Sasidharan Nair G. and Subha v. Omana and Rajesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 O.P.(FC) NO. 296 OF 2022** **AGAINST THE ORDER DATED 28.03.2022 IN I.A.NO.1 OF 2021 IN O.P.NO.526 OF 2017 ON THE FILES OF THE FAMILY COURT, NEDUMANGAD** ## **PETITIONERS:** - **1 SASIDHARAN NAIR G. AGED 64 YEARS, SON OF GOVINDA PILLAI, THEMPAMKUZHI VEEDU, NELLANADU P.O., NEDUMANGAD, THIRUVANANTHAPURAM, PIN – 695606.** - **2 SUBHA, WIFE OF SASIDHARAN NAIR, THEMPAMKUZHI VEEDU, NELLANADU P.O., NEDUMANGAD, THIRUVANANTHAPURAM, PIN – 695606.** **BY ADVS.** **A.S.SHAMMY RAJ P.SINDHU (KARAKULAM)** ## **RESPONDENTS:** - **1 OMANA AGED 65 YEARS, DAUGHTER OF KARUMBI, VALLIKKAD CHARUVILA VEEDU, KUNTHALAKKONAM, NELLANADU P.O., NEDUMANGAD, THIRUVANANTHAPURAM, PIN – 695606.** 2 O.P.(FC) No.296 of 2022 **2 RAJESH, AGED 45 YEARS, SON OF OMANA, VALLIKKAD CHARUVILA VEEDU, KUNTHALAKKONAM, NELLANADU P.O., NEDUMANGAD, THIRUVANANTHAPURAM, PIN – 695606. BY ADVS. V.A.VINOD A.NIZAR PRAMEELA P.K. RANI RINTU ROCKEY** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 02.03.2023, THE COURT ON 14.03.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.296 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. O.P.No.526 of 2017 on the files of the Family Court, Nedumangad was filed by the respondents. The petitioners filed I.A.No.1 of 2021 seeking to consider maintainability of that O.P. The Family Court considered maintainability as a preliminary issue and held that the O.P. was maintainable. Challenging that order, the petitioners have filed this Original Petition under Article 227 of the Constitution of India. 2. On 27.05.2022, this Original Petition was admitted. Respondents entered appearance pursuant to notice. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 4. The 1[st] respondent is the mother of the 2[nd] respondent. Claiming that the 1[st] respondent is the legally wedded wife of the 1[st] petitioner and the 2[nd] respondent is their son, filed O.P.No.526 of 2017. The reliefs claimed are a declaration that the 1[st] respondent is the legally wedded wife 4 O.P.(FC) No.296 of 2022 of the 1[st] petitioner and the 2[nd] respondent is his legitimate son. The 1[st] respondent further claimed past and future maintenance. 5. The case set out by the respondents is that the 1[st] respondent was a maid servant in the house of the 1[st] petitioner. They fell in love and eventually they married. Marriage was solemnised as per the Hindu rites and ceremonies at the residence of the 1[st] petitioner on 28.10.1975. While they were living as husband and wife, the 2[nd] respondent was born on 10.04.1977. The 1[st] petitioner left for the Gulf thereafter. After returning from Gulf, the 1[st] petitioner started living with the 2[nd] petitioner. Since the 1[st] petitioner was married to the 1[st] respondent, the petitioners could not have a valid marital relationship. Till recently, the 1[st] respondent was being maintained by the 1[st] petitioner. Since he denied maintenance, a notice was sent claiming maintenance. The demand was declined by the 1[st] petitioner and hence the respondents instituted O.P. No.526 of 2017. 5 O.P.(FC) No.296 of 2022 6. The petitioners have filed I.A.No.1 of 2021 seeking to decide maintainability of O.P.No.526 of 2017. They denied the marriage between the 1[st] petitioner and the 1[st] respondent. They also denied paternity of the 2[nd] respondent. They contended that their marriage was solemnised on 03.07.1993 and ever thereafter, they have been residing as husband and wife. They have two children. The petitioners and respondents are residing in the same locality. The respondents were fully aware of the marriage between the 1[st] and 2[nd] petitioners. Only after 28 years of their marriage, the respondents have come forward with the petition, which is barred by the Law of Limitation. They have filed an objection in O.P.No. 526 of 2017 refuting all the contentions in the original petition. 7. The Family Court considered the rival contentions and held that maintainability of the petition was not merely a question relating to the jurisdiction of the court or a bar created by law and it being more of a question of fact, can be decided only on the basis of evidence. Accordingly, the Family Court dismissed I.A.No.1 of 2021 and held that the original 6 ## O.P.(FC) No.296 of 2022 petition was maintainable. The Family Court, relied on in this regard a decision of the Rajasthan High Court in **Sohan Lal v. Ram Bux (dead) by L.Rs. and others [2021 KHC 4812** : **AIR 2021 Raj. 105]** and and a decision of this Court in **Raghunathan Nair v. Bobby A. Thomas and others [2021 (6) KHC 804].