R P AGRAWAL Vs. URMILA DEVI

JUDGEMENT

(1.) This is a plaintiff's second appeal in a rather unusual suit for a declaration that the respondent is not his wife and sons of her children were begotten by him. and further that he was not entitled to recover any monthly maintenance from him. Briefly stated, the plaint allega tions are the following. The plaintiff is a married man having been married in 1949 to Smt. Saroj Kumari daughter of Mukand Lal, resident of Ludhiana and has three living daughters from her who were receiving education, one in the University the other in Class VII and the third in Class IV, obviously when the plaint was filed on 6th November 1973. The de fendant was a married woman having been married near about the year 1949 to Bal Kishan son of Radha Kishan resident of Jagadhari. Bal Kishan lived upto the year 1970. Defendant has been a woman of loose character. The appellant had shifted to Calcutta in 1955 and used to visit his brother-in-law at Meerut where he came in contact with the respondent who expressed a desire to see Calcutta. The appellant invited the respondent to visit Calcutta and she used to visit the appellant at Calcutta upto the year 1958. She used to stay for 5 to 7 days on each visit. Her visits stopped after 1958. In 1965 the respondent moved an application under Section 488 of the Code of Criminal Procedure 1898 before the City Magistrate, Meerut, against the appellant who had in the meanwhile shifted to Gorakhpur and was living there since the year 1965. The respondent had claimed in her said application that she was married to the appellant according to the Hindu Spastic rights in the year 1954 and was living with him as his duly wedded wife and gave birth to two sons Alok and Rajnish. According to the appellant these allega tions were wholly false. The respondent was already duly married and was never married to the appellant, whether according to the Hindu Shastric rights or in any other manner, in the year 1954, or at any time before or after that, nor did she ever reside with the appellant as his lawfully wedded wife, nor did he beget on her the two sons Alok and Rajnish. The other allegations made in the application under Section 488 of the Code of Criminal Procedure, were also specifically denied by the appellant and it was reiterated that the respondent never lived with the appellant at Calcutta or at any other place after the year 1958 nor did she ever stay with her children in the year 1961 with the appellant's mother at Meerut. The respondent's visits to the appellant between the year 1955 and 1958 was described as those of a mere casual visitor. The appellant could not attend to the proceedings under Section 488 of the Code of Criminal Procedure. An ex-parte order was passed therein. It was set aside on his application. The respondent bad illegitimate rela tions with other persons within the knowledge of her husband, and at the time when the application under Section 488 of the Code of Criminal Procedure was made she was living with Munshi Laksbmi Chand of Sabaranpur and has continued to live with him. He was the father of her sons, Alok and Rajnish, and used to bear their expenses and used to treat them as his sons. The appellant had relatives at Meerut. The respondent chose Meerut in order to black mail the appellant by threat of defamation. She black mailed the appellant directly herself and through persons under her influence in order to obtain some money for her maintenance. The appellant was afraid of defamation and of contesting the case at Meerut, and agreed, under duress and undue influence, to compromise which was filed on 9th September, B65, agreeing to pay Rs. 100/- per month as maintenance to the respondent. This is followed by the allegation that the compromise was invalid and the Court of the City Magistrate had no jurisdiction in the matter and further that although not legally bound to do so, the plaintiff continued to pay the sum of Rs. 100/- per month out of fear of defamation and black mail. Encouraged by those with whom the respondent had illegitimate connections, she moved an application dated 12th July, 1973 for enhancement of the maintenance allowance from Rs. 100/- per month to Rs. 250/- per month. This is followed by a reiteration of the appel lant's allegation that respondent was not his lawfully wedded wife and Alok and Rajnish were not his sons; that the City Magistrate Meerut had no jurisdiction and the compromise entered in his Court was illegal for having been brought about under duress and undue influence, and that who had no right to have the amount of maintenance enhanced. The original order of maintenance that was passed by the City Magis trate on the compromise between the parties was dated 30th September, 1965. The application for the enhancement of the amount was dated 12th July, 1973. The suit was filed on 6th November, 1973. By the second prayer as originally drafted and typed in the plaint a declaration or the invalidity of the order of the City Magistrate was also sought, but it appears to have been scored out before the filing of the plaint. The object of the appellant clearly was to get over the order passed by the City Magistrate under Section 488 of the Code of Civil Procedure 1889, and at any rate to prevent the City Magistrate from enhancing the amount of maintenance from Rs. 100/- per month to Rs. 250/- per month. In her written statement, the respondent admitted the appellant's earlier marriage with Smt. Saroj Kumari and his having three daughters by her. It was then stated that before the respondent's marriage with the appellant by Vedic rights in 1954, she was married in the year 1949 to Bal Kishan Das who was insane at that time and the marriage was improper and irregular for that reason and was, therefore, dissolved. It was asserted that the respondent was the lawfully wedded wife of the appellant and her two sons Alok and Rajnish were begotten by the appellant. The filing of the compromise in the proceeding under Section 488 of the Code of Criminal Procedure was said to be proper and valid, and about the application for enhancement of the main tenance to Rs. 250/-, it was said that the respondent agreed not to prosecute it any further on the appellant's request. In the additional pleas some strong language was used by the respondent against the appellant describing