9911796707
TMI Blog1964 (3) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia some time in November 1947, but the parties did not live together thereafter. The appellant instituted a suit, No. 34 of 1947-48, in the Court of the State of Baroda, at Baroda, for the declaration of nullity of the marriage. The suit was, however, dismissed on September 30, 1949 as the appellant failed to establish that he had his domicile in that State. The Act came into force on May 18, 1955. The appellant took advantage of its provisions and on April 18, 1956 filed the petition for annulment of his marriage with the respondent. The appellant alleged in his petition that on learning of the birth of the child on August 27, 1947, five months and seventeen days after the marriage, he felt surprised and suspected that the child had been conceived long prior to the marriage through someone else, that the respondent was, at the time of their marriage pregnant by someone other than himself, that this fact was concealed from him and that ever since he had learnt of the birth of the child he had not lived or cohabited with the respondent nor had any relations with her whatsoever. The respondent, in her written statement, raised various defences. She admitted therein to have concei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 he petitioner knowing of her pregnancy at that time. The learned Judges however held that the petitioner had not proved to their satisfaction that the respondent was pregnant by someone other than the petitioner at the time of the marriage and that the petitioner was not the father of the child which was born and, considering that the trial Court had not framed an issue about there being no marital intercourse between the parties after the petitioner's knowing that the respondent had been pregnant at the time of the marriage, framed two issues and remitted them to the trial Court for recording findings. The two issues framed by the High Court were: 1. Is it proved that the respondent was pregnant at the time of the marriage? 2. Is it proved that marital intercourse with the consent of the petitioner has not taken place since the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s could not be expected to have produced evidence directed to that point and therefore the High Court rightly remitted that issue for a finding. The High Court remitted the first issue as it was of opinion that it was for the petitioner to prove to their satisfaction, beyond reasonable doubt, which he had failed to do, that the respondent was pregnant at the time of marriage. He had also to establish that the child could not possibly be born as a result of the petitioner's marital intercourse with the respondent after the marriage, the learned Judges holding that in these proceedings the Court could not base its decision on the mere admission of parties. The High Court is certainly right in stating that the petitioner had, in order to succeed, to prove beyond reasonable doubt that the respondent was pregnant by someone else at the time of marriage. It is, however, not correct in law in holding that the Court, in these proceedings, could in no circumstances base its decision on an admission of the parties. On the facts of the present case, however, the decision did not rest on the admissions of the parties alone. In White v. White([1958] S.C.R. 1410. ) this Court construed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er corroborative evidence of the admissions of the wife. But, having regard to the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 1947, left no room for the Court to consider the new case that that child was conceived sometime after the marriage of the parties on March 10, 1947. In these circumstances, it was not really right for the High Court to remit an issue to the trial Court for recording a finding on the basis of such further evidence including expert evidence as be led by the parties on the question. In this connection, the remarks of Lord Simonds in Preston Jones' case(1) at p. 402, are very pertinent: "Your Lordships would, I think, regard it as undesirable that the burden should be imposed upon litigants in this class of case of adducing evidence of the character which in Gaskill v. Gaskill (1921 P. 425) Lord Birkenhead thought it expedient for the Attorney-General to ask for the assistance of the court. That may be unavoidable where medical evidence in regard to the period is called by the respondent; there is nothing to prevent a case becoming the battle-ground of experts. But I am dealing with such a case as that out of which this appeal arises, in which the substantial issue between the parties was whether the husband had at what was considered the relevant times any opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaded what he pleaded in the petition giving rise to this appeal. The respondent, however, put up a different case there. Any way, that suit was dismissed on the preliminary ground that the petitioner did not have the necessary domicile to institute a suit in that Court. The respondent, on the other hand, has not been consistent. In her written statement filed in the Baroda Court she stated that she had become pregnant as a result of the sexual intercourse she had with the petitioner after marriage. The same line was not adopted in her written statement in this case, in which she admitted that she was pregnant at the time of the marriage, but stated that this was due to sexual intercourse with the petitioner prior to her marriage. She supported this statement vigorously on oath. Later, after the close of the petitioner's evidence, and practically of her statement in examination-in-chief, she wanted to change her case by an amendment of the written statement to what had been said in the Baroda Court. This was not allowed by the trial Court. The High Court too did not allow this formally, but in effect had that point tried by remitting an issue. No good motive was suggested for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Parsee Lying-in Hospital for Women. He carried on private practice and had three consulting rooms. He states that most of his cases were gynaecology and midwifery. Where Dr. Ajinkia and Dr. Mehta differ, we would prefer to rely on Dr. Ajinkia due to his superior qualifications and experience. We do not consider it material that there exists some slight difference of opinion in matters, not of great significance, between what the doctors state and what is stated in certain well-recognized books on the subject, as the statements are on the basis of the theoretical knowledge as modified by their actual experience and what is stated in books is based on conclusions derived from various reports by various doctors working in the field. Certain facts were urged before the High Court in support of the petitioner's case. Mr. Desai, learned counsel for the petitioner, has again submitted them for our consideration. They are: 1. The child was born 171 days after marriage and has lived. 