{"id":123391,"date":"1964-03-18T00:00:00","date_gmt":"1964-03-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahendra-manilal-nanavati-vs-sushila-mahendra-nanavati-on-18-march-1964"},"modified":"2015-09-30T19:53:11","modified_gmt":"2015-09-30T14:23:11","slug":"mahendra-manilal-nanavati-vs-sushila-mahendra-nanavati-on-18-march-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahendra-manilal-nanavati-vs-sushila-mahendra-nanavati-on-18-march-1964","title":{"rendered":"Mahendra Manilal Nanavati vs Sushila Mahendra Nanavati on 18 March, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mahendra Manilal Nanavati vs Sushila Mahendra Nanavati on 18 March, 1964<\/div>\n
Equivalent citations: 1965 AIR 364, \t\t 1964 SCR (7) 267<\/div>\n
Author: R Dayal<\/div>\n
Bench: Dayal, Raghubar<\/div>\n
           PETITIONER:\nMAHENDRA MANILAL NANAVATI\n\n\tVs.\n\nRESPONDENT:\nSUSHILA MAHENDRA NANAVATI\n\nDATE OF JUDGMENT:\n18\/03\/1964\n\nBENCH:\nDAYAL, RAGHUBAR\nBENCH:\nDAYAL, RAGHUBAR\nAYYANGAR, N. RAJAGOPALA\nMUDHOLKAR, J.R.\n\nCITATION:\n 1965 AIR  364\t\t  1964 SCR  (7) 267\n\n\nACT:\nHindu  Law-Annulment of marriage on ground  that  respondent\nwas  at the time of marriage pregnant by some  person  other\nthan petitioner-Satisfaction of court under s. 23-Nature  of\nonus  on husband in matrimonial cases-Whether court can\t act\nupon  admissions  of  parties  in  proceedings\tunder  Hindu\nMarriage Act-Quantum of burden and its\tincidence-Difference\n-Value\tof medical opinion-Duration of\tpregrancy-Period  of\ngestation-Substantial question of law--Comcurrent finding of\nfact--Power  of\t Court to remand a case-Inherent  powers  of\ncourt-Exercise\tof-Evidence Act, ss. 112, 114-Code of  Civil\nProcedure, s. 107.  Order 41, rr. 20, 23, 25-Constitution of\nIndia, Art. 133(1)-Hindu Marriage Act, 1955, ss. 12 and 23.\n\n\n\nHEADNOTE:\nThe  appellant is a resident of Bombay while the  father  of\nrespondent was a resident of Prantij in the former State  of\nBaroda.\t They were betrothed in 1945 and their marriage\t was\nsolemnised  at Bombay according to Hindu rites on March\t 10,\n1947.\tOn  August  27, 1947, respondent  gave\tbirth  to  a\ndaughter after 5 months and 17 days of their marriage.\nIn April 1956. the appellant filed a petition for  annulment\nof his marriage with respondent on the ground that the child\nhad  been  conceived  long prior  to  his  marriage  through\nsomeone ,else, the respondent was, at the time of  marriage,\npregnant by some one other than himself, that that fact\t was\nconcealed  from him and that ever since he had learnt  about\nthe  birth  of\tthe  child he had  not\tcohabited  with\t the\nrespondent nor had he any relation with her whatsoever.\t The\ndefence\t of respondent was that she conceived the baby as  a\nresult\tof  sex\t relations with the  appellant\tafter  their\nbetrothel on being assured by him that that was\t permissible\nin  their community, and that the parents of  the  appellant\nknew about the relations between the parties and also  about\nher having conceived prior to her marriage.  The trial court\naccepted the allegations of the appellant and held that\t the\nrespondent was not pregnant by the appellant but by a person\nother  than the appellant even before marriage.\t  Respondent\nwent  in  appeal  to the High Court against  the  order\t ,of\nannulment passed by the trial court.  The High Court was not\nsatisfied with the findings of the trial court and  remanded\nthe case to the trial court after framing the following\t two\nnew issues: -\n\t      1.    Is\tit  proved that the  respondent\t was\n\t      pregnant at the time of marriage?\n\t      2.    Is\tit proved that\tmarital\t intercourse\n\t      with  the\t consent of the petitioner  has\t not\n\t      taken   place  since  the\t discovery  by\t the\n\t      petitioner  of  the\t  existence  of\t the\n\t      grounds for a decree?\nRespondent further alleged that the child was the result  of\nconception  after  the marriage.  The trial  court  recorded\nadditional  evidence  and came to the  conclusion  that\t the\nrespondent\n268\nwas not pregnant at the time of marriage and that no  sexual\nintercourse  with the consent of appellant took place  after\nthe   discovery\t by appellant of the grounds for  a  decree.\nThese  findings were submitted to the High Court which\theld\nthat  it was not proved that respondent was pregnant at\t the\ntime of marriage and that it was proved that petitioner\t had\nmarital\t intercourse with the respondent subsequent  to\t his\ndiscovery  of the existence of the grounds for\tthe  decree.\nThe  High  Court  allowed  the\tappeal\tof  respondent\t and\ndismissed the petition for annulment of marriage.  Appellant\ncame to this Court after obtaining a certificate of  fitness\nfrom the High Court.  Accepting the appeal,\nHeld (Mudholkar, J. dissenting). (i) The child born to\tres-\npondent\t on August 27, 1947 was practically a  mature  child\nand weighed 44bs. in weight and therefore it could not\thave\nbeen the result of conception taking place on or after March\n10,  1947.  The child was conceived prior to March 10,\t1947\nand  therefore\trespondent  was\t pregnant  at  the  time  of\nmarriage by some one other than appellant.  Hence, appellant\nwas entitled to annulment of his marriage.\n(ii) The  appellant  did not have marital  intercourse\twith\nrespondent after he discovered that she had been pregnant by\nsome one else at the time of marriage.\nIn  divorce cases, the court usually does not decide  merely\non  the basis of the admissions of the parties.\t This  is  a\nrule  of  prudence and not a requirement of  law.   However,\nwhere  there  is  no room for  supposing  that\tparties\t are\ncolluding  decision  can be based on the  admission  of\t the\nparties.\nIt  is\tundesirable  that the burden should  be\t imposed  on\nlitigants  in this class of cases, in which the\t substantial\nissue  between\tthe parties was whether the husband  had  at\nwhat  was considered the relevant times any  opportunity  of\nintercourse  with  his wife and no question of\tan  abnormal\nperiod of gestation had been raised until the trial and then\nonly  by  the  commissioner  himself,  of  adducing  medical\nevidence re: the period of gestation.  However, that may  be\nunavoidable  where medical evidence in regard to the  period\nis  called  by\trespondent and then  the  case\tbecomes\t the\nbattle-ground of experts.\n(iii)\t  The  case  of Clark v. Clark is not a\t good  guide\nboth on facts and law for the determination of the  question\nabout  the  legitimacy of the child of the  respondent.\t  In\nthat  case,  delivery after 174 days of the  conception\t was\nproved\tto be on account of the fact that the mother of\t the\nchild fell a day before delivery.\nIt  is not correct to add a lunar month to  the\t ascertained\nperiod\tof gestation in cases of a known date of  conception\nmerely\ton the ground that when books speak of foetus  of  a\ncertain\t number\t of months, that foetus might be  due  to  a\nconception  taking  place  on any day  of  the\tlunar  month\ncorresponding  to the menstruation prior to  the  conception\nand the missperiod after conception.\nPer Mudholkar, J. if the birth of an apparently normal child\n171 or 186 days after conception is an impossible phenomenon\nand if its impossibility is notorious, then alone a court\n\t\t\t    269\ncan  take  notice  of  it and  the  question  of  drawing  a\npresumption  arises.  All that can be said is that  such  an\noccurrence  is\tat best unusual but it is a far cry  to\t say\nthat  it is impossible.\t It is true that courts\t have  taken\nnotice\tof the fact that the normal period of  gestation  is\n282  days but courts have also taken note of the  fact\tthat\nthere are abnormal periods of gestation depending on various\nfactors.   It  is not safe to base a conclusion\t as  to\t the\nillegitimacy of a child and unchastity of its mother  solely\non  the assumption that because its birth and  condition  at\nbirth  appeared to be normal, its period of  gestation\tmust\nhave  been normal, thus placing its date of conception at  a\npoint of time prior to the marriage of its parents.\nWhen  a court is called upon to decide a matter\t mainly,  if\nnot wholly, on the opinion of medical men, it must  proceed,\nwarily.\t  Medical opinion. even of men of  great  experience\nand deep knowledge, is after all generalisation founded upon\nthe  observation of particular instances,  however  numerous\nthey may be.  When the Court finds that in. individual cases\ndeparture  from the norm has in fact been observed  by\tsome\nexperts\t and when again the experts themselves do not  speak\nwith  the  same voice, the need for  circumspection  by\t the\ncourt  becomes all the more necessary.\tIt may\tland  itself\ninto  an  error\t involving cruel  consequences\tto  innocent\nbeings\tif it were to treat the medical opinion as  decisive\nin each and every case.\t The responsibility for the decision\nof  a point arising in a case is solely upon the  court\t and\nwhile it is entitled to consider all the relevant  materials\nbefore\tit,  it\t would be failing in its  duty\tif  it\tacts\nblindly on such opinion and in disregard of other  relevant,\nmaterials placed before it.\nUnder  the  Hindu Marriage Act, 1955 and  the  Divorce\tAct,\n1869,  the  condition  for  the\t grant\tof  relief  is\t the\nsatisfaction of the court as to the existence of the grounds\nfor granting the particular relief.  The satisfaction as  to\nthe  existence\tof  the ground must be,\t as  in\t a  criminal\nproceeding  beyond reasonable doubt and must necessarily  be\nfounded upon material which is relevant for consideration of\nthe court which would of course include evidence adduced  in\nthe  case.   Although in the Indian Divorce  Act,  1869\t the\nwords  used  are \"satisfied on the evidence\"  while  in\t the\nHindu  Marriage Act, the legislature has used the words\t \"if\nthe court is satisfied\" their meaning is the same.\nWhen  the  law places the burden of proof upon a  party,  it\nrequires  that\tparty to adduce evidence in support  of\t his\nallegations, unless he is relieved of the necessity to do so\nby  reason  of admissions made or the  evidence\t adduced  on\nbehalf\tof  his\t opponent.  The law does not  speak  of\t the\nquantum of burden but only of its incidence and it would  be\nmixing\tup  the concepts of the incidence of the  burden  of\nproof  with that of the discharge of the burden to say\tthat\nin one case it is light and in another heavy.\nUnless\tit is shown that important or relevant evidence\t has\nbeen  overlooked  or misconstrued, it is not  in  consonance\nwith   the  practice  of  Supreme  Court  to  re-examine   a\nconcurrent  finding of fact, particularly when the  findings\nare based on appreciation of evidence.\nCase law referred to.\n270\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  166\/1963.
\nAppeal from the judgment and decree dated April 28, 1961  of
\nthe Bombay High Court in First Appeal No. 135 of 1958.
