Mahendra Manilal Nanavati Vs. Sushila
Mahendra Nanavati  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
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.
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
(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
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
(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
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.
CIVIL APPELLATE JURISDICTION: Civil Appeal
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
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
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
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
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
"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)
 S.C.R. 1410.
(2)  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
"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
We may now deal with some general aspects of
the case. The petitioner has been consistent throughout. He took the(1) (1951)
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
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
"...the nature of my mother-in-law had
become peevish on account of ill-health and that I should not take anything to
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
"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.
(1) (1951) A.C. 391.
284 to decide whose statement should be
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
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.
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
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
286 The respondent's letter dated April 13,
"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
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
"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
"A week has passed since I came to
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 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 literature,
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.
292 Such a suspicion expressed in his letter
makes the respondent write a very curt letter on July 2, 1947. In that letter
"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
"Please write how many months of
pregnancy you have passed".
The letter was comparatively a very formal
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 months 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
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 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
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 abdominal enlargement within 3 months and 7 days of pregnancy in
ordinary cases and that such perceptible abdominal enlargement 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.
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
midterm ... 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. Champaklal does not depose to have noticed anything unusual
about her condition. But that does not mean that her pregnancy 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 Champaklal 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
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 crossexamination 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
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 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, generally 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 blood pressure
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 statement 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
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
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
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 inform him as to how the
respondent's oedema stands.
On July 24, the respondent's father wrote to
the petitioner'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
"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 circumstances. 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
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 illhealth was conveyed to Sharda
by letter on or about July 10.
The last letter which the respondent writes
to the petitioner 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
Consequently, I have not even the strength to
write a letter. We had consulted Miss Pandya and Dr. De Monte and Doctor
Anklesaria at Ahmadabad. 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 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
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 informing 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-examination
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
herself 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
describing the respondent's condition in about the last week of June. She has
been disbelieved for remembering this condition of the respondent as she was
not expected to remember this after such a lapse of time. We see no reason to
disbelieve 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 Himatnagar 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
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 pregnancy 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 delivery and therefore of moving her to Ahmadabad
or Bombay where there was sufficient equipment to deal with a complicated case
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 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
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
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 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 respondent's
statement about the condition of the baby and its being born premature.
Patel J. remarked, in meeting the submission
for the petitioner 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 narrowminded. 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
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 Thurs306 day, May 7, and expressing his
readiness to leave the records in the custody of the Court or such other person
as 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 objection. 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.
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 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
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
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
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
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
"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
2. As soon as the baby is delivered, its
temperature should be maintained.
3. Oxygen should be given to the child, by
4. Some respiratory and circulatory
stimulants will also be required.
5. Baby will be required to be handled very
6. Since its resistance to fight infection is
low, all the care is taken to prevent infection.
The care required after delivery is in these
1. Maintenance of warmth.
2. Maintenance of proper nourishment.
3. Prevention of cyanotic attacks by giving
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.,
"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 anyone including a doctor and especially
when there have been exceptional cases of whatever veracity mentioned 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 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
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. Anyway, 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,
"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 conscious 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 something 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 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
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 conception. 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 supposed 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 crossexamination 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
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
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 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
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 conclusion 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 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)  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 development 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 respondent's child.
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)  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.
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.
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 underweight.
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 intercourse 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 petitioner'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 implication 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 expressing 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 underweight.
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 expected
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 Ahmadabad 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 probabilities 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 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
The question of the legitimacy of the child
born to the respondent 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 marriage
on March 10. This finding has not been challenged before us and appears to us
to be well-founded. The only conclusion 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 discovered
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 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 doctors 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 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 respondent'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 someone 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 someone else.
After his return to India in November, 1947
he instituted a suit in a Baroda Court for the annulment of the marriage 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 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 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 affirmative, 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 someone other than the appellant, and that the appellant was not the father
of the child which was born to the respondent. In his judgment, Patel, 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 appearing 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 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 someone 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.
"(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 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
"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 therefore." 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, 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
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 between 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 someone 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 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.
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 suggested 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: "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.
336 case rules apply, has been considered by
the House of Lords in Preston-Jones v. PrestonJones(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 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 reasonable doubt as to the commission of a matrimonial
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. Preston Jones(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. PrestonJones(2) must also apply to a case under the Hindu
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 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 respondent 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 Ahmadabad where his father owns a house, on many occasions between
November, 1946 and March, 1947. He also denied having (1)  S.C.R. 1410.
(2)  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 respondent 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 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 suggested 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
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
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: "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 cross examination, 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 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
someone 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
When the law places the burden of proof upon
a party it requires that party to adduce evidence in support of his 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)  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-in law 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
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
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 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
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 attended to the delivery of the respondent, and that she had examined her
two months before the date of delivery, when she noticed swelling all over her
hands and feet. She also says that the respondent had advanced 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. cross-examination 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 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 maturity.
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
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 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 post mature. 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 importance 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 them thus:
(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 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
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
According to him, the weight of the child
born in the 5th or 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 himself 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 observed: "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 support the appellant
but I agree with the view of Mr. Justice Patel that the witness though
undoubtedly a leading obstetrician and gynecologist, 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
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
"All the signs and symtoms must be
established 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
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
"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,
"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 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
"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 probably due to the
fact that she had conceived. The opinion of that doctor cannot be placed higher
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
deposing 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
birth stated 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 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 conception 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 gestation 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
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
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
Thus, even if the additional evidence is
taken into consideration, 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 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)  1 S.C.R.
733 (2)  Supp. 2 S.C.R.
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)  Supp. 2 S.C.R. 798.
(2) A.I.R. 1955 S.C. 249.