his case to be false and reserving the right to take action for defamation against him for the allegations made against her character, which were described as totally false. It was then stated that because of the insanity of Bal Kishan, the marriage tie with him was duly dissolved and thereafter the respondent was married to the appellant in the year 1954 according to Vedic rights, in the presence of the appellant's mother, elder brother, other relatives and witnesses at Saharanpur. It was said that the appellant was living separate from his first wife Smt. Saroj Kumari, The respondent lived with the appellant at Calcutta and Meerut from 1954 to 1958-59 as his wife and the two sons Alok and Rajnish were born during this period. Alok was born some 17 years earlier i. e. before the written statement, at the appellant's mother's place and the second son Rajnish who was about 15 years at that time was born at the respondent's parents place at Saharanpur. The date which the written statement bears is 17th January, 1974. It was added that the respondent even stayed with the appellant's brother Sri Satya Prakash, Deputy Collector, at Barabanki and all his relatives accepted her as his law fully wedded wife. The allegation of the respondent's connection with Munshi Lakshmi Chand was denied as wholly false, as also the allegations of fraud, coercion and undue influence in arriving at the compromise before the City Magistrate, Meerut, in the proceedings under Section 488 of the Code of Criminal Procedure. Pleas of estoppel and acquiescence, factum-velet and bar of limitation and Section 34 of the Specific Relief Act, were also raised. The trial Court held that the compromise filed in the proceedings under Section 488 of the Code of Criminal Procedure was vitiated by duress and undue influence; that the respondent lived with the appellant at Calcutta from 1954 to 1938 as his concubine; that there never was any marriage bet ween them and that Rajnish and Alok were born outside lawful wed-lock; that the respondent was not entitled to any maintenance from the appellant; that the suit was not barred by the principle of estoppel and acquiescence, or limitation, nor was the suit barred by principles of factum-velet, nor by Sec tion 34 of the Specific Relief Act. In the end, holding the plaintiff entitled to the relief claimed the trial Court decreed the suit with the declaration that the respondent is not the legally wedded wife of the appellant, that "there are no issues of the defendant (respondent) with the plaintiff (appellant)" and that the respondent is not entitled to any maintenance from the appellant. On appeal by the respondent, the lower appellate Court held that the compromise in the proceeding under Section 488 of the Code of Criminal Procedure was entered into by the appellant with his free will and after fully understanding the implications of the matter, and it was acted upon by the parties for many years thereafter and was, therefore, binding. The next point raised before the lower appellate Court was about the question whether the respondent was the lawfully wedded wife of the appellant and her two sons Alok and Rajnish were his sons also. The lower appellate Court agreed with the trial Court's finding that there was sexual connection between the appellant and the respondent during the period 1954 to 1958 and the question really was whether the respondent was the appellant's lawfully married white or a mere concubine. On this point the lower appellate Court first observed that under the Hindu law as it stood before its codifications, there could be no divorce exceptty custom that in the absence of any custom of divorce in the manner alleged by the respondent she could not have married again, and although there was no other evidence relating to marriage, except her own statement, but that coupled with the surrounding circumstances suggests that there had been some form of marriage between the parties and that they lived together as husband and wife and sons were born in that wedlock. According to the lower appellate Court the appellant was estopped from challenging the fact of marriage, and, further, in view of the principles of factum valet the marriage could not now be challenged on the ground that there was no custom under which the respondent could have divorced her husband Bal Kishan inasmuch as "a text prohibiting marriage during the life-time of the husband, can only be treated as directory and cannot be said to be mandatory in the above circumstances. " Further although there was no other evidence relating to Bal Kishan's lunacy, the statement of the respondent that he was a lunatic could not be discarded inasmuch as it there was any evidence that Bal Kishan was a person of sound mind, the appellant could have produced the same, the statement of his witness Ram Raj Shukla (P. W. 2) being wholly unreliable on that point. The lower appellate Court held that, therefore, the appellant was entitled to the benefit of the doctrine of factum valet and the principle of estoppels and that "for all practical purposes it shall be deemed that the former husband" of the respondent "was divorced for any reason whatsoever" and thereafter "there had been a marriage between the parties and two sons were born out of that wed-lock," and that "whatever defect would have been in the said divorce or marriage, that would be deemed to have been cured by the principles of factum valet", and further that "such a marriage will be presumed by the fact that the parties relations treated the parties as husband and wife and the parties themselves as husband and wife. " The lower appellate Court further proceeded to observe that the trial Court was in error in holding that the status of the respondent was that of a concubine for that was not the case of the appellant at all at any stage and the only question between the parties was whether the respondent was the appellant's married wife. The lower appellate Court also observed that in this view the respondent's evidence was more reliable in comparison to the evidence of the appellant. Lastly the lower appellate Court considered the question of limitation and held that the suit was governed by the limitation of three years prescribed by Articles 58 or 59 or the residuary Article 113 of the Schedule to the Limitation Act. The question for consideration