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PETITIONER: MAHENDRA MANILAL NANAVATI

       Vs.

RESPONDENT: SUSHILA MAHENDRA NANAVATI

DATE OF JUDGMENT: 18/03/1964

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1965 AIR  364            1964 SCR  (7) 267

ACT: Hindu  Law-Annulment of marriage on ground  that  respondent was  at the time of marriage pregnant by some  person  other than petitioner-Satisfaction of court under s. 23-Nature  of onus  on husband in matrimonial cases-Whether court can  act upon  admissions  of  parties  in  proceedings  under  Hindu Marriage Act-Quantum of burden and its  incidence-Difference -Value  of medical opinion-Duration of  pregrancy-Period  of gestation-Substantial question of law--Comcurrent finding of fact--Power  of  Court to remand a case-Inherent  powers  of court-Exercise  of-Evidence Act, ss. 112, 114-Code of  Civil Procedure, s. 107.  Order 41, rr. 20, 23, 25-Constitution of India, Art. 133(1)-Hindu Marriage Act, 1955, ss. 12 and 23.

HEADNOTE: The  appellant is a resident of Bombay while the  father  of respondent was a resident of Prantij in the former State  of Baroda.  They were betrothed in 1945 and their marriage  was solemnised  at Bombay according to Hindu rites on March  10, 1947.   On  August  27, 1947, respondent  gave  birth  to  a daughter after 5 months and 17 days of their marriage. In April 1956. the appellant filed a petition for  annulment of his marriage with respondent on the ground that the child had  been  conceived  long prior  to  his  marriage  through someone ,else, the respondent was, at the time of  marriage, pregnant by some one other than himself, that that fact  was concealed  from him and that ever since he had learnt  about the  birth  of  the  child he had  not  cohabited  with  the respondent nor had he any relation with her whatsoever.  The defence  of respondent was that she conceived the baby as  a result  of  sex  relations with the  appellant  after  their betrothel on being assured by him that that was  permissible in  their community, and that the parents of  the  appellant knew about the relations between the parties and also  about her having conceived prior to her marriage.  The trial court accepted the allegations of the appellant and held that  the respondent was not pregnant by the appellant but by a person other  than the appellant even before marriage.   Respondent went  in  appeal  to the High Court against  the  order  ,of annulment passed by the trial court.  The High Court was not satisfied with the findings of the trial court and  remanded

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the case to the trial court after framing the following  two new issues: -               1.    Is  it  proved that the  respondent  was               pregnant at the time of marriage?               2.    Is  it proved that  marital  intercourse               with  the  consent of the petitioner  has  not               taken   place  since  the  discovery  by   the               petitioner  of  the         existence  of  the               grounds for a decree? Respondent further alleged that the child was the result  of conception  after  the marriage.  The trial  court  recorded additional  evidence  and came to the  conclusion  that  the respondent 268 was not pregnant at the time of marriage and that no  sexual intercourse  with the consent of appellant took place  after the   discovery  by appellant of the grounds for  a  decree. These  findings were submitted to the High Court which  held that  it was not proved that respondent was pregnant at  the time of marriage and that it was proved that petitioner  had marital  intercourse with the respondent subsequent  to  his discovery  of the existence of the grounds for  the  decree. The  High  Court  allowed  the  appeal  of  respondent   and dismissed the petition for annulment of marriage.  Appellant came to this Court after obtaining a certificate of  fitness from the High Court.  Accepting the appeal, Held (Mudholkar, J. dissenting). (i) The child born to  res- pondent  on August 27, 1947 was practically a  mature  child and weighed 44bs. in weight and therefore it could not  have been the result of conception taking place on or after March 10,  1947.  The child was conceived prior to March 10,  1947 and  therefore  respondent  was  pregnant  at  the  time  of marriage by some one other than appellant.  Hence, appellant was entitled to annulment of his marriage. (ii) The  appellant  did not have marital  intercourse  with respondent after he discovered that she had been pregnant by some one else at the time of marriage. In  divorce cases, the court usually does not decide  merely on  the basis of the admissions of the parties.  This  is  a rule  of  prudence and not a requirement of  law.   However, where  there  is  no room for  supposing  that  parties  are colluding  decision  can be based on the  admission  of  the parties. It  is  undesirable  that the burden should  be  imposed  on litigants  in this class of cases, in which the  substantial issue  between  the parties was whether the husband  had  at what  was considered the relevant times any  opportunity  of intercourse  with  his wife and no question of  an  abnormal period of gestation had been raised until the trial and then only  by  the  commissioner  himself,  of  adducing  medical evidence re: the period of gestation.  However, that may  be unavoidable  where medical evidence in regard to the  period is  called  by  respondent and then  the  case  becomes  the battle-ground of experts. (iii)     The  case  of Clark v. Clark is not a  good  guide both on facts and law for the determination of the  question about  the  legitimacy of the child of the  respondent.   In that  case,  delivery after 174 days of the  conception  was proved  to be on account of the fact that the mother of  the child fell a day before delivery. It  is not correct to add a lunar month to  the  ascertained period  of gestation in cases of a known date of  conception merely  on the ground that when books speak of foetus  of  a certain  number  of months, that foetus might be  due  to  a conception  taking  place  on any day  of  the  lunar  month

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corresponding  to the menstruation prior to  the  conception and the missperiod after conception. Per Mudholkar, J. if the birth of an apparently normal child 171 or 186 days after conception is an impossible phenomenon and if its impossibility is notorious, then alone a court                             269 can  take  notice  of  it and  the  question  of  drawing  a presumption  arises.  All that can be said is that  such  an occurrence  is  at best unusual but it is a far cry  to  say that  it is impossible.  It is true that courts  have  taken notice  of the fact that the normal period of  gestation  is 282  days but courts have also taken note of the  fact  that there are abnormal periods of gestation depending on various factors.   It  is not safe to base a conclusion  as  to  the illegitimacy of a child and unchastity of its mother  solely on  the assumption that because its birth and  condition  at birth  appeared to be normal, its period of  gestation  must have  been normal, thus placing its date of conception at  a point of time prior to the marriage of its parents. When  a court is called upon to decide a matter  mainly,  if not wholly, on the opinion of medical men, it must  proceed, warily.   Medical opinion. even of men of  great  experience and deep knowledge, is after all generalisation founded upon the  observation of particular instances,  however  numerous they may be.  When the Court finds that in. individual cases departure  from the norm has in fact been observed  by  some experts  and when again the experts themselves do not  speak with  the  same voice, the need for  circumspection  by  the court  becomes all the more necessary.  It may  land  itself into  an  error  involving cruel  consequences  to  innocent beings  if it were to treat the medical opinion as  decisive in each and every case.  The responsibility for the decision of  a point arising in a case is solely upon the  court  and while it is entitled to consider all the relevant  materials before  it,  it  would be failing in its  duty  if  it  acts blindly on such opinion and in disregard of other  relevant, materials placed before it. Under  the  Hindu Marriage Act, 1955 and  the  Divorce  Act, 1869,  the  condition  for  the  grant  of  relief  is   the satisfaction of the court as to the existence of the grounds for granting the particular relief.  The satisfaction as  to the  existence  of  the ground must be,  as  in  a  criminal proceeding  beyond reasonable doubt and must necessarily  be founded upon material which is relevant for consideration of the court which would of course include evidence adduced  in the  case.   Although in the Indian Divorce  Act,  1869  the words  used  are "satisfied on the evidence"  while  in  the Hindu  Marriage Act, the legislature has used the words  "if the court is satisfied" their meaning is the same. When  the  law places the burden of proof upon a  party,  it requires  that  party to adduce evidence in support  of  his allegations, unless he is relieved of the necessity to do so by  reason  of admissions made or the  evidence  adduced  on behalf  of  his  opponent.  The law does not  speak  of  the quantum of burden but only of its incidence and it would  be mixing  up  the concepts of the incidence of the  burden  of proof  with that of the discharge of the burden to say  that in one case it is light and in another heavy. Unless  it is shown that important or relevant evidence  has been  overlooked  or misconstrued, it is not  in  consonance with   the  practice  of  Supreme  Court  to  re-examine   a concurrent  finding of fact, particularly when the  findings are based on appreciation of evidence. Case law referred to. 270

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JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  166/1963. Appeal from the judgment and decree dated April 28, 1961  of the Bombay High Court in First Appeal No. 135 of 1958. S.   T.  Desai, S. Singhvi, J. B. Dadachanji, 0.  C.  Mathur and Ravinder Narain, for the appellant. Purushottam  Trikamdas, M. H. Chhatrapati and I. N.  Shroff, for the respondent. March  18,  1964.   The  judgment  of  RAGHUBAR  DAYAL   and AYYANGAR,  JJ. was delivered by RAGHUBAR DAYAL J.  MUDHOLKAR J. delivered a dissenting Opinion. RAGHUBAR DAYAL, J.-This appeal, on a certificate granted  by the Bombay High Court, arises out of a petition praying  for the  annulment of the petitioner-appellant’s  marriage  with the respondent, under s. 12 of the Hindu Marriage Act,  1955 (Act XXV of 1955), hereinafter called the Act, on the ground that  the respondent was, at the time of marriage,  pregnant by some person other than the petitioner. The facts leading to the proceedings are that the  appellant and the respondent were betrothed sometime in JuneJuly  1945 and  were  married on March 10, 1947.   The  appellant  went abroad about the end of April 1947.  A daughter was born  to the  respondent on August 27, 1947.  The appellant  returned to India some time in November 1947, but the parties did not live together thereafter. The  appellant instituted a suit, No. 34 of 1947-48, in  the Court of the State of Baroda, at Baroda, for the declaration of  nullity  of  the  marriage.   The  suit  was,   however, dismissed  on September 30, 1949 as the appellant failed  to establish that he had his domicile in that State. The Act came into force on May 18, 1955.  The appellant took advantage of its provisions and on April 18, 1956 filed  the petition for annulment of his marriage with the respondent. The  appellant alleged in his petition that on  learning  of the  birth of the child on August 27, 1947, five months  and seventeen  days  after the marriage, he felt  surprised  and suspected  that the child had been conceived long  prior  to the marriage through someone else, that the respondent  was, at the time of their marriage pregnant by someone other than himself, that this fact was concealed from him and that ever since  he  had learnt of the birth of the child he  had  not lived or cohabited with the respondent nor had any relations with her whatsoever. The  respondent,  in her written statement,  raised  various defences.   She admitted therein to have conceived the  baby prior to the marriage, but alleged that she had conceived as a  result of sex relations with the petitioner  after  their betrothal,                             271 on  being assured by him that that was permissible in  their community.   She further stated that  her  relations-in-law, viz.,  her  father-in-law, mother-in-law  and  sister-in-law knew about such relations between the parties and about  her having conceived prior to the marriage.  She further alleged that  she’  flatly refused to carry out  abortion  and  that therefore,  at the instance of the appellant,  the  marriage was performed in Bombay and not at her parents’ place.   She denied  that the child born to her was by any  person  other than the appellant. Due  to  her allegation about pre-marital  sexual  relations with  the  appellant and to her having conceived  from  such relations, she was required to furnish particulars about the

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time  when, and the place or places where, the  parties  had sexual relations which she alleged to have led to her  preg- nancy.  According to the particulars furnished by her,  such sexual relations took place about or after Christmas,  1946, and again after about the middle of January 1947. On  the pleadings of the parties, six issues  were  framed,. but those relevant for our purpose were:               1.    Whether  the respondent was at the  time               of  them  marriage pregnant by  someone  other               than  the’ petitioner as alleged in para 9  of               the petition?               2.    Whether at the time of the marriage  the               petitioner was ignorant of the aforesaid fact?               3.    Whether  the petitioner is  entitled  to               have the marriage declared null and void? The  petitioner  examined  himself  and  his  father.    The respondent  examined  herself and one  other  witness.   The documentary evidence adduced by the parties consisted mostly of’ letters written by the petitioner to the respondent  and the respondent to the petitioner, since their betrothal, and letters  written  by other relations of the  family  to  one another. The  trial Court did not accept the allegation of  the  res- pondent about the pre-marital sex relations with her husband and  held that it was not established that she was  pregnant by’  the petitioner.  It also held that she was pregnant  at the  time  of the marriage by some other  person,  that  the petitioner  did not know about her pregnancy at the time  of the  marriage  and that he did not cohabit  with  her  after knowing of her being pregnant by someone else at the time of marriage.  On these findings, the petition for annulment  of the marriage was allowed. The  respondent preferred an appeal to the High Court.’  The High  Court agreed with the trial Court in its finding  that the  respondent  had  failed  to  establish  that  she   was pregnant’ by the petitioner at the time of the marriage,  as also regarding 672 he  petitioner knowing of her pregnancy at that  time.   The learned  Judges  however held that the  petitioner  had  not proved  to  their  satisfaction  that  the  respondent   was pregnant by someone other than the petitioner at the time of the  marriage and that the petitioner was not the father  of the  child  which was born and, considering that  the  trial Court  had not framed an issue about there being no  marital intercourse  between  the  parties  after  the  petitioner’s knowing that the respondent had been pregnant at the time of the  marriage,  framed two issues and remitted them  to  the trial  Court for recording findings.  The two issues  framed by the High Court were:               1.    Is  it  proved that the  respondent  was               pregnant at the time of the marriage?               2.    Is  it proved that  marital  intercourse               with  the  consent of the petitioner  has  not               taken   place  since  the  discovery  by   the               petitioner of the existence of the grounds for               a decree? Thereafter, the trial Court recorded further evidence.   The petitioner, besides examining himself, examined Dr. Champak- al,  husband of his sister, Madhuben, who was a  midwife  at the  Prantij Municipal Dispensary, Maternity Ward,  in  1947 and  who  attended at the respondent’s confinement  and  two doctors,  Dr.  Ajinkya  and  Dr.  Udani  as  experts.    The respondent,  for her part, examined Dr. Mehta as  an  expert witness,Kachrabai  who  was  a  compounder  at  the   Pantij

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Municipal  Dispensary  in  1947,  Khodidas  a  Doctor,   and herself.   Khodidas did not state anything material  to  the case.  The trial Court, after considering the fresh evidence recorded  by  it,  found that it was  not  proved  that  the respondent  was pregnant at the time of marriage.  This  was on  the first issue framed by the High Court.  On the  other issue  it  recorded  a finding that it was  proved  that  no sexual  intercourse with the consent of the petitioner  took place since the discovery by the petitioner of the existence of  the  grounds  for a decree.  These  findings  were  then submitted to the High Court. In  the High Court, objections were filed by the parties  to these findings.  Patel and Gokhale JJ., heard the appeal and delivered  separate judgments.  They agreed with  the  trial Court  that  it  was  not proved  that  the  respondent  was pregnant  at the time of marriage.  Patel J.,  further  held that   it  was  proved  that  the  petitioner  had   marital intercourse with the respondent subsequent to his  discovery of the existence of the grounds for the decree.  Gokhale J., expressed  the view that the finding of the trial Court,  on this point, appeared to be correct.  In the result, the High Court  allowed  the respondent’s appeal  and  dismissed  the petition.   It  is against this judgment and decree  of  the High Court that the petitioner has 273 preferred  this appeal on a certificate granted by the  High Court, under Art. 133(1)(c) of the Constitution, as  already mentioned. Before  dealing in detail with the contentions of the  par-, ties,  we may set down the relevant provisions of  the  Act, quoting the various sections:               12.   (1)  Any  marriage  solemnized,  whether               before or after the commencement of this  Act,               shall  be  voidable and may be annulled  by  a               decree  of  nullity on any  of  the  following               grounds, namely:               (b)   that  the respondent was at the time  of               the  marriage  pregnant by some  person  other               than the petitioner.               (2)   Notwithstanding  anything  contained  in               sub-section  (1), no petition for annulling  a               marriage-               (b)   on the ground specified in clause (d) of               sub-section               (1)   shall be entertained unless the court is               satisfied-               (i)   that  the petitioner was at the time  of               the marriage ignorant of the facts alleged;               (ii)  that proceedings have been instituted in               the  case of a marriage solemnized before  the               commencement  of this Act within one  year  of               such commencement and in the case of marriages               solemnized after such commencement within  one               year from the date of the marriage; and               (iii) that marital intercouse with the consent               of  the petitioner has not taken  place  since               the   discovery  by  the  petitioner  of   the               existence of the grounds for a decree."               "20.  (1) Every petition presented under  this               Act shall state as distinctly as the nature of               the case permits the facts on which the  claim               to relief is founded and shall also state that               there  is no collusion between the  petitioner               and the other party to the marriage.               (2)   The   statements  contained   in   every

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             petition  under this Act shall be verified  by               the petitioner or some other competent  person               in   the  manner  required  by  law  for   the               verification  of  plaints,  and  may,  at  the               hearing, be referred to as evidence."               74               "21.    Subject   to  the   other   provisions               contained  in this.  Act and to such rules  as               the  High Court may make in this  behalf,  all               proceedings under this Act shall be regulated,               as  far  as  may  be, by  the  Code  of  Civil               Procedure, 1908 (V of 1908)."               "23(1)  In  any  proceeding  under  this  Act,                             whether,  defended  or  not, if  the Court  is               satisfied that-               (a)   any  of the grounds for granting  relief               exists  and the petitioner is not in  any  way               taking  advantage of his or her own  wrong  or               disability for the purpose of such relief, and               (c)   the   petition  is  not   presented   or               prosecuted  in collusion with the  respondent,               and               (d)   there  has not been any  unnecessary  or               improper delay in instituting the  proceeding,               and               (e)   there  is  no  other  legal  ground  why               relief should not be granted,               then,  and in such a case, but not  otherwise,               the    Court   shall   decree   such    relief               accordingly."               "28.  All decrees and orders made by the Court               in  any  proceeding under this  Act  shall  be               enforced  in  like manner as the  decrees  and               orders  of the Court made in the  exercise  of               its original civil jurisdiction are  enforced,               and may be appealed from under any law for the               time being in force;               Provided that there shall be no appeal on  the               subject of costs only." It  is to be seen that, according to the provisions set  out above,  statements  contained  in  any  petition  could   be referred to as evidence, the provisions of the Code of Civil Procedure apply to the proceedings under the Act and a Court has  to  pass a decree in the proceedings only  when  it  is satisfied about certain matters specified in s. 23. Two  questions of law raised at the hearing of  this  appeal may  now be disposed of as their determination  will  govern the consideration of the other matter on record with respect to  the  revelant points to be decided in the  case.   These are:  (i) whether the High Court was right in remitting  the two issues for a finding to the trial Court and (ii) what is the  standard of proof required for the satisfaction of  the Court before it can pass a decree in these proceedings. The  High Court had to remit the second issue for a  finding as it was necessary for the determination of the case and 275 the trial Court had not framed a specific issue in regard to it.  In the absence of such an issue, the parties could  not be expected to have produced evidence directed to that point and therefore the High Court rightly remitted that issue for a finding. The High Court remitted the first issue as it was of opinion that  it was for the petitioner to prove to their  satisfac- tion,  beyond reasonable doubt, which he had failed  to  do,

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that  the respondent was pregnant at the time  of  marriage. He  had also to establish that the child could not  possibly be born as a result of the petitioner’s marital  intercourse with  the respondent after the marriage, the learned  Judges holding  that in these proceedings the Court could not  base its decision on the mere admission of parties. The High Court is certainly right in stating that the  peti- tioner had, in order to succeed, to prove beyond  reasonable doubt  that the respondent was pregnant by someone  else  at the time of marriage.  It is, however, not correct in law in holding  that the Court, in these proceedings, could  in  no circumstances  base  its  decision on an  admission  of  the parties.   On  the facts of the present case,  however,  the decision  did  not  rest on the admissions  of  the  parties alone. In  White  v. White(1) this Court construed  the  expression ,satisfied on the evidence’ in s. 14 of the Divorce Act  and said at p. 1420:               "The  important words requiring  consideration               are   satisfied on the evidence’.  These words               imply  that  the  duty  of  the  Court  is  to               pronounce a decree if satisfied that the  case               for the petitioner has been proved but dismiss               the  petition if not so satisfied.  ...and  it               has been there held that the evidence must  be               clear and satisfactory beyond the mere balance               of  probabilities and conclusive in the  sense               that   it   will  satisfy  ...   the   guarded               discretion of a reasonable and just man." It approved of the observations in Preston Jones v.  Preston Jones(2) to the effect that it would be quite out of keeping with  the anxious nature of the provisions to hold that  the Court  might  be  ’satisfied’ in respect  of  a  ground  for dissolution,   with   something  less  than   proof   beyond reasonable doubt.  The Court further observed at p. 1421:               "In  a suit based on a matrimonial offence  it               is  not  necessary  and it  is  indeed  rarely               possible  to  prove the issue  by  any  direct               evidence for in very few cases can such  proof               be obtainable." (1) [1958] S.C.R. 1410. (2) [1951] A.C. 391, 417. 276 It follows that what the Court has to see in these  proceed- ings is whether the petitioner has proved beyond  reasonable doubt  that the respondent was pregnant by some one else  at the time of marriage.  The petitioner has to establish  such facts and circumstances which would lead the Court either to believe  that  the respondent was pregnant at  the  time  of marriage  by  someone  else or to hold that  a  prudent  man would,  on  those  facts and  circumstances,  be  completely satisfied that it was so. It  is true that in divorce cases under the Divorce  Act  of 1869, the Court usually does not decide merely on the  basis of  the  admissions  of  the parties.  This  is  a  rule  of prudence  and  not a requirement of law.   That  is  because parties   might   make   collusive   statements    admitting allegations  against each other in order to gain the  common object  that both desire, for personal reasons.  A  decision on  such  admissions would be against public policy  and  is bound to affect not only the parties to the proceedings  but also  their issues, if any, and the general interest of  the society.   Where,  however, there is no room  for  supposing that   parties  are  colluding,  there  is  no  reason   why admissions of parties should not be treated as evidence just

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as  they  are  treated  in  other  civil  proceedings.   The provisions  of  the  Evidence  Act and  the  Code  of  Civil Procedure  provide for Courts accepting the admissions  made by parties and requiring no further proof in support of  the facts admitted. Section  58 of the Evidence Act inter alia provides that  no fact  need  be proved in any proceeding  which  the  parties thereto  or  their agents agree to admit at the  hearing  or which by any rule of pleading in force at the time they  are deemed  to  have admitted by their pleading.  Rule 5  of  O. VIII, C.P.C., provides that every allegation of fact in  the plaint,   if  not  denied  specifically  or   by   necessary implication or stated to be not admitted in the pleadings of the  defendant,  shall  be taken to be  admitted  except  as against a person under disability. Both these provisions, however, vest discretion in the Court to require any fact so admitted to be proved otherwise  than by  such admission.  Rule 6 of O. XII of the Code  allows  a party to apply to the Court at any stage of a suit for  such judgment or order as upon the admissions of fact made either on the pleadings or otherwise he may be entitled to, and em- powers the Court to make such order or give such judgment on the application as it may think just.  There is therefore no good reason for the view that the Court cannot act upon  the admissions of the parties in proceedings under the Act.                             277 Section 23 of the Act requires the Court to be satisfied  on certain  matters  before  it  is  to  pass  a  decree.   The satisfaction  of the Court is to be on the matter on  record as  it is on that matter that it has to conclude  whether  a certain  fact has been proved or not.  The satisfaction  can be based on the’ admissions of the parties.  It can be based on the evidence, oral or documentary, led in the case.   The evidence may be direct or circumstantial.               In Arnold v. Arnold(1) Woodroffe J., said:               "In  the  present case  admissions  have  been               proved.   Doubtless,  caution is  required  in               cases  of  divorce  to see that  there  is  no               collusion  and an admission must  be  examined               from  this  point of view.  But if,  as  here,               there  is  no reason to suspect  collusion  an                             admission  may be as cogent evidence i n  these-               as in any   other  cases.   In   Robinson   v.               Robinson (1859  1   Sw.   &  Tr.   362),   Sir               Alexander Cockburnsays:   The Divorce Court is               at  liberty to act and is bound to act on  any               evidence legally admissible by which the  fact               of  adultery is established.   If,  therefore,               there  is  evidence not open to  exception  of               admissions   of  adultery  by  the   principal               respondent, it would be the duty of the  Court               to  act  on these  admissions  although  there               might be a total absence of all other evidence               to  support  them.  The admission of  a  party               charged  with a criminal or wrongful act,  has               at   all   times  and  in   all   systems   of               jurisprudence  been considered as most  cogent               and conclusive proof; and if all doubt of  its               genuineness  and sincerity be removed, we  see               no reason why such a confession should not, as               against the party making it, have full  effect               given to it." Reference  may  also be made to Over v. Over(2).  It  was  a suit  for dissolution of marriage.  The respondent  did  not

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appear throughout the proceedings.  The evidence  originally consisted  of  affidavits by the petitioner and his  son  to prove  the  letters  the  respondent  had  written  to   the petitioner.   Later,  their statements were  also  recorded. The  letters  were  held to be sufficient  evidence  of  her having committed adultery.  Sir Lallubhai Shah, Ag.  C.  J., observed at p. 255:               "I have dealt with this case at some length in               view  of the difficulty which we have felt  on               account of there being no other  corroborative               evidence of the admissions of the wife.   But,               having regard to the               (1)I.L.R.  38  Cal.  907,  912.          (2)27               B.L.R. 251.               278               circumstances, as disclosed in the evidence, I               see no reason to doubt the genuineness of  the               admission  made by the wife, and in the  words               of Cockburn C. J., it is our duty to act  upon               such  admissions,  although there might  be  a               total absence of all other evidence to support               them."               Marten J., said at p. 261 :               "As  already  stated,  I  think  that  such  a               confession  is admissible in evidence,  and  I               agree  that  there  is no rule  of  law  which               absolutely  precludes  the Court  from  acting               upon  it.   But  as a  rule  of  prudence  the               practice  of  the Divorce Courts has  been  in               general  not  to act  upon  such  confessions,               unless corroborated. The  aforesaid  rule of prudence loses its  importance  when certain  provisions of the Act enjoin upon the Court  to  be satisfied with respect to certain matters which would enable the Court to avoid passing a decree on collusive admissions. Section 12(2)(b) provides that no petition for the annulment of  the  marriage shall be entertained unless the  Court  be satisfied  that the petitioner was at the time  of  marriage ignorant   of  the  facts  alleged  and  that   no   marital intercourse  with  the consent of the petitioner  had  taken place since his discovering the existence of the grounds for the decree.  Such a finding necessarily implies that  before reaching  it the Court has satisfied itself that  there  had been  no  connivance of the petitioner in  the  coming  into existence  of the ground on which he seeks annulment of  the marriage.  Besides, section 23 also provides that the  Court can  pass a decree only if it is satisfied that any  of  the grounds for granting relief exists, that the petition is not presented or prosecuted in collusion with the respondent and that  there was no legal ground on which the relief  claimed could  not be granted.  In these circumstances, it would  be placing undue restriction on the Court’s power to  determine the facts in issue on any particular type of evidence alone, specially  when there be no such provision in the Act  which would  directly prohibit the Court from taking into  account the admissions made by the parties in the proceedings. We  are  of opinion that in proceedings under  the  Act  the Court  can arrive at the satisfaction contemplated by s.  23 on  the  basis  of legal evidence  in  accordance  with  the provisions  of  the  Evidence  Act  and  that  it  is  quite competent   for  the  Court  to  arrive  at  the   necessary satisfaction  even  on the basis of the  admissions  of  the parties  alone.  Admissions are to be ignored on grounds  of prudence  only  when the Court, in the  circumstances  of  a case,  is of opinion that the admissions of the parties  may