2. It was confirmed by about April 2, 1947, that the respondent was pregnant. 3. The appearance of the respondent's belly. 4. The symptoms of toxemia from which the respondent suffered. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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." 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 feelin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 that it would be difficult to keep her unduly advanced state of pregnancy a secret for any more appreciable time at Bombay. The next letter of June 4 was written by the petitioner, on receipt of the respondent's letter dated May 24. This letter too must have been from Bombay, as she appeared to have informed him about the adjoining neighbours talking about them. Again, it is not clear what was the talk. The talk might have had reference to their marital relations with particular reference to her pregnant condition, as it is said in the letter: "Let people talk about me and you, but as long as we each have complete confidence over one another which is there to fear for us." On June 11, the respondent wrote to the petitioner. It appears that she returned to Prantij from Bombay on or about June 4, as she said: "A week has passed since I came to Prantij". She states that she told her mother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner wrote: "Please write how many months of pregnancy you have passed". The letter was comparatively a very formal letter. On June 28, 1947 the respondent writes to the petitioner in her letter: "I am keeping good health etc .... Now I have to pass only five months ... The belly gives the appearance of a big water pot and one becomes nervous to see it ... A nurse comes to examine me every Sunday. I had once told her that something was moving in my belly and had asked her as to after how many 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 back". It is clear from this correspondence which passed between the parties in the month of June that the respondent noticed her belly to have enlarged sufficiently between June 11 and June 17, i.e., between the 107th and 114th day, counting from March 10 and adding 14 days to the total, that she had felt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kia 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain 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 twenty-fourth week. It is most often seen in young primigravidae. Pre-eclampsia is the fore-runner of prodromal stage of eclampsia. In other words, unless the pre-eclamptic process is checked by 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 troub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain 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 and writes: "Very pleased to learn that Sushilabai has been 'shown' to the doctor and the medicine has been continued and that she is keeping good health. Very pleased to learn that you and the members of your family are keeping well. Here we all of us are keeping well, so much". With affection of Manilal's Jai Gopal." The letter in a way, is a cold one. He has not stated what would have been both an expression of his feeling at the time and would also have been very polite in the 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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." As a post-script to this letter she had further written: "They are attending all right on me here. Possibly, they are going to take me to Ahmedabad or. Bombay, for the delivery, because in a village' like this, there is not sufficient equipment available." The petitioner's letter dated August 25, 1947 makes reference to the letter from the respondent's sister dated August 17. The respondent's letter dated August 13 is a very good synopsis of her condition and of the reasons for not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gar used to look her up every Sunday. This lady doctor has not been examined. It is alleged that she had left the place and her address could not be known. The respondent said in her letter to the petitioner, dated June 28, 1947: "A nurse comes to examine (me) every Sunday". There is some dispute about the word 'nurse'. The original word in Gujarati was 'bai'. The correctness of the official translation of that word does not appear to be questioned before the trial Court or in the grounds of appeal to the High Court. We see no reason to disbelieve Madhuben's statement which, so far as the condition of the respondent goes, finds support from what the respondent herself states and also from the medical opinion about the stage of 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 Ahmedabad or Bombay where there was sufficient equipment to deal with a complicated case of delivery. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner. was working as a mid-wife at the hospital and had attended to the delivery of the respondent. She states that she had weighed the child and it weighed 4 or 4-1/2 pounds, that it was a mature child which was born after the expiry of the full period of gestation and that the child was a normal one. Her statement finds support from Exhibit K, one of the in-door case papers relating to the respondent at the hospital. Madhuben states that Kachrabhai, the compounder, made entries in this paper under her instructions. Exhibit K, as printed, shows that the portion of the column under 'disease' was torn. We have seen the original and could clearly read the word 'normal' and the other word may be 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imes 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 subject. He did not rely on the entry about the condition of the child as the various entries in Exhibit 17 showed that the condition of children weighing 3 lbs. or 4 lbs. or 6 lbs. was similarly noted. The description of the condition of a child as good, need not have a necessary relation with the weight of the child born. It is to be noted that, according to the entries in the Maternity Admission Register, Exhibit 17, most of the children born in the Prantij Hospital weighed 4 lbs. or less. The condition of all the children could not have been such as to require special mention. It may, however, be pointed out that no entry in Exhibit 17 shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt'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. 