A claim for marital status and maintenance must be instituted within the limitation period defined by law; any delay precludes the claim irrespective of subsequent denials.

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 1st respondent is the mother of the 2nd respondent. Claiming that the 1st respondent is the legally wedded wife of the 1st petitioner and the 2nd respondent is their son, filed O.P.No.526 of 2017. The reliefs claimed are a declaration that the 1st respondent is the legally wedded wife of the 1st petitioner and the 2nd respondent is his legitimate son. The 1st respondent further claimed past and future maintenance.

5. The case set out by the respondents is that the 1st respondent was a maid servant in the house of the 1st petitioner. They fell in love and eventually they married. Marriage was solemnised as per the Hindu rites and ceremonies at the residence of the 1st petitioner on 28.10.1975. While they were living as husband and wife, the 2nd respondent was born on 10.04.1977. The 1st petitioner left for the Gulf thereafter. After returning from Gulf, the 1st petitioner started living with the 2nd petitioner. Since the 1st petitioner was married to the 1st respondent, the petitioners could not have a valid marital relationship. Till recently, the 1st respondent was being maintained by the 1st petitioner. Since he denied maintenance, a notice was sent claiming maintenance. The demand was declined by the 1st petitioner and hence the respondents instituted O.P. No.526 of 2017.

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 1st petitioner and the 1st respondent. They also denied paternity of the 2nd 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 1st and 2nd 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 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 Ar