JALMA NACHIYAR Vs. MOHAMMED SHAMSHUDDEEN DIED

JUDGEMENT

(1.) THE wife filed the suit for recovery of the amounts due to her under the head of marital expenses, maintenance etc., it was dismissed by the trial Court below. THE appellant relied on an agreement between the parties to prove her case wherein the respondent had agreed to provide for her security since he was normally resident in Burma. Soon after the execution of the above agreement which is Ex.A-2, dated 8.3.1974, the respondent had divorced her by pronouncing triple talaq and the document in evidence of this is Ex.B-1. THE appellant admits that she is now remarried. Her claim for maintenance is restricted to the period during which she was married, since the respondent had left her behind her mother's house and without taking care of her. THE Trial Court held that Ex.A-2 was a concocted document and that the wife was not entitled to any maintenance beyond the iddat period and that even this claim was time barred. THE judgment was delivered on 27.3.1982 and before delivering the judgement, an additional issue was framed on that date regarding limitation and finally the suit was also dismissed.

(2.) MR.S.K.Raghunathan, learned counsel for the appellant would submit that this question of limitation was never put in issue during the course of trial and the trial Court took the appellant by surprise by framing that issue on the date of pronouncement of judgment and had also held against her on this question. According to the learned counsel, since there were no materials to show that the respondent was normally resident in India, the appellant was entitled to take advantage of Sec.15(5) of the Limitation Act which permits the exclusion of the time during which the defendant has been absent from India while computing the period of limitation for any suit. The judgment reported in Rajamani v. Meenakshisundaram (1999)3 MLJ. 327: (1999)3 C.T.C. 309 and Full Bench were relied on.

(3.) LIMITATION: As regards the payment of arrears of maintenance, the Trial Court while dealing with this issue held that even though the Art.105 is restricted to Hindus alone, the fact remains that Ex.A-2 assuming it is a genuine document, is dated 8.3.1977 and the suit was filed on 23.4.1977, and Arts.68 and 69 of the LIMITATION Act would apply and since the suit should be laid within three years from the date when the right accrued this suit is time barred. Even if the date of talaq 14.3.1977 is reckoned as starting point the suit is out of time. According to the learned Judge, the notice Ex.A-3 cannot be relied on to extend the period of limitation, because neither the returned notice nor the acknowledgment has been filed and therefore without proof of acknowledgment of liability, the suit is barred by limitation. It was also observed that since limitation is a point of law, the plaintiff cannot agitate that she was not given any opportunity to adduce evidence. This observation may not be correct in view of Sec.15(5) of the LIMITATION Act. If the appellant had known that this would be put against her, she might have called upon the respondent to produce his passport to show the period during which he was absent from India. But even this question becomes academic in view of the judgment in (2001)7 S.C.C. 740. The relevant extract is: