Madras High Court
N.Harikrishnan vs Parameshwari on 26 September, 2025
Bench: C.V.Karthikeyan, R.Vijayakumar
A.S.(MD).No.35 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 22.09.2025
PRONOUNCED ON : 26.09.2025
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
A.S.(MD).No.35 of 2019
N.Harikrishnan ....Appellant/Plaintiff
Vs
1.Parameshwari
2.Karunakaran ....Respondents/Defendants
Prayer: The First Appeal filed under Section 96 of C.P.C, to allow the appeal
by setting aside the judgment and decree made in O.S.No.06 of 2014 dated
08.11.2018 on the file of the Family Court, Dindigul.
For Appellant : Mr..M.Thirunavukkarasu
For Respondents : Mr.S.Anand Chandrasekar
For M/s.Sarvabhauman Associates
JUDGMENT
(Made by R.VIJAYAKUMAR,J.)
The plaintiff in O.S.No.6 of 2014 on the file of the Family Court,
Dindigul has filed the present appeal challenging the dismissal of his suit
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which was filed for a declaration that the first defendant is not his legally
wedded wife and the second defendant is not his legitimate son. The plaintiff
had further prayed that the defendants should not make any claim as if they
are the wife and son of the plaintiff.
(A).Summary of the plaint is as follows:
2.The plaintiff had married one Nagavalli and he is blessed with three
sons namely Sethupathi, Boopathi and Pasupathi. There is no marriage
between the plaintiff and the first defendant and they have never lived
together as husband and wife. There is no connection between the plaintiff
and the first defendant.
3.The first defendant and her mother made a request to the plaintiff to
marry the first defendant. However, the plaintiff has not agreed for the same.
Therefore, the first defendant for herself and for her son (born without
marriage) claimed maintenance under Section 125 of Cr.P.C. In such
circumstances, the status of the plaintiff has become doubtful and there is a
possibility of wrong perception being created as against him. Hence, the
present suit.
(B).Summary of the written statement is as follows:
4.The marriage between the plaintiff and the first defendant was
conducted as per Hindu Customs in Pillaiyar Temple. Thereafter, the plaintiff
and the first defendant lived together as husband and wife and through the
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said wedlock, the second defendant was born. Thereafter, the plaintiff
harassed the first defendant demanding dowry. Hence, a criminal case was
lodged as against the plaintiff and he was convicted confirming that the first
defendant is the wife of the plaintiff.
5.The defendant had also filed MC.No.19 of 1994 before the Judicial
Magistrate No.III, Dindigul seeking maintenance and the same was allowed
and confirmed in appeal. Pursuant to this order, the first defendant and her
minor son are receiving maintenance from the plaintiff. Only to evade the
payment of maintenance, the present suit has been filed. Since the marital
status of the first defendant had already been declared in the previous
proceedings, the present suit is barred by principle of res judicata.
6.The plaintiff had examined himself as PW1 and his relative was
examined as PW2. On the side of the plaintiff, Exs.A1 to A5 were marked.
The first defendant has examined herself as DW1 and a villager has been
examined as DW2. On the side of the defendants, Exs.B1 to B13 were
marked.
(C).The trial Court had rendered the following findings:
7.(a)The cause of action for filing the suit arose when the
first defendant had filed MC.No.18 of 1994. However, the present
suit has been filed after a period of three years i.e on 15.03.2007
and hence, the present suit is barred under Article 58 of the
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Limitation Act.
b)During cross examination, PW1 has admitted that the
second defendant is his son.
c)The plaintiff has not proved his marriage with Nagavalli.
The plaintiff has not mentioned the date of marriage or the year of
marriage with Nagavalli.
d)The plaintiff has not proved that Sethupathi, Boopathi and
Pasupathi are his sons and they are born to him through Nagavalli.
e)The plaintiff having claimed declaratory relief, the entire
burden is upon him to prove his marriage with Nagavalli. However,
he has failed to discharge the burden.
f)The issue relating to marital status between the plaintiff and
the first defendant have not been decided in the previous
proceedings and hence, the present suit is not barred under Section
11 of C.P.C.
8.Having aggrieved over the judgment and decree of the trial Court, the
present appeal has been preferred under Section 96 of C.P.C by the plaintiff.
(D).Submissions of the counsels appearing on either side:
9.According to the learned counsel for the appellant, the trial Court has
not considered the fact that there is no evidence whatsoever from the side of
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the first defendant that she had ever lived with the plaintiff as husband and
wife. On the other hand, the plaintiff by examining himself and PW2 had
established the fact that the plaintiff had married the said Nagavalli and not
the first defendant.
10.The learned counsel for the appellant had further contended that
PW2 who is an independent witness has categorically deposed that there was
no marriage between the plaintiff and the first defendant. The learned counsel
had further submitted that the first defendant had lodged a private complaint
before the Judicial Magistrate No.III, Dindigul in C.C.No.97 of 2008 to
punish the plaintiff under Sections 494, 120(b) and 108 I.P.C. However, the
said complaint was dismissed for default in the year 2008. Therefore, the
period of limitation should be calculated from the said date and hence, the
suit is not barred by limitation.
11.The learned counsel appearing for the appellant had further
submitted that the first defendant, though claims that she is married to the
plaintiff, has not mentioned the date and year of her alleged marriage. In fact,
there is no marriage at all between the plaintiff and the first defendant. He
had further submitted that during cross examination, the defendant has
admitted that she is not aware whether the plaintiff is living with Nagavalli as
wife or not.
