IMPORTANT POINT
A child born from a void marriage is legitimate under Section 16 of the Hindu Marriage Act, and limitation does not bar claims for declaration of rights over ancestral property.

JUDGMENT :

RAJANI DUBEY, J.

1. The present appeal under Section 19(1) of the Family Courts Act, 1984 has been preferred against the judgment and decree dated 30.09.2022 passed by the learned Judge, Family Court, Surajpur, District Surajpur (C.G.) in Civil Suit No. 30A/2020.

2. Vide the judgment impugned, the Family Court has dismissed the application filed under Section 34 of Specific Relief Act, 1963 (hereinafter referred to as ‘the Act’) filed by the plaintiff/appellant for declaration of son of the defendants/respondents holding it to be barred by limitation and rights and declaration of property rights being not within the purview of matrimonial party, was held to be not maintainable.

3. Brief facts of the case are that the plaintiff filed a civil suit for declaration of son of defendants and for declaration of property rights on the ground that he resided with his mother/defendant No. 2 and was born on 12.11.1995 out of the marital relationship of defendant Nos. 01 and 02. It was averred that the defendant No. 01 has ancestral property in village Umeshpur, where the defendant No. 2 was his neighbor. There was a love affair of defendant No. 01 with defendant No. 02 & had physical relations with her on the pretext of marriage. Due to the said relationship, defendant No. 02 became pregnant and when defendant No. 2 refused to abort the pregnancy, defendant No. 1 ended relation with defendant No. 2. Thereafter, defendant No. 2 lodged a complaint in police station Surajpur, on which FIR for offence under Section 376 of IPC was registered. After registration of FIR, the defendant No. 1 sharply refused to marry with defendant No. 2 and on 12.11.1995 the plaintiff was born. After being separated from the society on account of becoming a mother before marriage, the defendant No. 02 did not have any source of income, therefore, defendant No. 02 along with plaintiff jointly filed a case of maintenance against defendant No. 01 under Section 125 Cr.P.C. before Family Court, Surajpur. It has also been averred that the name of the defendant No. 01 was recorded as proof in all the official and non-government documents of the plaintiff being his father, however, the defendant No. 1 denied the status of his father. The cause of action arose in the month of April, 2017, when the plaintiff fell ill and due to financial crisis, he went to the house of defendant No. 01 and sought financial assistance for treatment, but defendant No. 1 refused to accept the plaintiff as his son.

4. The defendant No. 01 was declared ex-parte due to refusal to take notice and no written was filed by him. The defendant No. 02, who is the mother of the plaintiff, admitted the plaint averments and did not deny any fact.

5. The Family Court, after appreciating the oral and documentary evidence, dismissed the application of the plaintiff holding that the suit is barred by limitation and declaration of property rights being not within the purview of matrimonial party, held to be not maintainable.

6. Learned counsel for the appellant referring to Section 7(e) of the Family Court Act would submit that the Family Court has jurisdiction to declare legitimacy of any person and to further declare the entitlement of the rights of the child over the property of his father but it has wrongly held that the no jurisdiction is vested with Family Court to declare the paternity of the child and wrongly held that the suit was barred by limitation. As regards limitation, it has been submitted by learned counsel that the suit was earlier filed before the regular Civil Court on 25.02.2017 but on account of establishment of Family Court the matter was referred to the Family Court returning the plaint on 03.02.2020 to the plaintiff, as such, it cannot be held that the suit was barred by limitation and there is no fault on the part of the appellant/plaintiff. Learned counsel also submits that Hon’ble Supreme Court in catena of decision held that the suit cannot be dismissed on account of misjoinde