** 8. The learned counsel appearing for the petitioners would contend that the marriage of petitioners 1 and 2 solemnised on 03.07.1993 was well within the knowledge of the respondents, and therefore, the cause of action for claiming a decree of declaration has arisen on the said date and therefore this original petition is barred by the Law of Limitation. Grant of a decree of declaration is governed by Section 34 of the Specific Relief Act, 1963. The period for institution of a suit for a decree of declaration of this nature is three years from the time when the cause of action first accrues as per Article 58 of the Limitation Act, 1963. The learned counsel placing reliance on the decisions in **Khatri Hotels Private Limited and another v. Union of India** 7 O.P.(FC) No.296 of 2022 **and another [(2011) 9 SCC 126]** contended that the respondents are not entitled to claim a declaration based on a cause of action that arose long before saying that there occurred successive violations of their rights. It is pointed out that the 2[nd] respondent was born on 10.04.1977 and the marriage between petitioners 1 and 2 was solemnised on 03.07.1993 and therefore the respondents were disentitled to contend that the cause of action for claiming such a declaration has arisen only recently. 9. Limitation ordinarily is a mixed question of law and fact. Section 3 of the Limitation Act prohibits a court from entertaining a suit instituted beyond the prescribed period of limitation. The court is obliged to dismiss every suit which is filed beyond the period of limitation. Therefore the court is obliged to consider whether a suit is barred by limitation especially when such a question is raised by the opposite side. 10. Order XIV, Rule 2 of the Code of Civil Procedure, 1908 contemplates that if a suit is liable to be disposed of on an issue of law only and such an issue relates to the 8 O.P.(FC) No.296 of 2022 jurisdiction of the court or a bar to the suit created by any law, the court may try and determine that issue first. The Family Court rightly followed that principle by relying on the decision of the High Court of Rajasthan in **Sohan Lal** and of this Court in **Reghunathan Nair** which are referred to above. 11. A question relating to the bar of limitation to a suit is certainly an issue that comes within the purview of sub-rule (2)(b) of Rule 2 of Order XIV of the Code, since it is a bar created by law. The question then is whether the issue of limitation in this case is a pure question of law or a mixed question of law and fact. If that question can be decided by applying law on the admitted facts as reflected from the pleadings, it is a question of law that can be decided as a preliminary issue. 12. The third column of Article 58 of the Limitation Act reads, “when the right to sue first accrues”. Therefore 3 years from the date on which the right to sue first accrued is the period of limitation prescribed to institute a suit to obtain a decree of declaration. If multifarious reliefs are claimed and if 9 O.P.(FC) No.296 of 2022 the substantive relief other than that of declaration is amenable to a longer period of limitation, such longer period shall be the period of limitation for the suit. Here the 1[st] respondent claims past and future maintenance also from the 1[st] petitioner. Maintenance is claimed as the wife of the 1[st] petitioner. Only if she is a legally wedded wife, she can claim maintenance from the 1[st] petitioner. Therefore, the claim of maintenance is inescapably dependent on the relief of declaration. In other words, if the relief of declaration is not granted, the claim for maintenance inevitably fails. 13. The Original Petition was filed setting forth the cause of action that the 1[st] petitioner has not been maintaining the 1[st] respondent for the last three years. Paragraph No.10 in the petition in O.P.No.526 of 2017, Ext.P1, reads thus: “10. The 1[st] counter-petitioner is not maintaining the first petitioner for the last three years. The 1[st] counter petitioner is not maintaining the 1[st] petitioner from September 2015. Thereafter the 1[st] counter petitioner refused to maintain the first petitioner. Hence the first petitioner is entitled to recover Rs. 3,60,000/- from the 10 O.P.(FC) No.296 of 2022 1[st] counter petitioner as arrears of maintenance. The counter petitioner deserted the petitioners without any sufficient reason and he is willfully neglected without maintaining the 1[st] petitioner.” 14. The petition was filed on 19.05.2017. After stating that for the last three years, no maintenance was being paid, went on to state that from September 2015, the 1[st] petitioner stopped maintaining the 1[st] respondent. The contradictory nature of the said statements speaks volumes. 