Moideen K.P. Vs Kadeejath Kubra

R. Basant, J.@mdashThis petition is to condone the delay of 1074 days in filing a matrimonial appeal. The appeal in turn is directed against an order directing dissolution of marriage of the petitioner/appellant with the respondent herein under the provisions of the Dissolution of Muslim Marriage Act on an application filed by the respondent herein.

2. Marriage is admitted. There is a delay of 1074 days. The petitioner/appellant is admittedly remarried. Called upon to explain the inordinate delay of 1074 days, the learned Counsel for the petitioner/appellant submits that the delay of 1074 days occurred as the appellant was abroad and he was not aware of the proceedings before the Family Court. The impugned order shows that the respondent was served and he was set exparte. No application has been filed to set aside the exparte order.

3. We are not satisfied that sufficient reasons have been shown to justify the long and inordinate delay of 1074 days in filing the appeal. The plea that the appellant was not aware of the proceedings ought to have been raised in an application to set aside the exparte order under Order IX Rule 13 C.P.C. No such application has admittedly been filed. We do not find sufficient reasons to condone the long delay of 1074 days. In our anxiety to ensure that the dismissal of the application for condonation of delay does not result in any miscarriage of justice, we requested the learned Counsel for the appellant to explain the grounds on which the appellant wants to assail the impugned order. Except that he was wrongly set exparte by the Family Court, no other contentions are raised on merits.

4. Before the court below, there was only the oral evidence of PW1. Her evidence sufficiently and amply justifies the impugned decree for divorce. Admittedly the appellant is married again and the grievance of the respondent was that she was not being treated equitably after the second marriage of the appellant. In the light of the decision in Abdurahiman Vs. Khairunneesa, , the application of the respondent is sufficient to found a decree for divorce u/s 2(viii)(f) of the Dissolution of Muslim Marriage Act. On merits, the impugned order appears to be absolutely justified and the same does not warrant interference at all. The very fact that the appellant did not come to know of the impugned order of divorce in favour of the respondent for a period of 1074 days eloquently declares the amount of interest that he has shown for the respondent, his wife. We are satisfied that the rejection of the prayer for condonation of delay shall not result in any failure or miscarriage of justice.

4. In the result:

a) C.M. Appl. No. 20191 of 2010 for condonation of a delay of 1074 days in filing the Matrimonial Appeal is dismissed;

b) Consequently the Mat. Appeal shall stand rejected as barred by limitation.