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be  collusive.   If there be no ground for such a  view,  it would  be  proper for the Court to act on  those  admissions without forcing the parties to lead other evidence to                             279 establish   the  facts  admitted,  unless  of   course   the admissions  are contradicted by the facts proved or a  doubt is created by the   proved facts as regards the  correctness of the facts admitted.   s The  trial Court had recorded a finding on the basis of  the statements  of  the respondent in the  written  statement,-, statements which were supported by her on oath when examined as  a witness.  Support for these statements was found  from certain  circumstances which the Court held  established  on the  basis  of the correspondence between  the  parties  and certain oral evidence.  The respondent’s case that the child born  to  her  on  August  27,  1947  was  begotten  by  the petitioner  as  they had intercourse at  the  relevant  time sometime in December 1946 or January 1947, left no room  for the  Court  to  consider the new case that  that  child  was conceived  sometime  after the marriage of  the  parties  on March  10, 1947.  In these circumstances, it was not  really right  for  the High Court to remit an issue  to  the  trial Court  for recording a finding on the basis of such  further evidence including expert evidence as be led by the  parties on  the question.  In this connection, the remarks  of  Lord Simonds  in  Preston  Jones’ case(1) at  p.  402,  are  very pertinent:               "Your  Lordships would, I think, regard it  as               undesirable that the burden should be  imposed               upon  litigants  in  this  class  of  case  of               adducing  evidence of the character  which  in               Gaskill   v.  Gaskill  (1921  P.   425)   Lord               Birkenhead   thought  it  expedient  for   the               Attorney-General to ask for the assistance  of               the  court.   That may  be  unavoidable  where               medical  evidence in regard to the  period  is               called by the respondent; there is nothing  to               prevent  a case becoming the battle-ground  of               experts.  But I am dealing with such a case as               that out of which this appeal arises, in which               the substantial issue between the parties  was               whether the husband had at what was considered               the   relevant   times  any   opportunity   of               intercourse  with his wife and no question  of               an  abnormal  period  of  gestation  had  been               raised  until the trial and then only  by  the               commissioner himself." However,  as evidence has been led by both the  parties  and the  Courts below have considered it, we do not  propose  to decide  the  case on the basis of  the  evidence  originally recorded  and would content ourselves by simply stating  our view that the High Court might well have decided the case on that  basis without remitting the first issue to  the  trial Court. We  may now deal with some general aspects of the case.  The petitioner has been consistent throughout.  He took the- (1) (1951) A.C. 391. 280 position that he was not the father of the child born to the respondent in August 1947 as the period of gestation between the date of marriage and the date of birth was too short for a mature child to be born.  This does not mean that his case was as has been considered by the Court below that the child born was a fully mature child in the sense that it was  born after the normal period of gestation of about 280 days.   He

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could  not  have stated so positively as that could  not  be known  to  him.   Even the doctors are  probably  not  in  a position  to  state  that the child was born  after  a  full period of gestation i.e., after 280 days.  The  petitioner’s case was that the child born was not a child whose period of gestation  was 171 days from the date of conception  or  who could be said to be a premature child, but was a child  born after  almost  the full period of  gestation.   He  steadily stuck to this position.  His conduct and the conduct of  his relations  from  the time they learnt  of  the  respondent’s giving  birth  to the child had been  consistent  with  this view.   The petitioner had no correspondence  or  connection with  the respondent since he was informed of the  birth  of the  child.   His  parents  too  did  not  enter  into   any correspondence  with  the respondent’s parents.   The  peti- tioner’s  sister  Sharda, however, appears to  have  written just  one  letter  in  acknowledgment  of  the  respondent’s sister’s  letter  conveying  the news of the  birth  of  the child.  She has not been examined as a witness.  She appears to  have written that letter when she was emotionally  happy on the receipt of the news and had not given any thought  to the  matter.  In 1948, the petitioner instituted a suit  for the  annulment  of the marriage in the Court at  Baroda  and there  too  pleaded what he pleaded in the  petition  giving rise  to  this appeal.  The respondent, however,  put  up  a different  case there.  Any way, that suit was dismissed  on the preliminary ground that the petitioner did not have  the necessary domicile to institute a suit in that Court. The respondent, on the other hand, has not been  consistent. In  her  written  statement filed in the  Baroda  Court  she stated  that  she  had become pregnant as a  result  of  the sexual  intercourse  she  had  with  the  petitioner   after marriage.   The  same line was not adopted  in  her  written statement  in this case, in which she admitted that she  was pregnant  at the time of the marriage, but stated that  this was  due to sexual intercourse with the petitioner prior  to her  marriage.  She supported this statement  vigorously  on oath.  Later, after the close of the petitioner’s  evidence, and  practically of her statement  in  examination-in-chief, she wanted to change her case by an amendment of the written statement  to what had been said in the Baroda Court.   This was not allowed by the trial Court.  The High Court too  did not allow this formally, but in effect had that point  tried by remitting an issue.                             281 No  good  motive was suggested for the  petitioner  and  his parents  taking  the view so firmly held by them  about  the child, being not of the petitioner from the very moment they learnt of the birth of the child on August 27, 1947.   Their attitude was not an attitude of mere suspicion in connection with  which enquiries and observations could be  made.   The attitude  was  firm from the very beginning.  They  did  not respond to letters from either the respondent or her father. What could be the motive for them to take such an attitude? The respondent stated in her written statement:               "The petitioner’s father has stayed in  Europe               for  a very long time and holds very  advanced               views so also the petitioner but this entirely               false  litigation has been put forward at  the               instance of the petitioner’s mother who  wants               to sacrifice the respondent knowing full  well               the part played by her son the petitioner  and               the other members of the family." Nothing like this was said in her written statement filed in the Court at Baroda.

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In her deposition before the findings were called for on the issues,  she stated that the relations between  herself  and her  mother-in-law were not very cordial.  She said  in  her deposition, after the remission of the issues, that               "The  parents  of the petitioner were  not  on               good  term& with my parents as at the time  of               pheramani  the petitioner’s parents  were  not               satisfied  with  the  presents  given  by   my               parents." This  cause for bad relations has not been indicated in  any of  the letters by the respondent or by the petitioner.   It was  not  stated in the written statement.  We  cannot  take this to be a correct statement. In her letter dated June 11, 1947 she merely stated:               "...the nature of my mother-in-law had  become               peevish  on account of ill-health and  that  I               should   not  take  anything  to   my   heart.               Respected papa used to advise me well and  had               also  feelings for me ... She  (mother-in-law)               would sometimes become peevish, only and  then               she  herself  would feel sorry.   Mamma  would               speak   very   highly   of   me   before   our               neighbours." The  ordinary  usual  expressions  of  disapproval   between mothers-in-law and daughters-in-law would not lead the rela- tions-in-law   to  make  such  accusations   against   their daughterin-law lightly, both on account of notions of family honour  and  on account of the  natural  love  grand-parents would feel towards their grand-child. 282 The  respondent’s letters prior to the marriage  and  subse- quent thereto indicate her affection for the petitioner  and her  feeling of being bound by her husband’s desires.   But, in  one   respect  at least, and for no  good  reasons,  she ignored  those  desires.  We refer to the direction  by  the petitioner  in his letter dated June 22, 1947 asking her  to destroy  that  particular letter and  the  letters  received earlier.   She did not do so.  Why?  She has not  given  any explanation  for keeping those letters with her in spite  of the  directions of the husband to the contrary.  It  can  be said,  in  the  circumstances  of the  case,  that  she  was retaining  the  letters for using them if  possible  in  her defence  when any accusation of her having gone wrong  prior to the marriage be made against her. It  has  been considered by the Court below  that  the  res- pondent’s letters to Sharda and her father’s letters to  Dr. Champaklal  in  July 1947 had been suppressed.  It  did  not believe the statements of Dr. Champaklal that these  letters could not be traced.  These persons had no reason to  retain those  letters.  Two letters of Sushila to Sharda have  been produced  and their production has been relied upon in  sup- port  of the view that other letters had  been  deliberately suppressed.   We  do not agree with this  view.   There  was reason to retain these two letters which were sent after the birth  of  the child and which must have been  taken  to  be letters of some importance as written at a time when it  had been  realised that the respondent’s  relations-in-law  felt that the child born was not of the petitioner. The main question for determination in this case is  whether the child born to the respondent on August 27, 1947 could be the  child  of the petitioner, who, on the  finding  of  the Courts  below which was accepted by learned counsel for  the respondent  before us, did not cohabit with  the  respondent earlier than March 10, 1947.  Counting both the days,  i.e., March 10 and August 27, the total period between those dates

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comes to 171 days.  The child born to the respondent is said to have weighed 4 pounds, the delivery being said to be nor- mal.   The child survived and is said to be even now  alive. It  is not disputed that the usual period of gestation  from the date of the first coitus is between 265 and 270 days and that  delivery is expected in about 280 days from the  first day of the mensturation period prior to a woman conceiving a child.   We shall later be examining the point urged  before us  by  learned counsel for the respondent, as  regards  the possibility  of  a  living child  being  delivered  after  a gestation  of this duration, -but it is sufficient  at  this stage  to  point out that, if the delivery was  normal,  the child born also normal and alive, it was not suggested  that it  was  possible in the course of nature for such  a  child being  born  unless the conception took  place  long  before March 10, 1947.                             283 In this connection, reference may again be made to what  was said  by Lord Simonds in Preston-Jones’ case(1) at  p.  402, when  considering the question whether a normal  child  born 360 days after the last intercourse of a man and a woman "as the child of that man or not.  He said:               "It   would,  I  think,  appear  a   fantastic               suggestion to any ordinary man or woman that a               normal  child  born 360 days  after  the  last               intercourse of a man and a woman was the child               of  that man and it is to me repugnant that  a               court of justice should be so little in accord               with  the  common notions of mankind  that  it               should require evidence to displace  fantastic               suggestions."               Of  similar effect is the observation of  Lord               Normand at p. 407, it being:               "I  have  felt great doubt whether  the  House               ought  not  to  say that,  though  it  is  not               possible to draw the line at an actual  number               of days, 360 days is too long a period, unless               evidence  of medical knowledge is  adduced  by               the respondent to show the contrary."               Lord Morton of Henryton also said, at p. 413:               "If  a  husband proves that a child  has  been                             born 360 days after he last had an  op portunity               of  intercourse  with his wife, and  that  the               birth  was  a  normal one, and  if  no  expert               evidence  is  called by either side, I  am  of               opinion  that the husband has proved his  case               beyond reasonable doubt." In  W. v. W. (No. 4) (2) a similar observation was  made  by Cairns, J. in proceedings on an application for ordering the wife  and child to undergo blood-tests in order  to  furnish evidence that the child was not the petitioner’s.  The child was born 195 days after the marriage.  He said:               "The  marriage  was on October 7,  1961.   The               child  was  born on April 19,  1962.   It  is,               therefore, obvious that the wife was  pregnant               at the time of the marriage." We  have then to see whether the evidence on the  record  is such which would justify the Court’s holding against what it should normally hold on proof of the fact that the child was born after 171 days of the first coitus between the parties. We shall consider the statements of the doctors relating  to different  matters  when  dealing  with  them.   As  doctors Ajinkia and Mehta do not agree on several points we have (2)  (1963) 2 All E.R. 386.

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(1) (1951) A.C. 391. 284 to  decide whose statement should be  ordinarily  preferred. We  however  consider that the Court should  not  leave  the questions  undecided merely because the two doctors  differ, as has been done, practically, by the learned Judges of  the High Court. Dr.  Ajinkia  is  undoubtedly an expert in  the  subject  of obstetrics  and gynaecology.  He took a Master’s  degree  in midwifery  in London in 1937 and passed the F.R.C.S.  exami- nation  in Edinburgh in 1939 in midwifery  and  gynaecology. He holds a diploma in child health of London University.  He is a member of the Royal College of Obstetricians and Gynae- cologists.   He returned to India in 1939.  He was  attached to  the Nair Hospital as a specialist.  He was Professer  of the  Medical  College  at  Agra and was  in  charge  of  the Department  of Midwifery and Gynaecology from 1942 to  1944. Since  1949  he  was attached to the J. J.  Hospital  as  an Honorary  Doctor for Midwifery and Gynaecology and later  at the Wadia Maternity Hospital.  He has three maternity  homes with  60 beds in all.  He can therefore be rightly called  a specialist in midwifery and gynaecology, with an  experience of over 20 years. Dr.  Mehta  states that he has been practising as  a  Gynae- cologist  and Obstetrician since 1926.  His  qualifications, however,  are  much less than those of Dr. Ajinkia  and  his experience  too,  as an obstetrician and  gynaecologist,  is much  less.  He has passed the F.R.C.S. Examination in  1906 at  Edinburgh.  He was a Police Surgeon for about  10  years during  which  period  he had no special  means  to  acquire knowledge in midwifery, gynaecology or obstetrics.  He was a doctor in the Army for 13 years from 1907 to 1920 and  could not  possibly have such experience during that  period.   He was  an  Associate Professor in Midwifery at  Grant  Medical College during 1928 to 1937.  He states that as a  professor he  was concerned both with giving lectures to students  and doing  practical  work  of attending  to  cases  and  labour operations.   During this period he was in charge of 6  beds at Motlibai Hospital.  At the time of his deposition he  was attached to the Parsee General Hospital and Parsee  Lying-in Hospital for Women.  He carried on private practice and  had three  consulting rooms.  He states that most of  his  cases were gynaecology and midwifery. Where  Dr. Ajinkia and Dr. Mehta differ, we would prefer  to rely  on Dr. Ajinkia due to his superior qualifications  and experience. We do not consider it material that there exists some slight difference of opinion in matters, not of great significance, between what the doctors state and what is stated in certain well-recognized books on the subject, as the statements  are on the basis of the theoretical knowledge as modified by 285 their actual experience and what is stated in books is based on  conclusions  derived  from various  reports  by  various doctors working in the field. Certain facts were urged before the High Court in support of the  petitioner’s case.  Mr. Desai, learned counsel for  the petitioner, has again submitted them for our  consideration. They are:               1.    The  child  was  born  171  days   after               marriage and has lived.               2.    It was confirmed by about April 2, 1947,               that the respondent was pregnant.               3.    The   appearance  of  the   respondent’s               belly.

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             4.    The  symptoms of toxemia from which  the               respondent suffered.               5.    Normal delivery.               6.    Condition and weight of the child. We shall first deal with points Nos. 2 to 4 which relate to, the  respondent’s pregnancy and symptoms of its  development at various periods.  The relevant facts are to be determined mainly from the contents of the letters between the  parties and between them and some other persons.  Some letters  make mention  of  the health of the respondent and  the  relevant letters  in this respect are of the period April  to  August 1947.  The parties were, as already stated, married on March 10,  1947.   The  respondent remained at the  house  of  her relations-in-law  till about March 27, when she returned  to her  father’s  place at village Prantij.  The  first  letter from  the  petitioner to the respondent is dated  March  31, 1947  and expresses the hope that she had reached her  place hale and hearty. The  next letter from him is dated April 5. It refers  to  a letter  received from the respondent and indicates that  her letter  had conveyed the news of her getting some fever  and that  she  had gone to consult a doctor.  Her  letter  might have  also  given  some indication  of  her  possibly  being pregnant as the petitioner asked her to inform him about the opinion  of the doctor.  There is nothing in this letter  to show  that the respondent had informed the petitioner  about her  suffering from nausea.  The petitioner’s  letter  dated April  8,  1947 refers to the receipt of a letter  from  the respondent which probably intimated that she was  definitely pregnant,  according  to the opinion of the doctor,  as  the letter   contains  an  expression  ’knowing  that  you   are pregnant’  and  indicates the petitioner’s desire  that  the child be removed. 286 The respondent’s letter dated April 13, 1947 states:               "I am not keeping good health at present, I am               still  getting fever.  I get vomits  also  ...               But  fever  does, not leave me and  I  am  not               allowed to take food also. ...I am  bed-ridden               at  present  ... Well and good  if  the  child               survives  and  it will be still better  if  it               does not." The  petitioner’s letter dated April 15 has  nothing  parti- cular in this connection.  On April 17, the parties wrote to each other.  The petitioner’s letter said:               "I have been feeling very much anxious as your               health is not remaining well. ... Write  about               your  health.   If you are  not  keeping  good               health and if you are not feeling disposed  to               come  then you remain at your place.  I  won’t               take it ill at all." The  respondent’s  letter acknowledged the receipt  of  two, letters of the petitioner, probably of April 8 and April 15, and said:               "I  am keeping well now.  I have no fever  for               the last two days.  I am allowed to take light               food.   I  get two or three vomits in  a  day.               But  I am better than, before.  So, please  do               not worry.  I will start on the 22nd and reach               (there) on the 23rd." Her letter of April 20, just intimates about her leaving for Bombay  on  April 22.  She reached Bombay on April  23’  and stayed there till the petitioner left for America on  April’ 27. According  to the contents of these letters, the  respondent

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suffered  from morning sickness of a severe type.   She  had fever and several vomits in the day.               In her deposition she stated:               "Before I left for Prantij for the first  time               after   my,   marriage,  I  had   nausea   and               vomiting. ...When I left for Prantij my health               was  ordinarily  good.  At Prantij  I  started               vomiting.   I  consulted  a  lady  doctor   at               Himatnagar.  ... After I consulted the  doctor               at Himatnagar, I came to know that I was preg-               nant."               In cross-examination she stated:               "I had a vomit on the day on which I left  for               Prantij from Bombay about 17 or 18 days  after               marriage.   At the time when I had a vomit,  I               did   not  suspect  or  imagine  that  I   was               carrying...... I consulted the lady doctor  at               Himatnagar  within two or three days  after  I               reached Prantij. ... I told the lady               287               doctor  at  Himatnagar  that  I  was   feeling               uneasiness.   I  was  vomiting and  I  had  no               appetite.   The lady doctor examined  my  body               including  my abdomen. ... As a result of  the               opinion given by the lady doctor at Himatnagar               I  intimated  to  the petitioner  that  I  was               pregnant." It is contended for the petitioner that such a condition  of the  respondent could not be on account of pregnancy  taking place on or after March 10, 1947.  Morning sickness of  such type  does not ordinarily take place soon  after  conception and  a  doctor  cannot, without  a  biological  examination, definitely state that she was pregnant. Re:  morning  sickness, Dr. Ajinkia stated that it  occurred in  the first and second month and expressed agreement  with Modi’s  statement in his text book on Medical  Jurisprudence that nausea or vomiting commences about the beginning of the second month and lasts generally till the end of the  fourth month.   It  follows that the commencement  of  the  morning sickness at the end of March or the beginning of April  1947 may  be  possible  from the  respondent’s  conceiving  after marriage,  but  that the severe type  of  morning  sickness, viz.,  fever  and vomiting several times a day  should  have also  developed  so  early after the  conception  is  rather unlikely in view of what authorities state.               Williams in his ’Obstetrics’ states at p. 275,               12th Edition:               "The so-called morning sickness of  pregnancy,               as  the name implies, usually comes on in  the                             earlier part of the day and passes off  in a few               hours,   although  it  occasionally   persists               longer  or  may  occur  at  other  times.   It               usually  appears  about the end of  the  first               month  and  disappears  spontaneously  six  or               eight  weeks  later,  although  some  patients               suffer from it for a longer period."               At p. 706 he states:               "Nausea and vomiting of mild degree constitute               the   most  common  disorder  of   the   first               trimester  of  pregnancy.  About one  half  of               pregnant  women  complain of  some  degree  of               nausea  at this time, and, of  these,  perhaps               one third experience some degree of  vomiting.               In  the present era, however, it  is  uncommon

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             for  nausea  and  vomiting to  progress  to  a               serious  extent, that is, to a stage in  which               systemic   effects  such  as  acetonuria   and               substantial weight loss are produced. ...  and               the    condition   is    called    hyperemesis               gravidarum."               288               He states at pp. 708 and 709:               "The disease varies in degree of severity from               nausea  and morning sickness to the severe  or               pernicious  type of vomiting which may have  a               fatal  outcome, Usually the  condition  begins               about  the sixth week of gestation and  abates               around the twelfth week."               "A  small  number of  these  patients  develop               persistent  vomiting,  lasting four  to  eight               weeks  or  longer and resulting in a  loss  of               body weight of 10 to 20 pounds or more.  These               patients vomit two, three, or more times a day               and may be unable to retain any nourishment by               mouth."               "In  the  later stages of  the  disease-rarely               seen   today-a  low-grade   fever   frequently               develops.   This seldom exceeds 101  degree  F               but may persist despite adequate hydration."               Dugald  Baird  states  at p. 323  of  the  7th               Edition   of   the  Combined  Text   Book   on               Obstetrics and Gynaecology:               "Morning sickness occurs in about 50 per  cent               of women during the early weeks of  pregnancy.               In  many  cases  there is only  a  feeling  of               nausea,   with  perhaps  the  ejection  of   a               mouthful  of fluid.  In, others,  some  partly               digested  food  may be  expelled..  In  graver               cases vomiting may persist throughout the day,               and  apparently  all  the  ingested  food  is.               returned.  This latter type is a very  serious               condition  and  is  described  as  hyperemesis               gravidarum.  It is extremely difficult to draw                             any hard and fast line between the mor e  severe               form of morning sickness and a condition which               should be labelled as hyperemesis.  As soon as               a  patient  suffering  from  morning  sickness               feels nauseated and is sick later in the  day,               she  must  be  regarded  as  a  mild  case  of               hyperemesis and treated accordingly." The respondent does not state about fever and about  several vomits in a day in her deposition, but such a condition  was expressed  in her letters.  The respondent stated in  cross- examination that when she went to Gamdevi, she continued to, have vomiting, no appetite and uneasiness. None of the letters written subsequent to April 17 by either party  make  any  mention  of  this  condition   continuing. Champaklal was not questioned about such a condition of hers at Gamdevi.  The petitioner was not questioned and the  res- pondent does not state that she had nausea and vomiting when at  Bombay between April 23 and 27.  She did not have  vomit or nausea so long as she was at Bombay in March, though  she happened to state in examination in chief that                             289 she had a vomit on the day she left.  The petitioner was not questioned about it.  It appears: to be too good to be true, that she suffered from morning sickness of such a type  only for a short period of a little over two weeks.  These can be

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two, possibilities.  Either she did not suffer from any such sickness  during that period and just mentioned about it  to build up her case regarding the development of pregnancy  or that her’ pregnancy was of a longer period-at first she  may have had ordinary morning sickness which usually consists of a  feeling of nausea without any actual vomiting  and  could therefore  be not known to others-and that the serious  type of actual vomiting and fever developed later in the third or fourth month of pregnancy which would indicate that in April the pregnancy was about four months old and not one month. We  may  refer to her first statement in  Court.   She  then stated :               "The petitioner’s father and his sister  might               be suspicious prior to the marriage that I was               pregnant  because  I  was  not  keeping   good               health." This may refer to her suffering from morning sickness  prior to marriage. Re:  confirmation of pregnancy, Dr. Ajinkia deposed that  it was not possible to confirm pregnancy by April 3, 1947 if  a woman married on March 10, 1947 had conception subsequent to the  wedding, except by performing some  special  biological test.  Similar is the opinion of Dr. Mehta examined for  the respondent. The  Court  below  attached no importance  to  the  doctor’s telling  the respondent that she was pregnant about 3  weeks after  she was married, by saying that what was conveyed  to the respondent was not a definite diagnosis of pregnancy but only  a suspicion about pregnancy as anybody  would  suspect after a woman’s missing of the monthly course and  suffering from morning sickness.  It is not justified in so construing what the respondent stated in Court and what she appeared to have conveyed to the petitioner.  The doctor’s informing her definitely after examination of the body that she was  preg- nant again points to the fact that her pregnancy noticed  in the  first few days of April was of a longer  duration  than that of about 4 weeks. From  Bombay,  the  respondent went  to  Gamdevi  where  the petitioner’s  sister  Sharda  lived and spent  a  few  weeks there. Letters  written  in  May are not of  any  importance.   Her letter  dated May 12, 1947 to the petitioner is  on  record. She L/P(D)ISCI-10 290 expressed  her intention to go to Bombay within a  few  days and to stay there for two months and stated: "Then,  when my fifth month (of pregnancy) will be about  to be over I will go to Prantij..." There  is nothing particular in this letter.  She,  however, did  not stay at Bombay for two months but left for  Prantij before  June 4, 1947 for some reason which was possibly  not true. The petitioner wrote letters to her on May 2, 6 and 14.   In his  letter of May 2, he says that she must have told  about her  pregnancy to Sharda and that he, himself had  not  told anyone about it.  In his letter of May 6 he said:               "You tell Sharda that you are pregnant so that               Mama  can know it.  Consult Sharda about  food               and  reading who will also guide you.  So  you               should  not become anxious at all.  Convey  to               Champaklal  through  Sharda  so  that  he  may               prescribe medicine for you, hence you may  not               have any trouble ahead."               In his letter of May 14, he said:

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             "You must be taking good food and I think  you               must have consulted Champaklal." In his letter dated May 31, he, for the first time,  acknow- ledges  receiving a letter from her.  It must be the  letter of  May 12, as therein he refers to her intention to  go  to Bombay  from Gamdevi.  There is nothing particular  in  this letter either. The  petitioner’s first letter to the respondent in June  is dated  June 3, 1947.  It refers to the receipt of  her  air- mail letter from Bombay after a long time.  It appears  that letters of May 12 and May 24 were not sent by air-mail.  Her sending a letter by air-mail ’on or about May 30 from Bombay indicates  that  she  felt  the  urgency  of   communicating something  to  the petitioner.  The contents of  his  letter dated  June 3 indicate that she had mentioned what  she  had been  suffering  from  and wanted to leave  Bombay  for  her paternal  home.  The letter does not disclose what  sort  of sufferings  there were.  Probably they were due to  domestic affairs,  as  it  appears that  the  relations  between  the mother-in-law  and  the daughter-inlaw were  not  good.   He writes:               "If  you tell me that I may write a letter  to               revered mother and father or write a letter to               your father to call you at Prantij." Why this urgency?  The conditions of living at Bombay  could not have been intolerable.  Parents-in-law would have  taken good care of her troubles due to pregnancy.  The urgency  of her returning to Prantij could have been due to her feeling 291 that it would be difficult to keep her unduly advanced state of pregnancy a secret for any more appreciable time at  Bom- bay. The next letter of June 4 was written by the petitioner,  on receipt  of  the  respondent’s letter dated  May  24.   This letter  too must have been from Bombay, as she  appeared  to have  informed  him about the adjoining  neighbours  talking about them.  Again, it is not clear what was the talk.   The talk  might  have had reference to their  marital  relations with  particular reference to her pregnant condition, as  it is said in the letter:               "Let people talk about me and you, but as long               as  we each have complete confidence over  one               another which is there to fear for us." On  June  11, the respondent wrote to  the  petitioner.   It appears that she returned to Prantij from Bombay on or about June 4, as she said: "A week has passed since I came to Prantij". She  states that she told her mother-in-law that she  wanted to  go  back to her paternal house, as she was  not  keeping good  health.  There is no reference in this letter to  what type of bad health she was keeping.  She makes a significant statement in this letter.  It is:               "She (namely the mother) asks me to take  away               the  ornaments, take care of my health and  to               return  in the 7th Month ... I said I did  not               want to take ornaments because I would have to               take care of them on my way."               Another  statement  of hers which is  of  some                             significance is:               "My  health has improved very much.  Blood  in               my body has very much increased." It appears that her excuse to her mother-in-law for going to her parents’ house was not a true one.  Her reference to im- proved  health  and increase of blood in the body  seems  to indicate  that  she  was  feeling  the  enlargement  of  her

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abdomen.   The contents of this letter were  interpreted  in some  such  way by the petitioner who, in his  letter  dated June 22, wrote in the very second paragraph: "I am asking you what is the month of your pregnancy".  Such a  question  indicates that lie probably felt  surprised  at this condition of her abdomen and having studied sex litera- ture, as appears from his letters to her, he had his  doubts how  within  such  a  short  period  of  the  marriage   the respondent could have such an enlarged abdomen.  This letter contains  some very intimate details.  The petitioner  asked her to destroy it after she had read it and also to  destroy his previous letters.  L/P(D)ISCI-10(a) ... 292 Such   a  suspicion  expressed  in  his  letter  makes   the respondent  write  a very curt letter on July 2,  1947.   In that letter she said:               "How  are you to know how many months  I  have               advanced  in pregnancy.  I am really  so  very               angry with you today that I cannot  understand               what I should do with such a man.  Do you  not               yourself know that you ask me how many  months               I  have  advanced  in  pregnancy.    Calculate               (months) in your own mind only." In between, the petitioner had written another letter to her on  June 27, on receipt of her letter dated June  17.   This letter also contains some significant statements:               "Now belly appears big and I feel what kind of               baby  would  be born ... At present  I  appear               very  fat.  I do not understand from where  so               much blood has come......... This letter was acknowledged by the petitioner by his letter dated June 27.  In this letter again the petitioner wrote: "Please write how many months of pregnancy you have passed". The letter was comparatively a very formal letter. On June 28, 1947 the respondent writes to the petitioner  in her letter:               "I am keeping good health etc .... Now I  have               to  pass only five months ... The belly  gives               the  appearance  of a big water  pot  and  one               becomes nervous to see it ... A nurse comes to               examine me every Sunday.  I had once told  her               that something was moving in my belly and  had                             asked  her  as to after how many  mont hs  these               movements must be starting.  She said that  my               baby to be born would be very healthy  because               a child would make movements after the  fourth               month only if it was healthy.  I am very  much               worried.   If  the  child would  be  strong  I               myself  would  die.   How  then  would  it  be               born?  ... I go for a walk daily.  I walk  two               miles  one  mile  while going  and  one  while               coming back". It  is clear from this correspondence which  passed  between the parties in the month of June that the respondent noticed her belly to have enlarged sufficiently between June 11  and June  17,  i.e., between the 107th and 114th  day,  counting from March 10 and adding 14 days to the total, that she  had felt  the quickening of the foetus sometime before  June  28 and that the petitioner had some doubts about her  condition being  compatible with conception having taken place  on  or after 293 March  10,  1947.  Patel J., made an error in  ignoring  the letter  of  June 17, 1947 and in calculating the  days  upto

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June  28  to  be 155 instead of 124.   The  respondent  thus noticed  the .enlarged abdomen at the end of the  4th  lunar month of pregnancy.  She appears to have felt it before June 16  as  she had .spoken about it to the nurse on  a  Sunday. The  Sundays  previous,  fell on June 23 and  June  16.   It appears  that she did not speak on the 23rd as she  did  not say so in her letter of June 28 and said there: ’I had  once told  her’.  She must have told the nurse latest on  Sunday, June 16. Two  other statements in her letters also tend  to  indicate that her condition in the beginning of June had been such as probably  gave  rise to suspicions in the minds  of  persons about her pregnancy.  These are her statement in the  letter dated June 11 that her mother-in-law asked her to take  away all  ornaments.  Ordinarily a mother-in-law would  not  have liked  her  daughter-in-law to take away all  her  ornaments when  she be going to her maternal place for a  few  months. Such a request might have been on account of her  suspecting that  she  was in a much more advanced stage  of  pregnancy, than  would  ’have  been expected in  a  case  of  pregnancy subsequent  to  marriage.   The other statement  is  in  the petitioner’s letter of June 4 referring to her letter of May 24  stating that adjoining neighbours talked about it.   Why should   neighbours  talk  about  the  petitioner  and   the respondent prior to May 24, 1947?  The -talk must have  been in  connection  with  her  pregnancy  and  its  stage.   The relations between the husband and wife are of no concern  to the  other  people,  except when  they  provide  matter  for scandal.    This  means  that  her  abdomen   had   enlarged noticeably by May 24 and therefore could indicate to  people that  her  pregnancy was of a duration much larger  than  of -about  74  days, which, on addition of 14  days,  would  be deemed  to  be  pregnancy of 88 days, i.e.,  about  3  lunar months.   None of the doctors examined in the  case  deposes that  the  enlargement of the abdomen would be  of  such  an extent  in 3 calendar months of pregnancy, the period  being counted from the first day of the last menstruation previous to the conception. Dr.  Ajinkia states that there cannot be  perceptible  abdo- minal enlargement within 3 months and 7 days of pregnancy in ordinary cases and that such perceptible abdominal  enlarge- ment  would be after the 4th month.  He further states  that -when   a  woman  is  pregnant  for  the  first  time,   the enlargement  might not be visible as late as 5  months,  and that  a  huge -abdominal enlargement might  occur  within  3 months  and  18 days of pregnancy in  certain  complications which, we may mention, do not appear to have occurred in the case of the respondent.  On the other hand, Dr. Mehta states that the enlargement of the abdomen is manifest from the 4th month 294 and in any event will be manifest in the 5th month, even if’ the pregnancy is for the first time.  He did not agree  with what  Alan Brews states in his ’Manual of Obstetrics’,  1957 Edition, p. 84:               "........  enlargement of the abdomen  usually               does not become manifest to the patient  until               the  uterus  rises well above the  pubes,  and               therefore seldom attracts attention until  the               close  of  the  first half  of  pregnancy.   A               multigravida  owing  to  the  laxity  of   the               abdominal  wall,  usually  notices   abdominal               enlargement earlier than a primigaravida." We  prefer  to  rely  on Dr.  Ajinkia’s  statement  in  this respect.

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The respondent felt the quickening of the foetus before June 16,  i.e.,  before the 112th day, or before the end  of  the fourth  lunar  month  from the first day  of  the  menstrual period prior to conception.  That is too short a period. Dr. Ajinkia stated that the perceptible foetal movement in a woman  pregnant  for,  the first time does  not  take  place before  the 20th week from the date ’of her  conception  and that the expectant mother begins to feel the movement of the child  after  the  20th  week or end of  the  7th  month  of pregnancy.  He further stated that he would not consider  it possible  for a woman pregnant for the first time to have  a marked  perception  of foetal movement by the 15th  week  of conception. When referred to a statement in Modi’s Medical Jurisprudence to  the  effect  that the first  perception  of  the  foetal movement  occurred  at any time between the  14th  and  18th week, Dr. Ajinkia expressed his disagreement and referred to statements in the text book of ’Obstetrics & Gynaecology’ by Dugald   Baird,  and  in  Eden  &  Holland’s   ’Manual   of’ Obstetrics’.  In the former it is stated:               "These  are  generally first felt  about  mid-               term  ... The movements are often not felt  by               primigravidae  till the end of  the  twentieth               week  while multiparae may recognize  them  as               early as the end of the 16th week."               In the latter it is stated:               "Definite history can be obtained.  Quickening               is usually found to occur between the 18th and               20th    weeks.    Multiparae    from    former               experience, notice the movements earlier  than               women pregnant for the first time." We  are  therefore of opinion that the  statements  by  the, respondent  in  her  letters to  the  petitioner  about  the enlargement of her abdomen and the quickening of the  foetus fits, 295 in  with her pregnancy being of a longer duration  than  one starting on or after March 10, 1947, or notionally  starting 14 days earlier. The only thing said against the pregnancy really having been of  a greater duration is that the respondent had  her  body examined by Dr. Champaklal, husband of Sharda, sister of the petitioner,  sometime in May 1947, when she was at  Gamdevi. She  states  that  she  had  some  bleeding  and   therefore consulted Dr. Champaklal who examined her body including the abdomen.   Dr.  Champaklal denies having done so.  The  High Court has preferred the statement of the respondent to  that Dr.  Champaklal, as the petitioner himself had  advised  the respondent  in his letters to consult Champaklal.  There  is nothing  in the letters of the petitioner which he wrote  to the  respondent  from USA in May 1947 which  would  indicate that  she  was to show her body to  Champaklal.   He  simply advised  her  to consult him so that she may  not  have  any trouble later on.  This was a general advice and in view  of her  having suffered from morning sickness in the  month  of April.   In none of the letters by her or by the  petitioner in reply is any reference to her bleeding at Gamdevi and  to her  showing the body to Dr. Champaklal.  Unless  absolutely necessary,  Dr.  Champaklal  would  not  have  examined  her abdomen  and  there is nothing on the  record  to  establish anything so unusual in the condition of the respondent as to persuade Champaklal to examine the body of a close  relation of his.  We are not prepared to prefer her statement to that of  Champaklal in this respect.  It is true that  Dr.  Cham- paklal  does  not depose to have  noticed  anything  unusual

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about her condition.  But that does not mean that her  preg- nancy was not more advanced than what it would have been  if the  conception  had taken place on March 10, or  later.   A male  relation is not expected to notice such  a  condition. We do not therefore consider any non-observation by Champak- lal  of any such enlargement of the respondent’s abdomen  as would  indicate her pregnancy to be from a date anterior  to March  10,  to affect adversely the inferences to  be  drawn from her own statements in her letters referred to above. In  her letter of January 8, 1948, to Sharda,  written  long after  her  delivery,  for the  first  time  the  respondent mentioned  that her body was examined by Dr. Champaklal  and that if there had been any deceit in her heart she could not have shown her body to him.  There is no mention of bleeding in this letter which was written over four months after  the delivery of the child. The respondent stated about her bleeding and being ,examined by  Dr. Champaklal for the first time in her letter  to  the petitioner dated February 16, 1948, months after she 296 was  delivered of the child and the petitioner had in a  way severed his connection with her.  This belated statement is, not sufficient to discredit Champaklal. The  respondent suffered from symptoms of toxemia.  She  had blood  pressure, passed albumen in urine and had   swellings on the body.  According to Dr. Ajinkia, there are two  types of  toxemia,  one  appearing in  the  early  months,  i.e.,, between  the 2nd and 3rd month of pregnancy, and  the  other from the 7th month onwards, and that in the first case there is  severe  vomiting,  dehydration and  jaundice  which  may result  in death due to liver necrosis, while in the  latter case  there  is  swelling  of  the  tissues  due  to   water retention.  (oedema),  rise of  blood-pressure,  passage  of albumen  in  the  urine, headache,  disturbance  of  vision, sometimes  culminating  in  fits.  He  further  stated  that oedema, high blood-pressure and passing of albumen in  urine may  take place in the 4th month of pregnancy in a  case  of chronic  kidney disease suffered by a women previously,  but not  in  other cases.  There is no evidence in  the  present case  that  the  respondent had suffered  from  any  chronic kidney disease.  Dr. Ajinkia stated that he would call it  a severe  type of toxemia, if a pregnant woman suffering  from oedema  all over the body, passing albumen in the urine  and having  high blood-pressure does not respond  to  treatment. In  cross-examination  he  states that  the  first  type  of toxemia does not occur again and again during the period  of pregnancy and that it does not appear after the third month, and that if the second type of toxemia appears in the  early stage  of  pregnancy it can be concluded that the  woman  is suffering from chronic nephritis. Dr.  Mehta  states in examination-in-chief that  passage  of albumen  in  urine and oedema usually occur  at  the  second period  of pregnancy which he described to be after the  3rd month  and before the 7th month of pregnancy, but in  cross- examination states that these can occur at any time and that it is not the case that these occur only in the last two  or three  months of pregnancy.  When referred to a  passage  in Williams on ’Obstetrics’, which contained the statement.               "It  is  a disease of the last  two  or  three               months  of’  gestation for the most  part  and               rarely occurs prior to the twenty-fourth week.               It is most often seen in young  primigravidae.               Pre-eclampsia is the fore-runner of  prodromal               stage  of eclampsia.  In other  words,  unless               the   pre-eclamptic  process  is  checked   by

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             treatment  or by delivery, it is more or  less               likely  that eclampsia (convulsions and  coma)               will ensue." he  said  that  he agreed with what was  stated  there.   He argeed   with  the  statement  in  "Progress   in   Clinical Obstetrics and 297 Gynaecology"  by  Lews  to the  effect  that  the  condition ,appears  in between 3 and 10 per cent of pregnancies,  gen- erally  later than the thirty second week.  He  also  agreed with  the statement in British Obstetric and  Gynaecological Practice by Holland, 11 Edition, P. 256:               "In  the  majority of cases  of  pre-eclampsia               signs of the disease do not appear until after               mid-term  and in the majority not until  after               the thirtieth week of pregnancy."               He  agreed  with  what was  stated  in  Dugald               Baird’s  Combined  Text Book of  Obstetrics  &               Gynaecology, 6th Edition, to Ike effect:               "Sometime   about   the  thirtieth   week   of               pregnancy   the  patient,  most   commonly   a               primigravida,  will  be  found  to  have  some               elevation  of blood pressure and she may  have               noticed  some  puffiness  of  her  ankles  and               hands.   After the lapse of days or a week  or               two,  the blood pressure may rise further  and               albumen,  often not more than a trace, can  be               demonstrated  in  the urine.  There may  be  a               progressive  rise  in the  blood-pressure  and               oedema  becomes more marked.  In severe  cases               the   face,  abdominal  wall  and  libia   are               effected." It  is  thus clear that this type of  severe  toxemia  which results  in increased blood-pressure, passing of ablumen  in urine  and swelling of the body appears in the later  stages of  pregnancy  and  not usually before the end  of  the  6th month, i.e., not during the period of 168 days of pregnancy, that is to say, not to take place before August 10, 1947  in the case of the respondent who was married on March 10, even if  for  the purpose of duration 14 days are  added  to  the period following March 10. The respondent stated in the examination-in-chief that  when she went to Prantij from Bombay, which was about the 4th  of June 1947, she had swelling on her feet, hands and face.  In cross-examination  she further stated that she had  swelling over  these parts and also high blood-pressure in  June  and that the passing of albumen and swelling of hands -and  feet continued till delivery but there was no high  bloodpressure at the time of delivery.  The Court below did not act on the statement of the respondent about her having the symptoms of toxemia  in  the  month of June as none of  the  letters  on record  written in June makes reference to such a  condition of  hers.  This is true, but that does not necessarily  mean that  she did not have such symptoms in the month  of  June. They  might  not have been very severe that  month  and  the severity  appeared in the month of July.  Letters on  record amply make out that she was suffering from a severe type 298 of toxemia in July.  It has been urged for the respondent in connection  with her alleged toxemic condition in the  month of June that her statement in her letter dated June 28 about her walking 2 miles a day is not compatible with her  state- ment in Court and the suggestion for the petitioner that she was  suffering  from  toxemia in the  month  of  June.   The statements  of  the respondent in her letters  can  be  used

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against  her  as her admissions, but cannot be used  in  her favour accepting them to be correct statements.  If she  was pregnant at the time of marriage she must take such steps up to  the time of delivery as to allay the suspicion that  she had  been really pregnant at the time of marriage.  She  may therefore  be  inclined  to make  wrong  statements  in  her letters  to prepare for any plausible explanation  when  the delivery took place before the expected time on the basis of her conception after marriage.  There is therefore no reason not to believe her statement that she did have such  trouble of a milder kind in the month of June.  Severe trouble  does not usually come at once.  It develops from a mild stage. By  June  4,  1947, the duration of pregnancy,  if.  due  to coitus  on  or after March 10, can be at most  100  days,  a little over 3-1/8 lunar months, and according to the medical opinion,  toxemia in the form of blood-pressure, oedema  and passing  of  albumen in urine does not occur  after  such  a short  period of pregnancy.  It is to be concluded  that  by the end of May the duration of her pregnancy was of about  6 months.  This fits in with the petitioner’s contention  that she was pregnant on March 10, when the marriage took place. A brief reference to the correspondence which shows that she was  suffering from toxemia from the month of June 1947  may be  made now.  The first letter in this connection is  dated July  12,  1947.   It is Champaklal’s  letter  to  Kodarlal, father of the respondent, and was written on receipt of  the respondent’s  letter  addressed to Sharda.   The  respondent must  have  written  that  letter  on  or  about  July   10. Champaklal  expresses  worry on having the  news  about  her health.  He states:               "It  is not a good sign if she has  oedema  on               the legs and abdomen in passing the urine, and               hence  you keep Sushilabehn immediately  under               the treatment of a doctor either in  Ahmedabad               or at Bombay.  Dr. Pandya at Ahmedabad is also               a good doctor... continue the medicine as long               as she advises.  You can consult her and  then               inform us immediately."               Sharda  had herself written to the  respondent               on July 13, 1947 suggesting that she should go               to  Bombay for consultation about her  health.               Champaklal again wrote to               299               Koderlal  on July 20, after receipt of  letter               from him and stated :               "The  medicine  prescribed by  Dr.  Pandya  is                             proper  and  I  am  sure  that  there  will  be               complete  cure.  Follow her advice as  regards               medicine  and  food directions.   If  she  has               given  advice  for  her not.  taking  salt  do               follow  it and if advised to live entirely  on               fruits and milk do follow the same because  if               proper  care  is not taken  for  this  disease               there  will be epileptic fits at the  time  of               child  birth  and the case  will  be  serious.               Your  doctor  has  warned  you  from  now   by               examining  the urine and it is good  that  you               have  taken a warning and you have taken  good               precautions from now and hence I am sure  that               she will definitely improve." Champaklal’s  letter  dated July 28, again on receipt  of  a letter from the respondent’s father, asks the latter to  in- form him as to how the respondent’s oedema stands. On  July  24,  the respondent’s father wrote  to  the  peti-

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tioner’s father stating therein:               "My  daughter Sushilaben was got  examined  by               Miss  Pandya  and her opinion is that  she  is               passing  albumen in her urine and that she  is               suffering from blood pressure.  Her health  is               good.  This is all."               Manilal,  the petitioner’s father  replies  to               this letter on July 27 and writes:               "Very  pleased  to learn that  Sushilabai  has               been  ’shown’ to the doctor and  the  medicine               has  been  continued and that she  is  keeping               good  health.  Very pleased to learn that  you               and  the  members of your family  are  keeping               well.  Here we all of us are keeping well,  so               much". With affection of Manilal’s                                       Jai Gopal." The letter in a way, is a cold one.  He has not stated  what would  have  been both an expression of his feeling  at  the time  and  would also have been very polite in  the  circum- stances.  He expressed no concern and did not write that  he be  informed about the respondent’s condition from  time  to time  just  as Champaklal happened to write in each  of  his letters.  It is to be noted, however, that both Kodarlal and Manilal  use  language  which could not  have  been  correct factually.   Kodarlal says her health is good’  and  Manilal expresses his pleasure on receipt of the letter. 300 The  respondent’s  letter dated July 2, 1947  was  the  only letter  written to the petitioner in the month of July.   No other  letter is on the record and the petitioner states  in his letter dated July 27 that he had not received any letter from  her  for  a  long time and  was  therefore  very  much worried. The  petitioner  wrote to the respondent on August  6,  1947 stating that he was awaiting her letter and that  Champaklal and Sharda had informed him that her health was very bad and she  was not in a position to write a letter.  He  asks  for further news of her health by wire. It  is  his  letter  dated August 12,  1947  which  makes  a reference to the respondent’s letter dated August 4 which he thought  was  received after about a month of  her  previous letter.   Thus  it is clear that for about a  month  between July  2 and August 4, 1947, the respondent’s  condition  was such  that she was not even able to write a letter.  It  was when her condition had become very bad that news of her ill- health was conveyed to Sharda by letter on or about July 10. The  last  letter which the respondent writes to  the  peti- tioner is dated August 13.  In this letter she writes:               "As my health was very bad, a letter was  sent               to Shardaben and my father also wrote a letter               to  Champaklal.  At that time he  had  written               that Dr. (Miss) Pandya would be called in  and               treatment  by her would be started; so we  are               taking  her the treatment by her  accordingly.               We did not write to you for the simple  reason               that that would have caused you anxiety.   The               treatment is still continued.  But there is no               change.  There are swellings all over my  body               and    I    am   feeling    extremely    weak.               Consequently, I have not even the strength  to               write a letter.  We had consulted Miss  Pandya               and  Dr.  De Monte and  Doctor  Anklesaria  at               Ahmedabad.   So  according to them  poison  is               passing  in the urine and along with it  there               is also the blood-pressure and so it is likely

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             that the case may be serious case of  delivery               and  I  might get convulsions  at  that  time.               That   is  why,  right  from  now  they   have               altogether  stopped  me from taking  salt  and               they  have also stopped me taking food, so  as               to avoid the rise of blood pressure.  I am  on               the  diet  of mere milk and  fruit.   Also  my               medicines   are  continued.   My   dear,   the               exertions  of  writing  even  this  much   are               causing a severe giddiness in my head and so I               now stop."               301               As  a  post-script  to  this  letter  she  had               further written:               "They  are  attending all right  on  me  here.               Possibly,  they  are  going  to  take  me   to               Ahmedabad  or.   Bombay,  for  the   delivery,               because in a village’ like this, there is  not               sufficient equipment available." The   petitioner’s  letter  dated  August  25,  1947   makes reference  to the letter from the respondent’s sister  dated August 17. The  respondent’s  letter  dated August 13 is  a  very  good synopsis of her condition and of the reasons for not inform- ing the petitioner of her ill-health.  It is clear from this letter  that Shardaben was informed in about the first  week of  July  only when her health had deteriorated to  a  large extent  as she said in the letter that a letter was sent  to Shardaben  as  her health was very bad.   Kodarlal  informed Manilal  even  later,. on July 24.  There  is  therefore  no reason not to accept the respondent’s statement on oath that she had suffered from blood-pressure, swellings and  passing of  albumen in the urine in the month of June and  that  she had oedema on her legs, ankle and feet when she left  Bombay for Prantij on or about June 4, 1947. The  doctors who examined her and whose names are  given  in her  letter  dated August 13, have not  been  examined.   No explanation  has been given for not examining Dr.  De  Monte and Dr. Anklesaria.  It is said that Miss Pandya refused  to appear  as  a witness as she had not kept  notes  about  the respondent’s  condition,  remembered nothing  about  it  and would  not be able to depose anything in Court.  We  do  not consider  this  to be a good explanation for not  calling  a relevant witness.  Under the stress of oath and cross-exami- nation Dr. Pandya might have recollected things which  could have  a bearing on the case.  Madhuben, the  nurse  examined for the petitioner, deposed about the respondent’s condition and that is not much different from what the respondent her- self stated in Court and in her letters.  Madhuben states in this connection:               "About  two  months  before the  date  of  the               delivery of the respondent I was called at the               house  of  Sushilabai.   At that  time  I  had               examined  Sushilabai.  At that time I  noticed               that  there  was swelling over the  hands  and               feet  of  Sushilabai.   I  also  noticed  that               Sushilabai was weak in her health and she  had               trouble  about the passing of the urine.   Her               urine  was examined.  It was noticed that  she               was passing albumen in urine.  At the               302                     time  when I examined Sushilabai at  her               house,  she  had the 7th month.  She  was  not               taking proper food."  As  the  delivery  took place on August  27,  Madhuben  was