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 dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a very good reason for Madhuben to remember about the.., child's condition. We see no reason why Madhuben be not believed when the available hospital records support her. She has no reason to depose falsely. In these circumstances, we are of opinion that Patel J., was in error in preferring the statement of the respondent to that of Madhuben. The weight of a child born, is again a factor which tends to support the statement of Madhuben about the condition of the child and goes against the statement of the respondent. The child weighed 4 lbs. Again, there is no difference in the opinion of the doctors examined for the parties that the weight of a child born at about the 6th month of pregnancy would be about 2 pounds. Such a statement is borne out from what is noted in the various books on that subject. We see no reason to doubt the statement of Madhuben about the weight of that child. The entries in Exhibits K and 15 support it. We do not see any reason to disbelieve the statement of Madhuben that the child was a mature child. The normal weight of a child born after the full period of gestation is, -said to be 6 to 7 pounds, according to Dr. Ajinkia and 5 to 7 pounds, accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n connection with the letter of the respondent's father to the petitioner. The respondent and her people had a definite feeling that the petitioner and his people were not responding to the communications probably on account of the idea that the child born was not the petitioner's child. The respondent indirectly gave expression to such a feeling by saying that she did not know what idea her father-in-law was entertaining about her. Any way, her letter does not state in what respect the baby was very weak. The expression that the baby was weak in no way conveys the idea that the baby's condition was such as has been now described by the respondent. For a baby of mature period, the respondent's child was certainly weak, but for a baby born after a period of about 6 months' gestation, the baby born was not weak at all. The respondent sends a letter to the petitioner on December 22. 1947. She expresses her grievance at not being informed first of the petitioner's return to the country, and states, "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 consc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly developed to continue separate existence from the mother. He is emphatic that a child could not be viable even before the 28th week, say 25th or 26th week. Dr. Mehta, on the other hand, states that a child is sup posed to be normally viable about the 28th week, that there can be exceptions and a child might be viable before the 28th week and could be born alive and could survive. He said that he made this statement on the basis of knowledge which he had acquired from the standard books and referred to three cases mentioned in De Lee's Book. Dr. Mehta has further stated with respect to premature deliveries that premature delivery could be before the 28th week. At first he stated that he could not say how long before such a delivery could be, but when pressed in cross examination he stated that a 20 weeks' foetus, if ejected alive or dead from the body of a woman it would be a premature birth. He admitted that abortion was different from premature delivery and also stated that if the delivery took place before the 28th week it was termed either miscarriage or abortion, but added that if the child born was a viable child, then such a delivery would be called a premature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... baby born, of a mother who had suffered from severe toxemia for about two months prior to the delivery, are bound to be much less and would be further less if no special care is taken during delivery and thereafter. The weight of the respondent's baby, its condition at birth and its having lived as a mature child born after full period of gestation does, together with the other circumstances connected with the progress of the pregnancy, amply support the petitioner's case that the child born to the respondent could not be of the petitioner. We have been referred to several cases in which the question about a child being conceived from the husband or not arose. Suffice it to say that cases fall into two categories. One where delivery takes place much more than 280 days after the husband had last opportunity to cohabit with his wife and the other where it takes place much earlier than 280 days from the first day of menstruation prior to conception. The first type of cases, to which reference need not be made, involve the determination of the question as to the period it took for a sperm to fertilize the ovum. Nothing precise about the period was known when cases prior to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's case(3) the child was 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 misconducting 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, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh, 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 We have also dealt with the possibility of Champaklal's. observing the stage of her pregnancy when she was at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivery on account of the toxemic condition of the respondent. She said in that letter that they were going to take her to Ahmedabad or Bombay for the delivery since in a village like hers there was not sufficient equipment available. It cannot therefore be said that the delivery was so sudden as to bear out the 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orn 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 him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that she was not aware at the time of the marriage that she was pregnant. She added that she came to know of her pregnancy only when she started vomiting, which was after her return to Prantij subsequent to the marriage. She has not repeated in her evidence the allegations that the appellant or any members of the family were aware of the fact of her pregnancy before the marriage. Upon the pleadings of the parties, the City Civil Court raised the following six issues: "(1) Whether the Respondent at the time of the marriage was pregnant by some one other than the Petitioner as alleged in para 9 of the Petition'? (2) Whether at the time of the marriage the petitioner was ignorant of the aforesaid fact? (3) Whether the petition is not maintainable for the reasons alleged in para 2 of written statement? (4) Whether the Petitioner's claim in the petition is barred by the Law of Limitation for the reasons alleged in paras 3 and 4 of the written statement? (5) Whether the Petitioner is entitled