Shaffique, J

This original petition is filed challenging the common order dated 05/08/2016 in I.A.Nos.979/15 and 979(A)/2015 in O.P.No.403/2004 of the Family Court, Malappuram, by which the ex parte decree was set aside after condoning delay of 3690 days. The petitioner in O.P.No.403/2004 of the Family Court, who is the respondent in the applications is the petitioner herein. The parties are referred to as shown in the present original petition.

2. O.P.No.403/2004 was filed by the petitioner for a declaration that the marriage between the petitioner and the 1st respondent is null and void. He also sought for a declaration that he was not the father of the child Fathima Noora, who is the 2nd respondent herein. An ex parte decree came to be passed on 13/05/2005, since the respondents having filed their objection did not appear thereafter.

3. Later, applications were filed to set aside the ex parte decree and condone the delay of 10 years and 45 days. The Family Court allowed the applications, which are impugned in the original petition.

4. The short facts involved in the original petition would reveal that the petitioner married the 1st respondent on 01/11/1998. They lived together till 07/11/1998. According to the petitioner, the 1st respondent did not allow the petitioner to have physical relationship with her and she avoided sexual relationship alleging that she is undergoing menstrual period. When the petitioner insisted for the same on the sixth day of the marriage, the 1st respondent told him that she had physical relationship with someone else prior to the marriage and that she was pregnant in the said relationship The petitioner took the respondent to her house on the next day itself. According to him, there was no consummation of marriage between them. The 1st respondent delivered a fully grown child after 242 days of the marriage. So it was clear that the 1st respondent was pregnant at the time of marriage and she had suppressed it to the petitioner. She filed M.C.No.95/2000 for claiming maintenance. The petitioner contended that he is not the father of the 2nd respondent. Parties had undergone DNA test. The said report revealed that the petitioner is not the father of the 2nd respondent. Ext.P4 is the DNA report. Maintenance was allowed by the Family Court in regard to the 1st respondent. Maintenance was denied to the 2nd respondent. Both parties approached this Court. Revision petition filed by the respondent was allowed and the revision petition filed by the petitioner was dismissed. Though the matter was taken up before the Apex court, it was dismissed. Therefore the petitioner became liable to pay maintenance to both the respondents. Thereafter he filed O.P.403/2004 seeking for a declaration that there was no consummation of marriage and the marriage is null and void. It is based on the evidence adduced in the matter that the Family Court was pleased to allow O.P.No.403/2004 by order dated 13/05/2005.

5. In the application to condone the delay and set aside the ex parte decree, it was contended that they received a notice from the Family Court in M.C.No.513/2014 filed by the petitioner seeking cancellation of the order of maintenance. According to them, they were not aware of the ex parte order in M.C.No.403/2004 and came to know about it only when they received notice in M.C.No.513/2014. The petitioner filed objections to I.A.No.979/2015 denying the allegations. It is contended that there is no explanation for the delay of 10 years and 40 days.

6. The Court below, while considering the question whether there was sufficient reason for condoning the delay and to set aside the ex parte decree, observed that there is material to indicate that the 1st respondent was aware of the ex parte order on 29/03/2012 when she filed Crl.M.P.No.1267/2011. But, in regard to the 2nd petitioner, it was noticed that she was a minor at the time when O.P.No.403/2004 was filed and she still remains to be a minor. It is observed that