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12.The learned counsel for the appellant has further submitted that the
Family Court has not properly appreciated the fact that the second defendant
was not born through the plaintiff. In fact, in the birth register, the name of
the second defendant is mentioned as illegitimate. Therefore, it is clear that
the second defendant is not the son of the plaintiff. The trial Court has
erroneously dismissed the suit. Hence, he prayed for allowing the appeal.
13.Per contra, the learned counsel appearing for the respondents
submitted that the plaintiff during his cross examination has categorically
admitted that the second defendant is his son born through the first defendant.
The second defendant had filed O.S.No.58 of 1998 claiming partition as
against the plaintiff, his mother and minor sons Sethupathi and Boopathi who
were born through Nagavalli. The said suit was decreed and a final decree
was passed in I.A.No.247 of 2002 on 18.04.2012.
14.The learned counsel for the respondents had further submitted that
in order to evade the execution of the final decree in the partition suit, the
plaintiff had set up his mother to file O.S.No.334 of 2005 claiming
declaratory relief for the properties and the same was not successful. The
learned counsel had further submitted that the first defendant has produced
the Family Card, Election Identity Card and Aadhar Card to establish that she
is married to the plaintiff and the second defendant is the son of the plaintiff.
Only considering the said facts, the trial Court has dismissed the suit seeking
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negative declaration. Hence, he prayed for confirming the judgment and
decree of the trial Court.
15.We have considered the submissions made on either side and
perused the material records.
(E).Analysis:
16.The plaintiff has filed the present suit seeking a negative declaration
that the first defendant is not her legally wedded wife and the second
defendant is not his legitimate son.
17.A careful perusal of the prayer in the plaint reveals that the plaintiff
has not sought for a declaration that the first defendant is not his wife, but his
only claim is that the first defendant is not his legally wedded wife. The
prayer relating to the second defendant is also to the effect that he is not his
legitimate son. When the prayer is couched in such a manner, the entire
burden is upon the plaintiff to establish that the Nagavalli is his legally
wedded wife and Sethupathi, Boopathi and Pasupathi are his legitimate sons.
18.The plaintiff has not chosen to examine Sri.Nagavalli or any one of
his three sons. He has also not produced any document to show that Nagavalli
is his legally wedded wife or the said Sethupathi, Boopathi and Pasupathi are
his legitimate sons. All documents filed on the side of the plaintiff relate to
the legal proceedings initiated by the first defendant as against the plaintiff.
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PW2 who is a villager, during his cross examination, though he disputes the
marriage of the plaintiff with the first defendant, has admitted that the second
defendant is the son of the plaintiff through the first defendant. He had
further admitted that he is not aware of the date of marriage of the plaintiff
with Nagavalli and the name of the sons that were born to the plaintiff
through the said Nagavalli. Therefore, the evidence of PW2 is not of any help
to the plaintiff.
19.Ex.B2 is the final decree passed in a partition suit in I.A.No.247 of
2002 in O.S.No.58 of 1998 in favour of the second defendant. The plaintiff is
the first defendant in the said suit. Though the final decree has been passed as
early as on 18.04.2012, the plaintiff has not chosen to challenge either the
preliminary decree or the final decree wherein a share has been allotted to the
second defendant on the ground that he is the son of the plaintiff through the
first defendant.
20.The defendants have produced Ex.B7, (Family Card) which reveals
that the plaintiff and the both the defendants are residing under the same roof.
Ex.B8 is the Election Identity Card of the first defendant and Ex.B10 is the
Election Identity Card of the second defendant. Both these documents reveal
the name of the plaintiff as husband of the first defendant and father of the
second defendant. Ex.B9 is the Aadhar Card of the first defendant which
discloses that the plaintiff is the husband of the first defendant. When the
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defendants have taken effort to prove their matrimonial status and legitimacy
of the son by filing these documents, the plaintiff has not filed a single
document to establish his alleged marriage with Nagavalli. Therefore, the
trial Court has rightly arrived at a finding that the plaintiff has miserably
failed to establish his marriage with Nagavalli.
21.The first defendant has initiated proceedings under Section 125 of
Cr.P.C in M.C.No.18 of 1994 before Judicial Magistrate No.III, Dindigul. The
said petition was allowed on 10.10.1996 directing the plaintiff to pay
maintenance to the defendants. Therefore, it is clear that the defendants have
started making a claim with regard to the marital status and legitimacy as
against the plaintiff even in the year 1994. However, the present suit seeking
negative declaration has been filed only on 15.03.2007.
22.As per Article 58 of the Limitation Act, a suit to obtain any
declaration has to be filed within a period of three years when right to sue
first accrues. In the present case, the right to seek a negative declaration
accrued in the year 1994 and the present suit has been filed only in the year
2007. Hence, the trial Court has rightly arrived at a finding that the suit is
barred by limitation.
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23.When the plaintiff has prayed for a declaratory decree, the entire
burden is upon him to establish the fact that he is legally wedded to one
Nagavalli and the first defendant is not his legally wedded wife and the
second defendant is not his legitimate son.
(F).Conclusion:
24.As discussed supra, the plaintiff has miserably failed to prove the
same. The trial Court has rightly dismissed the suit. Having re-appreciated the
oral and documentary evidence, we do not find any reason to interfere in the
judgment and decree of the trial Court. The First Appeal stands dismissed
confirming the judgment and decree of the trial Court. No costs.
(C.V.K.J.,) (R.V.J.,)
26.09.2025.
Index :Yes/No
Internet :Yes/No
NCC : Yes/No
msa
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To
1.The Judge
Family Court
Dindigul.
2.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
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C.V.KARTHIKEYAN,J.
AND
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
26.09.2025
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