\nS.   T.\t Desai, S. Singhvi, J. B. Dadachanji, 0.  C.  Mathur
\nand Ravinder Narain, for the appellant.\n<\/p>\n
Purushottam  Trikamdas, M. H. Chhatrapati and I. N.  Shroff,
\nfor the respondent.\n<\/p>\n
March  18,  1964.   The\t judgment  of  RAGHUBAR\t DAYAL\t and
\nAYYANGAR,  JJ. was delivered by RAGHUBAR DAYAL J.  MUDHOLKAR
\nJ. delivered a dissenting Opinion.\n<\/p>\n
RAGHUBAR DAYAL, J.-This appeal, on a certificate granted  by
\nthe Bombay High Court, arises out of a petition praying\t for
\nthe  annulment of the petitioner-appellant’s  marriage\twith
\nthe respondent, under s. 12 of the Hindu Marriage Act,\t1955
\n(Act XXV of 1955), hereinafter called the Act, on the ground
\nthat  the respondent was, at the time of marriage,  pregnant
\nby some person other than the petitioner.\n<\/p>\n
The facts leading to the proceedings are that the  appellant
\nand the respondent were betrothed sometime in JuneJuly\t1945
\nand  were  married on March 10, 1947.\tThe  appellant\twent
\nabroad about the end of April 1947.  A daughter was born  to
\nthe  respondent on August 27, 1947.  The appellant  returned
\nto India some time in November 1947, but the parties did not
\nlive together thereafter.\n<\/p>\n
The  appellant instituted a suit, No. 34 of 1947-48, in\t the
\nCourt of the State of Baroda, at Baroda, for the declaration
\nof  nullity  of\t the  marriage.\t  The  suit  was,   however,
\ndismissed  on September 30, 1949 as the appellant failed  to
\nestablish that he had his domicile in that State.
\nThe Act came into force on May 18, 1955.  The appellant took
\nadvantage of its provisions and on April 18, 1956 filed\t the
\npetition for annulment of his marriage with the respondent.
\nThe  appellant alleged in his petition that on\tlearning  of
\nthe  birth of the child on August 27, 1947, five months\t and
\nseventeen  days\t after the marriage, he felt  surprised\t and
\nsuspected  that the child had been conceived long  prior  to
\nthe marriage through someone else, that the respondent\twas,
\nat the time of their marriage pregnant by someone other than
\nhimself, that this fact was concealed from him and that ever
\nsince  he  had learnt of the birth of the child he  had\t not
\nlived or cohabited with the respondent nor had any relations
\nwith her whatsoever.\n<\/p>\n
The  respondent,  in her written statement,  raised  various
\ndefences.   She admitted therein to have conceived the\tbaby
\nprior to the marriage, but alleged that she had conceived as
\na  result of sex relations with the petitioner\tafter  their
\nbetrothal,
\n\t\t\t    271<\/span>
\non  being assured by him that that was permissible in  their
\ncommunity.   She further stated that  her  relations-in-law,
\nviz.,  her  father-in-law, mother-in-law  and  sister-in-law
\nknew about such relations between the parties and about\t her
\nhaving conceived prior to the marriage.\t She further alleged
\nthat  she’  flatly refused to carry out\t abortion  and\tthat
\ntherefore,  at the instance of the appellant,  the  marriage
\nwas performed in Bombay and not at her parents’ place.\t She
\ndenied\tthat the child born to her was by any  person  other
\nthan the appellant.\n<\/p>\n
Due  to\t her allegation about pre-marital  sexual  relations
\nwith  the  appellant and to her having conceived  from\tsuch
\nrelations, she was required to furnish particulars about the
\ntime  when, and the place or places where, the\tparties\t had
\nsexual relations which she alleged to have led to her  preg-
\nnancy.\tAccording to the particulars furnished by her,\tsuch
\nsexual relations took place about or after Christmas,  1946,
\nand again after about the middle of January 1947.
\nOn  the pleadings of the parties, six issues  were  framed,.
\nbut those relevant for our purpose were:\n<\/p>\n
\t      1.    Whether  the respondent was at the\ttime
\n\t      of  them\tmarriage pregnant by  someone  other
\n\t      than  the’ petitioner as alleged in para 9  of
\n\t      the petition?\n<\/p><\/blockquote>\n
\t      2.    Whether at the time of the marriage\t the
\n\t      petitioner was ignorant of the aforesaid fact?\n<\/p><\/blockquote>\n
\t      3.    Whether  the petitioner is\tentitled  to
\n\t      have the marriage declared null and void?\n<\/p><\/blockquote>\n
The  petitioner\t examined  himself  and\t his  father.\t The
\nrespondent  examined  herself and one  other  witness.\t The
\ndocumentary evidence adduced by the parties consisted mostly
\nof’ letters written by the petitioner to the respondent\t and
\nthe respondent to the petitioner, since their betrothal, and
\nletters\t written  by other relations of the  family  to\t one
\nanother.\n<\/p>\n
The  trial Court did not accept the allegation of  the\tres-
\npondent about the pre-marital sex relations with her husband
\nand  held that it was not established that she was  pregnant
\nby’  the petitioner.  It also held that she was pregnant  at
\nthe  time  of the marriage by some other  person,  that\t the
\npetitioner  did not know about her pregnancy at the time  of
\nthe  marriage  and that he did not cohabit  with  her  after
\nknowing of her being pregnant by someone else at the time of
\nmarriage.  On these findings, the petition for annulment  of
\nthe marriage was allowed.\n<\/p>\n
The  respondent preferred an appeal to the High Court.’\t The
\nHigh  Court agreed with the trial Court in its finding\tthat
\nthe  respondent\t had  failed  to  establish  that  she\t was
\npregnant’ by the petitioner at the time of the marriage,  as
\nalso regarding
\n672<\/span>
\nhe  petitioner knowing of her pregnancy at that\t time.\t The
\nlearned\t Judges\t however held that the\tpetitioner  had\t not
\nproved\tto  their  satisfaction\t that  the  respondent\t was
\npregnant by someone other than the petitioner at the time of
\nthe  marriage and that the petitioner was not the father  of
\nthe  child  which was born and, considering that  the  trial
\nCourt  had not framed an issue about there being no  marital
\nintercourse  between  the  parties  after  the\tpetitioner’s
\nknowing that the respondent had been pregnant at the time of
\nthe  marriage,\tframed two issues and remitted them  to\t the
\ntrial  Court for recording findings.  The two issues  framed
\nby the High Court were:\n<\/p>\n
\t      1.    Is\tit  proved that the  respondent\t was
\n\t      pregnant at the time of the marriage?\n<\/p><\/blockquote>\n
\t      2.    Is\tit proved that\tmarital\t intercourse
\n\t      with  the\t consent of the petitioner  has\t not
\n\t      taken   place  since  the\t discovery  by\t the
\n\t      petitioner of the existence of the grounds for
\n\t      a decree?\n<\/p><\/blockquote>\n
Thereafter, the trial Court recorded further evidence.\t The
\npetitioner, besides examining himself, examined Dr. Champak-
\nal,  husband of his sister, Madhuben, who was a\t midwife  at
\nthe  Prantij Municipal Dispensary, Maternity Ward,  in\t1947
\nand  who  attended at the respondent’s confinement  and\t two
\ndoctors,  Dr.  Ajinkya\tand  Dr.  Udani\t as  experts.\t The
\nrespondent,  for her part, examined Dr. Mehta as  an  expert
\nwitness,Kachrabai  who\twas  a\tcompounder  at\tthe   Pantij
\nMunicipal  Dispensary  in  1947,  Khodidas  a  Doctor,\t and
\nherself.   Khodidas did not state anything material  to\t the
\ncase.  The trial Court, after considering the fresh evidence
\nrecorded  by  it,  found that it was  not  proved  that\t the
\nrespondent  was pregnant at the time of marriage.  This\t was
\non  the first issue framed by the High Court.  On the  other
\nissue  it  recorded  a finding that it was  proved  that  no
\nsexual\tintercourse with the consent of the petitioner\ttook
\nplace since the discovery by the petitioner of the existence
\nof  the\t grounds  for a decree.\t These\tfindings  were\tthen
\nsubmitted to the High Court.\n<\/p>\n
In  the High Court, objections were filed by the parties  to
\nthese findings.\t Patel and Gokhale JJ., heard the appeal and
\ndelivered  separate judgments.\tThey agreed with  the  trial
\nCourt  that  it\t was  not proved  that\tthe  respondent\t was
\npregnant  at the time of marriage.  Patel J.,  further\theld
\nthat   it  was\tproved\tthat  the  petitioner  had   marital
\nintercourse with the respondent subsequent to his  discovery
\nof the existence of the grounds for the decree.\t Gokhale J.,
\nexpressed  the view that the finding of the trial Court,  on
\nthis point, appeared to be correct.  In the result, the High
\nCourt  allowed\tthe respondent’s appeal\t and  dismissed\t the
\npetition.   It\tis against this judgment and decree  of\t the
\nHigh Court that the petitioner has
\n273<\/span>
\npreferred  this appeal on a certificate granted by the\tHigh
\nCourt, under Art. 133(1)(c) of the Constitution, as  already
\nmentioned.\n<\/p>\n
Before\tdealing in detail with the contentions of the  par-,
\nties,  we may set down the relevant provisions of  the\tAct,
\nquoting the various sections:\n<\/p>\n
\t      12.   (1)\t Any  marriage\tsolemnized,  whether
\n\t      before or after the commencement of this\tAct,
\n\t      shall  be\t voidable and may be annulled  by  a
\n\t      decree  of  nullity on any  of  the  following
\n\t      grounds, namely:\n<\/p><\/blockquote>\n
\t      (b)   that  the respondent was at the time  of
\n\t      the  marriage  pregnant by some  person  other
\n\t      than the petitioner.\n<\/p><\/blockquote>\n
\t      (2)   Notwithstanding  anything  contained  in
\n\t      sub-section  (1), no petition for annulling  a
\n\t      marriage-\n<\/p><\/blockquote>\n
\t      (b)   on the ground specified in clause (d) of
\n\t      sub-section
\n\t      (1)   shall be entertained unless the court is
\n\t      satisfied-\n<\/p><\/blockquote>\n
\t      (i)   that  the petitioner was at the time  of
\n\t      the marriage ignorant of the facts alleged;\n<\/p><\/blockquote>\n
\t      (ii)  that proceedings have been instituted in
\n\t      the  case of a marriage solemnized before\t the
\n\t      commencement  of this Act within one  year  of
\n\t      such commencement and in the case of marriages
\n\t      solemnized after such commencement within\t one
\n\t      year from the date of the marriage; and\n<\/p><\/blockquote>\n
\t      (iii) that marital intercouse with the consent
\n\t      of  the petitioner has not taken\tplace  since
\n\t      the   discovery  by  the\tpetitioner  of\t the
\n\t      existence of the grounds for a decree.”
\n\t      “20.  (1) Every petition presented under\tthis
\n\t      Act shall state as distinctly as the nature of
\n\t      the case permits the facts on which the  claim
\n\t      to relief is founded and shall also state that
\n\t      there  is no collusion between the  petitioner
\n\t      and the other party to the marriage.