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describing the respondent’s condition in about the last week of June.  She has been disbelieved for remembering this con- dition of the respondent as she was not expected to remember this after such a lapse of time.  We see no reason to disbe- lieve  her when the respondent herself admits her  suffering from these symptoms of toxemia.  If Madhuben concluded  from these  symptoms that the respondent was in the 7th month  of her pregnancy, there is nothing to be surprised at that, as, according  to  the medical opinion already  discussed,  such symptoms  do  not  appear before the  7th  month.   Madhuben deposes  that she used to visit the respondent at  intervals of  8  or 10 days during those two months.   The  respondent denies that Madhuben ever attended on her except at the time of her delivery.  According to her, a lady doctor of  Himat- nagar  used to look her up every Sunday.  This  lady  doctor has not been examined.  It is alleged that she had left  the place  and her address could not be known.   The  respondent said in her letter to the petitioner, dated June 28, 1947: "A nurse comes to examine (me) every Sunday". There is some dispute about the word ’nurse’.  The  original word in Gujarati was ’bai’.  The correctness of the official translation  of that word does not appear to  be  questioned before  the trial Court or in the grounds of appeal  to  the High  Court.   We  see no reason  to  disbelieve  Madhuben’s statement  which, so far as the condition of the  respondent goes, finds support from what the respondent herself  states and  also from the medical opinion about the stage of  preg- nancy when the symptoms observed by her occur. The respondent’s letter dated August 13, 1947 indicates  the extreme severity of the toxemic condition she was in at that time.   Doctors  were contemplating the possibility  of  the respondent’s  suffering from convulsions at the time of  de- livery  and therefore of moving her to Ahmedabad  or  Bombay where there was sufficient equipment to deal with a  compli- cated case of delivery. Now,  we may consider the expected condition of  the  child, born  after  171  days of conception, as  a  result  of  the respondent’s  suffering from mild toxemia for about a  month and  thereafter from severe toxemia for about 8 weeks  prior to delivery. With  respect to the effects of toxemia from which a  mother suffers,  on the expected baby, Dr. Ajinkia states  that  if toxemia starts at the end of the 4th month of pregnancy                             303 and in spite of the treatment there is no change in  toxemia for  a  period of 7 weeks thereafter, the condition  of  the child  delivered  169  days after the  marriage  would  most probably be a still birth. Dr.  Mehta states that the effect of toxemia in the  mother, speaking generally, is that the baby will be under-sized and feeble, though if toxemia be ’of a short duration, the  baby may  not  be  affected.  He, however,  states  that  toxemia starting  at  the  end of the 4th  month  of  pregnancy  and showing  no change in spite of treatment for a period  of  7 weeks  thereafter, would result either in the child’s  dying in the womb or in being delivered of on a premature date. The  respondent’s  suffering from toxemia  for  about  2-1/2 months at least prior to the delivery and from a very severe type  of  toxemia  for about 7 weeks  before  the  delivery, according  to  the medical opinion, would  be  an  important factor in reducing the weight of the child born.  There  was nothing  in the progress of the pregnancy of the  respondent which  could be conducive to the increase in weight  of  the foetus which would result from conception on or after  March 10.   A  child born of a mother, who had  so  suffered  from

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toxemia,  after the full period of gestation can be  4  lbs. but  a child born of such a mother after a period of 171  or 185 days of gestation cannot be 4 lbs. and will be less than 2 lbs.  In fact, according to the medical opinion, the child born  in  such circumstances, should have been  either  dead already, or one which would die soon after delivery. The  High Court -relied on the statement of Dr.  Mehta  that though Such is the normal expectation, certain children  may survive  on account of their’ inherent vitality.  We do  not think that an extremely premature baby born of a mother  who had  suffered from severe toxemia has any chance  of  having such inherent vitality. The delivery took place at the Prantij Municipal Dispensary, Maternity Ward.  Madhuben, witness No. 2 for the petitioner. was  working as a mid-wife at the hospital and had  attended to the delivery of the respondent.  She states that she  had weighed the child and it weighed 4 or 4-1/2 pounds, that  it was  a mature child which was born after the expiry  of  the full  period  of gestation and that the child was  a  normal one.  Her statement finds support from Exhibit K, one of the in-door  case  papers  relating to  the  respondent  at  the hospital.  Madhuben states that Kachrabhai, the  compounder, made entries in this paper under her instructions. Exhibit K, as printed, shows that the portion of the  column under  ’disease’  was torn.  We have seen the  original  and could clearly read the word ’normal’ and the other word  may be 304 either  ’labour’, as stated by Madhuben, or ’delivery’.   It records. ’Female child, weight 4 pounds’.  The details noted about the interval between the starting of the labour  pains and  the  delivery do not indicate that there  was  anything abnormal. Kacherabai,  the compounder, was examined by the  respondent as  witness No. 2. According to him, a white paper known  as ’the  maternity card’ is also prepared along with the  brown paper,  which Exhibit K is, and that the white  paper  which must have accompanied Exhibit K was missing from the record. A  photo  copy  of the pro-forma white paper  was  taken  on record.   It  requires  entries  about  previous   obstetric history  and various other matters observed at the  time  of admission  of  a  maternity case.  There  is  no  reason  to suppose  that the relevant white paper was removed from  the records by the petitioner or by someone at his instance  and that  it contained matters which would show the  entries  in Exhibit  K  to be wrong or the statement of Madhuben  to  be inaccurate.   Kachrabai states that all the records  at  the hospital remain in the custody of the Doctor, that they  are kept  under  lock  and key, that the key  remains  with  the doctor  or  with  him  and  that  they  were  the  only  two responsible  persons in the dispensary. he has  also  stated that in the file there were some other brown papers also for which  there were no corresponding white papers and that  he did not charge the petitioner with the removal of any  white paper  from  this  file  and that it was  no  fault  of  the petitioner  if any white paper was not on the file.  He  has also  proved  the  entry with respect  to  the  respondent’s delivery in the Maternity Admission Register.  The entry  is Exhibit 15.  It also mentions the weight of the child to  be 4 lbs.  It has a ’dash’ in the column for ’conditions of the child’.   Kacherabai states that this ’dash’ meant that  the condition  was good.  A ’dash’ which is found in the  column ’still  born,  miscarriage, abortion’  cannot  mean  ’good’. ’Dash’ in the column of ’condition of child’ may mean ’good’ as  deposed  to by Kacherabai.  Any way, it must  mean  that

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there was nothing particular to note about the condition  of the baby. Gokhale J., accepted Mahuben’s statement about the weight of the baby and its condition but did not accept the  statement that the baby was born after a full period of gestation.  He considered the delivery to be premature. Patel J., considered Madhuben to be unreliable, assumed  the weight  of  the  baby to be 4 lbs.  and  accepted  the  res- pondent’s statement about the condition of the baby and  its being born premature. Patel  J. remarked, in meeting the submission for the  peti- tioner that Madhuben was living at Vrindaban and was leading a pious life and had no reason to make untrue statements 305 that  sometimes  such persons might be bigoted  and  narrow- minded.  He did not believe her statement that the child was kept  on  glucose  for  two  days  in  accordance  with  the practice’  followed  in the Prantij  Hospital,  as  normally mother’s  milk  is available only after two days  after  the birth of the child. The statement is said to be contrary  to those  of  most  of the standard books referred  to  by  the experts  on  behalf  of  the  parties.   Madhuben  was   not questioned  about  it and we have not been referred  to  any statement to the contrary in any book on the subject. He  did  not rely on the entry about the  condition  of  the child  as the various entries in Exhibit 17 showed that  the condition  of children weighing 3 lbs. or 4 lbs. or  6  lbs. was similarly noted.  The description of the condition of  a child  as good, need not have a necessary relation with  the weight of the child born.  It is to be noted that, according to the entries in the Maternity Admission Register,  Exhibit 17,  most  of  the children born  in  the  Prantij  Hospital weighed  4 lbs. or less.  The condition of all the  children could not have been such as to require special mention.   It may,  however,  be pointed out that no entry in  Exhibit  17 shows the weight of the child to be 6 lbs. Patel  J., suspected the genuineness of the entries  in  the hospital  records as he mis-read Kacherabai’s statement  and so erroneously thought that the hurry with which the  papers were   produced  by  the  Doctor  raised   some   suspicion. Kacherabai,  the compounder, examined for the respondent  on May 7, 1950, stated:               "Doctor has returned to Prantij yesterday.  He               had gone to attend some marriage about 3 or  4               days ago."               Patel  J., however, happened to mis-read  this               statement  and observed, in dealing  with  the               question of normal delivery,               "Keshavbhai (Kacherabai?), the witness of  the               respondent,  the  compounder,  said  that  the               doctor  left  only  a day  before  his  giving               evidence, i.e. he, left on the 6th.  The hurry               with  which  the papers were produced  by  the               doctor may raise some suspicion." The  fact is that Dr. Modi who was attached to  the  Prantij Municipal Dispensary in May 1959 was present in Court on May 2, 1959 to produce the documents summoned from him.  He  was not in a position to be present in Court between 3rd and 6th May on account of a marriage which was to take place on  May 4.  He, therefore, filed an affidavit that day  stating  the facts  and requesting the Court to excuse his  absence  from Monday, May 4, 1959, till the morning of Thurs- 306 day,  May  7,  and expressing his  readiness  to  leave  the records in the custody of the Court or such other person  as

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the Court directed. The  order sheet of the trial Court dated May  2,  1959shows that  the petitioner’s counsel requested the Court  to  take the  papers in its custody as the Doctor had come  with  the relevant  papers.  Counsel for the respondent had no  objec- tion.  The records came in the custody of the Court in this. way.  Patel J., says:               "The white paper in respect of the  respondent               is  missing.  The petitioner and his  advisers               had  the first glimpse of the hospital  record               in connection with this case if any one had it               and  it  is  a mystery that  the  white  paper               should disappear."               The  order  sheet of May 2,  1959  shows  that               counsel  for the; petitioner had  tendered  in               Court  Entry No. 63 for the year  1947,  i.e.,               Exhibit  J.  and  indoor-case  papers  of  the               respondent, Exhibit K. It adds:               "Shri Mehta says that Dr. Modi (the doctor  at               the Prantij  Municipal Dispensary who produced               Exs.  J  & K) does not know  of  his  personal               (knowledge)  and he is producing  the  records               (maintained)   in  the  ordinary   course   of               business.    Mr.   Shah   (counsel   for   the               respondent) has no objection." It  appears  that Dr. Modi did not file in Court  any  white paper.   There  is no evidence that the petitioner  had  the first glimpse of the hospital record and this is clear  from the learned Judges using the expression ’if anyone had  it’. The petitioner is not to blame for the missing of the  white paper.   When the learned Judge suspected the  bonafides  of Dr.  Modi and the petitioner in connection with the  missing of the white paper relating to the respondent’s delivery and was  to base a finding on such a suspicion, he  should  have summoned  Dr. Modi and examined him in that  connection  and should not have left the matter by a mere observation:  ’The doctor  who produced it could not be cross-examined,  as  he produced the papers in a hurry’.  We should, however,  point out  that what transpired when Exhibits J & K were  produced gave no room for the comment made by the learned Judge. Patel J., was further of opinion that it was not expected of Madhuben  to  remember the condition of the child  after  so many  years of the event and because the respondent  herself described  the condition of the child very much  differently and the latter could be expected to have better reasons  for remembering  its condition than the mid-wife.  We may  quote the  statements  of the respondent and  Madhuben  about  the condition of the child.  The respondent said:               "The child born to me was a very weak one.  It               was  a  very.  small one.  She was  not  in  a               position to cry at               307               the  time of her birth.  She did not  cry  for               two  days  after  her birth.   Her  eyes  were               closed.  There were, no hair on her head.  She               had no nails on her fingers and toes.  She was               not able to suck my milk.  She was reddish  in               colour.   As  the baby was unable to  suck  my               milk,  milk  was pumped out.  That,  milk  was               thrown  away.  The baby was given glucose  and               brandy. 12 or 13 days after delivery the  baby               was able to feed from the breast."               Madhuben said:               "After the delivery Sushilabai appeared to  be               weak but the child was normal.  It was crying.

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             The  movement  of the limbs was  normal.   The               eyes of the child were open and the child  was               taking  glucose.   The  cries  of  the   child               indicated that the child was a healthy one."               "At  the time of the delivery  of  Sushilabai,               Dr.  Chimanlal  was  not  present.   No  other               doctor  or  nurse was called at  the  time  of               Sushilabai’s  delivery.  I alone  attended  to               the delivery of Sushilabai." Madhuben  was  not cross-examined  regarding  her  statement about  the  condition  of the  child  and  the  respondent’s version about the condition of the child was not put to her. The  only explanation suggested for this omission  has  been that  the respondent herself was not present in  Court  that day  and therefore could not have instructed the counsel  in that regard.  The explanation is feeble.  The respondent was in  Bombay on the day Madhuben was examined.  She must  have known  that Madhuben had been summoned for evidence on  that particular day and if she did not attend the Court that  day it  must  have  been with a purpose.  A party  has  to  give instructions to his counsel in good time and has not to  put that off till the actual date of hearing. Madhuben was questioned as to how she remembered these facts and  stated  that  during the proceedings  of  the  case  at Baroda,  somebody had made enquiries from her and  therefore she  was  reminded of the respondent’s delivery.   This  too must  have  happened  in 1.948. It appears to  us  that  the reason  for her remembering the details of the  respondent’s delivery could be the very fact which is the matter in issue in  this  case.  The respondent belonged  to  a  respectable family  of the place which is not a large one.  The date  or at  least  the month of the marriage would be known  in  the locality.  The delivery took place within an unusually short period  of  the  marriage.  It appears that  people  of  the locality talked about it.  In these circumstances,  Madhuben could  have  recollected of this  particular  delivery  when questioned about it. 308 It  is very difficult for a witness to state on oath why  he remembers  a certain fact which took place long ago and  the witness therefore makes his best to answer it at the spur of the  moment.   We do not consider the  long  period  lapsing between  the  delivery  and Madhuben’s  statement  in  Court sufficient to justify ignoring her statement or consider her to be an unreliable witness when there is no reason for  her to depose falsely, nor the fact that she stayed at the place of  Manilal, fattier of the petitioner, in Bombay  when  she came to give evidence sufficient to discredit her.  She went to  Bombay from Vrindaban where she had been residing  after she  gave  up  service and bad been living  the  life  of  a devotee. It  is  true  that  a mother is not  likely  to  forget  the condition  of  the child born to her, but the value  of  the respondent’s  statement depends on her veracity.   Both  the trial Court and the High Court in their judgements held  her to  be  an  unreliable witness.  Patel  J.,  relies  on  her statement  only so far as it is about the condition  of  the child.  We do not consider her statement about the condition of  the  child  born  to her  to  be  worth  reliance.   She describes  this  condition to be  practically  exactly  what ought  to  be  the condition of a child after  a  period  of gestation  amounting to 171 days.  The description given  by her  exactly  fits in with the details of  the  descriptions found  in text books on obstetrics.  She was examined  after the doctors examined for the petitioner and for her had made

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their  statements.   Apart from this, she  could  know  from other  sources what condition a baby born after that  period of  gestation  should  have and could  therefore  mould  her statement accordingly. Before  the remand of the issues by the High Court,  it  was not her case that the child was born prematurely or that its condition  was  such as would have been the condition  of  a child born after that period of gestation.  If the condition described  now  was the real condition of  the  child  born, there  could have been no reason for her to think  that  her true  story  of having conceived by her  husband  after  the marriage might not be accepted by the Court.  She could have doubts about it only when the condition of the child did not fit  in  with the expected condition of a child  born  after that period of gestation.  If the condition of the child was such  as described by her, there was no reason why  Madhuben would not have given instructions about the condition to the compounder,  for noting in the Hospital records.   That  was not the normal condition of the child born, be it after  the full expiry of the usual period of gestation or after almost the full period of gestation.  There is no difference in the statements of the doctors examined in the case with  respect to  the care and attention necessary to be given to  a  baby born  after such a period of gestation.  The respondent  was in the hospital till September 8, 309 1947.   She states that great care was taken of  the  child, but  if that extreme care was taken, there would  have  been some  note about it in the hospital records and that  itself would have been a very good reason for Madhuben to  remember about the.., child’s condition. We  see  no  reason why Madhuben be not  believed  when  the available  hospital records support her.  She has no  reason to  depose  falsely.   In these  circumstances,  we  are  of opinion  that  Patel  J., was in  error  in  preferring  the statement of the respondent to that of Madhuben. The weight of a child born, is again a factor which tends to support the statement of Madhuben about the condition of the child and goes against the statement of the respondent.  The child  weighed 4 lbs.  Again, there is no difference in  the opinion  of  the doctors examined for the parties  that  the weight  of a child born at about the 6th month of  pregnancy would be about 2 pounds.  Such a statement is borne out from what is noted in the various books on that subject.  We  see no  reason  to  doubt the statement of  Madhuben  about  the weight  of  that child.  The entries in Exhibits  K  and  15 support it. We  do  not see any reason to disbelieve  the  statement  of Madhuben  that  the child was a mature  child.   The  normal weight  of a child born after the full period  of  gestation is, -said to be 6 to 7 pounds, according to Dr. Ajinkia  and 5  to 7 pounds, according to Dr. Mehta, but the weight of  a normal  child depends upon various circumstances.   In  this connection,  it is worth noticing that Exhibit  17  contains entries  about  35 cases of births at the  Prantij  Hospital between   December,  1942  and  August  1952,  about   which Kacherabai was questioned by the respondent’s counsel in the examination-inchief.  Out of these the majority of  children weighed  less  than 4 lbs.  Only one weighed 5 lbs.,  one  4 lbs.  and 8 ounces, and twelve weighed 4 lbs.  Only one  out of  them  appears to have died.  It can be  taken  that  the normal weight of the children born at this hospital is about 4  lbs.  It is too much to expect that all these were  cases of  premature  deliveries.   It should not  therefore  be  a matter  for surprise and for disbelieving Madhuben when  she

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states  that the child born to the respondent was  a  mature child born after the expiry of the full period of gestation. Of  course,  her statement cannot be taken to  be  literally correct.   What  it amounts to is that the  child  was  born after  practically  the  full period of  gestation  and  was definitely  not  a  child born in the 6th or  7th  month  of pregnancy. There  had  been  some difference  of  opinion  between  Dr. Ajinkia  and Dr. Mehta examined for the petitioner  and  the respondent  respectively,  about the definition  of  ’normal labour’ or ’normal delivery’.  Both are agreed with what the 310 expression  ’labour’ means.  Dr. Ajinkia states that  normal labour would mean a series of processes by which the  mature or  almost mature products of conception are  expelled  from the  mother’s body and referred to, in this connection,  the definition  of  ’labour’  in  Williams’  ’Obstetrics’,  10th Edition,  p. 324.  Dr. Mehta agrees with the definition  but would not associate maturity or almost maturity of the child with the expression ’normal labour’ and would restrict  that expression  to mean labour during which no artificial  means are used.  He had to admit later that labour has  connection with maturity.  When questioned whether normal labour  could be  compatible  with premature birth, Dr.  Mehta  stated  in examination-inchief : "It may be termed as a normal labour, but one specifies  the term that it was a. premature one." We are inclined to prefer Dr. Ajinkia’s view on this  point. However,  nothing, much turns on it in view of, our  opinion about  the  weight of the child born and  the  weight  being consistent  with the weight of a child born after  almost  a full period of gestation, as would be discussed later. We, therefore, accept as true the statement of Madhuben  and hold  that  the child born to the respondent on  August  27, 1947  was  after normal labour and weighed 4 lbs.   We  also believe  her  statement that it was a mature child  and  had been  born  after  almost a full  period  of  gestation  for reasons we now state. We  now deal with the question whether the child born  after 171  days of marriage could survive and live for years,  and if so, whether the respondent’s child was born premature  or after almost the full period of gestation and refer to  what Dr. Ajinkia and Dr. Mehta had said in this connection Dr. Ajinkia states that if special care is taken at the time of delivery and also in the treatment of a child prematurely born  at the 28th week of conception, then it  may  survive. The  special  care  he refers to is  not  just  giving  more attention to the baby by the relations, but of a  particular type.  He has described the special care to be taken in  the process  of  delivery  and  the  care  required  after   the delivery.  During the delivery the special care required  is in regard to the following matters:               1.    The  labour should not be allowed to  be               prolonged.               2.    As  soon as the baby is  delivered,  its               temperature should be maintained.               3.    Oxygen should be given to the child,  by               special incubators.                4.   Some    respiratory   and    circulatory               stimulants will also be required.                5.   Baby will be required to be handled very               gently.                6.   Since its resistance to fight  infection               is  low,  all  the care is  taken  to  prevent               infection.

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              The care required after delivery is in  these               respects:               1. Maintenance of warmth.                2.   Maintenance of proper nourishment.                3.   Prevention of cyanotic attacks by giving               oxygen.                4.   Prevention   of  infection   as   stated               before.  The  respondent remained in the hospital for about 12  days till  September 8. Madhuben does not state of any such  care being  taken either during the delivery or  afterwards.   In fact.  the  hospital did not have the  requisite  equipment. Madhuben has stated that abnormal cases of delivery were not attended to at the hospital. Dr.   Ajinkia further deposed that in his opinion even  with the skilled care, a child born within the 7th calendar month cannot  survive,  and in this he is not fully  supported  by what Taylor states at p. 32 in his ’Principles & Practice of Medical Jurisprudence’, 11th Edn., Vol. II:               "In  the absence of any skilled care  Hunter’s               dictum  on the unlikelihood of  survival  when               born before the 7th calendar month remains  as               true as it was." There  cannot  be any positive definite statement  in  these matters  by any one including a doctor and  especially  when there have been exceptional cases of whatever veracity  men- tioned  in medical books.  Possibly there had been  no  such case in the personal experience of Dr. Ajinkia where a child born before the 7th calendar month survived in spite of  the care given to the child presumably at the hospital. Dr.  Mehta states that lie had not applied his mind  to  the question  whether a child born after 169 or 171  days  after conception would be born alive, but had applied his mind  on the  footing of 184 days counted from the first day  of  the last menstruation.  He was not, therefore, in a position  to challenge  the  statement of Dr. Ajinkia that a  child  born after  169  days from the date of conception would  be  born dead. Williams,  in his book on Obstetrics, states at p. 186  that at  the  end of the 6th month, the foetus weighs  about  600 grains  and  a foetus born at this period would  attempt  to breath, but almost always perishes within a short time.   He further  states that in the 7th month the foetus  attains  a weight  of about 1,000 grams and that a foetus born at  this time  moves  its feet quite energetically and cries  with  a weak voice and as. 312 a rule it cannot be reared, but occasionally expert care  is rewarded  by  a,  successful  outcome.   Williams,  however, states  that  generally speaking the length affords  a  more accurate criterion of the age of the focus than its  weight. The  weight  of the child, however, is a good index  of  the period of gestation,  though it is not as good and  accurate as  the  length of the child born.  The baby’s weight  of  4 lbs. at birth is not consistent with its being born after  a gestation period of 185 days.  It is, therefore,  reasonable to  conclude  that  the child born  to  the  respondent  and weighing 4 lbs. was not a child born on the 6th or 7th month of pregnancy.  This supports Dr. Ajinkia’s statement. Madhuben  does  not  state that the  child  was  weak.   The respondent states so.  We do not believe her.  Reference  to certain letters may be made in this connection. Tile  respondent’s sister sent a letter to Sharda on  August 27  or 28 to which Sharda replied on August 3 1. It  appears from  Sharda’s letter that the respondent’s sister’s  letter

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had said that the health of the respondent as well as of the baby  was good.  The sister’s letter does not, in  any  way, convey  the information that the baby was very weak  and  of such a condition as is now described by the respondent.   On August  30, the respondent’s father sent a telegram  to  the petitioner  and said that both the respondent and  the  baby were  well.  On September 3, seven days after the  birth  of the child, Koderlal sends a letter to the petitioner.  It is in this letter that he states:               "After  I  had been to  Marwar,  our  daughter               Sushila   has  given  birth  to   a   daughter               prematurely on 27th August 1947, at ’about  10               A.M.  in the morning ......... and the  health               of both is very well Intimation has been given               to your father by wire and through letter  but               there is no reply from him." This  letter was written after the petitioner’s parents  had not   responded  in  any  way  except  by  showing   extreme indifference  to  the  news of the birth  of  a  grandchild. That,  along  with local gossip, must have put  Koderlal  on guard and even then he does not write anything with  respect to  the  extremely weak condition of the  child  and  simply states that the delivery was premature.  Sushila also writes to Sharda, on the same day, i.e., September 3. She was still in  the hospital and ordinarily the mother of a baby 6 or  7 days  old  would not have written a letter to  anyone.   She writes in this letter:--               "The  health  of myself, and my  baby  is  all               right.  The baby is very weak  Two letters and               a  telegram about the birth of the  baby  were               sent  to the respected Mamma, but there is  no               reply at all from the respected Pappa.  Hence,               all here are                                    313               very much worried as to why there is no  reply               from   the  ’Vevai’  (in-laws)  even  to   the               telegram.  And as I did not keep good  health,               the baby was born prematurely before the  full               period which of course is a matter over  which               the Almighty has dispensation.  I do not  know               what idea he (PappaVevai) must be entertaining               about  me.   To  whom,  but  to  you,  can   I               write?......... A telegram was sent to  London               to your brother, informing him about the birth               of  the  baby but God knows why  there  is  no               reply from him." The  contents  of this letter tend to confirm what  we  have said  in  connection  with the letter  of  the  respondent’s father to the petitioner.  The respondent and her people had a  definite feeling that the petitioner and his people  were not responding to the communications probably on account  of the idea that the child born was not the petitioner’s child. The respondent indirectly gave expression to such a  feeling by saying that she did not know what idea her  father-in-law was  entertaining about her.  Any way, her letter  does  not state  in  what  respect  the  baby  was  very  weak.    The expression that the baby was weak in no way conveys the idea that the baby’s condition was such as has been now described by  the  respondent.   For  a baby  of  mature  period,  the respondent’s  child was certainly weak, but for a baby  born after  a period of about 6 months’ gestation, the baby  born was not weak at all. The respondent sends a letter to the petitioner on  December 22. 1947.  She expresses her grievance at not being informed first of the petitioner’s return to the country, and states,

