 MJC.No. 409 of 2010(E) --------------------- AGAINST THE JUDGEMENT/ORDER IN MA.262/2005 .................... PETITIONER/APPELLANT -------------------- BABY P.V, AGED 50 YEARS, S/O.VARGHESE, PALAPPILLIL HOUSE, KARUKADOM.P.O, VENDUVAZHI, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. DR.SEBASTIAN CHAMPAPPILLY RESPONDENT : RESPONDENT --------------- K.K.LILLY, AGED 42 YEARS, KANJIRAMKOLATH HOUSE, PANGARAPPILLY P.O, THURUTHIKKARA, MULANTHURUTHY. THIS MISCELLANEOUS JURISDICTION CASE HAVING BEEN FINALLY HEARD ON 08/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** C.M.Appl.No.2302 of 2010 & M.J.C No.409 of 2010 in Mat.Appeal No.262 of 2005 ***************************** Dated this the 8th day of October, 2010 ORDER BASANT, J. C.M.Appl.No.2302 of 2010 is a petition to condone the delay of 70 days in filing an application for restoration of an appeal dismissed for default. M.J.C No.409 of 2010 is an application to restore Mat.Appeal No.262 of 2005. 2. We have heard both counsel. The application is opposed. The Matrimonial appeal was filed in 2005. No steps were taken to issue notice to the 2nd respondent. When the matter came up before the Registrar (Judicial) on 28.08.2008, there was no representation and the case was directed to be posted before the Bench. By order dated 19.05.2010, time was granted to the counsel for the appellant to take steps. It was directed that if steps were not taken within the stipulated time, the appeal be called after 10 days. 3. No steps were still taken. The matter had come up for hearing on 11.06.2010 and at that stage, this Court proceeded to pass the judgment dated 11.06.2010 dismissing the Matrimonial C.M.Appl.No.2302 of 2010 & M.J.C No.409 of 2010 in Mat.Appeal No.262 of 2005 2 Appeal for non prosecution. It is later that the application for restoration (M.J.C) has been filed along with an application to condone the delay. 4. We are satisfied that adequate opportunity has already been granted to take steps and that it is not necessary to show any further indulgence or leniency. We have requested the learned counsel to explain the nature of the challenge raised in Mat.Appeal No.262 of 2005 to satisfy ourselves that the rejection of the prayer for restoration does not result in miscarriage of justice. 5. Mat.Appeal No.262 of 2005 is seen filed against an order dismissing an application for divorce on the ground of adultery and desertion. The court below had considered the question in detail and had taken the view that the O.P does not deserve to be allowed. We are satisfied that no failure of justice is likely to result if the delay is not condoned and Matrimonial Appeal is not restored. We are informed that later, another petition has been filed seeking divorce on the ground, inter alia, of desertion for a period of 7 ½ years and the said O.P has again been dismissed. Challenging the dismissal order, Mat.Appeal C.M.Appl.No.2302 of 2010 & M.J.C No.409 of 2010 in Mat.Appeal No.262 of 2005 3 No.782 of 2010 has been filed and the same is already admitted and is pending before this Court. We are satisfied that the delay does not deserve to be condoned and the appeal does not deserve to be restored to file. 6. We see that desertion for a period of 7 ½ years (including the period of desertion alleged in this O.P) is a ground for divorce in a subsequent claim for divorce also. The learned counsel expresses an apprehension that dismissal of this appeal might affect his subsequent claim for divorce on the ground of desertion. We find no merit in this claim. The claim for divorce on the ground of desertion was not dismissed on the basis of any finding of facts. It was dismissed on a pure question of law - that is that on the date of petition, on admitted facts, a period of 2 years had not elapsed from the date of commencement of divorce which was the requirement of law as it then stood. The subsequent claim for divorce on the ground of desertion, if it satisfies the requirement of law as on the date of the claim cannot in any manner be affected by the dismissal of the earlier claim on the same ground for the reason that the period of 2 C.M.Appl.No.2302 of 2010 & M.J.C No.409 of 2010 in Mat.Appeal No.262 of 2005 4 years had not elapsed. The discussion in para.3 in the impugned order makes the position crystal clear. 7. The petition for condonation of the delay in filing the restoration petition and the M.J.C are, in these circumstances, dismissed, with the above observations. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/