\n\t      (2)   The\t  statements  contained\t  in   every
\n\t      petition\tunder this Act shall be verified  by
\n\t      the petitioner or some other competent  person
\n\t      in   the\tmanner\trequired  by  law  for\t the
\n\t      verification  of\tplaints,  and  may,  at\t the
\n\t      hearing, be referred to as evidence.”\n<\/p><\/blockquote>\n
\t      74<\/span><\/p>\n
\t      “21.    Subject\tto  the\t  other\t  provisions
\n\t      contained\t in this.  Act and to such rules  as
\n\t      the  High Court may make in this\tbehalf,\t all
\n\t      proceedings under this Act shall be regulated,
\n\t      as  far  as  may\tbe, by\tthe  Code  of  Civil
\n\t      Procedure, 1908 (V of 1908).”<\/p><\/blockquote>\n
\t      “23(1)  In  any  proceeding  under  this\tAct,
\n\t\t\t    whether,  defended\tor  not, if  the
\nCourt  is
\n\t      satisfied that-\n<\/p>\n
\t      (a)   any\t of the grounds for granting  relief
\n\t      exists  and the petitioner is not in  any\t way
\n\t      taking  advantage of his or her own  wrong  or
\n\t      disability for the purpose of such relief, and\n<\/p>\n
\t      (c)   the\t  petition  is\tnot   presented\t  or
\n\t      prosecuted  in collusion with the\t respondent,
\n\t      and\n<\/p>\n
\t      (d)   there  has not been any  unnecessary  or
\n\t      improper delay in instituting the\t proceeding,
\n\t      and\n<\/p>\n
\t      (e)   there  is  no  other  legal\t ground\t why
\n\t      relief should not be granted,
\n\t      then,  and in such a case, but not  otherwise,
\n\t      the    Court   shall   decree   such    relief
\n\t      accordingly.”\n<\/p>\n
\t      “28.  All decrees and orders made by the Court
\n\t      in  any  proceeding under this  Act  shall  be
\n\t      enforced\tin  like manner as the\tdecrees\t and
\n\t      orders  of the Court made in the\texercise  of
\n\t      its original civil jurisdiction are  enforced,
\n\t      and may be appealed from under any law for the
\n\t      time being in force;\n<\/p>\n
\t      Provided that there shall be no appeal on\t the
\n\t      subject of costs only.”\n<\/p>\n
It  is to be seen that, according to the provisions set\t out
\nabove,\tstatements  contained  in  any\tpetition  could\t  be
\nreferred to as evidence, the provisions of the Code of Civil
\nProcedure apply to the proceedings under the Act and a Court
\nhas  to\t pass a decree in the proceedings only\twhen  it  is
\nsatisfied about certain matters specified in s. 23.
\nTwo  questions of law raised at the hearing of\tthis  appeal
\nmay  now be disposed of as their determination\twill  govern
\nthe consideration of the other matter on record with respect
\nto  the\t revelant points to be decided in the  case.   These
\nare:  (i) whether the High Court was right in remitting\t the
\ntwo issues for a finding to the trial Court and (ii) what is
\nthe  standard of proof required for the satisfaction of\t the
\nCourt before it can pass a decree in these proceedings.
\nThe  High Court had to remit the second issue for a  finding
\nas it was necessary for the determination of the case and
\n275<\/span>
\nthe trial Court had not framed a specific issue in regard to
\nit.  In the absence of such an issue, the parties could\t not
\nbe expected to have produced evidence directed to that point
\nand therefore the High Court rightly remitted that issue for
\na finding.\n<\/p>\n
The High Court remitted the first issue as it was of opinion
\nthat  it was for the petitioner to prove to their  satisfac-
\ntion,  beyond reasonable doubt, which he had failed  to\t do,
\nthat  the respondent was pregnant at the time  of  marriage.
\nHe  had also to establish that the child could not  possibly
\nbe born as a result of the petitioner’s marital\t intercourse
\nwith  the respondent after the marriage, the learned  Judges
\nholding\t that in these proceedings the Court could not\tbase
\nits decision on the mere admission of parties.
\nThe High Court is certainly right in stating that the  peti-
\ntioner had, in order to succeed, to prove beyond  reasonable
\ndoubt  that the respondent was pregnant by someone  else  at
\nthe time of marriage.  It is, however, not correct in law in
\nholding\t that the Court, in these proceedings, could  in  no
\ncircumstances  base  its  decision on an  admission  of\t the
\nparties.   On  the facts of the present case,  however,\t the
\ndecision  did  not  rest on the admissions  of\tthe  parties
\nalone.\n<\/p>\n
In  White  v. White(1) this Court construed  the  expression
\n,satisfied on the evidence’ in s. 14 of the Divorce Act\t and
\nsaid at p. 1420:\n<\/p>\n
\t      “The  important words requiring  consideration
\n\t      are   satisfied on the evidence’.\t These words
\n\t      imply  that  the\tduty  of  the  Court  is  to
\n\t      pronounce a decree if satisfied that the\tcase
\n\t      for the petitioner has been proved but dismiss
\n\t      the  petition if not so satisfied.  …and  it
\n\t      has been there held that the evidence must  be
\n\t      clear and satisfactory beyond the mere balance
\n\t      of  probabilities and conclusive in the  sense
\n\t      that   it\t  will\tsatisfy\t …   the   guarded
\n\t      discretion of a reasonable and just man.”\n<\/p><\/blockquote>\n
It approved of the observations in Preston Jones v.  Preston
\nJones(2) to the effect that it would be quite out of keeping
\nwith  the anxious nature of the provisions to hold that\t the
\nCourt  might  be  ‘satisfied’ in respect  of  a\t ground\t for
\ndissolution,   with   something\t less  than   proof   beyond
\nreasonable doubt.  The Court further observed at p. 1421:\n<\/p>\n
\t      “In  a suit based on a matrimonial offence  it
\n\t      is  not  necessary  and it  is  indeed  rarely
\n\t      possible\tto  prove the issue  by\t any  direct
\n\t      evidence for in very few cases can such  proof
\n\t      be obtainable.”\n<\/p><\/blockquote>\n
(1) [1958] S.C.R. 1410.\n<\/p>\n
(2) [1951] A.C. 391, 417.\n<\/p>\n
276<\/span><\/p>\n
It follows that what the Court has to see in these  proceed-
\nings is whether the petitioner has proved beyond  reasonable
\ndoubt  that the respondent was pregnant by some one else  at
\nthe time of marriage.  The petitioner has to establish\tsuch
\nfacts and circumstances which would lead the Court either to
\nbelieve\t that  the respondent was pregnant at  the  time  of
\nmarriage  by  someone  else or to hold that  a\tprudent\t man
\nwould,\ton  those  facts and  circumstances,  be  completely
\nsatisfied that it was so.\n<\/p>\n
It  is true that in divorce cases under the Divorce  Act  of
\n1869, the Court usually does not decide merely on the  basis
\nof  the\t admissions  of\t the parties.  This  is\t a  rule  of
\nprudence  and  not a requirement of law.   That\t is  because
\nparties\t  might\t  make\t collusive   statements\t   admitting
\nallegations  against each other in order to gain the  common
\nobject\tthat both desire, for personal reasons.\t A  decision
\non  such  admissions would be against public policy  and  is
\nbound to affect not only the parties to the proceedings\t but
\nalso  their issues, if any, and the general interest of\t the
\nsociety.   Where,  however, there is no room  for  supposing
\nthat   parties\tare  colluding,\t there\tis  no\treason\t why
\nadmissions of parties should not be treated as evidence just
\nas  they  are  treated\tin  other  civil  proceedings.\t The
\nprovisions  of\tthe  Evidence  Act and\tthe  Code  of  Civil
\nProcedure  provide for Courts accepting the admissions\tmade
\nby parties and requiring no further proof in support of\t the
\nfacts admitted.\n<\/p>\n
Section\t 58 of the Evidence Act inter alia provides that  no
\nfact  need  be proved in any proceeding\t which\tthe  parties
\nthereto\t or  their agents agree to admit at the\t hearing  or
\nwhich by any rule of pleading in force at the time they\t are
\ndeemed\tto  have admitted by their pleading.  Rule 5  of  O.
\nVIII, C.P.C., provides that every allegation of fact in\t the
\nplaint,\t  if  not  denied  specifically\t or   by   necessary
\nimplication or stated to be not admitted in the pleadings of
\nthe  defendant,\t shall\tbe taken to be\tadmitted  except  as
\nagainst a person under disability.\n<\/p>\n
Both these provisions, however, vest discretion in the Court
\nto require any fact so admitted to be proved otherwise\tthan
\nby  such admission.  Rule 6 of O. XII of the Code  allows  a
\nparty to apply to the Court at any stage of a suit for\tsuch
\njudgment or order as upon the admissions of fact made either
\non the pleadings or otherwise he may be entitled to, and em-
\npowers the Court to make such order or give such judgment on
\nthe application as it may think just.  There is therefore no
\ngood reason for the view that the Court cannot act upon\t the
\nadmissions of the parties in proceedings under the Act.\n<\/p>\n
\t\t\t    277<\/span><\/p>\n
Section 23 of the Act requires the Court to be satisfied  on
\ncertain\t matters  before  it  is  to  pass  a  decree.\t The
\nsatisfaction  of the Court is to be on the matter on  record
\nas  it is on that matter that it has to conclude  whether  a
\ncertain\t fact has been proved or not.  The satisfaction\t can
\nbe based on the’ admissions of the parties.  It can be based
\non the evidence, oral or documentary, led in the case.\t The
\nevidence may be direct or circumstantial.\n<\/p>\n
\t      In Arnold v. Arnold(1) Woodroffe J., said:
\n\t      “In  the\tpresent case  admissions  have\tbeen
\n\t      proved.\tDoubtless,  caution is\trequired  in
\n\t      cases  of\t divorce  to see that  there  is  no
\n\t      collusion\t and an admission must\tbe  examined
\n\t      from  this  point of view.  But if,  as  here,
\n\t      there  is\t no reason to suspect  collusion  an
\n\t\t\t    admission  may be as cogent evidence i
\nn  these-\n<\/p>\n
\t      as in any\t  other\t cases.\t  In   Robinson\t  v.
\n\t      Robinson (1859  1\t  Sw.\t&  Tr.\t 362),\t Sir
\n\t      Alexander Cockburnsays:\tThe Divorce Court is
\n\t      at  liberty to act and is bound to act on\t any
\n\t      evidence legally admissible by which the\tfact
\n\t      of  adultery is established.   If,  therefore,
\n\t      there  is\t evidence not open to  exception  of
\n\t      admissions   of  adultery\t by  the   principal
\n\t      respondent, it would be the duty of the  Court
\n\t      to  act  on these\t admissions  although  there
\n\t      might be a total absence of all other evidence
\n\t      to  support  them.  The admission of  a  party
\n\t      charged  with a criminal or wrongful act,\t has
\n\t      at   all\t times\tand  in\t  all\tsystems\t  of
\n\t      jurisprudence  been considered as most  cogent
\n\t      and conclusive proof; and if all doubt of\t its
\n\t      genuineness  and sincerity be removed, we\t see
\n\t      no reason why such a confession should not, as
\n\t      against the party making it, have full  effect
\n\t      given to it.”\n<\/p><\/blockquote>\n
Reference  may\talso be made to Over v. Over(2).  It  was  a
\nsuit  for dissolution of marriage.  The respondent  did\t not
\nappear throughout the proceedings.  The evidence  originally
\nconsisted  of  affidavits by the petitioner and his  son  to
\nprove  the  letters  the  respondent  had  written  to\t the
\npetitioner.   Later,  their statements were  also  recorded.