was the starting point of time from which the limitation was to be computed. According to the lower appellate Court, the starting point of time would be when the plaintiff came to know of the assertion of marriage made by the respondent in the proceedings under Section 488 of the Code of Criminal Procedure, or when he denied the same. The suit was filed beyond three years after that and was barred by limitation. The lower appellate Court did not accept the contention raised on behalf of the appellant that the starting point of limitation was the date on which the application for enhancement of the maintenance was moved, viz, 12th July, 1977. Finally, the Court held that the matter was governed by the residuary article and the starting point of limitation was the date of denial, of the respondent's status by the appellant or the date of the compro mise and that in either case, having been filed more than three years there after, it was barred by limitation. The last finding of the lower appellate Court was that the suit was not barred by Section 34 of the Specific Relief Act, but in view of its aforesaid findings it allowed the appeal and dismissed the suit. The only question formulated by the learned Judge who directed issue of notice of the second appeal after hearing under Order 41 Rule II of the Code of Civil Procedure is. "whether in the absence of a valid custom entitling the respondent to divorce her husband, she could be held to have been legally married to the plaintiff appellant. " The respondent has not appeared in this Court in spite of due service of notice of the appeal on her. Before I take up the consideration of the aforesaid question formulated by this Court, while issuing notice of the appeal after hearing under Order 41 Rule 11 of the Code of Civil Procedure, it is necessary to see whether the finding of the lower appellate Court that the suit is barred by limitation is correct or not. The suit is for a declaration of the kind not covered by Article 56 of the Schedule to the Limitation Act under the heading; Part HI suits relating to declarations; It, therefore appears to be squarely covered by Article 58 which is in the following terms: 58: To obtain any other declaration. Three years When the right to sue first years accrues. Article 59 is out of the way, for the relief of cancellation or setting aside of the order passed by the City Magistrate in the proceedings under Section 488 of the Code of Criminal Procedure, or the compromise on which it was based, has not been claimed in the suit. Since Article 58 appears to be squarely applicable to the suit. Article 113 is also not attracted. On the language of Article 58 of the question is; when did the right to sue first accrue to the appellant. Although on the facts and in the circumstances of the case it appears highly improbable, one may for the purposes of this case assume that the respondent asserted, that she was the lawfully wedded wife of the appellant, for the first time ever in the application made by her before the City Magistrate under Section 488 of the Code of Criminal Procedure, in the year 1965. The result would be that if the appellant was interested in deny ing that status to the respondent and wanted to have a negative declaration of the kind claimed by him, and assuming that such a negative declaration could be made by the Court under Section 34 of the Specific Relief Act, the cause of action for a suit for such a declaration will be said to have first accrued to the appellant on the date when that assertion, made by the res pondent in her application under Section 488 of the Code of Criminal Proce dure, came to his knowledge. On the allegations made by the appellant himself in the plaint that must have been some times in the year 1965. The suit was not filed until 6th November, 1973. In this view of the matter the suit would, therefore, appear to be clearly barred by limitation. One pro vision of the Limitation Act, however, falls to be considered in this context. It is sub-section (3) of Section 29 which says that: "save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. " The question is whether the present suit is a suit under the law "with respect to marriage and divorce. " The present suit is surely not a suit under the provisions of the Hindu Marriage Act which is the law "for the time being in force with respect to marriage and divorce" in the case of Hindus, when the suit was filed. Even the rights of the parties are not determinable by the provisions of that Act, inasmuch as the marriage and divorce in question is alleged to have been taken place before 1955, Nevertheless the question whether the alleged marriage between the appellant and the respondent was brought about in accordance with law or whether it could have been lawfully solemnized in accordance with the law in view of the fact that the respondent's husband by her earlier marriage, namely, Bal Kishan was still living on the date of the alleged marriage of the respondent with the appellant, are all questions which fall to be considered under and in accordance with the Hindu Law of Marriage as it was in force before the commencement of the Hindu Marriage Act, 1955. Yet, the Hindu Law of Marriage did not provide for a suit for a declaration of the kind claimed in the present suit. Such a declaration could it at all, be claimed under Section 34 of the Specific Relief Act or may be under the General Law governing Civil Procedure and the powers and jurisdiction of the Civil Courts. It, therefore, appears to me that Section 29 (3) of the Limitation Act cannot save the present suit from the bar of limitation, and the suit ought to have been and must be dismissed, under Section 3 of the Limitation Act, as barred by time. The other findings arrived at by the two Courts below on the merits of the matter do not survive for consideration. Indeed, once Court finds that the suit is barred by time it should refrain from recording findings on such delicate issues relating to the personal status of the parties as were involved in this case. As those findings are liable to be mis construed and may be misapplied, I set aside the findings of both the Courts below in all the other issues and maintain the dismissal of the suit on the sole finding that it is barred by limitation. The appeal is dismissed. There will be no order as to costs. .