to have the marriage declared null and void? (6) To what relief the petitioner is entitled?" The Court answered issues (1), (2) and (5) in the affirma tive, and issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(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 neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations 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 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot;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( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ones(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 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([1958] S.C.R. 1410 ) about the applicability of the rule in Preston-Jones ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 crossexamination 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 bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n her evidence that she did not know at the time of her marriage that she was pregnant and that she became aware of this after the marriage only when she started vomiting. This was after she had returned to Prantij from Vile Parle. She has also stated in her evidence, "After I went to Prantij after my visit to Bombay in Christmas 1946, 1 had monthly course. After I left for Prantij after my visit to Bombay in January 1947 and before the marriage I had monthly course. But on those occasions the bleeding was less." She was cross-examined at length with regard to her story that she had sex relations with the appellant before the marriage, and after asserting once again that she had met the appellant in Bombay in December 1946 or January 1947 she said in answer to the next question: "It is not true that prior to the marriage I knew that I was pregnant. It is not true that I deliberately suppressed the fact of my pregnancy from the petitioner and performed marriage with him. It is not true that I was not pregnant as a result of the sexual intercourse with the petitioner prior to the marriage." And then in answer to the question "Before 10th March 1947 Mahendr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter, 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. 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 ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :(a) that the child was born 171 or 186 days after the marriage;(b) that he never had pre-marital intercourse with the respondent; and (c) that he was not aware of her pregnancy before the marriage. Can it be said that this evidence justifies the conclusion that the child must have been conceived before the marriage, and since, if the appellant's statement is believed, it could not be conceived from him, but from some one else? It was urged by Mr. Desai, apparently on the strength of an observation made in one of the speeches in Preston-Janes' case(1) that where the period of gestation deducible in respect of a child deviates markedly from the normal, the burden on the husband who denies being its father of establishing the matrimonial offence alleged by him against his wife is a very light one. With respect I would say that the argument is untenable. When the law places the burden of proof upon a party it requires that party to adduce evidence in support of his 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 incid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ientific 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced 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 upon whose statements reliance was placed before us by one party or the other. One is Madhuben, who claims to have been working in the Prantij Municipal Dispensary from 1939 to 1955. She said that she atte nded to the delivery of the respondent, and that she had examined her two months before 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm 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 or l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 Taylo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 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 es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es surviving between 27th and 28th weeks. One in London and one in Boston. But in these cases exceptional care was required both for delivery as well as for bringing it up." This answer to some extent, goes against the opinion of Dr. Ajinkya, though he has qualified it by adding that in most cases such child would be still-born and that in exceptional cases it would survive if special care and attention is paid to it. There remains the evidence of Dr. Mehta who was examined as a witness on behalf of the respondent. He has also deposed that the period of gestation is counted from the first day of the last menstruation, and in this connection, he relied upon the following passage from British Obstetric and Gynaecological Practice by Sir Eardley Holland and Aleck Bourne, 1955 ed.: "According to Naegele's rule, which is almost universally employed, seven days are added to the first day of the last menstrual period and nine months added, in order to arrive at the expected date of delivery. This is really a simple way of adding 280 days of the first day to the last menstrual period, because experience has shown that this is the average duration of pregnancy." He al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree 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 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. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no reliable evidence to the effect that the birth of a child to the respondent was regarded as normal delivery. As already observed, Madhuben's evidence is false and artificial and the hospital records consisting of indoor case papers are incomplete. It would also appear that the column of 'disease' is torn and attempts to reconstruct it seem to have been made. Moreover it would seem that entries used to be made in the hospital papers mechanically without reference to actualities. On these grounds the entry regarding the weight of the child at birthstated as 4 lbs-cannot be accepted at its face value. Even accepting it, there is unanimity of opinion amongst all the three experts examined in this case that this would be the weight of a premature baby and not that of a mature one. Considered along with the circumstances that the delivery was sudden and the respondent was then in a poor state of health the appellant's case that the baby was a full term one and, therefore, illegitimate stands disproved. All that I would say is that the medical evidence adduced in this case for establishing that the respondent had conceived before the marriage can in no sense be regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