\nThe  letters  were  held to be sufficient  evidence  of\t her
\nhaving committed adultery.  Sir Lallubhai Shah, Ag.  C.\t J.,
\nobserved at p. 255:\n<\/p>\n
\t      “I have dealt with this case at some length in
\n\t      view  of the difficulty which we have felt  on
\n\t      account of there being no other  corroborative
\n\t      evidence of the admissions of the wife.\tBut,
\n\t      having regard to the
\n\t      (1)I.L.R.\t 38  Cal.  907,\t 912.\t       (2)27
\n\t      B.L.R. 251.\n<\/p><\/blockquote>\n
\t      278<\/span><\/p>\n
\t      circumstances, as disclosed in the evidence, I
\n\t      see no reason to doubt the genuineness of\t the
\n\t      admission\t made by the wife, and in the  words
\n\t      of Cockburn C. J., it is our duty to act\tupon
\n\t      such  admissions,\t although there might  be  a
\n\t      total absence of all other evidence to support
\n\t      them.”\n<\/p><\/blockquote>\n
\t      Marten J., said at p. 261 :\n<\/p><\/blockquote>\n
\t      “As  already  stated,  I\tthink  that  such  a
\n\t      confession  is admissible in evidence,  and  I
\n\t      agree  that  there  is no rule  of  law  which
\n\t      absolutely  precludes  the Court\tfrom  acting
\n\t      upon  it.\t  But  as a  rule  of  prudence\t the
\n\t      practice\tof  the Divorce Courts has  been  in
\n\t      general  not  to act  upon  such\tconfessions,
\n\t      unless corroborated.\n<\/p><\/blockquote>\n
The  aforesaid\trule of prudence loses its  importance\twhen
\ncertain\t provisions of the Act enjoin upon the Court  to  be
\nsatisfied with respect to certain matters which would enable
\nthe Court to avoid passing a decree on collusive admissions.
\nSection 12(2)(b) provides that no petition for the annulment
\nof  the\t marriage shall be entertained unless the  Court  be
\nsatisfied  that the petitioner was at the time\tof  marriage
\nignorant   of  the  facts  alleged  and\t that\tno   marital
\nintercourse  with  the consent of the petitioner  had  taken
\nplace since his discovering the existence of the grounds for
\nthe decree.  Such a finding necessarily implies that  before
\nreaching  it the Court has satisfied itself that  there\t had
\nbeen  no  connivance of the petitioner in  the\tcoming\tinto
\nexistence  of the ground on which he seeks annulment of\t the
\nmarriage.  Besides, section 23 also provides that the  Court
\ncan  pass a decree only if it is satisfied that any  of\t the
\ngrounds for granting relief exists, that the petition is not
\npresented or prosecuted in collusion with the respondent and
\nthat  there was no legal ground on which the relief  claimed
\ncould  not be granted.\tIn these circumstances, it would  be
\nplacing undue restriction on the Court’s power to  determine
\nthe facts in issue on any particular type of evidence alone,
\nspecially  when there be no such provision in the Act  which
\nwould  directly prohibit the Court from taking into  account
\nthe admissions made by the parties in the proceedings.
\nWe  are\t of opinion that in proceedings under  the  Act\t the
\nCourt  can arrive at the satisfaction contemplated by s.  23
\non  the\t basis\tof legal evidence  in  accordance  with\t the
\nprovisions  of\tthe  Evidence  Act  and\t that  it  is  quite
\ncompetent   for\t the  Court  to\t arrive\t at  the   necessary
\nsatisfaction  even  on the basis of the\t admissions  of\t the
\nparties\t alone.\t Admissions are to be ignored on grounds  of
\nprudence  only\twhen the Court, in the\tcircumstances  of  a
\ncase,  is of opinion that the admissions of the parties\t may
\nbe  collusive.\t If there be no ground for such a  view,  it
\nwould  be  proper for the Court to act on  those  admissions
\nwithout forcing the parties to lead other evidence to
\n\t\t\t    279<\/span>
\nestablish   the\t facts\tadmitted,  unless  of\tcourse\t the
\nadmissions  are contradicted by the facts proved or a  doubt
\nis created by the   proved facts as regards the\t correctness
\nof the facts admitted.\t s
\nThe  trial Court had recorded a finding on the basis of\t the
\nstatements  of\tthe respondent in the  written\tstatement,-,
\nstatements which were supported by her on oath when examined
\nas  a witness.\tSupport for these statements was found\tfrom
\ncertain\t circumstances which the Court held  established  on
\nthe  basis  of the correspondence between  the\tparties\t and
\ncertain oral evidence.\tThe respondent’s case that the child
\nborn  to  her  on  August  27,\t1947  was  begotten  by\t the
\npetitioner  as\tthey had intercourse at\t the  relevant\ttime
\nsometime in December 1946 or January 1947, left no room\t for
\nthe  Court  to\tconsider the new case that  that  child\t was
\nconceived  sometime  after the marriage of  the\t parties  on
\nMarch  10, 1947.  In these circumstances, it was not  really
\nright  for  the High Court to remit an issue  to  the  trial
\nCourt  for recording a finding on the basis of such  further
\nevidence including expert evidence as be led by the  parties
\non  the question.  In this connection, the remarks  of\tLord
\nSimonds\t in  Preston  Jones’ case(1) at\t p.  402,  are\tvery
\npertinent:\n<\/p>\n
\t      “Your  Lordships would, I think, regard it  as
\n\t      undesirable that the burden should be  imposed
\n\t      upon  litigants  in  this\t class\tof  case  of
\n\t      adducing\tevidence of the character  which  in
\n\t      Gaskill\tv.  Gaskill  (1921  P.\t 425)\tLord
\n\t      Birkenhead   thought  it\texpedient  for\t the
\n\t      Attorney-General to ask for the assistance  of
\n\t      the  court.   That may  be  unavoidable  where
\n\t      medical  evidence in regard to the  period  is
\n\t      called by the respondent; there is nothing  to
\n\t      prevent  a case becoming the battle-ground  of
\n\t      experts.\tBut I am dealing with such a case as
\n\t      that out of which this appeal arises, in which
\n\t      the substantial issue between the parties\t was
\n\t      whether the husband had at what was considered
\n\t      the   relevant   times  any   opportunity\t  of
\n\t      intercourse  with his wife and no question  of
\n\t      an  abnormal  period  of\tgestation  had\tbeen
\n\t      raised  until the trial and then only  by\t the
\n\t      commissioner himself.”\n<\/p><\/blockquote>\n
However,  as evidence has been led by both the\tparties\t and
\nthe  Courts below have considered it, we do not\t propose  to
\ndecide\tthe  case on the basis of  the\tevidence  originally
\nrecorded  and would content ourselves by simply stating\t our
\nview that the High Court might well have decided the case on
\nthat  basis without remitting the first issue to  the  trial
\nCourt.\n<\/p>\n
We  may now deal with some general aspects of the case.\t The
\npetitioner has been consistent throughout.  He took the-
\n(1) (1951) A.C. 391.\n<\/p>\n
280<\/span><\/p>\n
position that he was not the father of the child born to the
\nrespondent in August 1947 as the period of gestation between
\nthe date of marriage and the date of birth was too short for
\na mature child to be born.  This does not mean that his case
\nwas as has been considered by the Court below that the child
\nborn was a fully mature child in the sense that it was\tborn
\nafter the normal period of gestation of about 280 days.\t  He
\ncould  not  have stated so positively as that could  not  be
\nknown  to  him.\t  Even the doctors are\tprobably  not  in  a
\nposition  to  state  that the child was born  after  a\tfull
\nperiod of gestation i.e., after 280 days.  The\tpetitioner’s
\ncase was that the child born was not a child whose period of
\ngestation  was 171 days from the date of conception  or\t who
\ncould be said to be a premature child, but was a child\tborn
\nafter  almost  the full period of  gestation.\tHe  steadily
\nstuck to this position.\t His conduct and the conduct of\t his
\nrelations  from\t the time they learnt  of  the\trespondent’s
\ngiving\tbirth  to the child had been  consistent  with\tthis
\nview.\tThe petitioner had no correspondence  or  connection
\nwith  the respondent since he was informed of the  birth  of
\nthe  child.   His  parents  too\t did  not  enter  into\t any
\ncorrespondence\twith  the respondent’s parents.\t  The  peti-
\ntioner’s  sister  Sharda, however, appears to  have  written
\njust  one  letter  in  acknowledgment  of  the\trespondent’s
\nsister’s  letter  conveying  the news of the  birth  of\t the
\nchild.\tShe has not been examined as a witness.\t She appears
\nto  have written that letter when she was emotionally  happy
\non the receipt of the news and had not given any thought  to
\nthe  matter.  In 1948, the petitioner instituted a suit\t for
\nthe  annulment\tof the marriage in the Court at\t Baroda\t and
\nthere  too  pleaded what he pleaded in the  petition  giving
\nrise  to  this appeal.\tThe respondent, however,  put  up  a
\ndifferent  case there.\tAny way, that suit was dismissed  on
\nthe preliminary ground that the petitioner did not have\t the
\nnecessary domicile to institute a suit in that Court.
\nThe respondent, on the other hand, has not been\t consistent.
\nIn  her\t written  statement filed in the  Baroda  Court\t she
\nstated\tthat  she  had become pregnant as a  result  of\t the
\nsexual\tintercourse  she  had  with  the  petitioner   after
\nmarriage.   The\t same line was not adopted  in\ther  written
\nstatement  in this case, in which she admitted that she\t was
\npregnant  at the time of the marriage, but stated that\tthis
\nwas  due to sexual intercourse with the petitioner prior  to
\nher  marriage.\tShe supported this statement  vigorously  on
\noath.  Later, after the close of the petitioner’s  evidence,
\nand  practically of her statement  in  examination-in-chief,
\nshe wanted to change her case by an amendment of the written
\nstatement  to what had been said in the Baroda Court.\tThis
\nwas not allowed by the trial Court.  The High Court too\t did
\nnot allow this formally, but in effect had that point  tried
\nby remitting an issue.\n<\/p>\n
\t\t\t    281<\/span><\/p>\n
No  good  motive was suggested for the\tpetitioner  and\t his
\nparents\t taking\t the view so firmly held by them  about\t the
\nchild, being not of the petitioner from the very moment they
\nlearnt of the birth of the child on August 27, 1947.   Their
\nattitude was not an attitude of mere suspicion in connection
\nwith  which enquiries and observations could be\t made.\t The
\nattitude  was  firm from the very beginning.  They  did\t not
\nrespond to letters from either the respondent or her father.