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"No  one  can be a match for nature; God  alone  stands  for truth.  Please forgive my mistakes if any." These expressions also make out that she was fully conscious by  this time that the indifference of her  husband  towards her  was on account of the feeling that the child  born  was not  his.   Still in this letter she does not  give  a  full picture  of the condition of the child born to her in  order to impress the correctness of her implied statement that the child was really of the petitioner.  That was the time  when she and her people, could have placed facts and evidence  in the form of either statements from the doctors or references to  the doctors to whom the petitioner could refer for  such information  which  could have  supported  the  respondent’s assertion. When no reply was received to this letter, it was then  that the  respondent wrote a letter to Sharda on January 8,  1948 and  over  a month later to the petitioner on  February  16, 1948. 314 Reference  has  been  made  to  these  letters  earlier   in connection  with the allegation that Champaklal had examined the respondent’s body in May 1947.   In  her letter to Sharda, she is more explicit  than  what she was in her letter to the petitioner on December 27.  She said:               "Hence  I open out my heart to you  this  very               day  (and say) that I am absolutely  innocent.               I  was  in  M.C. about  ten  days  before  the               marriage  It did not occur to me, even  in  my               dream,  that an accusation of such  a  roguery               would  be  brought against me  ......To  throw               such  an  infamy  on  a  person  coming  of  a               respectable family would indeed be the  limit;               Behen: You are kind and please think full well               over  this matter and bring it to end. ...  As               to whether it is your child or not, well,  you               may see it and satisfy yourself as to  whether               or not its appearance and features tally (with               yours)." It  is clear now, from this letter that she was  fully  con- scious  of  the  accusation against  her,  conveyed  through silence if not through letters.  Yet, in this letter, except for asserting her innocence, she does not come out with  the facts  about the condition of the baby and the extreme  care taken  by her.  She wrote in similar strain to tier  husband on February 16, and stated in that letter:               "I  was keeping weak health and was  suffering               from  blood-pressure  and only on  account  of               that  the delivery has taken place earlier  It               is,  therefore  only the  feeling  of  revenge               entertained  by the persons who have  poisoned               your  ears  towards me and the members  of  my               family.  Further, if I were at fault and if  I               wanted to hide something from you then I would               not  have taken proper care of the  child  who               was  and  is still weak due to  its  premature               birth and consequently it would have died  and               I  would have told (you) that there was  some-               thing like miscarriage.  But as my  conscience               was  clear  and as I had trust in you  I  took               proper   care   of  it   and   brought   about               improvement in its health. ...... It may  well               be  that as you have not known me  fully  that               you have got suspicious.  But if you live with               me you will be convinced that out of  jealousy

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             and  revenge  an absolutely false  charge  has               been put on an innocent woman." It  is for the first time in this letter that  something  is said of taking proper care of the child who was weak.   Even in  this  letter  she had not given  a  description  of  the condition of the                             315 child at the time of its birth a condition which would  have sufficed  to convey the idea that the child born was  really am, child of about 6 months’ pregnancy. The  letters of the respondent and her relations  subsequent to  the birth of the child do not bear out the  respondent’s statement  about the condition of the child at the  time  of its  birth and. therefore, do not in any way  discredit  the statement of Madhuben about the condition of the child  born and its weight. True that there had been instances of children born after  a comparatively  short period of gestation and that  they  had survived--a few for some years too.  But such cases are  few and it may be open to doubt whether the period of  gestation reported was absolutely correct.  In this connection we  may refer  to  Table  No. 2 at p. 560 of  ’British  Obstetric  & Gynaecological Practice’ by Holland & Bourne, 11 Edn., which relates  to  Total Consecutive Births, Male,  Classified  by Birth  Weight  &  Gestation Time.  It  also  mentions  still births  and  neo-natal deaths among them.  It  appears  from this  table that out of 7,037 cases of births, there were  3 births  i.e., .043 per cent with a gestation period  between about  155 and 175 days, that all those three were cases  of still births or neo-natal deaths and that the weight of each child  was 1 lb. or so.  There were 4 births i.e.  .057  per cent with a gestation period between 170 and 185 days.   All the  four of them, were cases of still births and  neo-natal deaths.  Only one of them weighed 6 lbs.  Two weighed 2 lbs. each and one weighed 1 lb. 13 i.e., .19 per cent were births with  a period of gestation between 185 and 200 days. 12  of them were cases of still births and neo-natal deaths.   Only two weighed 5 lbs. each, one of them surviving; one  weighed 4 lbs.  Three weighed 3 lbs. each.  Six weighed 2 lbs.  each and one weighed 1 lb. Dr.  Mehta states that a baby born 169 days after conception would  weigh between 1 1/2 and 2 lbs.  A child whose  weight at birth is 4 lbs. might in rare cases be a full term  baby, but  ordinarily  it  was  taken  to  be  a  premature  baby, according  to  him. and a 4 lbs. full-term baby was  a  rare occurrence. The  learned  Judges considered the  delivery  premature  on account of the respondent suffering from toxemia.  We do not agree. Dr.   Ajinkia states that a premature delivery is one  which takes place between the 28th week and the 40th week from the date of conception and that miscarriage means the  expulsion of  the product of conception before the 28th week  of  con- ception.  He has also stated that the shorter the period  of gestation,  the  more feeble would be the  child  and  fewer would  be the hours of its survival, while a child born  out of  miscarriage  could not survive even  with  special  care because it 316 was  not a viable child.  By viable he meant that the  child has     been  sufficiently developed  to  continue  separate existence  from  the mother.  He is emphatic  that  a  child could  not be viable    even before the 28th week, say  25th or 26th week. Dr.  Mehta,  on the other hand, states that a child  is  sup

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posed to be normally viable about the 28th week, that  there can  be  exceptions and a child might be viable  before  the 28th  week  and could be born alive and could  survive.   He said  that he made this statement on the basis of  knowledge which  he had acquired from the standard books and  referred to three cases mentioned in De Lee’s Book. Dr.  Mehta  has  further stated with  respect  to  premature deliveries that premature delivery could be before the  28th week.   At  first he stated that he could not say  how  long before such a delivery could be, but when pressed in  cross- examination  he stated that a 20 weeks’ foetus,  if  ejected alive  or  dead  from  the body of a woman  it  would  be  a premature  birth.  He admitted that abortion  was  different from premature delivery and also stated that if the delivery took  place  before  the  28th week  it  was  termed  either miscarriage  or abortion, but added that if the  child  born was  a viable child, then such a delivery would be called  a premature delivery. He could not contradict Dr. Ajinkia’s statement that a child born  after  169 days from the date of conception  would  be born dead. We  may refer to what is stated about premature  termination of pregnancy in British Obstetric Practice by Holland, at pp. 559-561, 2nd Edition:               "Premature  termination  of pregnancy  may  be               defined as termination of the pregnancy  after               the   twentyeighth  week  (accepted  date   of               viability  of  the  foetus)  and  before   the               fortieth week, counting from the first day  of               the last menstrual period.  On the other hand,               most  writers  on the subject  of  prematurity               tend  to define the condition in terms of  the               weight of the baby rather than in terms of the               maturity of the pregnancy.  It was first  laid               down by the American Academy of Pediatrics  in               1935  that  a  premature infant  is  one  that               weighs   5-1/2   lb.  (2,500  gm)   or   less,               regardless  of the period of gestation.   This               definition  was accepted by the  International               Medical Committee of the League of Nations and               has  gained universal acceptance, in spite  of               its scientific inaccuracy.  Most obstetricians               have  seen babies of less than 5-1/2 lb.  born               after  a  gestation period of  more  than  280               days.   Indeed, birth weight and  duration  of               pregnancy  are far from perfectly  correlated.               Infants weighing less than 5-1/2 lb. at  birth               may even be post mature.  This               317               is  well shown in Table 2 constructed by  Kane               and  Penrose  from  7,037  live  births   from               University  College Hospital records.   It  is               seen  that 470 babies weighed less than  5-1/2               lb.,  but  that III (23.6 per cent)  of  these               under-weight  babies  were  born  at  term  or               later,  according  to the ordinary  method  of               calculation.   The  term immaturity  has  been               suggested  as an alternative in view of  these               discrepancies,   but  it  has   not   received               universal acceptance.  There is, however, more               than  academic significance in the  difference               because  maturity  as  such,  irrespective  of               weight,  is  of  the  greatest  importance  in               relation  to  foetal survival.  A  baby  whose               birth weight is 4 lb., if born at thirty-eight

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             weeks stands a far better chance of  survival,               and  is more likely to develop into a  healthy               child, both mentally and physically, than  one               of the same weight born a month earlier."  What has been said above about the viability of a  child or its  premature  birth is with respect to a child born  of  a mother whose pregnancy progressed normally.  The chances  of survival  of a baby born, of a mother who had suffered  from severe  toxemia for about two months prior to the  delivery, are  bound to be much less and would be further less  if  no special  care is taken during delivery and thereafter.   The weight of the respondent’s baby, its condition at birth  and its having lived as a mature child born after full period of gestation  does,  together  with  the  other   circumstances connected with the progress of the pregnancy, amply  support the petitioner’s case that the child born to the  respondent could not be of the petitioner. We have been referred to several cases in which the question about a child being conceived from the husband or not arose. Suffice it to say that cases fall into two categories.   One where delivery takes place much more than 280 days after the husband  had last opportunity to cohabit with his  wife  and the  other where it takes place much earlier than  280  days from the first day of menstruation prior to conception.  The first  type of cases, to which reference need not  be  made, involve  the determination of the question as to the  period it took for a sperm to fertilize the ovum.  Nothing  precise about the period was known when cases prior to the  decision of Preston Jones’ case(1) came up for consideration.  It was considered to vary much and so children born so long as  349 days after the known period of cohabitation were held to  be legitimate, as not proved to be the results of adultery.  No such  question however arises in the other type of cases  as the decision is to be given on the assumption that there had been fertilisation on the first day possible for the  coitus between the husband and wife.  The question to determine  in such cases is (1)(1951) A.C. 391. 318 whether the short period of gestation would justify the con- clusion  that  the child was born of  conception  from  that coitus  or  was  born  as a  result  of  some  other  sexual relations between the woman and someone prior to that coitus between  the husband and wife.  One such case was  Clark  v. Clark(1) on which much reliance has been placed by the Court below. In  this divorce case, on the petition of the husband  there was  no evidence of misconduct on the part of the  wife  and the only evidence of adultery was the fact of the birth of a child the period of gestation of which, assuming the husband to  be  the father, could not have exceeded 174  days.   The child  lived, and,. at tile date of the hearing was about  3 years  old.  The medical evidence was to the effect  that  a child of so short a period of foetal life would not  survive for  more  than day or two.  In view of tile fact  that  the date  of  conception  could be fixed  very  rarely,  it  was considered that the periods of gestation generally spoken of were notional periods and that therefore where    the  (late of conception could be fixed and thus the actual period    of gestation be ascertained, such period was comparable to  the longer notional period and consequently a six months’  child might be comparable to what was called a 7 months’ child. The  facts  of that case were very much different  from  the present  case  and must have naturally influenced  the  view that a six months’ child be comparable to a 7 months’ child. The Court considered the allegation of the husband who lived

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quite  close to where the wife lived for about a year  after the delivery, that the child when born was a fully developed 9 months’ child, grotesque.  The Court believed the evidence of  the nurse with 30 years’ experience that the child  born was  one of the two most extreme cases of  premature  births she had seen.  The wife’s mother deposed about the condition of  the child which corresponded to a child born  after  174 days of the conception.  The Court believed the statement of the mother of the child.  The lower limbs of the child  were in irons even about 3 year& after its birth.  Tile  delivery was  hastened on account of an accident.  The mother of  the child  had fallen a day earlier.  The weight of  the  child, though noted as 3-1/2 lbs. was not more. than 2-1/2 lbs., as the former weight included the weight of the towel. The  notional  period of pregnancy is  calculated  from  the first  day of the menstruation preceding the conception  and it  is on this account that 14 days are added to the  period of  pregnancy  from the actual date of conception.   On  the basis  of  notional calculation, the fully mature  child  is born  after  280  days.   On  the  basis  of  the  date   of conception, the child is born (1) [1939] 2 All E.P. 59. 319 between  265 and 2’70 days.  The development of  the  foetus undoubtedly  depends on its age as counted from the date  of conception  and  it  is for this reason that  the  books  on Obstetrics mostly deal with the development of the foetus on the  basis of, days or weeks after conception, for a  period of  about  2 months and thereafter they begin  to  note  its development  with  respect,  to  the  end  of  the  3rd  and consecutive  months.  This must be due to the fact  that  by that time a difference of about a fortnight in the period of gestation  does not bring about a substantial difference  in tile  description of the development of the  foetus.   After all, the entire knowledge with respect to the development of the foetus with respect to the period of gestation is  based on  a  consideration  of a large number of  cases  and  then arriving  at some generalized conclusion about the  develop- ment of the foetus corresponding to its age from the date of conception.  It would not therefore be very correct to add 1 lunar month to the ascertained period of gestation in  cases of a known date of conception merely on the ground that when books  speak of a foetus of a certain number of months  that foetus might be due to a conception taking place on any  day of  the lunar month corresponding to the menstruation  prior to the conception and the miss-period after conception. In the present case, however, it is known that the  earliest ,date  for  conception  can be March 10, 1947.   It  is  the statement of the respondent herself that about 10 days prior to  the  marriage she had her monthly course.  It  is  clear therefore  that  the  notional period of  pregnancy  in  the present case cannot execeed the period from March 10 by more than  10  days.   This means that  the  notional  period  of gestation of the respondent’s child -cannot be more than 181 days.  We have, however, considered the case on the  footing of  185 days which is equal to the period between  March  10 and  August 27 (both days inclusive) -plus 14  days.   There can  therefore  be no justification in the present  case  to consider  that the respondent’s child, though of  171  days’ gestation  after conception, if it be taken to be  conceived on March 10, could be notionally equivalent to an age of 171 days plus 28 days, i.e., 199 days. We are therefore of opinion that Clark’s case(1) cannot be a good guide, both on facts and law, for the determination  of the  question before us about the legitimacy of the  respon- dent’s child.

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It  may be mentioned that Clark’s case(1) was  distinguished in Guardianship of Infants Act, 1886 & 1925.  In re. and  In re.   S. B. an Infant.(2)B. v. B. where it was held  that  a period  of 188 days is too short to be accepted in law as  a period  of :gestation on the ground that in Clark’s  case(3) the child was (1) [1939] 2 All E.R. 59. (2) 1949(1) Ch. 108. 320 not held to be a fully developed nine months’ child but  was held,  in view of the evidence of the experienced  mid-wife, to be an extreme case of premature birth.  It was said at P. 110:--               "There is, as I have said, no such evidence of               prematurity  here, and it would  be  straining               the  facts  to assume that the birth  was  the               result of intercourse that took place only 188               days previously." It  is  true that no allegation of any kind  has  been  made about the respondent’s general immorality or about her  mis- conducting  with someone at the time when the child born  to her could be conceived.  The mere fact that her character in general  is  not challenged does not suffice  to  rebut  the conclusion arrived at from the various circumstances already discussed.   The only question before us is whether  on  the evidence  led  it is possible for the petitioner to  be  the father of the child.  The facts and matters we have set  out earlier  clearly establish that the conception-to produce  a child  of the type delivered --must have taken place  before March,   10,  1947,  and  if,  as  is  now  the  case,   the petitioner’s first sexual contact with the respondent was on March 10, 1947, it follows that the respondent was  pregnant by  someone  other than the petitioner at the  time  of  her marriage. The respondent, in her letter dated February 16, 1948 to her husband said:--               "Further,  you  know that one  has  to  insult               wicked  persons  in order  to  remain  chaste.               Therefore  those wicked persons who have  been               insulted are ready to take revenge.  Hence  it               is only out of jealousy that they poison  your               ears." If  this statement is correct, it shows that persons in  her village  had  evil eyes on her and that she  had  to  reject their advances. We may also now mention certain other circumstances on which the respondent relied to show that however unusual it  might be,  the child born to her was by the  petitioner’s  marital intercourse with her after their wedding.  They are: -               1.    Reluctance  of  the respondent  to  meet               even the petitioner before the marriage though               the  engagement continued for a period of  two               years and she loved him.               2.    Suggestion  to break off the  engagement               as late as January and February.               3.    Reluctance to abort the child.               4.    Symptoms   of   vomiting   and    nausea               immediately after the miss of period.               321               5.    The    fact   that    Champaklal,    the               brother-in-law  of  the  petitioner  did   not               notice  the pregnancy of the respondent  which               would  be  sure to have far  advanced  if  the               allegation  were true, though she  lived  with               him,, and was examined by him.

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             6.    She stayed up to the end of May at Vile-               Parle in the house of the petitioner’s  father               and yet the pregnancy was not noticed.               7.    The  progress  of  pregnancy  from   the               beginning  which  was  consistent  only   with               pregnancy by marriage.               8.    The  child  being very weak  and  under-               weight.               9.    Sudden delivery. The first circumstance can only indicate that she was  moral and  did not want to have any irregular connection with  the petitioner  prior to the marriage.  The petitioner  has  not challenged her character.  A good general character does not necessarily  mean that nobody could have had  sexual  inter- course  with her even by force, a possibility  indicated  by her letter just quoted. The  second  circumstance urged is that if  she  had  become pregnant, she could have accepted the suggestion of breaking off  the engagement when the petitioner had been  expressing his  dissatisfaction at his engagement with her.  She  could not have been very independent about it.  The engagement was brought  about  by  the  parents  of  the  parties   though, possibly,  with  the implied or express consent  of  theirs. Breaking off the engagement might have led to scandals.  She wrote  to the petitioner in her letter dated May,  15,  1946 that  people  asked her as to why marriage  was  not  taking place.  A betrothal period of about 2 years is ordinarily  a long period, when the parties were of marriageable age.   So this circumstance, again, is of no force. The  third  circumstance about her reluctance to  abort  the child,  again, is not of any value.  Abortion, as  suggested by the petitioner in his letters of April 5 and 8, too would have led to complications and scandal and it could not  have been certain that the abortion would not disclose the longer age of the foetus than what it ought to have been if it  was of a connection after the marriage. We  have  already  dealt with the  symptoms  of  nausea  and vomiting  appearing immediately after the first miss of  the period  and ceasing suddenly about the middle of  April  and held that they appeared to be more consistent with the peti- tioner’s case than with the respondent’s. L/P(D) ISCI-11 322 We  have  also dealt with the possibility  of  Champaklal’s. observing the stage of her pregnancy when she was at Gamdevi in the month of May and have held that he could not possibly have noticed it. It is true that there is no evidence that her parents-in-law noticed during her stay at Bombay, from about the middle  of May  to June 4, that she was in an unduly advanced stage  of pregnancy.  Reference has already been made to the  implica- tion  of the statement in her letter that her  mother-in-law asked  her to take all the ornaments with her when  she  was leaving, for her paternal place on or about June 4. We  have also referred to a letter of her father-in-law  ex- pressing  no  surprise and showing coldness on his  part  on learning of her condition in the last week of July 1947  and to  persons talking about her and the petitioner by May  24, 1947.  It is therefore not possible to say that the advanced stage  of pregnancy wits not noticed when she was at  Bombay in the month of May. We  have  already dealt with the progress of  the  pregnancy and.  need not say anything more in that connection.  It  is not established that the child was very weak and was  under- weight.

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The last circumstance urged on behalf of the respondent.  is the fact of sudden delivery.  The only circumstance  alleged in  this  regard is that her father was not  at  Prantij  on August  27. Koderlal stated in his letter to the  petitioner on  September  3  that after lie had been  to  Marwar  their daughter  Sushila  had given birth to a daughter.   If  this statement, as translated, is correct, it shows that Koderlal had  returned  from  his visit to Marwar and  not  that  the delivery  took  place when he was away  from  Prantij.   The respondent’s  bare statement that her father was not in  the village that day, therefore, does not suffice to lead to the conclusion  that  the  delivery  was  sudden  and  that   no arrangements  had. been made for the delivery and  that  the delivery  did  take  place after six  months  of  pregnancy. Further, a sudden delivery need not be a delivery of the six months’ child.  It may be a delivery sometime before the ex- pected   date.    Even  in  such  a  case,   no   particular arrangements  for  the  confinement might  be  made  by  the relations.   We  have already referred to  the  respondent’s statement  in  her  letter dated August 13,  1947  that  the doctors were contemplating arrangements for the respondent’s confinement  in view of expected delivery, be it on  account of the normally expected time of delivery approaching or  of expecting  an  early  delivery on  account  of  the  toxemic condition  of the respondent.  She said in that letter  that they  were going to take her to Ahmedabad or Bombay for  the delivery  since  in  a  village  like  hers  there  was  not sufficient equipment available.  It cannot therefore be said that the delivery was so sudden as to bear out the. 323 respondent’s case that the delivery took place when she  bad just completed 6 months of pregnancy. On  the basis of the evidence discussed above and  the  pro- babilities  of  the case, we are of opinion that  the  child born to,, the respondent on August 27, 1947 was  practically a  mature  child  and  weighed 4  lbs  in  weight  and  that therefore it could not have been the result of a  conception taking place on or after March 10, 1947.  It follows that it was  conceived  prior .to March 10 and  that  therefore  the respondent was pregnant at the time of marriage. Lastly, we may refer to ss. 112 and 114 of the Evidence Act. Section  114  provides  that  the  Court  may  presume   the existence  of  any  fact  which it  thinks  likely  to  have happened,  regard being had to the common course of  natural events,  human  conduct and public and private  business  in their  relation  to  facts  of  the  particular  case.   The conclusion  we have arrived at about the child born  to  the respondent  being  not the child of the appellant,  fits  in with  the  presumption to be drawn in  accordance  with  the provisions of this section.  People in general consider that the  child  born, being of a gestation period of  185  days, cannot  be  a fairly mature baby and cannot survive  like  a normal child.  Medical opinion, as it exists today and as is disclosed  by  text  books on  Obstetrics  and  Gynaecology, however,  refer to some rare exceptions of  livebirths  even with  a gestation period of a few days less than  180  days. But we have not found it possible to accept the respondent’s case  of  the conception having taken place from  and  after March  10, 1947 for several reasons which we have  explained in detail at the relevant place.  We should observe that  in the  case  before us the earliest date on  which  conception through  the  husband could have taken place is  fixed  with certainty,  a  matter which could not be said of  the  freak cases  referred  to in medical literature, for in  them  the earliest  date  of  conception  was a  matter  of  guess  or

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inference.   Besides,  we have the feature  in  the  present case, of evidence regarding the various phenomena and bodily changes  attending on pregnancy at different stages  of  its course,  and the combined effect of these does preclude  any argument  of  a  conception  on or  after  March  10,  1947. Lastly, we have definite evidence, oral and documentary,  of the  condition  of  the  child  at  birth  which  is  wholly inconsistent  with  a  gestation of less  than  six  months’ duration,  assuming that a live birth and the child  healthy enough  to survive is possible with such short  duration  of pregnancy.   In  passing, we might add that we  consider  it probable  that it was because the physical condition of  the child  at birth approximated to a normal mature child,  that the respondent originally put forward a case of  pre-marital intercourse with the husband---a story she could not sustain and which she ultimately abandoned. 1/P(D)ISCI-11 324 Section 112 of the Evidence Act provides that the fact  that any  person  was  born during the  continuance  of  a  valid marriage between his mother and any man shall be  conclusive proof  that he is the legitimate son of that man, unless  it can be shown that the parties to the marriage had no  access to each other at any time when he could have been  begotten. The question of the legitimacy of the child born to the res- pondent  does  not directly arise in this case,  though  the conclusion  we  have  reached  is  certain  to  affect   the legitimacy of the respondent’s daughter.  However, the  fact that  she  was  born during the  continuance  of  the  valid marriage   between  the  parties  cannot  be  taken  to   be conclusive  proof of her being a legitimate daughter of  the appellant,  as  the various circumstances dealt with  by  us above,  establish  that  she  must  have  begotten  sometime earlier than March 10, 1947, and as it has been found by the Courts  below, and the finding has not been questioned  here before  us.  that  the  appellant  had  no  access  to   the respondent at the relevant time. It  has been found by the Courts below that  the  petitioner had no sexual intercourse with the respondent prior to  mar- riage on March 10.  This finding has not been challenged be- fore us and appears to us to be well-founded.  The only con- clusion  is that the respondent was pregnant at the time  of marriage by someone other than the petitioner. The next question to determine is whether the petitioner had marital  intercourse with the respondent after he  had  dis- covered  that  she was pregnant at the time of  marriage  by someone other than himself.  The trial Court found that  the petitioner  did  not  have such  intercourse  after  he  had discovered  about the respondent being pregnant at the  time of  marriage.   Patel J., did not agree with  that  finding. Gokhale  J.,  considered the view of the trial Court  to  be correct. The  petitioner  states that he  discovered  the  respondent being  pregnant  at the time of marriage by  another  person when  he  learnt of her delivering the child on  August  27, 1.947 and when be felt that could not be his child.  He  has further  stated that since his return from abroad he had  no intercourse  with  her  and  that  is  not  disputed.    The respondent admits it.  There is no evidence to the  contrary either. The  last  marital intercourse the petitioner bad  with  his wife  was  at Bombay, before he left for abroad.   That  was between  April 23 and 27.  The question then is  whether  he could  have known during those days about  the  respondent’s being pregnant at the time of marriage.  The respondent does

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not  state  at that time she had  such  ostensible  symptoms which  could have led the petitioner discover that  she  bad been  pregnant at the time of marriage.  The opinion of  the experts on                             325 this point is not very decisive.  Dr. Ajinkia has stated  in crossexamination that ordinarily the petitioner should  have been  aware  about  the respondent’s condition  who  was  in advanced  pregnancy when he had coitus with her on April  26 when  the  foetus  would  have been  157  days  old  on  the assumption’ that it had started its life i.e., the ovum  had fertilised  on  ember 20, 1946.  He however  added  that  it would not be possible for the petitioner to detect that  the respondent  was  pregnant  if  the  coitus  took  place   in darkness.  He further stated that the woman who is  pregnant for the first time has her abdominal tissues so tense that a non-medical.  person  coming into contact by act  of  coitus might not be able to detect the enlargement of the  abdomen. A  husband,  without  having  medical  knowledge,  can  feel abdominal  enlargement without any difficulty during  coitus only when the pregnancy is advanced above 6 months. Dr. Mehta, stated in examination-in-chief that a man  having Coitus with his wife 157 days after pregnancy begins,  would immediately know about her being in a fairly advanced  stage of  pregnancy  and added in answer to the  Court’s  question that  he would not know that she had been pregnant  for  157 days but only know that she was merely pregnant.  When asked by  the respondent’s counsel whether the, husband  would  or would not have noticed the difference between 1-1/2  months’ pregnancy  and pregnancy of 5 months and 17 days he  replied that  the  husband  would not notice a  pregnancy  of  1-1/2 months’ but would certainly notice 5-1/2 months’ pregnancy. We consider these statements to be of no help in coming to a finding  on the point whether the petitioner could  discover on  April  26 that his wife was not only  pregnant  but  was pregnant  from some day much earlier than the tenth  day  of March 1947 when they were married.  Neither of the two  doc- tors was questioned as to whether the petitioner could  have known  that  his  wife’s pregnancy was of  more  than  1-1/2 months’  duration, and, unless the petitioner knew that,  he could  not be said to have discovered on April 26  that  the respondent had been pregnant by someone else at the time  of marriage,  irrespective of the fact whether the coitus  that night took place in darkness or in light. In this connection, we may again refer to what Williams says in his’Obstetrics’, 12th Edition, at p. 270 : --               "It   should  also be borne in mind, that  the               abdomen changes its shape materially according               as  the woman is in the upright or  horizontal               position,  being much less prominent when  she               is lying down." We  may  also  say that the mere fact  that  the  petitioner alleges that the respondent gave birth to the child after  a full 326 period  of gestation, does not actually mean that the  child was   born  after such a period.  The petitioner  could  not have known when the child was conceived.  By that  statement he  simply  expresses  his view, based on the  fact  that  a fairly  mature child was born on August 27, 1947 though  the marriage had taken place on March 10. The fact that the child born to the respondent was a  mature baby  does  not mean that it was conceived on  November  20, 1946.   We  have already indicated that the  weight  of  the child and the surrounding circumstances could only  indicate