15. The documents produced along with Ext.P1 are the Advocate notice sent in prelude to the filing of O.P.No.526 of 2017, postal receipt and acknowledgement card. Absolutely no document containing mention of the marital relationship between the 1[st] petitioner and the 1[st] respondent or the paternity of the 2[nd] respondent has been produced. As pointed out above, the 2[nd] respondent is now aged 42 years, he is married and has two children. It cannot be said that no document which contains the name of his father is available. Similarly there should be several documents which carry the name of the husband of the 1[st] respondent. Now, one cannot 11 O.P.(FC) No.296 of 2022 live in the society without having an Aadhar card, electoral card, ration card and so on and so forth. The respondents conveniently avoided production of any such document. 16. The essential objection raised by the petitioners to the maintainability of O.P.No.526 of 2017 is that it is barred by the Law of Limitation. The petition in O.P.No.526 of 2017 does not contain any plea for exemption from limitation as stipulated in Rule 6 Order VII of the Code. The main relief claimed is a declaration. The nature of declaration sought is the legal status of the respondents as wife and son of the 1[st] respondent. Under Section 34 of the Specific Relief Act any person entitled to any legal character may institute a suit against any person denying, or interested to deny, his title to such character, seeking a decree of declaration as to such legal character. The learned counsel appearing for the respondents would submit that within three years next before institution of the suit, the cause of action has arisen, and therefore, the petition was filed well within the period of limitation. It is submitted that up to 3 years prior to the 12 O.P.(FC) No.296 of 2022 institution of the petition, the 1[st] respondent was being maintained by the 1[st] petitioner. In view of the aforementioned rival contentions, the pleadings in Ext.P1 require a re-look. 17. By virtue of Section 10 of the Family Courts Act, provisions in the Code apply to the proceedings before the Family Court, subject to the other provisions in the Family Courts Act. Therefore, the rules of pleadings contained in Order VI, VII and VIII of the Code apply to the pleadings made before the Family Court, though not with the same rigour as applicable to the Civil Courts. 18. In paragraph No.7 of the petition it is stated that “after returning from the Gulf, the 1[st] counter petitioner started to live with Subha, the 2[nd] petitioner." If there was a valid marriage subsisted between 1[st] petitioner and 1[st] respondent, the relationship of 1[st] petitioner with Subha is illegal and there could not be a valid marital relationship between them. It is pertinent to note that the 1[st] respondent claimed that she was looking after the affairs of the 1[st] petitioner and the 2[nd] petitioner. Further in paragraph No.10, it 13 O.P.(FC) No.296 of 2022 is averred that “The 1[st] counter petitioner is not maintaining the first petitioner for the last three years. The 1[st] counter petitioner is not maintaining the 1[st] petitioner from September, 2015. Thereafter the 1[st] counter petitioner refused to maintain the first petitioner. Hence the 1[st] petitioner is entitled to recover Rs. 3,60,000/- from the 1[st] counter petitioner as arrears of maintenance.” 19. It is seen that a notice was sent on behalf of the respondents to the 1[st] petitioner on 14.12.2016, a copy of which was produced along with Ext.P1 petition. What is stated in paragraph No.11 is that a notice was issued on 14.12.2016 demanding maintenance for a period of three years. If the period of limitation is computed from the date three years prior to that date, the petition which was filed on 19.5.2017 is beyond the period of limitation. 20. That apart, what reveals from the aforesaid pleadings is that the 1[st] respondent was fully aware that petitioners 1 and 2 were living together as husband and wife. The respondents did know that the 1[st] petitioner after 14 O.P.(FC) No.296 of 2022 returning from Gulf had been living with the 2[nd] petitioner. Since the claim of the 1[st] respondent is that she was looking after the affairs of petitioners No. 1 and 2, the inevitable inference is that she knew well that their marriage was solemnised and they have been living as husband and wife. If so, the right to sue for establishing the status of the 1[st] respondent as the legally wedded wife of the 1[st] petitioner arose in the year 1993, soon after solemnisation of the marriage of the petitioners. 21. In **Khatri Hotels Private Limited and another v. Union of India and another [2011 (9) SCC 126]** the Apex court considered the question regarding the impact of enacting Article 58 of the Limitation Act deviating from the provisions of the Article 120 of the Limitation Act. It was held,- “27. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Art.120 of the 1908 Act. The word `first' has been used between the words 'sue' and `accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will 15 O.P.(FC) No.296 of 2022 begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.” 22. Right to sue signifies the right to seek a relief in a court of law. Ordinarily, right to sue accrues with the cause of action, that is to say, when there occurs a denial of the right or status of the claimant. Therefore, the facts of each case is decisive. In Article 58 of the Limitation Act, the word ‘first’ was added by deviating from Article 120 in Limitation Act, 1908. Therefore, the period of limitation in terms of Article 58 of the Limitation Act, 1963 has to be reckoned giving emphasis to the word ‘first’. Here, the 1[st] respondent knew about the marriage between the petitioners soon after the marriage. That fact is evident from the pleadings in the petition which we have referred to above. A cause of action for claiming a relief of declaration arises the moment there occurs denial of his right or character, expressly or impliedly. Similarly, repeated instances of such denial would not help to 16 O.P.(FC) No.296 of 2022 save limitation since Article 58 of the Limitation Act is categoric that the time will start to run from the day when the cause of action first accrues. When the cause for the 1[st] respondent to sue for a decree of declaration arose in 1993, the present petition is barred by the law of limitation. 23. The respondents produced three documents along with Ext.P1 petition, which are Advocate notice, postal receipt and acknowledgement card. Order XI, Rule 1 of the Code mandates that a plaintiff shall file a list of all documents and photocopies of all such documents in his possession, pertaining to the suit, along with the claim. Order XIII, Rule 1 of the Code makes it clear that the plaintiff can produce original documents before the settlement of issues provided copies thereof have already been submitted along with the plaint as contemplated in Order XI, Rule 1 of the Code. Production of additional documents is possible only for the purposes mentioned in sub-rule (3) of Order XIII, Rule 1 of the Code; namely, for cross-examination of a witness of the opposite party or to refresh memory. Therefore, the 17 ## O.P.(FC) No.296 of 2022 respondents have to establish their case in O.P.No.526 of 2017 only on the basis of oral evidence. The three documents they have produced would not help the respondents in any manner for establishing the relationship in question. Needless to say, oral evidence can be only in accordance with the pleadings and nothing beyond that. Viewed so also the case that could be proved by the respondents falls out the period limitation. 24. In **Azhar Hussain v. Rajiv Gandhi [1986 Supp SCC 315]** , it was held by the Apex Court that the power under Order VI Rule 16 and Order VII Rule 11 of the Code shall be exercised by courts to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and the sword of Damocles is not kept hanging over the respondent without a point or purpose. That principle applies to a suit that apparently is time barred. In such circumstances, we are of the view that the Family Court went wrong in dismissing I.A.No.1 of 2021. 18 O.P.(FC) No.296 of 2022 Hence, we allow this Original Petition and set aside Ext.P8 order dated 28.03.2022. I.A.No.1 of 2021 stands allowed. O.P.No.526 of 2017 on the files of the Family Court, Nedumangad is dismissed as barred by the law of limitation. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 19 O.P.(FC) No.296 of 2022 ## **APPENDIX OF OP (FC) 296/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1** **TRUE COPY OF THE ORIGINAL PETITION IN O.P. NO.526/2017 ON THE FILE OF FAMILY COURT, NEDUMANGAD, FILED ON 19.5.2017** - **EXHIBIT P2** - **TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE REGISTRAR OF MARRIAGE, CHIRAYINKEEZH PANCHAYATH DATED 14.7.1993** - **EXHIBIT P3** - **TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS HEREIN, AGAINST THE ORIGINAL PETITION O.P. NO.526/2017 ON THE FILE OF FAMILY COURT, NEDUMANGAD, ON 23.7.2018** - **EXHIBIT P4** - **TRUE COPY OF THE INTERLOCUTORY APPLICATION DATED 18.3.2021 FILED BY THE PETITIONERS AS I.A. NO.1/2021 IN O.P. NO.526/2017 ON THE FILE OF FAMILY COURT, NEDUMANGAD** - **EXHIBIT P5** - **TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS HEREIN DATED 22.11.2021 IN O.P. NO.526/2017 ON THE FILE OF FAMILY COURT, NEDUMANGAD** - **EXHIBIT P6 TRUE COPY OF THE S.S.L.C. CERTIFICATE OF THE 1ST PETITIONER** - **EXHIBIT P7** - **TRUE COPY OF THE NATIONAL TRADE CERTIFICATE, ISSUED BY THE NATIONAL COUNCIL FOR TRAINING IN VOCATIONAL TRADERS, MINISTRY OF LABOUR, GOVERNMENT OF INDIA, DATED 3.5.1982** - **EXHIBIT P8** - **TRUE COPY OF THE ORDER DATED 28.3.2022 IN I.A. NO.1/2021 IN O.P. NO.526/2017 ON THE FILE OF FAMILY COURT, NEDUMANGAD**