\nWhat could be the motive for them to take such an attitude?
\nThe respondent stated in her written statement:\n<\/p>\n
\t      “The petitioner’s father has stayed in  Europe
\n\t      for  a very long time and holds very  advanced
\n\t      views so also the petitioner but this entirely
\n\t      false  litigation has been put forward at\t the
\n\t      instance of the petitioner’s mother who  wants
\n\t      to sacrifice the respondent knowing full\twell
\n\t      the part played by her son the petitioner\t and
\n\t      the other members of the family.”\n<\/p><\/blockquote>\n
Nothing like this was said in her written statement filed in
\nthe Court at Baroda.\n<\/p>\n
In her deposition before the findings were called for on the
\nissues,\t she stated that the relations between\therself\t and
\nher  mother-in-law were not very cordial.  She said  in\t her
\ndeposition, after the remission of the issues, that
\n\t      “The  parents  of the petitioner were  not  on
\n\t      good  term& with my parents as at the time  of
\n\t      pheramani\t the petitioner’s parents  were\t not
\n\t      satisfied\t with  the  presents  given  by\t  my
\n\t      parents.”\n<\/p>\n
This  cause for bad relations has not been indicated in\t any
\nof  the letters by the respondent or by the petitioner.\t  It
\nwas  not  stated in the written statement.  We\tcannot\ttake
\nthis to be a correct statement.\n<\/p>\n
In her letter dated June 11, 1947 she merely stated:\n<\/p>\n
\t      “…the nature of my mother-in-law had  become
\n\t      peevish  on account of ill-health and  that  I
\n\t      should   not  take  anything  to\t my   heart.
\n\t      Respected papa used to advise me well and\t had
\n\t      also  feelings for me … She  (mother-in-law)
\n\t      would sometimes become peevish, only and\tthen
\n\t      she  herself  would feel sorry.\tMamma  would
\n\t      speak   very   highly   of   me\tbefore\t our
\n\t      neighbours.”\n<\/p><\/blockquote>\n
The  ordinary  usual  expressions  of  disapproval   between
\nmothers-in-law and daughters-in-law would not lead the rela-
\ntions-in-law   to  make\t such  accusations   against   their
\ndaughterin-law lightly, both on account of notions of family
\nhonour\tand  on account of the\tnatural\t love  grand-parents
\nwould feel towards their grand-child.\n<\/p>\n
282<\/span><\/p>\n
The  respondent’s letters prior to the marriage\t and  subse-
\nquent thereto indicate her affection for the petitioner\t and
\nher  feeling of being bound by her husband’s desires.\tBut,
\nin  one\t  respect  at least, and for no\t good  reasons,\t she
\nignored\t those\tdesires.  We refer to the direction  by\t the
\npetitioner  in his letter dated June 22, 1947 asking her  to
\ndestroy\t that  particular letter and  the  letters  received
\nearlier.   She did not do so.  Why?  She has not  given\t any
\nexplanation  for keeping those letters with her in spite  of
\nthe  directions of the husband to the contrary.\t It  can  be
\nsaid,  in  the\tcircumstances  of the  case,  that  she\t was
\nretaining  the\tletters for using them if  possible  in\t her
\ndefence\t when any accusation of her having gone wrong  prior
\nto the marriage be made against her.\n<\/p>\n
It  has\t been considered by the Court below  that  the\tres-
\npondent’s letters to Sharda and her father’s letters to\t Dr.
\nChampaklal  in\tJuly 1947 had been suppressed.\tIt  did\t not
\nbelieve the statements of Dr. Champaklal that these  letters
\ncould not be traced.  These persons had no reason to  retain
\nthose  letters.\t Two letters of Sushila to Sharda have\tbeen
\nproduced  and their production has been relied upon in\tsup-
\nport  of the view that other letters had  been\tdeliberately
\nsuppressed.   We  do not agree with this  view.\t  There\t was
\nreason to retain these two letters which were sent after the
\nbirth  of  the child and which must have been  taken  to  be
\nletters of some importance as written at a time when it\t had
\nbeen  realised that the respondent’s  relations-in-law\tfelt
\nthat the child born was not of the petitioner.
\nThe main question for determination in this case is  whether
\nthe child born to the respondent on August 27, 1947 could be
\nthe  child  of the petitioner, who, on the  finding  of\t the
\nCourts\tbelow which was accepted by learned counsel for\t the
\nrespondent  before us, did not cohabit with  the  respondent
\nearlier than March 10, 1947.  Counting both the days,  i.e.,
\nMarch 10 and August 27, the total period between those dates
\ncomes to 171 days.  The child born to the respondent is said
\nto have weighed 4 pounds, the delivery being said to be nor-
\nmal.   The child survived and is said to be even now  alive.
\nIt  is not disputed that the usual period of gestation\tfrom
\nthe date of the first coitus is between 265 and 270 days and
\nthat  delivery is expected in about 280 days from the  first
\nday of the mensturation period prior to a woman conceiving a
\nchild.\t We shall later be examining the point urged  before
\nus  by\tlearned counsel for the respondent, as\tregards\t the
\npossibility  of\t a  living child  being\t delivered  after  a
\ngestation  of this duration, -but it is sufficient  at\tthis
\nstage  to  point out that, if the delivery was\tnormal,\t the
\nchild born also normal and alive, it was not suggested\tthat
\nit  was\t possible in the course of nature for such  a  child
\nbeing  born  unless the conception took\t place\tlong  before
\nMarch 10, 1947.\n<\/p>\n
\t\t\t    283<\/span><\/p>\n
In this connection, reference may again be made to what\t was
\nsaid  by Lord Simonds in Preston-Jones’ case(1) at  p.\t402,
\nwhen  considering the question whether a normal\t child\tborn
\n360 days after the last intercourse of a man and a woman “as
\nthe child of that man or not.  He said:\n<\/p>\n
\t      “It   would,  I  think,  appear  a   fantastic
\n\t      suggestion to any ordinary man or woman that a
\n\t      normal  child  born 360 days  after  the\tlast
\n\t      intercourse of a man and a woman was the child
\n\t      of  that man and it is to me repugnant that  a
\n\t      court of justice should be so little in accord
\n\t      with  the\t common notions of mankind  that  it
\n\t      should require evidence to displace  fantastic
\n\t      suggestions.”\n<\/p><\/blockquote>\n
\t      Of  similar effect is the observation of\tLord
\n\t      Normand at p. 407, it being:\n<\/p><\/blockquote>\n
\t      “I  have\tfelt great doubt whether  the  House
\n\t      ought  not  to  say that,\t though\t it  is\t not
\n\t      possible to draw the line at an actual  number
\n\t      of days, 360 days is too long a period, unless
\n\t      evidence\tof medical knowledge is\t adduced  by
\n\t      the respondent to show the contrary.”
\n\t      Lord Morton of Henryton also said, at p. 413:<\/p><\/blockquote>\n
\t      “If  a  husband proves that a child  has\tbeen
\n\t\t\t    born 360 days after he last had an\top
\nportunity
\n\t      of  intercourse  with his wife, and  that\t the
\n\t      birth  was  a  normal one, and  if  no  expert
\n\t      evidence\tis  called by either side, I  am  of
\n\t      opinion  that the husband has proved his\tcase
\n\t      beyond reasonable doubt.”\n<\/p>\n
In  W. v. W. (No. 4) (2) a similar observation was  made  by
\nCairns, J. in proceedings on an application for ordering the
\nwife  and child to undergo blood-tests in order\t to  furnish
\nevidence that the child was not the petitioner’s.  The child
\nwas born 195 days after the marriage.  He said:\n<\/p>\n
\t      “The  marriage  was on October 7,\t 1961.\t The
\n\t      child  was  born on April 19,  1962.   It\t is,
\n\t      therefore, obvious that the wife was  pregnant
\n\t      at the time of the marriage.”\n<\/p><\/blockquote>\n
We  have then to see whether the evidence on the  record  is
\nsuch which would justify the Court’s holding against what it
\nshould normally hold on proof of the fact that the child was
\nborn after 171 days of the first coitus between the parties.
\nWe shall consider the statements of the doctors relating  to
\ndifferent  matters  when  dealing  with\t them.\t As  doctors
\nAjinkia and Mehta do not agree on several points we have
\n(2)  (1963) 2 All E.R. 386.\n<\/p>\n
(1) (1951) A.C. 391.\n<\/p>\n
284<\/span><\/p>\n
to  decide whose statement should be  ordinarily  preferred.
\nWe  however  consider that the Court should  not  leave\t the
\nquestions  undecided merely because the two doctors  differ,
\nas has been done, practically, by the learned Judges of\t the
\nHigh Court.\n<\/p>\n
Dr.  Ajinkia  is  undoubtedly an expert in  the\t subject  of
\nobstetrics  and gynaecology.  He took a Master’s  degree  in
\nmidwifery  in London in 1937 and passed the F.R.C.S.  exami-
\nnation\tin Edinburgh in 1939 in midwifery  and\tgynaecology.
\nHe holds a diploma in child health of London University.  He
\nis a member of the Royal College of Obstetricians and Gynae-
\ncologists.   He returned to India in 1939.  He was  attached
\nto  the Nair Hospital as a specialist.\tHe was Professer  of
\nthe  Medical  College  at  Agra and was\t in  charge  of\t the
\nDepartment  of Midwifery and Gynaecology from 1942 to  1944.
\nSince  1949  he\t was attached to the J. J.  Hospital  as  an
\nHonorary  Doctor for Midwifery and Gynaecology and later  at
\nthe Wadia Maternity Hospital.  He has three maternity  homes
\nwith  60 beds in all.  He can therefore be rightly called  a
\nspecialist in midwifery and gynaecology, with an  experience
\nof over 20 years.\n<\/p>\n
Dr.  Mehta  states that he has been practising as  a  Gynae-
\ncologist  and Obstetrician since 1926.\tHis  qualifications,
\nhowever,  are  much less than those of Dr. Ajinkia  and\t his
\nexperience  too,  as an obstetrician and  gynaecologist,  is
\nmuch  less.  He has passed the F.R.C.S. Examination in\t1906
\nat  Edinburgh.\tHe was a Police Surgeon for about  10  years
\nduring\twhich  period  he had no special  means\t to  acquire
\nknowledge in midwifery, gynaecology or obstetrics.  He was a
\ndoctor in the Army for 13 years from 1907 to 1920 and  could
\nnot  possibly have such experience during that\tperiod.\t  He
\nwas  an\t Associate Professor in Midwifery at  Grant  Medical
\nCollege during 1928 to 1937.  He states that as a  professor
\nhe  was concerned both with giving lectures to students\t and
\ndoing  practical  work\tof attending  to  cases\t and  labour
\noperations.   During this period he was in charge of 6\tbeds
\nat Motlibai Hospital.  At the time of his deposition he\t was
\nattached to the Parsee General Hospital and Parsee  Lying-in
\nHospital for Women.  He carried on private practice and\t had
\nthree  consulting rooms.  He states that most of  his  cases
\nwere gynaecology and midwifery.\n<\/p>\n
Where  Dr. Ajinkia and Dr. Mehta differ, we would prefer  to
\nrely  on Dr. Ajinkia due to his superior qualifications\t and
\nexperience.\n<\/p>\n
We do not consider it material that there exists some slight
\ndifference of opinion in matters, not of great significance,
\nbetween what the doctors state and what is stated in certain
\nwell-recognized books on the subject, as the statements\t are
\non the basis of the theoretical knowledge as modified by
\n285<\/span>
\ntheir actual experience and what is stated in books is based
\non  conclusions\t derived  from various\treports\t by  various
\ndoctors working in the field.\n<\/p>\n
Certain facts were urged before the High Court in support of
\nthe  petitioner’s case.\t Mr. Desai, learned counsel for\t the
\npetitioner, has again submitted them for our  consideration.
\nThey are:\n<\/p>\n
\t      1.    The\t child\twas  born  171\tdays   after
\n\t      marriage and has lived.\n<\/p><\/blockquote>\n
\t      2.    It was confirmed by about April 2, 1947,
\n\t      that the respondent was pregnant.\n<\/p><\/blockquote>\n
\t      3.    The\t  appearance  of  the\trespondent’s
\n\t      belly.\n<\/p><\/blockquote>\n
\t      4.    The\t symptoms of toxemia from which\t the
\n\t      respondent suffered.\n<\/p><\/blockquote>\n
\t      5.    Normal delivery.\n<\/p><\/blockquote>\n
\t      6.    Condition and weight of the child.\n<\/p><\/blockquote>\n
We shall first deal with points Nos. 2 to 4 which relate to,
\nthe  respondent’s pregnancy and symptoms of its\t development
\nat various periods.  The relevant facts are to be determined
\nmainly from the contents of the letters between the  parties
\nand between them and some other persons.  Some letters\tmake
\nmention\t of  the health of the respondent and  the  relevant
\nletters\t in this respect are of the period April  to  August
\n1947.  The parties were, as already stated, married on March
\n10,  1947.   The  respondent remained at the  house  of\t her
\nrelations-in-law  till about March 27, when she returned  to
\nher  father’s  place at village Prantij.  The  first  letter
\nfrom  the  petitioner to the respondent is dated  March\t 31,
\n1947  and expresses the hope that she had reached her  place
\nhale and hearty.\n<\/p>\n
The  next letter from him is dated April 5. It refers  to  a
\nletter\treceived from the respondent and indicates that\t her
\nletter\thad conveyed the news of her getting some fever\t and
\nthat  she  had gone to consult a doctor.  Her  letter  might
\nhave  also  given  some indication  of\ther  possibly  being
\npregnant as the petitioner asked her to inform him about the
\nopinion\t of the doctor.\t There is nothing in this letter  to
\nshow  that the respondent had informed the petitioner  about
\nher  suffering from nausea.  The petitioner’s  letter  dated
\nApril  8,  1947 refers to the receipt of a letter  from\t the
\nrespondent which probably intimated that she was  definitely
\npregnant,  according  to the opinion of the doctor,  as\t the
\nletter\t contains  an  expression  ‘knowing  that  you\t are
\npregnant’  and\tindicates the petitioner’s desire  that\t the
\nchild be removed.\n<\/p>\n
286<\/span><\/p>\n
The respondent’s letter dated April 13, 1947 states:\n<\/p>\n
\t      “I am not keeping good health at present, I am
\n\t      still  getting fever.  I get vomits  also\t …
\n\t      But  fever  does, not leave me and  I  am\t not
\n\t      allowed to take food also. …I am  bed-ridden
\n\t      at  present  … Well and good  if  the  child
\n\t      survives\tand  it will be still better  if  it
\n\t      does not.”\n<\/p><\/blockquote>\n
The  petitioner’s letter dated April 15 has  nothing  parti-
\ncular in this connection.  On April 17, the parties wrote to
\neach other.  The petitioner’s letter said:\n<\/p>\n
\t      “I have been feeling very much anxious as your
\n\t      health is not remaining well. … Write  about
\n\t      your  health.   If you are  not  keeping\tgood
\n\t      health and if you are not feeling disposed  to
\n\t      come  then you remain at your place.  I  won’t
\n\t      take it ill at all.”\n<\/p><\/blockquote>\n
The  respondent’s  letter acknowledged the receipt  of\ttwo,
\nletters of the petitioner, probably of April 8 and April 15,
\nand said:\n<\/p>\n
\t      “I  am keeping well now.\tI have no fever\t for
\n\t      the last two days.  I am allowed to take light
\n\t      food.   I\t get two or three vomits in  a\tday.
\n\t      But  I am better than, before.  So, please  do
\n\t      not worry.  I will start on the 22nd and reach
\n\t      (there) on the 23rd.”\n<\/p><\/blockquote>\n
Her letter of April 20, just intimates about her leaving for
\nBombay\ton  April 22.  She reached Bombay on April  23′\t and
\nstayed there till the petitioner left for America on  April’\n<\/p>\n
27.
\nAccording  to the contents of these letters, the  respondent
\nsuffered  from morning sickness of a severe type.   She\t had
\nfever and several vomits in the day.\n<\/p>\n
\t      In her deposition she stated:\n<\/p>\n
\t      “Before I left for Prantij for the first\ttime
\n\t      after   my,   marriage,  I  had\tnausea\t and
\n\t      vomiting. …When I left for Prantij my health
\n\t      was  ordinarily  good.  At Prantij  I  started
\n\t      vomiting.\t  I  consulted\ta  lady\t doctor\t  at
\n\t      Himatnagar.  … After I consulted the  doctor
\n\t      at Himatnagar, I came to know that I was preg-
\n\t      nant.”\n<\/p>\n
\t      In cross-examination she stated:\n<\/p>\n
\t      “I had a vomit on the day on which I left\t for
\n\t      Prantij from Bombay about 17 or 18 days  after
\n\t      marriage.\t  At the time when I had a vomit,  I
\n\t      did   not\t suspect  or  imagine  that  I\t was
\n\t      carrying…… I consulted the lady doctor  at
\n\t      Himatnagar  within two or three days  after  I
\n\t      reached Prantij. … I told the lady
\n\t      287<\/span>
\n\t      doctor  at  Himatnagar  that  I  was   feeling
\n\t      uneasiness.   I  was  vomiting and  I  had  no
\n\t      appetite.\t  The lady doctor examined  my\tbody
\n\t      including\t my abdomen. … As a result of\t the
\n\t      opinion given by the lady doctor at Himatnagar
\n\t      I\t intimated  to\tthe petitioner\tthat  I\t was
\n\t      pregnant.”\n<\/p>\n
It is contended for the petitioner that such a condition  of
\nthe  respondent could not be on account of pregnancy  taking
\nplace on or after March 10, 1947.  Morning sickness of\tsuch
\ntype  does not ordinarily take place soon  after  conception
\nand  a\tdoctor\tcannot, without\t a  biological\texamination,
\ndefinitely state that she was pregnant.\n<\/p>\n
Re:  morning  sickness, Dr. Ajinkia stated that it  occurred
\nin  the first and second month and expressed agreement\twith
\nModi’s\tstatement in his text book on Medical  Jurisprudence
\nthat nausea or vomiting commences about the beginning of the
\nsecond month and lasts generally till the end of the  fourth
\nmonth.\t It  follows that the commencement  of\tthe  morning
\nsickness at the end of March or the beginning of April\t1947
\nmay  be\t possible  from the  respondent’s  conceiving  after
\nmarriage,  but\tthat the severe type  of  morning  sickness,
\nviz.,  fever  and vomiting several times a day\tshould\thave
\nalso  developed\t so  early after the  conception  is  rather
\nunlikely in view of what authorities state.\n<\/p>\n
\t      Williams in his ‘Obstetrics’ states at p. 275,
\n\t      12th Edition:\n<\/p>\n
\t      “The so-called morning sickness of  pregnancy,
\n\t      as  the name implies, usually comes on in\t the
\n\t\t\t    earlier part of the day and passes off
\n in a few
\n\t      hours,   although\t it  occasionally   persists
\n\t      longer  or  may  occur  at  other\t times.\t  It
\n\t      usually  appears\tabout the end of  the  first
\n\t      month  and  disappears  spontaneously  six  or
\n\t      eight  weeks  later,  although  some  patients
\n\t      suffer from it for a longer period.”\n<\/p>\n
\t      At p. 706 he states:\n<\/p>\n
\t      “Nausea and vomiting of mild degree constitute
\n\t      the   most  common  disorder  of\t the   first
\n\t      trimester\t of  pregnancy.\t About one  half  of
\n\t      pregnant\twomen  complain of  some  degree  of
\n\t      nausea  at this time, and, of  these,  perhaps
\n\t      one third experience some degree of  vomiting.
\n\t      In  the present era, however, it\tis  uncommon
\n\t      for  nausea  and\tvomiting to  progress  to  a
\n\t      serious  extent, that is, to a stage in  which
\n\t      systemic\t effects  such\tas  acetonuria\t and
\n\t      substantial weight loss are produced. …\t and
\n\t      the    condition\t is    called\t hyperemesis
\n\t      gravidarum.”\n<\/p>\n
\t      288<\/span><\/p>\n
\t      He states at pp. 708 and 709:\n<\/p>\n
\t      “The disease varies in degree of severity from
\n\t      nausea  and morning sickness to the severe  or
\n\t      pernicious  type of vomiting which may have  a
\n\t      fatal  outcome, Usually the  condition  begins
\n\t      about  the sixth week of gestation and  abates
\n\t      around the twelfth week.”\n<\/p>\n
\t      “A  small\t number of  these  patients  develop
\n\t      persistent  vomiting,  lasting four  to  eight
\n\t      weeks  or\t longer and resulting in a  loss  of
\n\t      body weight of 10 to 20 pounds or more.  These
\n\t      patients vomit two, three, or more times a day
\n\t      and may be unable to retain any nourishment by
\n\t      mouth.”\n<\/p>\n
\t      “In  the\tlater stages of\t the  disease-rarely
\n\t      seen   today-a  low-grade\t  fever\t  frequently
\n\t      develops.\t  This seldom exceeds 101  degree  F
\n\t      but may persist despite adequate hydration.”
\n\t      Dugald  Baird  states  at p. 323\tof  the\t 7th
\n\t      Edition\tof   the  Combined  Text   Book\t  on
\n\t      Obstetrics and Gynaecology:\n<\/p>\n
\t      “Morning sickness occurs in about 50 per\tcent
\n\t      of women during the early weeks of  pregnancy.
\n\t      In  many\tcases  there is only  a\t feeling  of
\n\t      nausea,\twith  perhaps  the  ejection  of   a
\n\t      mouthful\tof fluid.  In, others,\tsome  partly
\n\t      digested\tfood  may be  expelled..  In  graver
\n\t      cases vomiting may persist throughout the day,
\n\t      and  apparently  all  the\t ingested  food\t is.\n<\/p>\n
\t      returned.\t This latter type is a very  serious
\n\t      condition\t and  is  described  as\t hyperemesis
\n\t      gravidarum.  It is extremely difficult to draw
\n\t\t\t    any hard and fast line between the mor
\ne  severe
\n\t      form of morning sickness and a condition which
\n\t      should be labelled as hyperemesis.  As soon as
\n\t      a\t patient  suffering  from  morning  sickness
\n\t      feels nauseated and is sick later in the\tday,
\n\t      she  must\t be  regarded  as  a  mild  case  of
\n\t      hyperemesis and treated accordingly.”\n<\/p>\n
The respondent does not state about fever and about  several
\nvomits in a day in her deposition, but such a condition\t was
\nexpressed  in her letters.  The respondent stated in  cross-
\nexamination that when she went to Gamdevi, she continued to,
\nhave vomiting, no appetite and uneasiness.
\nNone of the letters written subsequent to April 17 by either
\nparty  make  any  mention  of  this  condition\t continuing.
\nChampaklal was not questioned about such a condition of hers
\nat Gamdevi.  The petitioner was not questioned and the\tres-
\npondent does not state that she had nausea and vomiting when
\nat  Bombay between April 23 and 27.  She did not have  vomit
\nor nausea so long as she was at Bombay in March, though\t she
\nhappened to state in examination in chief that
\n\t\t\t    289<\/span>
\nshe had a vomit on the day she left.  The petitioner was not
\nquestioned about it.  It appears: to be too good to be true,
\nthat she suffered from morning sickness of such a type\tonly
\nfor a short period of a little over two weeks.\tThese can be
\ntwo, possibilities.  Either she did not suffer from any such
\nsickness  during that period and just mentioned about it  to
\nbuild up her case regarding the development of pregnancy  or
\nthat her’ pregnancy was of a longer period-at first she\t may
\nhave had ordinary morning sickness which usually consists of
\na  feeling of nausea without any actual vomiting  and  could
\ntherefore  be not known to others-and that the serious\ttype
\nof actual vomiting and fever developed later in the third or
\nfourth month of pregnancy which would indicate that in April
\nthe pregnancy was about four months old and not one month.
\nWe  may\t refer to her first statement in  Court.   She\tthen
\nstated :\n<\/p>\n
\t      “The petitioner’s father and his sister  might
\n\t      be suspicious prior to the marriage that I was
\n\t      pregnant\tbecause\t I  was\t not  keeping\tgood
\n\t      health.”\n<\/p><\/blockquote>\n
This may refer to her suffering from morning sickness  prior
\nto marriage.\n<\/p>\n
Re:  confirmation of pregnancy, Dr. Ajinkia deposed that  it
\nwas not possible to confirm pregnancy by April 3, 1947 if  a
\nwoman married on March 10, 1947 had conception subsequent to
\nthe  wedding, except by performing some\t special  biological
\ntest.  Similar is the opinion of Dr. Mehta examined for\t the
\nrespondent.\n<\/p>\n
The  Court  below  attached no importance  to  the  doctor’s
\ntelling\t the respondent that she was pregnant about 3  weeks
\nafter  she was married, by saying that what was conveyed  to
\nthe respondent was not a definite diagnosis of pregnancy but
\nonly  a suspicion about pregnancy as anybody  would  suspect
\nafter a woman’s missing of the monthly course and  suffering
\nfrom morning sickness.\tIt is not justified in so construing
\nwhat the respondent stated in Court and what she appeared to
\nhave conveyed to the petitioner.  The doctor’s informing her
\ndefinitely after examination of the body that she was  preg-
\nnant again points to the fact that her pregnancy noticed  in
\nthe  first few days of April was of a longer  duration\tthan
\nthat of about 4 weeks.\n<\/p>\n
From  Bombay,  the  respondent went  to\t Gamdevi  where\t the
\npetitioner’s  sister  Sharda  lived and spent  a  few  weeks
\nthere.\n<\/p>\n
Letters\t written  in  May are not of  any  importance.\t Her
\nletter\tdated May 12, 1947 to the petitioner is\t on  record.
\nShe
\nL\/P(D)ISCI-10
\n290<\/span>
\nexpressed  her intention to go to Bombay within a  few\tdays
\nand to stay there for two months and stated:
\n“Then,\twhen my fifth month (of pregnancy) will be about  to
\nbe over I will go to Prantij…”\n<\/p>\n
There  is nothing particular in this letter.  She,  however,
\ndid  not stay at Bombay for two months but left for  Prantij
\nbefore\tJune 4, 1947 for some reason which was possibly\t not
\ntrue.\n<\/p>\n
The petitioner wrote letters to her on May 2, 6 and 14.\t  In
\nhis  letter of May 2, he says that she must have told  about
\nher  pregnancy to Sharda and that he, himself had  not\ttold
\nanyone about it.  In his letter of May 6 he said:\n<\/p>\n
\t      “You tell Sharda that you are pregnant so that
\n\t      Mama  can know it.  Consult Sharda about\tfood
\n\t      and  reading who will also guide you.  So\t you
\n\t      should  not become anxious at all.  Convey  to
\n\t      Champaklal  through  Sharda  so  that  he\t may
\n\t      prescribe medicine for you, hence you may\t not
\n\t      have any trouble ahead.”\n<\/p><\/blockquote>\n
\t      In his letter of May 14, he said:\n<\/p><\/blockquote>\n
\t      “You must be taking good food and I think\t you
\n\t      must have consulted Champaklal.”\n<\/p><\/blockquote>\n
In his letter dated May 31, he, for the first time,  acknow-
\nledges\treceiving a letter from her.  It must be the  letter
\nof  May 12, as therein he refers to her intention to  go  to
\nBombay\tfrom Gamdevi.  There is nothing particular  in\tthis
\nletter either.\n<\/p>\n
The  petitioner’s first letter to the respondent in June  is
\ndated  June 3, 1947.  It refers to the receipt of  her\tair-
\nmail letter from Bombay after a long time.  It appears\tthat
\nletters of May 12 and May 24 were not sent by air-mail.\t Her
\nsending a letter by air-mail ‘on or about May 30 from Bombay
\nindicates  that\t she  felt  the\t urgency  of   communicating
\nsomething  to  the petitioner.\tThe contents of\t his  letter
\ndated  June 3 indicate that she had mentioned what  she\t had
\nbeen  suffering\t from  and wanted to leave  Bombay  for\t her
\npaternal  home.\t The letter does not disclose what  sort  of
\nsufferings  there were.\t Probably they were due to  domestic
\naffairs,  as  it  appears that\tthe  relations\tbetween\t the
\nmother-in-law  and  the daughter-inlaw were  not  good.\t  He
\nwrites:\n<\/p>\n
\t      “If  you tell me that I may write a letter  to
\n\t      revered mother and father or write a letter to
\n\t      your father to call you at Prantij.”\n<\/p><\/blockquote>\n
Why this urgency?  The conditions of living at Bombay  could
\nnot have been intolerable.  Parents-in-law would have  taken
\ngood care of her troubles due to pregnancy.  The urgency  of
\nher returning to Prantij could have been due to her feeling
\n291<\/span>
\nthat it would be difficult to keep her unduly advanced state
\nof pregnancy a secret for any more appreciable time at\tBom-
\nbay.\n<\/p>\n
The next letter of June 4 was written by the petitioner,  on
\nreceipt\t of  the  respondent’s letter dated  May  24.\tThis
\nletter\ttoo must have been from Bombay, as she\tappeared  to
\nhave  informed\thim about the adjoining\t neighbours  talking
\nabout them.  Again, it is not clear what was the talk.\t The
\ntalk  might  have had reference to their  marital  relations
\nwith  particular reference to her pregnant condition, as  it
\nis said in the letter:\n<\/p>\n
\t      “Let people talk about me and you, but as long
\n\t      as  we each have complete confidence over\t one
\n\t      another which is there to fear for us.”\n<\/p><\/blockquote>\n
On  June  11, the respondent wrote to  the  petitioner.\t  It
\nappears that she returned to Prantij from Bombay on or about
\nJune 4, as she said:\n<\/p>\n
“A week has passed since I came to Prantij”.
\nShe  states that she told her mother-in-law that she  wanted
\nto  go\tback to her paternal house, as she was\tnot  keeping
\ngood  health.  There is no reference in this letter to\twhat
\ntype of bad health she was keeping.  She makes a significant
\nstatement in this letter.  It is:\n<\/p>\n
\t      “She (namely the mother) asks me to take\taway
\n\t      the  ornaments, take care of my health and  to
\n\t      return  in the 7th Month … I said I did\t not
\n\t      want to take ornaments because I would have to
\n\t      take care of them on my way.”\n<\/p><\/blockquote>\n
\t      Another  statement  of hers which is  of\tsome
\n\t\t\t    significance is:\n<\/p><\/blockquote>\n
\t      “My  health has improved very much.  Blood  in
\n\t      my body has very much increased.”\n<\/p><\/blockquote>\n
It appears that her excuse to her mother-in-law for going to
\nher parents’ house was not a true one.\tHer reference to im-
\nproved\thealth\tand increase of blood in the body  seems  to
\nindicate  that\tshe  was  feeling  the\tenlargement  of\t her
\nabdomen.   The contents of this letter were  interpreted  in
\nsome  such  way by the petitioner who, in his  letter  dated
\nJune 22, wrote in the very second paragraph:
\n“I am asking you what is the month of your pregnancy”.\tSuch
\na  question  indicates that lie probably felt  surprised  at
\nthis condition of her abdomen and having studied sex litera-
\nture, as appears from his letters to her, he had his  doubts
\nhow  within  such  a  short  period  of\t the  marriage\t the
\nrespondent could have such an enlarged abdomen.\t This letter
\ncontains  some very intimate details.  The petitioner  asked
\nher to destroy it after she had read it and also to  destroy
\nhis previous letters.  L\/P(D)ISCI-10(a) …\n<\/p>\n
292<\/span><\/p>\n
Such   a  suspicion  expressed\tin  his\t letter\t makes\t the
\nrespondent  write  a very curt letter on July 2,  1947.\t  In
\nthat letter she said:\n<\/p>\n
\t      “How  are you to know how many months  I\thave
\n\t      advanced\tin pregnancy.  I am really  so\tvery
\n\t      angry with you today that I cannot  understand
\n\t      what I should do with such a man.\t Do you\t not
\n\t      yourself know that you ask me how many  months
\n\t      I\t have  advanced\t in  pregnancy.\t   Calculate
\n\t      (months) in your own mind only.”\n<\/p><\/blockquote>\n
In between, the petitioner had written another letter to her
\non  June 27, on receipt of her letter dated June  17.\tThis
\nletter also contains some significant statements:\n<\/p>\n
\t      “Now belly appears big and I feel what kind of
\n\t      baby  would  be born … At present  I  appear
\n\t      very  fat.  I do not understand from where  so
\n\t      much blood has come………\n<\/p><\/blockquote>\n
This letter was acknowledged by the petitioner by his letter
\ndated June 27.\tIn this letter again the petitioner wrote:
\n“Please write how many months of pregnancy you have passed”.
\nThe letter was comparatively a very formal letter.