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that  the  child was born after almost the usual  period  of gestation,  though  it could not be said that it  must  have been conceived 280 days earlier. We  therefore hold that the petitioner did not have  marital intercourse with the respondent after he had discovered that she  had  been  pregnant  by someone else  at  the  time  of marriage. We have already said that there is no collusion between  the parties.   The  petitioner filed the petition  within  time. There  is no legal ground which would justify  refusing  the petitioner  a decree for declaring the marriage between  the parties to be null and void. We  therefore allow the appeal, set aside the decree of  the Court below and annul the marriage between the parties by  a decree of nullity.  We direct the parties to bear their  own costs throughout. MUDHOLKAR,  J--I  regret  my inability  to  agree  with  the judgment proposed by my brother, Raghubar Dayal, J. The  appeal arises out of a petition for divorce  instituted by  the appellant on April 18, 1956 in the City Civil  Court of Bombay against his wife, the respondent under s.12(1) (d) of  the Hindu Marriage Act, 1955.  The petition was  decreed by  the  City  Civil Court, but on appeal,  the  High  Court dismissed it. Certain  broad  facts which are not in dispute  are  briefly these: The appellant is a resident of Bombay, while the res- pondent’s  father  was a resident of Prantij in  the  former State of Baroda.  They were betrothed to each other in  June or  July, 1945, and their marriage was celebrated at  Bombay according to Hindu rites on March 10, 1947.  Thereafter, the couple lived together as husband and wife for a short while, and  the  respondent  then went to  her  parents’  house  at Prantij where she stayed till the third week of April, 1947. During her stay there she wrote to her husband informing him that she was in the family way.  The appellant was to  leave for  the  United  States  in  connection  with  the   family business, and, therefore, the respondent returned to  Bombay towards the end of April of                             327 that  year.   The husband and wife  admittedly  had  martial relations  during  this visit of the respondent  to  Bombay. After them appellant’s departure. for the United States, the respondent  stayed  with the appellant’s father  for  a  few days,  and  thereafter  at  Gamdevi  in  the  hous  of   the appellant’s  sister,  Sharda and her  husband.   She  stayed there  for about four weeks, and then again returned to  her father-in-law’s    house   at   Vile   Parle.    From    the correspondence  between  the parties, it  appears  that  the respondent  and her mother-in-law were not getting on  well, and the appellant, therefore, advised her to arrange for her return  to her father’s house as early as she  could  manage it.   In pursuance of this, the respondent returned  to  her father’s house along with some one who had been sent by  her father to fetch her.  There was considerable  correspondence between  the  parties subsequent to this  until  August  27, 1947,  on which date the respondent gave birth to  a  female child  at Prantij.  Information about this was  communicated telegraphically  as well as by a letter to  the  appellant’s father and also to the appellant himself.  According to  the appellant, he was shocked when he learnt that the child  was born to the respondent only 5 months and 17 days after their marriage,  and  he  suspected  that  this  child  had   been conceived before the marriage through some one else. After his return to India in November, 1947 he instituted  a suit  in  a Baroda Court for the annulment of  the  marriage

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under the Baroda State Divorce Act, but that suit, which was defended  on merits by the respondent, was dismissed by  the Baroda  Court  on the ground of want of  jurisdiction.   The Hindu  Marriage Act, 1955 came into force on May  18,  1955. Under this Act, it was competent to a person, though married prior  to the commencement of the Act, to apply for  divorce upon certain grounds including those set out in  s.12((1)(d) within  one year of the commencement of the  Act.   Availing himself  of  this  provision,  the  appellant  preferred   a petition, out of which this appeal arises. In  the petition the appellant made allegations against  the respondent  to  the effect that the child born  to  her  was conceived  by her through a person other than  himself,  and that she was actually in the family way before the marriage, of which fact he was not aware at that time.  In her written statement  the  respondent denied  these  allegations.   She stated  that  after  their betrothal she  succumbed  to  the entreaties  and  representations made by the  appellant  and permitted him to have sex relations with her, and that as  a result  of  this, she had conceived from him.   She  further averred that the appellant, his sister and her husband  were all aware of this before the marriage, and thus no fraud had been  practised  upon the appellant and the members  of  his family by her.  It may be mentioned that such a plea was not taken by the respondent in the written 328 statement which she had filed in the proceedings, which  bad been  instituted  in  the Baroda Court.   In  her  evidence, however,  she has confined her averment only to  having  had sex  relations with the appellant before the  marriage,  and stated  that she was not aware at the time of  the  marriage that  she was pregnant.  She added that she came to know  of her  pregnancy  only when she started  vomiting,  which  was after her return to Prantij subsequent to the marriage.  She has  not repeated in her evidence the allegations  that  the appellant  or  any members of the family were aware  of  the fact of her pregnancy before the marriage. Upon  the  pleadings of the parties, the  City  Civil  Court raised the following six issues:-               "(1) Whether the Respondent at the time of the               marriage  was pregnant by some one other  than               the  Petitioner  as alleged in para 9  of  the               Petition’?               (2)   Whether at the time of the marriage  the               petitioner was ignorant of the aforesaid fact?               (3)   Whether the petition is not maintainable               for  the reasons alleged in para 2 of  written               statement?               (4)   Whether  the Petitioner’s claim  in  the               petition  is barred by the Law  of  Limitation               for  the reasons alleged in paras 3 and  4  of               the written statement?               (5)   Whether  the Petitioner is  entitled  to               have the marriage declared null and void?               (6)    To  what  relief  the   petitioner   is               entitled?" The  Court answered issues (1), (2) and (5) in the  affirma- tive,  and issues 3 and 4 in negative, and granted a  decree to the appellant in terms of the prayer in the plaint. When the matter went up in appeal before the High Court, the two learned Judges.  Gokhale and Patel, JJ. who heard it did not  feel satisfied that the appellant had proved  that  the respondent  was pregnant by some one other than  the  appel- lant, and that the appellant was not the father of the child which  was born to the respondent.  In his judgment,  Patel,

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J. observed : -- "The question then is whether we should dismiss the petition on  this  ground.  As mentioned before the evidence  is  not decisive  of  the  pregnancy of the  respondent  before  her marriage.   The effect of a decree of nullity might be  very serious  to the child who is living and who is now 10  years old as also to the respondents." Gokhale, J. expressed his agreement generally with the  view taken  by Patel, J, and after pointing out the necessity  of obtaining  on  record expert evidence, said  that  the  case should  be sent down to the trial Court to record a  finding as to whether                             329 it  was proved that the respondent was pregnant at the  time of  marriage.   Accordingly, the following two  issues  were framed  by the High Court and the case was remitted  to  the City Civil Court for recording a finding: -               1.    Is  it  proved that the  respondent  was               pregnant at the               time of the marriage?               2.    Is  it proved that  marital  intercourse               with  the  consent of the petitioner  has  not               taken   place  since  the  discovery  by   the               petitioner of the existence of the grounds for               a decree ?". It  may  be mentioned that Mr. Amin, who  appeared  for  the present appellant, contended that a great injustice would be done  to him if these issues were required to be  determined now.   His objection was, however, overruled by  the  Court. Patel,  J. pointing out that it would be the respondent  who would be in greater difficulty, as her father was dead,  and the Munim who was attending to the affairs of the family was dead,  and  the  doctor,  who attended  on  her  during  her pregnancy, was also dead.  After the matter went back to the trial Court, five additional witnesses were examined by  the appellant, including his brother-in-law, who is a doctor and a  Gynaecologist, Dr. Ajinkya and a pediatrician Dr.  Udani. The  respondent  examined herself as well as  Dr.  Mehta,  a Gynaecologist and two other witnesses.  Upon a consideration of  the  additional  evidence, the High  Court  allowed  the appeal. Before us, the first point urged by Mr. S. T. Desai  appear- ing for the appellant is that the High Court was in error in ordering  the  recording of fresh evidence.   It  is  indeed surprising  that the High Court which has  correctly  stated the  legal position obtaining in divorce  petitions,  should have,  upon  its considered view that the  evidence  already adduced  by  the appellant was not sufficient to  justify  a passing  of  decree for annulment of  marriage,  sent  down, despite  the  opposition  of  Mr.  Amin  on  behalf  of  the appellant,  two issues for recording fresh findings  by  the City Court after permitting the parties to adduce additional evidence.   It may be mentioned that the High Court  thought that  it  was doing so to afford to  the  respondent,  whose whole  life  was  at stake, as observed  by  Patel,  J.,  an opportunity  to  defend  her  honour  and  chastity.    This question,  however, did not really arise, if, in  fact,  the High  Court felt that the appellant had not  discharged  the burden  which  the law had placed upon him  to  satisfy  the Court  beyond  doubt that the respondent was pregnant  by  a person  other than himself before the marriage, and that  he was  not aware of it.  The two issues sent down for  retrial by the High Court would seem to suggest that these essential points had been missed by the trial Court.  I have quoted in extenso the

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330. issues  framed by the trial Court, and issues (1),  (2)  and (5)   seem to cover both. the additional issues  settled  by the High Court.  No doubt, the first issue reads thus: "Whether  the  respondent at the time of  the  marriage  was pregnant by some one other than the petitioner as alleged in para 9 of the Petition?". This  itself consists of two parts, the first being  whether the respondent was pregnant at the time of the marriage, and the  second being whether she was pregnant through a  person other  than the appellant.  The fifth issue  is  undoubtedly couched  in  general terms, but it  certainly  includes  the content of the second additional issue.  The High Court  was itself  cognisant  of this because  after  reproducing  (see judgment  of Patel, J.) the terms of s.23(1) it has set  out what,  according  to  it, would be the  issues  which  would arise.  Section 23(1) so far as relevant reads as follows:-               "In  any  proceeding under this  Act,  whether               defended  or  not, if the court  is  satisfied               that               (a)   any  of the grounds for granting  relief               exists  and the petitioner is not in  any  way               taking  advantage of his or her own  wrong  or               disability for the purpose of such relief,               (b)   the   petition  is  not   presented   or               prosecuted in collusion with the respondent,               (c)   there  has not been any  unnecessary  or               improper delay in instituting the proceedings,               and               (d)   there  is  no  other  legal  ground  why               relief should not be granted, then and in such               a  case,  but not otherwise, the  Court  shall               decree such relief accordingly."               The issues which would arise, therefore, would               be, as pointed out by Patel, J. the following:               -               "(1)  Whether the respondent was  pregnant  at               the date of marriage.               (2)   If  she was whether she was pregnant  by               some one other than the petitioner.               (3)   Whether  the petitioner was at the  time               of marriage ignorant of the facts alleged.               (4)   Whether  marital  intercourse  with  the               consent of the petitioner has not taken  place               since  the discovery by the petitioner of  the               existence of the grounds for a decree." That  the  trial Court was itself aware of  this,  would  be clear from paragraph 43 of its judgment.  It has dealt  with the  argument of Mr. Shah on behalf of the  respondent  that the 331 condition  precedent  laid down in s.12(2)(b)(iii)  was  not complied with by the appellant. 1, therefore, agree with Mr. Desai   that  the  remission  of  the  issues   was   wholly unjustified and should not have been allowed.  The effect of this,  however,  would be that the entire  evidence  adduced thereafter  including the evidence upon which Mr. Desai  has placed  such  strong  reliance before us  will  have  to  be completely left out of consideration. No  doubt, an appellate Court has the power under s. 107  of the Civil Procedure Code to remand a case or to frame issues and refer them for trial, or to take additional evidence  or require  such  evidence to be taken.  But  the  exercise  of these powers is regulated by the provisions of 0.41, rr.  23 to  25 and 27. Under r.23, an appellate Court has the  power

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to remand a case where the suit has been disposed of by  the trial  Court  upon a preliminary point and its  decision  is reversed  by  the appellate Court.  Rule  24  provides  that where  the evidence upon the record is sufficient to  enable the appellate Court to pronounce judgment, it may do so  and may proceed wholly upon the ground other than that on  which the appellate Court proceeds.  For this purpose it can  also re-settle  the issues if it finds it necessary so to do.   A power to frame additional issues is conferred by r.25, which reads as follows:               "Where the Court from whose decree the  appeal               is  preferred has omitted to frame or try  any               issue,  or to determine any question of  fact,               which appears to the Appellate Court essential               to  the  right decision of the suit  upon  the               merits, the Appellate Court may, if necessary,               frame issues, and refer the same for trial  to               the  Court  from whose decree  the  appeal  is               preferred, and in such case shall direct  such               Court   to   take  the   additional   evidence               required; and such Court shall proceed to  try               such  issue and shall return the  evidence  to               the Appellate Court together with its findings               thereon and the reasons therefor." Rule 27 deals with production of additional evidence in  the appellate  Court  and prescribes the conditions  upon  which additional  evidence  can be allowed to be  adduced  in  the appellate Court. Rule  25 circumscribes the powers of the appellate Court  to frame  an  issue and refer the same for trial to  the  Court below, if need be by taking additional evidence, and permits it  to  adopt this course only if (a) the  trial  Court  had omitted  to  frame  an issue, (b) try an  issue  or  (c)  to determine  any  question  of  fact  which  appears  to   the appellate Court essential to the right decision of the  suit upon the merits.  In this case, the High Court his purported to exercise its powers 332 upon  the ground that proper issues were not framed  by  the trial  Court.   I  have already  indicated  above  that  the content  of  the two additional issues framed  by  the  High Court  is to be found in three of the issues raised  by  the City  Civil  Court.  Therefore, there was no scope  for  the exercise  of  the High Court of its power under r.  25.   No doubt, the High Court has made no reference to r. 25 when it framed  the  additional  issues and sent  them  down  for  a finding; but its action must be referable to r. 25,  because that  is the provision of law which deals with the  question of remitting issues for trial to the trial Court.  I may add that in view of the express provisions of this rule the High Court  could  not  have had  recourse  to  inherent  powers, because  it  is  well settled that inherent  powers  can  be availed  of  ex  debito justitiae only  in  the  absence  of express provisions in the Code. Upon this view it would, therefore, follow that this  appeal must be decided only on the basis of the evidence which  was before  the  City  Civil Court prior  to  the  interlocutory judgement of the Hight Court remitting to it two issues  for findings,  leaving  altogether  out  of  consideration   the evidence subsequently brought on record by the parties. Before  I deal with that evidence, it would be desirable  to set  out in brief the requirements of the law in a  petition of  this  kind.  The appellant had sought annulment  of  his marriage  with the respondent upon the ground that  she  was pregnant by a person other than himself before the marriage,

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and that he was not aware of this fact.  The law of  divorce in  India,  is  broadly speaking, modelled  on  the  law  of England.   It  will, therefore, be useful to  refer  to  the decisions of the Courts in England.  In Ginesi v. Ginesi(1), it was said that in matrimonial cases the same strict  proof of  adultery is required as in criminal cases, and that  the matrimonial  offence  must be proved beyond  all  reasonable doubt  to  the satisfaction of the tribunal of  fact.   This decision  was  criticised in Gower v. Gower(2).   Ginesi  v. Ginesi(l)  was actually followed in Fairman v. Fairman  (3), where it was observed that when a witness gives evidence  in matrimonial  proceedings  that  he  or  she  has   committed adultery  with  a party to those proceedings  that  evidence must be treated with the same circumspection as the evidence of an accomplice in a criminal case. The view taken in Ginesi’s case(1) has also been accepted in Preston-Jones  v. Preston-Jones(4) and Galler v.  Galler(5). In the first of these two cases, which is a decision of  the House  of Lords, it was established by evidence that  during the period between 186 and 360 days before the birth of  the child (1)(1948) 1 All E.R. 373.    (2)  (1939) 1 All E.R. 804. (3)L.R. 1949 P. 341.              (4) 1951 A.C. 393. (5)  (1954) 1 All E.R. 536. 333 to the wife the husband had been continuously absent  abroad and that there had been no opportunity for intercourse  bet- ween them.  The child was normally delivered, and appeared a normal,  healthy and full-time child.  It was  contended  on behalf of the husband that in these circumstances the  child must  be deemed to have been born of adulterous  intercourse by the wife with some one else.  With the exception of  Lord Oaksey, the view of the House of Lords was that the onus  of proof  on the husband in a case of this kind did not  extend to  establishing the scientific impossibility of  his  being the  father  of the child.  Lord Simonds.  Lord  Oaksey  and Lord  Mac  Dermott were of the view that in the case  of  an interval  of 360 days between intercourse with  her  husband and the birth of a child the court cannot, in the absence of further   evidence,   regard  adultery  by   the   wife   as established.  Lord Normand was dubitante, and Lord Morton of Henryton  dissented  from this view.  In the course  of  his speech, Lord Simonds observed; -- "The result of a finding of adultery in such a case as  this is  in effect to bastardize the child.  That is a matter  in which from time out of mind strict proof has been  required. But  that does not mean that a degree of proof  is  demanded such as in a scientific enquiry would justify the conclusion that such and such an event is impossible.  In this  context at least no higher proof of a fact is demanded than that  it is  established  beyond all reasonable doubt;  see  Head  v. Head(1).  The utmost that a court of law can demand is  that it should be established beyond all reasonable doubt that  a child  conceived  so  many days after  a  particular  coitus cannot  be  the result of that coitus." He then  added  that since  writing  his  opinion he had  had  the  advantage  of reading  that  of Lord MacDermott and he concurred  in  what Lord MacDermott bad to say. It  would be convenient now to refer to the observations  of Lord MacDermott.  At page 417 of the Report are his relevant observations: -               "The  evidence  must, no doubt, be  clear  and               satisfactory,   beyond  a  mere   balance   of               probabilities,  and  conclusive in  the  sense               that  it will satisfy what Lord Stowell,  when

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             Sir  William  Scott, described in  Loveden  v.               Loveden(2)  as  ’the guarded discretion  of  a               reasonable and just man’; but these desiderata               appear  to  me entirely  consistent  with  the               acceptance of proof beyond reasonable doubt as               the standard required............ I am  unable               to  subscribe  to the view which,  though  not               propounded  here, has its  adherents,  namely,               that on               (1)Sim  and  S. 150.       (2) (1810)  2  Hag.               Con., 13.               334               its true construction the word ’satisfied’  is               capable of connoting something less than proof               beyond  ’reasonable doubt’.  The  jurisdiction               in divorce involves the status of the  parties               and  the  public interest  requires  that  the               marriage  bond shall not be set aside  lightly               or  without strict inquiry.  The terms of  the               statute recognize this plainly, and I think it               would be quite out of keeping with the anxious               nature  of  its provisions to  hold  that  the               court  might be ’satisfied’, in respect  of  a               ground  for dissolution, with  something  less               than proof beyond reasonable doubt." After  saying that he did not base his conclusion as to  the appropriate  standard  of proof on any  analogy  drawn  from criminal  law since the two jurisdictions are  distinct,  he observed               The  true reason, as it seems to me, why  both               accept the same general standard-proof  beyond               reasonable doubt-lies not in any analogy,  but               in  the gravity and public importance  of  the               issues with which each is concerned." Lord  Oaksey,  after pointing out that the only  thing  sug- gested  against  the wife was that her child  was  born  360 days, after her husband had access to her, observed:-               "   In  such  circumstances  the  law,  as   I               understand  it, has always been that the  onus               upon  the  husband in a divorce  petition  for               adultery  is as heavy as the onus which  rests               upon the prosecution in criminal cases.   That               onus is generally described as being a duty to               prove  guilt beyond reasonable doubt but  what               is  reasonable  doubt is always  difficult  to               decide and varies in practice according to the               nature  of the case and the  punishment  which               may be awarded.  The principle upon which this               rule  of  proof depends is that it  is  better               that  many criminals should be acquitted  than               that one innocent person should be  convicted.               But the onus in such a case as the present, is               not  founded solely upon  such  considerations               but  upon  the interest of the child  and  the               interest   of   the  State   in   matters   of               legitimacy,  since the decision  involves  not               only  the  wife’s chastity and status  but  in               effect the legitimacy of her child." One  of the decisions relied upon before the House of  Lords was  Gaskill v. Gaskill(1), in which the birth of the  child had taken place after an interval of 331 days between it and 335 the coitus with the husband Lord Birkenhead, L.C., who tried the  case  sitting as a judge of first  instance,  said,  in regard to the wife: -

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             "I  can only find her guilty if I come to  the               conclusion  that  it  is  impossible,   having               regard   to  the  present  state  of   medical               knowledge and belief, that the petitioner  can               be  the  father  of  the  child.   The  expert               evidence renders it manifest that there is  no               such impossibility.  ’In these circumstances I               accept  the evidence of. the  respondent,  and               find that she has not committed adultery,  and               accordingly I dismiss the petition."               Referring  to  this decision, Lord  Morton  of               Henryton observed in Preston-Jones v. Preston-               Jones(1):-               "My   Lords,  in  the  case  of   Gaskill   v.               Gaskill(2)  the  birth was far  from  being  a               normal  one, but I think that Lord  Birkenhead               placed  too heavy a burden of proof  upon  the               husband.   It  is not the law  to-day,  in  my               view, and with all respect to Lord  Birkenhead               I do not think it was the law in 1921, that  a               husband  is  bound  to prove  that  he  cannot               possibly  be the father of the child and I  do               not think that the case of Morris v. Davis(3),               cited  by  Lord  Birkenhead,  established  the               strict rule which he laid down." He  then referred to Wood v. Wood(4), in which the  interval was 346 days and Hadlum v. Hadlum(5), where the interval was 349 days, and observed:- "But  I  think  that the cases of  Gaskill(2),  Wood(4)  and Hadlum(5)  put an unwarranted and increasing burden  upon  a husband who seeks to prove his wife’s adultery." On the other hand, he expressed his agreement with the  view of Ormerod, J., in M-T v. M-T(6), where the interval was 340 days,  and  acting upon the medical evidence to  the  effect that  the  husband  could not have been the  father  of  the child,  the learned Judge without saying anything about  the burden of proof granted a decree to the husband. In Galler v. Galler(7), Hodson L.J. has observed at p. 540:               "I  have  used  the  language  which  I  have,               because,  since  Fairman  v.  Fairman(8)   was               decided, the much debated question whether the               standard of proof in a divorce suit, which  is               a kind of civil action, is the      same    as               that ina criminal case, and whether the               (1) (1951) A.C. 391. (2)(1921) P. 425.               (3)5 Cl. & F. 163.        (4) (1947) P. 103.               (5)(1949) P. 197.         (6)(1949) P. 331.               (7)(1954)  1  All E.R. 536.(8)L.R,  (1949)  P.               341.                                    336               case  rules apply, has been considered by  the               House  of Lords in Preston-Jones  v.  Preston-               Jones(1)."               and  has  quoted with  approval  the  opinions               expressed by Lord Simonds and Lord MacDermott.               He then observed:-               "It  might  appear from the passages  which  I               have read               from  the  judgment in Fairman  v.  Fairman(2)               that the anology of criminal law was the ratio               of  that decision, but I think the  result  is               the  same by whichever road one  travels.   In               divorce,  as  in crime, the court  has  to  be               satisfied beyond reasonable doubt."               A  similar  view  has been  expressed  by  Sir

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             Lallubhai  Shah  in John Over v.  Murial  A.I.               Over(3).  The learned Judge has said: --               "I  desire  to make it clear that  in  divorce               cases, great care and caution are necessary in               dealing with the admissions of parties and  it               is  only  the exceptional circumstances  of  a               given  case  that could justify the  Court  in               acting  upon  the admissions of  party  as  to               adultery without any corroboration.  Generally               speaking  as  a  matter  of  prudence  it   is               desirable    to    insist    upon     evidence               corroborative of the admissions."               Martin,  J., has observed in the same case  at               p. 259: -               "No doubt section 15 provides that subject  to               the    provisions   herein   contained,    all               proceedings  under this Act between party  and               party shall be regulated by the Code of  Civil               Procedure.  But that provision, in my opinion,               does  not override the express  directions  in               ss.  7, 12, 13 and 14 to which I have  already               alluded."  (The  provisions  referred  to  are               those of the Indian Divorce Act, 1869). Indeed,  in  White v. White(4), which was a case  under  the Indian Divorce Act, 1869, this Court has held that the words "satisfied on the evidence" in s.14 of the Act implied  that it is the duty of the Court to pronounce a decree only  when it  is satisfied that the case has been proved  beyond  rea- sonable doubt as to the commission of a matrimonial offence. After  pointing  out  that the evidence must  be  clear  and satisfactory beyond the mere balance of probabilities,  this Court  had said that the rule laid down in Preston-Jones  v. PrestonJones(1)  should  be  followed by  the  Courts  while dealing  with  cases under s. 7 of the Indian  Divorce  Act, 1869,  Section 23(1) of the Hindu Marriage Act,  1955  which deals with the powers of the Court in a proceeding under the Act  also  provides that the Court shall decree  the  relief claimed by the petitioner, whether the petition is  defended or not, if the Court is (1) (1951) A.C. 391.                 (2)L.R. (1949) P. 341. (3)  27 Bom.  L.R. 251.             (4)1958 [S.C.R.] 1410. 337 satisfied that any of the grounds for granting relief exists and certain other conditions are satisfied.  Thus, under the Indian  Divorce  Act, 1869 as well as under  Hindu  Marriage Act,  the  condition  for  the grant  of  a  relief  is  the satisfaction of the Court as to the existence of the grounds for  granting the particular relief.  The satisfaction  must necessarily  be founded upon material which is relevant  for the  consideration of the Court, and this would include  the evidence  adduced  in the case.  Therefore,  though  in  the former  Act the words used are "satisfied oil the  evidence" and the legislature has said in the latter Act "if the court is  satisfied",  the meaning is the same.  In  my  judgment, what  the  Court  has  said in  White’s  case(1)  about  the applicability  of  the  rule in  Preston-Jones  v.  Preston- Jones(2) must also apply to a case under the Hindu  Marriage Act. Now,  let  us  consider the evidence  which  was  originally tendered  at  the trial of the proceedings before  the  City Civil Court.  In support of his case, the appellant examined himself  and his father.  The gist of his evidence, when  he was examined in chief, is that he did not see the respondent between the date of the betrothal and his marriage either at Bombay or at any other place, i.e., between November 1, 1946

