Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati [1964] INSC 80 (18 March 1964)
1964 Latest Caselaw 80 SC

Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati [1964] INSC 80 (18 March 1964)

18/03/1964 DAYAL, RAGHUBAR 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 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 respondent 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 someone 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 someone 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 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

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 June, July 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 sometime 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 time when, and the place or places where, the parties had sexual relations which she alleged to have led to her pregnancy. 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 respondent 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. Champakal, 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 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 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 satisfaction, beyond reasonable doubt, which he had failed to do, 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 petitioner 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 proceedings is whether the petitioner has proved beyond reasonable doubt that the respondent was pregnant by someone 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 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 empowers 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 theseas 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 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, especially 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 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 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 petitioner'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. Anyway, 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.

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 relations-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 subsequent 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 respondent'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 support 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 comes to 171 days. The child born to the respondent is said to have weighed 4 pounds, the delivery being said to be normal. 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.

(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. examination 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 Gynaecologists. 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 Gynaecologist 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.

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 Pranti. 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 particular 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 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 pregnant." 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 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 crossexamination 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 respondent 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 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 pregnant 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:

"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, acknowledges 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 airmail 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-in law 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 Bombay.

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 improved health and increase of blood in the body seems to indicate that she was feeling the enlargement of her abdomen. The contents of this