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and March 10, 1947, that he did not know at the date of  the marriage  that the respondent was pregnant, that he and  the respondent  lived together for 10 or 12 days at  Vile  Parle after  the  marriage, that during this period  she  did  not disclose  to  him that she had been pregnant  prior  to  the marriage, that he left for U.S.A. in the last week of April, 1947,  that  the respondent who had gone to Prantij  in  the meanwhile  returned  to  Bombay  only a  day  prior  to  his departure, that he was aware before he left for U.S.A.  that the  respondent  had become pregnant, and that  he  did  not disclose  this  fact  to any one, because he  was  not  sure whether she was pregnant or not. lie further stated that  he returned to India towards the end of the year 1947 and  that he only learnt IO to 15 days prior to his departure to India and  while he was in London, of the birth of a child to  the respondent. and that he was shocked at the news and began to suspect her.  He denied having made any demand upon the res- pondent for having pre-marital sex relations or had said  to her  that  betrothal was as good as marriage  and  that  the marriage   ceremony  was  merely  a  legal   formality   for "legalising   children".   In  his   cross-examination,   he admitted that he had seen the respondent before the marriage on  three  occasions, two of which were  subsequent  to  the betrothal.   He  denied a suggestion made to him  in  cross- examination that he visited Ahmedabad where his father  owns a house, on many occasions between November, 1946 and March, 1947.  He also denied having (1) [1958] S.C.R. 1410.         (2)  [1951] A.C. 391. 338 expressed  his desire to see the respondent.   He,  however, admitted  that  he had written to her  suggesting  that  she should come to Bombay where his sister was residing and that he  made this suggestion immediately after the betrothal had taken place. A number of letters written by the appellant to the  respon- dent  in  which he had suggested that they should  meet  and come in closer contact with each other were put to him,  and he  admitted them.  He admitted having stated in his  letter dated  July 11. 1945 that the object of betrothal two  years prior to marriage was that both should come in contact  with each  other  so that they might be  "accommodative  to  each other  and not for the sake of betrothal." He was  asked  to explain  what  he meant by this and his explanation  was  "I meant  that  I and the respondent should try  to  know  each other  by writing letters and by knowing the views  of  each other.  By the word ’Sugan’ used in that sentence (which  is in  Gujarathi), he said that I meant that the marriage  life may be smoothened after (sic) each other." He admitted  that in,  one of her letters the respondent had stated  that  her father  was  objecting to her coming into contact  with  the appellant  before marriage.  He has admitted in  his  cross- examination  that after he came to know that the  respondent had conceived he had written to her that she should  arrange for   an  abortion.   In   cross-examination,the   following questions were put to him:-               "Q.  In the letter dated 17th April 1947,  you               have  stated ’I had already told you from  the               beginning but you did not pay any attention to               my say.’ What do you mean by that sentence?               A.    (The witness refers to the letter  dated               17th   April  1947  written  by  him  to   the               respondent  part  of Ex No. 3  and  gives  the               answer  after  reading  the  same).   By  that               sentence I meant to convey that I had told the               respondent  after  the  marriage  when  I  had

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             sexual intercourse with her that we should not               have  a child and for that purpose  we  should               take  precautions  but  in  spite  thereof  no               precautions  were  taken and therefore  I  had               stated what is written in my letter dated 17th               April 1947 part of Ex.No. 3." He  has also made admissions to the effect that he had  sug- gested abortion to the respondent several times.   According to him, she also expressed a similar desire.  I have already pointed  out that the appellant had said that he  wanted  to keep the fact of respondent’s pregnancy a secret, though  he knew about it before his departure to U.S.A. He had to admit that  he  had suggested to the respondent  that  she  should intimate the fact to his sister, Sharada.  In that letter he had also said "Explain                                    339 all  things  to  my  sister  Sharada".   According  to  him, however,  what  he  meant was that  she  should  explain  to Sharada" in connection with the posting of the letters to be written by Sharada to me." That is all his evidence.   There is  nothing  in the evidence of his father,  which  has  any bearing  upon  the Question of  the  respondent’s  pregnancy before the marriage. In her evidence, the respondent has reiterated her denial of having  conceived  from a person other than  the  appellant. She  has, however, deposed to the fact that she had  visited Bombay  before the marriage about the Christmas days in  the year 1946 and stayed in the house of Ramanlal, Witness No. 2 for  the  respondent,  who  is  a  friend  of  her   father. According to her, the appellant used to visit his house  and take  her from there either to her father-in-law’s house  or to  pictures or to some hotel.  Then she has  deposed.   "On those   occasions   I  had  sexual  intercourse   with   the petitioner.  I agreed to submit to the sexual intercourse by the  petitioner  because  he threatened  to  break  off  the betrothal  if  I  refused  to  permit  him  to  have  sexual intercourse.   Prior  to the date of my  marriage  with  the petitioner,  I had no sexual intercourse with any man  other than the petitioner." She has further said categorically  in her  evidence  that  she did not know at  the  time  of  her marriage that she was pregnant and that she became aware  of this  after  the marriage only when  she  started  vomiting. This was after she had returned to Prantij from Vile  Parle. She  has  also  stated in her evidence,  "After  I  went  to Prantij  after my visit to Bombay in Christmas 1946,  1  had monthly course.  After I left for Prantij after my visit  to Bombay in January 1947 and before the marriage I had monthly course.  But on those occasions the bleeding was less."  She was  cross-examined at length with regard to her story  that she  had  sex  relations  with  the  appellant  before   the marriage,  and after asserting once again that she  had  met the appellant in Bombay in December 1946 or January 1947 she said in answer to the next question:-               "It  is not true that prior to the marriage  I               knew that I was pregnant.  It is not true that               I  deliberately  suppressed  the  fact  of  my               pregnancy  from the petitioner  and  performed               marriage with him.  It is not true that I  was               not  pregnant  as  a  result  of  the   sexual               intercourse  with the petitioner prior to  the               marriage." And  then in answer to the question "Before 10th March  1947 Mahendra, the petitioner, his sister Sharada and his  father did  not  know that you were pregnant?", her  answer,  after certain hesitation was: -

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             "It  is  not  true that  the  petitioner,  his               sister Sharadaben and his father did not  know               that I was pregnant               340               prior  to the marriage.  According to  me  the               petitioner,  his  father and his  sister  knew               prior to our marriage that I was pregnant."      In  the letter dated January 8, 1948 written by her  to the  appellant’s sister she had stated "I am innocent",  and in  crossexamination,  she  was asked as  to  what  was  the necessity  for her to write that in her letter if the  child which was born to her was conceived from the appellant,  her answer was: -               "We came to know that a scandal was raised  by               my  father-in-law  and mother-in-law  at  Vile               Parle  and  that is why I had  written  to  my               sister-in-law   that  I  was  innocent.    The               scandal which I have referred to in my earlier               answer  was  that  the baby  born  to  me  was               premature  and  was  not  the  child  of   the               petitioner." She  was then asked why she did not inform  the  appellant’s sister,   Sharadaben,  that  she  had   pre-marital   sexual intercourse with the appellant, her answer was that she  did not  do so in obedience to an injunction from  her  husband. It  may be mentioned that in the letter of January  8,  1948 the respondent had stated that she had her menstrual  period 10  days prior to the marriage.  The question put to her  in cross-examination was whether she stated this in her  letter with   the  object  of  showing  that  she  had  no   sexual intercourse with any one before the marriage and her  answer was: -               "Even if the woman is pregnant she would be in               monthly  course.   It  is not  true  that  the               object  of my writing the aforesaid  statement               in my letter was as you suggest."               When  again  pressed  to state  what  was  the               object  in  saying  "I am  innocent"  in  that               letter, she answered:               "By  saying  that I was innocent, I  meant  to               suggest  that  the scandal  which  was  spread               about  the child being not of  the  petitioner               was a false scandal." When  asked why she did not write in that letter  that  this child was conceived as a result of the sex relations she had with  the appellant in December 1946 and January  1947,  her answer  was that the appellant knew the fact and  knew  that lie  was  the father of the child.  When asked why  she  had then  described the child as premature in that  letter,  her answer  was  that  that  was because  the  child  was  weak, Eventually, however, she admitted that the child born to her was   premature.   The  only  other  witness  examined   was Ramanlal,  with  whom the respondent claims to  have  stayed during  her visit to Bombay in December 1946-January,  1947. He  supports  her statement in that regard as  well  as  the other  statement  that during her stay there  the  appellant used to visit her and take her out. 341 That  is all the evidence in the case, and the  question  is whether upon this evidence it was open to a Court to make a. decree  under s. 23 of the Hindu Marriage Act annulling  the marriage upon the ground that the respondent had  conceived, from  a person other than the appellant before her  marriage and  that  the appellant was not aware of this fact  at  the time  of  the marriage.  It is contended on  behalf  of  the

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appellant  that  the  respondent has admitted  both  in  her pleading  and in her evidence in the Court that she had  had pre-marital  sex  relations and that this admission  by  her should be construed against her.  An admission in a pleading must  be taken as a whole, and, therefore, if we are to  act upon  that admission, then that part of it which is  to  the effect  that she had such sex relations with  the  appellant and  not anyone else must also be regarded.  No doubt,  what applies  to an admission in the pleading would not apply  to statements  made by a witness in evidence.  It seems to  me, however, that the defence taken by the respondent of  having had pre-marital sex relations with the appellant as well  as the evidence given by her in the Court was false.  Had there been any truth in this, she would certainly have taken  that defence  in the earlier suit, which was filed in the  Baroda Court.   Apparently, faced with the fact that the child  was born to her only five and half months after her marriage she and her advisers found themselves in a difficult situation. For,  having  regard to the generally  accepted  notions  of people regarding the normal period of gestation it would  be difficult to convince any one of the fact that the child was legitimate, particularly in view of the fact that it has  in fact survived and so would be presumed to have been  normal. It may be because of this that she and her advisers  thought of  an obviously false defence.  Would this,  however,  make any  difference either in the incidence or the discharge  of the  burden  which the law casts upon the  petitioner  in  a proceeding  like  this, of  establishing  affirmatively  the existence  of  the ground relied upon by him?  I  would  say with   Lord  Normand  that  apart  from  the  objection   of principle,  it  would in the circumstances of this  case  be unjust  to the respondent to infer or assume that the  false defence  is tantamount to an admission of guilt.  If  it  is possible  that  an apparently normal child may be  born  171 days  after  coitus (or even 186 days as  contended  by  Mr. Purshottam  Trikamdas)  and would survive, and if  that  was what  had happened in this case, then in the words  of  Lord Normand  "the departure from the normal course of things  is so extraordinary that the mother, conscious of innocence but believing  herself the victim of a sport of  nature,  might, despairing  of establishing the true defence, allow  herself to  palter with the truth, and might induce  others  closely connected with her to lend themselves to prevarication 342     or  worse."  I  would, therefore, wholly  leave  out  of account the false defence set up by the respondent.  Even if the  appellant’s evidence is believed completely, the  facts which  can be said to have been established by him are  only these:(a) that the child was born 171 or 186 days after  the marriage;(b)   that  he  never had  pre-marital  intercourse with  the respondent; and (c) that he was not aware  of  her pregnancy  before  the marriage.  Can it be said  that  this evidence  justifies the conclusion that the child must  have been  conceived  before  the marriage,  and  since,  if  the appellant’s statement is believed, it could not be conceived from  him,  but  from some one else?  It was  urged  by  Mr. Desai, apparently on the strength of an observation made  in one of the speeches in Preston-Janes’ case(1) that where the period of gestation deducible in respect of a child deviates markedly  from  the normal, the burden on  the  husband  who denies  being  its father of  establishing  the  matrimonial offence alleged by him against his wife is a very light one. With  respect  I would say that the argument  is  untenable. When  the  law places the burden of proof upon  a  party  it requires  that  party to adduce evidence in support  of  his

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allegation, unless he is relieved of the necessity to do  so by  reason of admissions made by or in the evidence  adduced on  behalf of his opponent.  The law does not speak  of  the quantum  of burden but only of its incidence and to my  mind it  is mixing up the concepts of the incidence of burden  of proof  with that of the discharge of the burden to say  that in  one  case it is light and in another heavy.   Looked  at that  way, the argument would amount, in effect, to be  that the appellant has fully discharged the burden of proving hi- ,  wife’s  pre-marital conception because,  admittedly,  the child  was  born  only 171 or at most  186  days  after  the marriage.   While it would be relevant to bear in  mind  the fact  that the child was born within 171 or 186 days of  the marriage  for deciding the question whether  the  conception was  pre-marital, other relevant factors  and  circumstances cannot  be  excluded.  For, it cannot be  assumed  that  the delivery  was normal, the child was born at the end  of  the full period, that it was a normal and mature child, that the mother maintained normal health throughout the period and so on.   Again,  there  is  no  evidence  whatsoever  that  the respondent  was  a woman of loose character.  On  the  other hand, such little evidence as there is bearing on the  point would  show  that the respondent was a member  of  a  family which   had  strong  ideas  regarding  association   between betrothed couples and was herself reluctant even to meet the appellant during the long period of their betrothal.   There is  nothing in the evidence to indicate that the  respondent could have had an opportunity of coming in contact with male persons at Prantij, where she lived before her marriage. (1)  [1951] A.C. 391. 343 The  second  thing  is that if as  contended  on  behalf  of the .appellant, the respondent’s delivery was after the full period  of gestation, her pregnancy must have been of  about four months’ duration at the time of the marriage.  If  that were,  so, it is difficult to believe that this  fact  would not  come  to’  the notice of the female  relatives  of  the appellant or the appellant himself, or of Dr. Champaklal the appellant’s  brother-inlaw  who has been found by  the  High Court to have examined her.  Moreover, had that been so, she would  not have shown readiness to break off her  engagement till as late as in February, 1947 and thus taken the risk of becoming  an unmarried mother.  The third thing is  that  if the respondent’s nausea started three weeks after  returning to  Prantij, how could it be related to a pregnancy of  five months’  duration?   Fourthly,  if the  respondent  had  her menstrual  period 10 days before the marriage, then  despite what she herself says, how could she be said to be  pregnant at  that  time?  Indeed, the progress of  the  pregnancy  as appearing from the evidence which was not challenged  before us  is consistent only with post-marital conception.   There is  also  the circumstance that despite exhortation  by  the appellant  she refrained from having an abortion,  which  is more  consistent with the pregnancy being post-marital  than pre-marital.   As against this, all that is relied  upon  on behalf of the appellant is the circumstance that it would be against  the generally accepted notions of mankind  to  hold that a normal child would be delivered after 171 or 186 days after  conception.   Can  it reasonably be  said  that  this circumstance  is sufficient in itself to outweigh the  other circumstances taken cumulatively? At  the stage with which I am dealing, there was no  medical evidence  in the case.  But it was said that the live  birth of  a child 171 or 186 days after conception  is  impossible and it must be presumed that the child was conceived  before

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marriage  and  further  that  such  a  presumption  can   be competently  drawn even in a proceeding of this nature.   If the  birth  of an apparently normal child 171  or  186  days after  conception  is an impossible phenomenon  and  if  its impossibility  is  notorious, then alone a  Court  can  take notice of it and the question of drawing a presumption would arise.  All that can be said is that such an occurrence  can at  best be said to be unusual; but it is a far cry  to  say that  it would be impossible.  No doubt, courts  have  taken notice  of the fact that the normal period of  gestation  is 280 days, but the courts have also taken notice of the  fact that there are abnormal periods of gestation depending  upon various factors.  It would appear from the medical  evidence in  this case that one of such factors is a short  cycle  of menstruation.  Another is that where the mother is suffering from  oedema and high blood pressure and passing albumen  in her  urine  the  period of gestation of the  child  will  be shortened (see evidence of Dr. B. S. Mehta). 344 There may also be other factors which have not been  brought out  in the evidence or which may not have yet come  to  the notice of obstetricians.  Therefore, while the courts  ought in  cases which largely turn upon medical evidence, to  have regard  to  the  existing state of  medical  knowledge  they should not overlook the fact that there is still a good deal which  is  not  known.  So when a court is  called  upon  to decide  a  matter  like the one before  us  mainly,  if  not wholly,  on  the  opinion of medical  men  it  must  proceed warily.  Medical opinion even of men of great experience and deep  knowledge is after all a generalisation  founded  upon the  observation of particular instances,  however  numerous they  may  be.   When  further  the  Court  finds  that   in individual  cases departure from the norm has in  fact  been observed  by  some  experts  and  when  again  the   experts themselves  do  not speak with the same voice the  need  for circumspection by the court becomes all the more  necessary. It   may   land  itself  into  an  error   involving   cruet consequences  to  innocent beings if it were  to  treat  the medical  opinion  as decisive in each and every  case.   The responsibility for the decision of a point arising in a case is  solely  upon  the court and while it  is  entitled,  nay bound,  to consider all the relevant material before it,  it would be failing in its duty if instead, it acts blindly  on such  opinion and in disregard of other  relevant  materials placed before it. Initially  no  attempt was ever made before the  City  Civil Court  to adduce any scientific evidence i.e.,  evidence  of experts, and in the absence of such evidence, can it be said that  there was anything else of which the City Civil  Court ought  to have taken judicial notice?  Should it have  drawn any  presumption?   The only relevant  provisions  regarding presumption  are  ss.  112  and 114  of  the  Evidence  Act. Section 112 reads thus:               "The fact that any person was born during  the               continuance  of a valid marriage  between  his               mother and any man, or within two hundred  and               eighty days after its dissolution, the  mother               remaining unmarried, shall be conclusive proof               that  he  is the legitimate son of  that  man,               unless it can be shown that the parties to the               marriage  had no access to each other  at  any               time when he could have been begotten." It  refers to the upper limit of the duration  of  pregnancy for the purpose of determining the legitimacy of a child but not  to the lower limit.  Section 114 enables the  court  to

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presume the existence of any fact which it thinks likely  to have  happened,  regard being had to the  common  course  of natural  events,  etc., in their relation to  facts  of  the particular  case.  The question would then be  whether  from the  circumstance  that  the child was born  five  and  half months or so after the marriage it could be presumed to have been conceived before the 345 marriage,  regard being had to the common course of  natural events.  If the only fact known was that the child was  born on  August 27, 1947 and nothing else was known, it would  be open  to the Court to presume that it was conceived so  many days  prior to its birth.  If, however, in addition to  this there  was  evidence to show that the mother  was  suffering from eclempsis or that the child was weak and premature such a  presumption  would  not arise.  In this  case,  there  is evidence  of  both  these  facts.   This  consists  of   the testimony of the respondent herself and of her letter to the appellant,  Ex.  6  dated August 13, 1947  and  of  that  to Sharadaben,  Ex.  F dated September 3, 1947 produced by  the appellant.   This is further supported by- the  letters  Ex. 11  written by Dr. Champaklal to the respondent’s father  on July 12, 1947 and September 20, 1947.  It would,  therefore, not  be legitimate to raise the presumption that  the  child was  born  after the normal period of  gestation  and  must, therefore, have been conceived ’before the marriage. Such  was  the material before the City Civil Court  at  the conclusion of the trial and before High Court when it  first heard  the  appeal.   This  material  is  insufficient   for discharging the burden placed on the petitioner by s. 23  of the  Act.   On the basis of this material,  no  Court  could reasonably  come  to  a  finding  that  the  respondent  was pregnant  at the time of her marriage and  that,  therefore, the appellant was entitled to the annulment of the marriage. As  already pointed out by me, this is what the  High  Court itself felt, and having formed this view, it is a matter  of surprise to me that the High Court should have proceeded  to frame  additional issues and send them down for findings  to the  City Civil Court.  The only thing the High Court  could properly  do  was  to  allow  the  appeal  and  dismiss  the appellant’s  petition for annulment of the  marriage.   Now, the High Court has, after receipt of the additional evidence and the fresh findings of the City Civil Court accepted  one of  those findings and dismissed the  appellant’s  petition. If, therefore, I am right in my view that the letting in  of the additional evidence for which the appellant had not even asked,  was not permissible by law, then upon my  view  that the  evidence  originally  adduced  in  the  proceedings  is inadequate  for the purpose of granting the relief under  s. 23  of  the  Act, the appeal must  be  dismissed.   I  would accordingly dismiss it with costs in this Court, and  direct that  the appellant shall pay the respondent’s costs in  the High Court as well as in the City Civil Court. This  really  ends  the matter, but as  my  learned  brother Raghubar  Dayal  J., has considered the  medical  and  other evidence  in  great detail, I should at least make  a  brief reference  to  it,  even though, in my  view,  it  has  been illegally  admitted.  I will only refer to the  evidence  of those witnesses 346   upon whose statements reliance was placed before us by one party  or  the other.  One is Madhuben, who claims  to  have been  working in the Prantij Municipal Dispensary from  1939 to 1955.  She said that she atte nded to the delivery of the respondent, and that she had examined her two months  before

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the date of delivery, when she noticed swelling all over her hands  and feet.  She also says that the respondent had  ad- vanced seven months in the pregnancy when she first examined her and that the weight of the child which was born was 4 to 4-1/2  lbs.   According to her, it was a  mature-child  born after  the  full  period of  gestation.   Her  evidence  was discarded  not only by the High Court but also by  the  City Civil  Court  on the ground that she was deposing  to  these facts  12  years  after the delivery  is  supposed  to  have occurred, and deposed without reference to any records  made by  her.  No doubt, the Hospital Indoor case paper, Ex.   K. was produced by a witness, Kacharabai, also examined at that stage;  but  in  the  absence of a  white  paper,  which  is normally  a  part of this particular record,  it  loses  its value.   It is true that there was no.  crossexamination  on behalf of the respondent regarding Madhuben’s statement that she  had  examined  the respondent  two  months  before  the delivery,  but  it seems to me that from the fact  that  she deposed  12 years after the event and the further fact  that she had to attend to at least 150 labour cases every  year-a total  of  2,400  cases during the time she  worked  in  the hospital-her  evidence cannot be regarded otherwise than  as artificial.   Indeed,  she  had long ceased  to  be  in  the service  of the hospital, and had even left Prantij,  before she  was  summoned as a witness in the case.   According  to her, she was contacted by some bania and it is obvious  that she  has been induced to speak to facts which  would  assist the  appellant  in  this case.   Her  evidence  was  rightly rejected by the courts below. The next witness is the appellant himself.  He has stated in his  evidence that his case was that the child born  to  the respondent was born after the expiration of the full  period of  gestation, and that the respondent must  have  conceived somewhere  in November or December, 1946.  He has,  however, admitted that when he had sex relations with the respondent, her  clothes used to be removed, though he said that  lights used to be switched off in the room in which they slept.  We cannot  lose sight of the fact that in Bombay  after  sunset the  streets are well illuminated and since the windows  are usually   kept  open  the  light  coming  from  outside   is sufficient to illuminate the rooms adjacent to the  streets. They  therefore are not totally dark even at  night.   Apart from  that, the appellant has admitted that he did not  feel anything abnormal when he came in contact with her.  If  her pregnancy  had  actually  advanced to four  months,  in  the normal course it would have been possible for him to  notice her condition. 347 Then  there is the evidence of Dr. Ajinkya.  He has  deposed to a large number of things, and the only points which it is necessary to mention are: (a) the normal period of gestation is  280  days,  which period is calculated  from  the  first day,,,,,  of  the  last  menstrual  period;  (b)  where  the hospital  record .shows that the woman delivered of a  child has normal labour and the child weighed 4 lbs and is living, it  must  have been conceived 270 days before  the  date  of birth; (c) if a child is born within 169 days from the  date of  marriage  it  would not be  of  sufficient  maturity  to survive; (d) confirmation of a pregnancy within three  weeks of  conception  is possible only by a biological  test;  (e) abdominal enlargement would be perceptible after the  fourth month  of  pregnancy;  (f) viability  is  described  as  the critical period of maturity and that this period is the 28th week  of conception and explained that the viable period  is called critical period because it denotes the development of

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the  child’s  tissues  to  the  extent  that  it  can   have independent  existence from its mother only after  that  and not  before; and (g) a child born after the 28th  week  from conception would survive when special care and treatment  is given  to it.  He has then described the special care  which has  to  be taken in regard to such  child.   The  following passage  from  Taylor’s Principles and Practice  of  Medical Jurisprudence, Vol 2, 11th Edn. p. 32 was put to him:               "It was the opinion of William Hunter that few               children  born before 7th calendar  month  (or               210  days) are capable of living  to  manhood,               but  with  advances  in  methods  of  Neonatal               Resuscitation and maintenance, this dictum has               gradually  receded into history.  It  remains,               nevertheless, that the less mature the  infant               the  less  likely  is it to  survive  and  the               critical  period of maturation appears  to  be               somewhere  between the 5th and 6th month.   In               the  absence  of any  skilled  care,  Hunter’s               dictum on the likelihood of survival when born               before the 7th calendar month remains as  true               as it was." According to him, this dictum was not wholly true, and  what was  attributed  to  Hunter was really the  opinion  of  the author. I may mention here that Dr. Mehta has agreed with the  above quotation  from  Taylor’s  book.  Now, since  the  month  of pregnancy is a lunar month the respondent’s child which  was born 26 weeks and four days after the marriage could be said to be one born in the 7th month.  The fact that such a child has  survived its birth is no significant evidence of  matu- rity.  Taylor points out that though infants born before the seventh  month of pregnancy are less likely to survive  they commonly  do  so.  The following cases of survival  of  less mature infants are referred to in this connection: 348 Bernardi  described the survival of a 1 lb. 9 oz. infant  in 1951, and Nanayakkara, in the same year, recorded a birth at 1 lb. 4 oz. which survived. MacDonald reported the survival of a 14 in. long 2 lb. 7 oz. infant-thought to be a gestation of 6 to 61 monthsthat,  six months later, weighed 5 lb. 6-1/2 oz. The  considerable experience of Victoria Crosse in  problems of prematurity resulted in the publication of the  following table, emphasising the high mortality of prematurity: Weight of Infant (lb)Percentage leaving Hospital 0.2                             3 2-3                            27 3-4                            60 4-5                            78 5-5-1/2                        94 The author then refers to a case attended by Barker in which a female child born 22 weeks after intercourse was  observed by him to have attained the age of II.  Similarly the author refers  to a case from America when a child born  192  days, after  intercourse  was found alive at the  time  of  report which  was  16 months after its birth.  In  the  well  known Kinghorm  case the doubt cast on the legitimacy of  a  child born  174  days after the marriage between the  parents  was found not to have been substantiated. It  would be convenient to quote here two passages from  the article by J. H. Peel at p. 557 onwards of British Obstetric Practice  (22nd  edn.)  on "Duration of  Pregnancy  and  its variations".   He begins by saying that the problem  of  the exact  duration  of pregnancy has not yet been  solved  that

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this  is  due  to a large number of  variable  factors.   He points out that the common method of calculating the date of delivery ignores all the variables.  Dealing with  premature termination of pregnancy he says:               "Premature  termination  of pregnancy  may  be               defined as termination of the pregnancy  after               the   twentyeighth  week  (accepted  date   of               viability  of  the  foetus)  and  before   the               fortieth week, counting from the first day  of               the last menstrual period.  On the other hand,               most  writers  on the subject  of  prematurity               tend  to define the condition in terms of  the               weight of the baby rather than in terms of the               maturity of the pregnancy.  It was first  laid               down by the American Academy of Pediatrics  in               1935  that  a  premature infant  is  one  that               weighs 5 1/2 lbs.               349               or   less,   regardless  of  the   period   of               gestation.   This definition was  accepted  by               the  International  Medical Committee  of  the               League  of  Nations and has  gained  universal               acceptance,   in  spite  of   its   scientific               inaccuracy.   Most  obstetricians  have   seen               babies  of  less  than 51 lbs.  born  after  a               gestation  period  of  more  than  280   days.               Indeed, birth weight and duration of pregnancy               are  far from perfectly  correlated.   Infants               weighing less than 5-1/2 lb. at birth may even               be postmature.  This is well shown in Table  2               constructed  by  Kane and Penrose  from  7,037               live  births from University College  Hospital               records.   It is seen that 470 babies  weighed               less  than 5-1/2 lb., but that III  (23.6  per               cent) of these underweight babies were born at               term  or  later,  according  to  the  ordinary               method  of calculation.  The  term  immaturity               has  been suggested as an alternative in  view               of   these  discrepancies,  but  it  has   not               received  universal  acceptance.   There   is,               however,  more than academic  significance  in               the  difference,  because  maturity  as  such,               irrespective of weight, is of the greatest im-               portance  in relation to foetal  survival.   A               baby  whose birth weight is 4 lb., if born  at               thirty-eight weeks stands a far better  chance               of  survival,  and is more likely  to  develop               into  a  healthy  child,  both  mentally   and               physically than one of the same weight born  a               month earlier."  I  am  not reproducing the table constructed  by  Kane  and Penrose  but I may only mention that the table shows  a  few cases  of deliveries in which the duration of pregnancy  was 177  days,  though  they ended either  in  still  births  or neonatal  deaths.The  conditions associated  with  premature labour are many and varied and Peel has classified themthus: (1)  Maternal causes. (a) Pre-existing (b) Complications  of Pregnancy. (2)  Foetal and Placental causes. (3)  Idiopathic causes." He has then dealt with these causations of premature  labour but  I would content myself by quoting a portion of what  he has  said  regarding ’Idiopathic causes’.  This is  what  he says:               "In about 50 per cent of premature labours  no

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             definite  cause can be found.   Thus  Sandifer               (1944),  analysing premature births  at  Queen               Charlottee’s Hospital, found no definite cause               in  372  out  of a total  of  681  spontaneous               premature labours.               350               doubt correlated with nutrition dependent upon               social status." What does all this show?  It brings out the fact that  while the  natural  phenomenon of human birth  follows  a  general pattern it does not do so invariably.  There are  variations in it. A few have been recorded but in the nature of  things the  observations cannot be exhaustive, bearing in mind  the fact  that  every minute a new human is being born  in  this world-or  may  be  even more than one.  Section  45  of  the Indian Evidence Act makes the opinion of scientists relevant when  the  court has to decide a point of science.   But  it does not make the opinions conclusive.  Therefore, while the courts ought to pay due regard to the existing knowledge  of scientists it does not necessarily follow that the  opinions expressed  by  scientists must be  always  accepted  without scrutiny.   Every  phenomenon  is  the  result  of  numerous factors  and where all such factors are known to science  an opinion  of an expert concerning the  particular  phenomenon ought  ordinarily to be accepted.  But when all the  factors which  come  into  play in a phenomenon are  not  known,  an uncritical  acceptance  of an expert’s opinion  would  be  a dangerous  thing.  Medical scientists do not lay claim to  a knowledge  of every factor involved in human birth.  One  of the  factors they have to contend with is the  operation  of the life principle.  The mystery of its behaviour has yet to be unravelled and, therefore, if an expert makes a  dogmatic assertion about any matter concerning child-birth dismissing contrary opinions based upon the observations of  departures from  the  so-called norm with supersilious disdain  as  Dr. Ajinkya  has  done  or  is unable  to  give  a  satisfactory explanation  for the departure from the normal  observed  by other  scientists,  I  would put aside his  opinion  on  the ground that his whole approach is unscientific. In  this  evidence  Dr. Ajinkya has  further  deposed  about toxaemia in pregnancy, enlargement of abdomen, weight of the child born after the full period of gestation.  When he  was asked  the question: "If toxaemia starts at the end  of  4th month  of pregnancy and in spite of the treatment, there  is no  ,change  in  toxaemia  for  a  period  of  seven   weeks thereafter what would be the condition of the child born 169 days  after  marriage?" His answer was,  "most  probably  it would  be  a still birth." From this last statement  of  the witness  it  would  appear that if,  when  the  respondent’s toxaemia  as evidenced by vomiting and nausea  started,  she was  in the fourth month of pregnancy and not in the  second month of pregnancy the child delivered by her on August  27, 1947 would be still born but in fact it was alive and is now 16 years of age. 351 The following passage from Mody’s Medical Jurispru dence and Toxicology, 12th edn. p. 305 was put to him:               "It   has   been  observed  in   women   whose               intermenstrual  period  is  shorter  than  the               usual  time, pregnancy has terminated  in  the               8th  or  9th month or even earlier  the  child               having  attained full  development."  (Italics               are mine). Dr.  Ajinkya,  however,  expressed  disagreement  with   it. According to him, the weight of the child born in the 5th or

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6th  month  after the marriage would be 2-1/2 lbs.  and  the child  would  not  survive, whereas here  the  evidence,  if accepted, is that the weight of the child was 4 to 41/2 lbs. In  the  table constructed by Kane and Penrose  three  Cases have been recorded in which the infant born in the 7th month of  pregnancy  weighed between 5 and 6 lbs.   Dr.  Ajinkya’s opinion  cannot, therefore, be accepted.  He also said  that if  a pregnant woman is suffering from oedema all  over  the body,  is  passing  albumen in the  urine,  has  high  blood pressure  and does not respond to treatment, it would  be  a severe  type of toxaemia and the child born to her would  be still-born.   If this opinion is accepted, then  considering it along with the fact that the child born to the respondent is still alive, the evidence of Madhuben that the respondent was suffering from eclempsia and therefore she had to attend on her for two months before the delivery stands  falsified. The  witness has also said that the period of  gestation  is usually counted in lunar months, meaning a month of 28  days and  that  as doctors do not know the date of  the  fruitful coitus,  they  calculate the period of  gestation  from  the first day of the last menstruation of the woman.  As regards nausea  during  pregnancy,  he said  that  morning  sickness occurs  in the 1st or 2nd month and has expressed  agreement with the following passage from Mody’s Text Book:               "Nausea  or  vomiting  usually as  a  sign  of               pregnancy,  most frequently occurs soon  after               the  woman rises from bed in the morning.   It               commences  about the beginning of  the  second               month and lasts generally till the end of  the               fourth month.  It may, however, commence  soon               after conception."               Another passage from Mody was also put to him.               A  passage from Taylor, Vol. 2, 6th ed. at  p.               152 was read out to him.  It runs as  follows:               -               "It  would be in the highest degree unjust  to               impute illegitimacy to offspring, or a want of               chastity to parents merely from the fact of  a               six   months  child  being  born  living   and               surviving  its birth.  There are,  indeed,  no               justifiable medical grounds for               352                 adopting  such  an  opinion-a   fact clearly               brought out by the answer to a question put to               the principal medical witness in favour of the               alleged  antenuptial conception.  He  admitted               that  he had him self seen the case of  a  six               months  child who had    survived for  several               days.   He could not assign anyreason why,  if               after  such  a  period  of  gestation  it   is               possible  to prolong life for days, it  should               not be possible to extend it to months." His only answer was that he was aware of this case, and  ob- served: "If such speculation can take you away from truth in one  direction, it may also take you away from truth in  the other  direction." In re-examination, the following  passage from Taylor’s Book, 2nd Vol. 10th ed. at p. 37 was shown  to him:                "On the other hand, when a child is born with               the full signs of maturity, at or under  seven               months,  from possible access of the  husband,               then there is a strong presumption that it  is               illegitimate."  He expressed agreement with this passage.The evidence of   This  witness no doubt contains certain statements,  which

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support  the  appellant  but I agree with the  view  of  Mr. Justice Patel that the witness though undoubtedly a  leading obstetrician and gynaecologist, appears to have fenced while answering  questions which tended to throw doubt on some  of the opinions expressed by him.  His evidence, however,  also shows  that  if the respondent was in the  fourth  month  of pregnancy  at the time of the marriage her nausea would  not have started soon after her return to Prantij.  In fact, her nausea could have started much earlier, and even at the time of  the  marriage she should have been  suffering  from  it. There  is no evidence whatsoever to the effect that she  had any  such  nausea at the time of the marriage.   It  is  not disputed by the appellant that she was suffering from nausea from  the  time  deposed to by her and  for  a  considerable period  thereafter.  She could, therefore, not have been  in the  fourth  month of pregnancy towards the  end  of  April, 1947.   For, according to Dr. Ajinkya nausea starts  in  the first  or second month of pregnancy or again in the  seventh month  of  pregnancy.   Therefore, upon  this  part  of  Dr. Ajinkya’s  opinion, the appellant’s definite case  that  the pregnancy  commenced in November or December, 1946 falls  to the  ground.   No  doubt,  the  opinions  of  this   witness regarding  viability  of a child born after  five  and  half months  and  the  weight  of such child  at  birth  and  the impossibility  of  its  survival  support  the   appellant’s contention.   But  these  are matters upon  which  there  is divergence amongst experts.  I have 353 already referred to a passage from Taylor which was  brought to the notice of this witness with which he disagreed.  This passage as well as that in Peel’s article show that abnormal cases  do  occur.  Dr. Mehta’s opinions run counter  to  Dr. Ajinkya’s  on  certain crucial points.  He  has  spoken  not merely  from his own observations as an obstetrician but  on the  strength of the findings of other scientists.  In  this state  of affairs can the court say that the  appellant  has discharged  The  burden which the law has cast upon  him  to prove  that the respondent was pregnant at the time  of  the marriage?   It is not enough for him to throw a  doubt.   He has to establish he fact affirmatively. No   doubt   the  appellant  has  examined  Dr.   Udani,   a Pediatrician, but even his evidence does not take the matter any further.  Therefore, I am referring to those passages in his,  evidence on which reliance was placed at  the  hearing and  would  only say this that what I have  said  about  Dr. Ajinkya’s evidence on similar matters applies equally to Dr. Udani’s  evidence.  According to him, a child born 5  months and  17  days after conception would die  immediately  after birth, though very often it would be a case of  miscarriage. The weight of such a child, according to him, would be 1-1/2 to  2  lbs.  He has agreed with Dr.  Ajinkya  regarding  the normal  period;  of gestation as well as  the  period  after which a baby becomes viable.  He has admitted in his  cross- examination  that where the weight of a child at birth is  4 lbs.  it  would  definitely be an  indication  of  premature birth.   The  following question was put to  him  in  cross- examination:               "You  were  asked  by  the  counsel  for   the               petitioner  a little while ago that you  could               call certain signs as signs of maturity.  Now,               as  a responsible doctor, I take it  that  you               can do so on the assumption that such symptoms               are reliably established or found?"               His answer was:               "All the signs and symtoms must be established

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             before I can opine on them.               If a baby can take the breast feed well by 3rd               day of its life and that baby cries well, even               though   such   a  child  may   according   to               international  definition be a premature  one,               nonetheless  it  is  a  fairly  well-developed               child  as far as functions are concerned.   So               far  as  its functions are concerned it  is  a                             matured  child.  This is particularly  true  if               the  mother of the child has the disease  like               Toxaemia  then that baby even if born  between               36 and 40th week of pregnancy, that baby  will               be under-weight but it will be a matured child               in function." L/P  P(D) ISCI--12 ... 354 Mr. Vimadalal objected to the last part of the answer  given By the witness on the ground that it was volunteered by him. Even,  however, if this is taken into account, it  makes  no difference,  because there is no positive evidence  to  show that them respondent was suffering from toxaemia right  till the termination of the pregnancy.  When asked whether in his experience or knowledge he has come across any case in which a child born 26 weeks and four days had survived, his answer was:               "I have seen two babies surviving between 27th               and  28th  weeks.  One in London  and  one  in               Boston.   But in these cases exceptional  care               was required both for delivery as well as  for               bringing it up." This answer to some extent, goes against the opinion of  Dr. Ajinkya,  though he has qualified it by adding that in  most cases such child would be still-born and that in exceptional cases it would survive if special care and attention is paid to it. There remains the evidence of Dr. Mehta who was examined  as a witness on behalf of the respondent.  He has also  deposed that  the period of gestation is counted from the first  day of the last menstruation, and in this connection, he  relied upon  the  following  passage  from  British  Obstetric  and Gynaecological  Practice  by Sir Eardley Holland  and  Aleck Bourne, 1955 ed.:               "According to Naegele’s rule, which is  almost               universally employed, seven days are added  to               the first day of the last menstrual period and               nine  months added, in order to arrive at  the               expected  date of delivery.  This is really  a               simple way of adding 280 days of the first day               to   the   last  menstrual   period,   because               experience has shown that this is the  average               duration of pregnancy."               He also agreed with the following passage from               Dougald   Baird’s   Combined  Text   Book   of               Obstetrics and Gynaecology, 6th ed:               "It  has  long been known that the  length  of               gestation  in  the human is almost  ten  lunar               months (280 days) if calculated from the first               day of the last menstrual period." According  to him, a four pound full term baby that  is  one born  280  days after the first day of  the  last  menstrual period, is a rare occurrence.  He was asked the question: "Doctor, if a woman suffers from swelling, i.e. oedema, high blood  pressure and passing of albumen in urine, would  that have any effect on the period of delivery?", and his

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355 answer  was that the child would be premature.   He  further deposed  that  oedema, high blood pressure  and  passage  of albumen  in urine occur in the second period  of  pregnancy, but  that  it  might occur earlier if  the  woman  had  some trouble,  with the kidneys or high blood pressure.   By  the second  period of pregnancy, he meant after the third  month of pregnancy and before the seventh month of pregnancy.   He further  stated that nausea in pregnancy usually  occurs  at the  time of the .second missed period, but it  might  occur before or about the time of the first missed period.   While he agreed with the other medical witnesses examined in  this case  that  the child is supposed to be  normal  and  viable after  28 weeks, he said that there are some  exceptions  to this and that a child born earlier than the 28th week may be born alive and can survive.  He stated that his statement is based upon the following two passages in De Lee’s book:               "De  Lee delivered a viable child one  hundred               and   eighty-two   days  after  the   day   of               conception and Green Hill delivered a baby one               hundred   and   ninety-one  days   after   the               beginning  of the last menses and one  hundred               and  seventy-six days after the  last  coitus.               The  baby weighed 735 gms (1 pound 10  ounces)               and  survived.   The child is  now  normal  in               every way... The French law recognizes the legitimacy of a child born one hundred  and eighty days after marriage and  "three  hundred days  after  the death of the husband, the  German  law  one hundred  and  eighty  one and three hundred  and  two  days, respectively." He  then said the he was familiar with the case of  Cark  v. Clark,(1)  which  is also referred to  in  Taylor’s  Medical Jurisprudence, 2nd vol. 10th ed. at p. 36.  Referring to it, he said:               "I  agree with the proposition at page  35  of               Taylor.  It is as follows:-               ’Hence  it  is established that  the  children               born  at the 7th or even at the 6th month  may               be reared.’               I  believe  the expression month used  by  the               author is Lunar Month.  It also agree with the               proposition  of Taylor at the same page  which               runs as under--               ’It  would be in the highest degree unjust  to               impute illegitimacy to offspring or a want  of               chastity               356               to  the parents merely from the fact of a  six               months  child being born living and  surviving               its birth’." He  has  also deposed about various matters such  as  normal labour,  calculation  of  period and so on  but  it  is  not necessary to refer to that part of the evidence. Mr. Desai referring to the opinion of the witness  regarding the mode of confirmation of pregnancy within three weeks  or so  of conception said that the respondent’s admission in  a letter  of 3rd April, 1947 that her pregnancy was  confirmed that  day  by a doctor who had apparently  not  performed  a biological  test would show that conception must have  taken place long before the date of marriage.  The letter was  not produced by the appellant and so we do not know what exactly she  had said in it.  Apart from that it is  quite  possible that  the doctor whom the respondent consulted, as  she  was having  nausea may have tentatively opined that it was  pro-

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bably  due to the fact that she had conceived.  The  opinion of that doctor cannot be placed higher than that. Relying  upon the admissions made by the respondent  in  the evidence  that there was swelling on her hands and  feet  in the month of June it was argued that she must have then been in  the  7th  month of pregnancy because  according  to  Dr. Ajinkya this kind of toxaemia appears after the 7th month of pregnancy.   It  is to be remembered that she  was  deposing about this 12 years after the occurrence and as there was no reference to such an important matter in her letters of  the 14th June and 2nd July, but only in a subsequent letter, she appears to have made a mistake about the month while  depos- ing  in  court.   In fact she  first  complained  about  the swellings and high blood pressure only in her letter of  the 13th August.  Again even according to Dr. Ajinkya a pregnant woman may develop such troubles in the 4th month if she were suffering from chronic kidney trouble.  There is no evidence about her suffering from such trouble but the possibility of her  having such trouble has not been ruled out.  Dr.  Mehta has  also said that while swellings and high blood  pressure usually  occur in the second period of pregnancy, he  stated that  this period would be after the 3rd and before the  7th month of pregnancy and supported his view by reference to  a passage   at  P.  225  from  the  ’British   Obstetric   and Gynaecological  Practice’.   In this state of  evidence,  it would not be reasonably safe to conclude that the respondent was in the 7th month of pregnancy in the month of June. No  doubt  Dr.  Ajinkya  has said  that  there  would  be  a perceptible  abdominal enlargement in ordinary  cases  after the 4th month and the respondent has remarked in her letter 357 of  the 28th June that her abdomen had the appearance  of  a big  water  pot.  But that was nothing  more  than  innocent exaggeration and ought not to be taken literally. A good deal of argument was advanced on the footing that the delivery  of  the respondent being normal, the  birth  of  a premature baby cannot be regarded as a ’normal delivery’  in the medical parlance.  Apart from the fact that Dr.  Ajinkya and   Dr.  Mehta  have  given  different  meanings  to   the expression ’normal delivery’, there is no reliable  evidence to  the effect that the birth of a child to  the  respondent was  regarded  as  normal delivery.   As  already  observed, Madhuben’s evidence is false and artificial and the hospital records consisting of indoor case papers are incomplete.  It would  also appear that the column of ’disease’ is torn  and attempts to reconstruct it seem to have been made.  Moreover it  would seem that entries used to be made in the  hospital papers  mechanically without reference to  actualities.   On these grounds the entry regarding the weight of the child at birthstated  as 4 lbs-cannot be accepted at its face  value. Even accepting it, there is unanimity of opinion amongst all the  three experts examined in this case that this would  be the weight of a premature baby and not that of a mature one. Considered  along with the circumstances that  the  delivery was  sudden and the respondent was then in a poor  state  of health  the appellant’s case that the baby was a  full  term one and, therefore, illegitimate stands disproved. All that I would say is that the medical evidence adduced in this case for establishing that the respondent had conceived before  the  marriage can in no sense be regarded  as  of  a definite or conclusive nature.  Indeed, in the case of Clark v.  Clark(1). if the husband was assumed to be  the  father, the  pregnancy  could not have exceeded 174  days,  and  the child which was born, was alive at the hearing and was three years  old.  The medical evidence was to the effect  that  a

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child of so short a period of foetal life would not  survive for  more than a day or two.  At the same time, the  medical witnesses  agreed  that  only  rarely  could  the  date   of conception  be  fixed,  and that the  periods  of  gestation generally  spoken  of were notional periods.  There  was  no evidence of misconduct on the part of the wife, and the only evidence  of adultery was the fact of the birth of a  child, the period of gestation of which could not have exceeded 174 days.   The Court held that the husband had  not  discharged the  burden of proof in respect of the adultery and that  it was  sufficiently  proved that the child  was  conceived  in wedlock.   It was further held that "where the date of  con- ception can be fixed, and the actual period of gestation is (1)  (1939) 2 All ˜E.R. 59. 358    ascertained, this ascertained period is comparable to the longer notional period, and for this reason what is in  fact a  six  month child may be comparable to what  is  called  a seven  months child." To  sum  up, the substance of the medical  evidence  led  on behalf of the appellant is that the normal period of  gesta- tion  of  a child is 280 days, that a child  born  180  days after  the last menstruation is not likely to be born  alive or  if  born alive it will survive only if special  care  is taken, that such a case would not be that of normal delivery and its weight would be 1-1/2 to 2 lbs.  With the aid of the evidence  of Madhuben the appellant has sought to  establish that  the  delivery was a normal one,  that  the  respondent appeared  to have delivered at full term and the child  born was  a normal one.  He has further sought to prove with  the aid of the hospital papers that the child weighed four  lbs. or  so and was found to be normal one.  Madhuben’s  evidence has  been rejected by both courts of fact and for very  good reasons.   The hospital papers cannot be relied upon in  the absence of the white paper.  Besides, a look at the hospital records  would suggest that entries therein were made  in  a casual  manner regardless of actualities.  Thus all that  we are  left with is the evidence of the experts and  the  case records  in text books.  There is no unanimity  amongst  the three  experts  and even the text books  refer  to  abnormal cases.  Bearing in mind that the normal period of  gestation evolved  by  the obstetricians is a  generalisation  deduced from particulars it cannot be regarded as an inflexible  law of  nature  from which there can be no  deviation.   Indeed, reputed  obstetricians have recorded cases where the  period of  gestation  was found to be shorter in cases  of  mothers whose  menstrual  cycles were of three weeks.   Again  where toxaemia  of  pregnancy  is found  to  be  considerable  the development  of a child in the womb has been found  to  take place more rapidly than in normal pregnancies.  There may be conceivably other factors contributing to the shortening  of the  period of gestation and a more rapid development  of  a child in the womb than that which medical science has so far been able to notice.  In these circumstances it would not be reasonably safe to base a conclusion as to the  illegitimacy of  a  child  and unchastity of its  mother  solely  on  the assumption that because its birth and condition at birth ap- peared  to be normal its period of gestation must have  been normal,  thus placing its date of conception at a  point  of time prior to the marriage of its parents. Thus,  even if the additional evidence is taken into  consi- deration, the appellant stands on no stronger grounds.                             359 It  has  also to be remembered that on the  question  as  to whether the respondent was pregnant before her marriage  not

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only  the High Court but also the City Civil Court has  come to the conclusion that she was not.  We have thus concurrent findings  of fact on this crucial question.  It  is  settled law  that this Court does not interfere with such a  finding merely  on  the  ground that another view  of  the  evidence adduced  in  the case commends itself to  this  Court.   The appeal  has come before us by a certificate granted  by  the High Court under Art. 133(1)(b) of the Constitution.  One of the  requirements of cl. (1) of Art. 133 is that in  a  case other  than  the one referred to in sub-cl. (c)  the  appeal must  involve  a  substantial  question  of  law  where  the judgment  appealed  from affirms the decision of  the  Court immediately   below.   No  doubt,  strictly  speaking,   the judgment of the High Court cannot be regarded as judgment of affirmance  of  the City Civil Court because  initially  the City  Civil  Court  had granted a decree  for  annulment  of marriage  to  the appellant.   Substantially,  however,  the decree  of  the  High  Court must  be  regarded  as  one  of affirmance  if we take into consideration the fact that  the High  Court  had affirmed the finding rendered by  the  City Civil Court on the additional issue framed by the High Court in  regard  to  the  question  whether  the  respondent  was pregnant   at   the  time  of  the  marriage.    No   doubt, technically,  the  High  Courts’  decision  is  not  one  of affirmance  because it has reversed the decree of  the  City Civil  Court.  But we must have regard to the  substance  of the  matter.   It  is true that the  City  Civil  Court  had originally  granted  a decree but the basis of  that  decree disappeared  after  it gave a contrary finding  to  the  one rendered  by it earlier on the crucial fact  concerning  the respondent’s pregnancy before her marriage.  The High  Court having accepted that finding there can be no escape from the position  that  we have here a case where upon  the  crucial question of fact, there are concurrent findings.  Unless  it is  shown that a concurrent finding is vitiated by an  error of law or procedure or unless it is shown that important  or relevant  evidence  has been overlooked or  misconstrued  it would  not be in consonance with the practice of this  Court to re-examine that finding, particularly when, as here,  the findings  are based upon an appreciation of  evidence.   The Privy Council firmly adhered to this rule and this Court has accepted the Privy Council’s practice in this regard.  There are numerous decisions on the point but I may refer only  to the following as instances of cases in which this Court  has refused  to  disturb concurrent findings  of  fact:  Narayan Bhagwantrao  Gosavi  Balajiwale v. Gopal  Vinayak  Gosavi  & ors.(1);  Gherulal  Parakh v. Mahadeodas  Maiya  &  ors.(2); Bhinka & others v. (1) [1960] 1 S.C.R. 733          (2)  [1959] Supp. 2  S.C.R. 406. 360 Charan Singh(1); and Shamrao Bhagwanrao Deshmukh  v.Dominion of India(2). No case has been brought to our notice in which this Court or the Privy Council has re-appreciated  evidence in an appeal by special leave or disturbed a pure finding of fact  concurrently made by the courts below.  To do  so  now would be to ignore all precedents. As  already  held by me the appeal must  be  dismissed  with costs. (1)  [1959] Supp. 2 S.C.R. 798. (2)  A.I.R. 1955 S.C. 249. 361