\nOn June 28, 1947 the respondent writes to the petitioner  in
\nher letter:\n<\/p>\n
\t      “I am keeping good health etc …. Now I\thave
\n\t      to  pass only five months … The belly  gives
\n\t      the  appearance  of a big water  pot  and\t one
\n\t      becomes nervous to see it … A nurse comes to
\n\t      examine me every Sunday.\tI had once told\t her
\n\t      that something was moving in my belly and\t had
\n\t\t\t    asked  her\tas to after how many  mont
\nhs  these
\n\t      movements must be starting.  She said that  my
\n\t      baby to be born would be very healthy  because
\n\t      a child would make movements after the  fourth
\n\t      month only if it was healthy.  I am very\tmuch
\n\t      worried.\t If  the  child would  be  strong  I
\n\t      myself  would  die.   How\t then  would  it  be
\n\t      born?  … I go for a walk daily.\t I walk\t two
\n\t      miles  one  mile\twhile going  and  one  while
\n\t      coming back”.\n<\/p><\/blockquote>\n
It  is clear from this correspondence which  passed  between
\nthe parties in the month of June that the respondent noticed
\nher belly to have enlarged sufficiently between June 11\t and
\nJune  17,  i.e., between the 107th and 114th  day,  counting
\nfrom March 10 and adding 14 days to the total, that she\t had
\nfelt  the quickening of the foetus sometime before  June  28
\nand that the petitioner had some doubts about her  condition
\nbeing  compatible with conception having taken place  on  or
\nafter
\n293<\/span>
\nMarch  10,  1947.  Patel J., made an error in  ignoring\t the
\nletter\tof  June 17, 1947 and in calculating the  days\tupto
\nJune  28  to  be 155 instead of 124.   The  respondent\tthus
\nnoticed\t the .enlarged abdomen at the end of the  4th  lunar
\nmonth of pregnancy.  She appears to have felt it before June
\n16  as\tshe had .spoken about it to the nurse on  a  Sunday.
\nThe  Sundays  previous,\t fell on June 23 and  June  16.\t  It
\nappears\t that she did not speak on the 23rd as she  did\t not
\nsay so in her letter of June 28 and said there: ‘I had\tonce
\ntold  her’.  She must have told the nurse latest on  Sunday,
\nJune 16.\n<\/p>\n
Two  other statements in her letters also tend\tto  indicate
\nthat her condition in the beginning of June had been such as
\nprobably  gave\trise to suspicions in the minds\t of  persons
\nabout her pregnancy.  These are her statement in the  letter
\ndated June 11 that her mother-in-law asked her to take\taway
\nall  ornaments.\t Ordinarily a mother-in-law would  not\thave
\nliked  her  daughter-in-law to take away all  her  ornaments
\nwhen  she be going to her maternal place for a\tfew  months.
\nSuch a request might have been on account of her  suspecting
\nthat  she  was in a much more advanced stage  of  pregnancy,
\nthan  would  ‘have  been expected in  a\t case  of  pregnancy
\nsubsequent  to\tmarriage.   The other statement\t is  in\t the
\npetitioner’s letter of June 4 referring to her letter of May
\n24  stating that adjoining neighbours talked about it.\t Why
\nshould\t neighbours  talk  about  the  petitioner  and\t the
\nrespondent prior to May 24, 1947?  The -talk must have\tbeen
\nin  connection\twith  her  pregnancy  and  its\tstage.\t The
\nrelations between the husband and wife are of no concern  to
\nthe  other  people,  except when  they\tprovide\t matter\t for
\nscandal.    This  means\t that  her  abdomen   had   enlarged
\nnoticeably by May 24 and therefore could indicate to  people
\nthat  her  pregnancy was of a duration much larger  than  of\n<\/p>\n
-about\t74  days, which, on addition of 14  days,  would  be
\ndeemed\tto  be\tpregnancy of 88 days, i.e.,  about  3  lunar
\nmonths.\t  None of the doctors examined in the  case  deposes
\nthat  the  enlargement of the abdomen would be\tof  such  an
\nextent\tin 3 calendar months of pregnancy, the period  being
\ncounted from the first day of the last menstruation previous
\nto the conception.\n<\/p>\n
Dr.  Ajinkia states that there cannot be  perceptible  abdo-
\nminal enlargement within 3 months and 7 days of pregnancy in
\nordinary cases and that such perceptible abdominal  enlarge-
\nment  would be after the 4th month.  He further states\tthat\n<\/p>\n
-when\ta  woman  is  pregnant\tfor  the  first\t time,\t the
\nenlargement  might not be visible as late as 5\tmonths,\t and
\nthat  a\t huge -abdominal enlargement might  occur  within  3
\nmonths\tand  18 days of pregnancy in  certain  complications
\nwhich, we may mention, do not appear to have occurred in the
\ncase of the respondent.\t On the other hand, Dr. Mehta states
\nthat the enlargement of the abdomen is manifest from the 4th
\nmonth
\n294<\/span>
\nand in any event will be manifest in the 5th month, even if’
\nthe pregnancy is for the first time.  He did not agree\twith
\nwhat  Alan Brews states in his ‘Manual of Obstetrics’,\t1957
\nEdition, p. 84:\n<\/p>\n
\t      “……..\t enlargement of the abdomen  usually
\n\t      does not become manifest to the patient  until
\n\t      the  uterus  rises well above the\t pubes,\t and
\n\t      therefore seldom attracts attention until\t the
\n\t      close  of\t the  first half  of  pregnancy.   A
\n\t      multigravida  owing  to  the  laxity  of\t the
\n\t      abdominal\t wall,\tusually\t notices   abdominal
\n\t      enlargement earlier than a primigaravida.”\n<\/p><\/blockquote>\n
We  prefer  to\trely  on Dr.  Ajinkia’s\t statement  in\tthis
\nrespect.\n<\/p>\n
The respondent felt the quickening of the foetus before June
\n16,  i.e.,  before the 112th day, or before the end  of\t the
\nfourth\tlunar  month  from the first day  of  the  menstrual
\nperiod prior to conception.  That is too short a period.
\nDr. Ajinkia stated that the perceptible foetal movement in a
\nwoman  pregnant\t for,  the first time does  not\t take  place
\nbefore\tthe 20th week from the date ‘of her  conception\t and
\nthat the expectant mother begins to feel the movement of the
\nchild  after  the  20th\t week or end of\t the  7th  month  of
\npregnancy.  He further stated that he would not consider  it
\npossible  for a woman pregnant for the first time to have  a
\nmarked\tperception  of foetal movement by the 15th  week  of
\nconception.\n<\/p>\n
When referred to a statement in Modi’s Medical Jurisprudence
\nto  the\t effect\t that the first\t perception  of\t the  foetal
\nmovement  occurred  at any time between the  14th  and\t18th
\nweek, Dr. Ajinkia expressed his disagreement and referred to
\nstatements in the text book of ‘Obstetrics & Gynaecology’ by
\nDugald\t Baird,\t and  in  Eden\t&  Holland’s   ‘Manual\t of’
\nObstetrics’.  In the former it is stated:\n<\/p>\n
\t      “These  are  generally first felt\t about\tmid-
\n\t      term  … The movements are often not felt  by
\n\t      primigravidae  till the end of  the  twentieth
\n\t      week  while multiparae may recognize  them  as
\n\t      early as the end of the 16th week.”
\n\t      In the latter it is stated:\n<\/p><\/blockquote>\n
\t      “Definite history can be obtained.  Quickening
\n\t      is usually found to occur between the 18th and
\n\t      20th    weeks.\tMultiparae    from    former
\n\t      experience, notice the movements earlier\tthan
\n\t      women pregnant for the first time.”\n<\/p><\/blockquote>\n
We  are\t therefore of opinion that the\tstatements  by\tthe,
\nrespondent  in\ther  letters to\t the  petitioner  about\t the
\nenlargement of her abdomen and the quickening of the  foetus
\nfits,
\n295<\/span>
\nin  with her pregnancy being of a longer duration  than\t one
\nstarting on or after March 10, 1947, or notionally  starting
\n14 days earlier.\n<\/p>\n
The only thing said against the pregnancy really having been
\nof  a greater duration is that the respondent had  her\tbody
\nexamined by Dr. Champaklal, husband of Sharda, sister of the
\npetitioner,  sometime in May 1947, when she was at  Gamdevi.
\nShe  states  that  she\thad  some  bleeding  and   therefore
\nconsulted Dr. Champaklal who examined her body including the
\nabdomen.   Dr.\tChampaklal denies having done so.  The\tHigh
\nCourt has preferred the statement of the respondent to\tthat
\nDr.  Champaklal, as the petitioner himself had\tadvised\t the
\nrespondent  in his letters to consult Champaklal.  There  is
\nnothing\t in the letters of the petitioner which he wrote  to
\nthe  respondent\t from USA in May 1947 which  would  indicate
\nthat  she  was to show her body to  Champaklal.\t  He  simply
\nadvised\t her  to consult him so that she may  not  have\t any
\ntrouble later on.  This was a general advice and in view  of
\nher  having suffered from morning sickness in the  month  of
\nApril.\t In none of the letters by her or by the  petitioner
\nin reply is any reference to her bleeding at Gamdevi and  to
\nher  showing the body to Dr. Champaklal.  Unless  absolutely
\nnecessary,  Dr.\t Champaklal  would  not\t have  examined\t her
\nabdomen\t and  there is nothing on the  record  to  establish
\nanything so unusual in the condition of the respondent as to
\npersuade Champaklal to examine the body of a close  relation
\nof his.\t We are not prepared to prefer her statement to that
\nof  Champaklal in this respect.\t It is true that  Dr.  Cham-
\npaklal\tdoes  not depose to have  noticed  anything  unusual
\nabout her condition.  But that does not mean that her  preg-
\nnancy was not more advanced than what it would have been  if
\nthe  conception\t had taken place on March 10, or  later.   A
\nmale  relation is not expected to notice such  a  condition.
\nWe do not therefore consider any non-observation by Champak-
\nlal  of any such enlargement of the respondent’s abdomen  as
\nwould  indicate her pregnancy to be from a date anterior  to
\nMarch  10,  to affect adversely the inferences to  be  drawn
\nfrom her own statements in her letters referred to above.
\nIn  her letter of January 8, 1948, to Sharda,  written\tlong
\nafter  her  delivery,  for the\tfirst  time  the  respondent
\nmentioned  that her body was examined by Dr. Champaklal\t and
\nthat if there had been any deceit in her heart she could not
\nhave shown her body to him.  There is no mention of bleeding
\nin this letter which was written over four months after\t the
\ndelivery of the child.\n<\/p>\n
The respondent stated about her bleeding and being ,examined
\nby  Dr. Champaklal for the first time in her letter  to\t the
\npetitioner dated February 16, 1948, months after she
\n296<\/span>
\nwas  delivered of the child and the petitioner had in a\t way
\nsevered his connection with her.  This belated statement is,
\nnot sufficient to discredit Champaklal.\n<\/p>\n
The  respondent suffered from symptoms of toxemia.  She\t had
\nblood  pressure, passed albumen in urine and had   swellings
\non the body.  According to Dr. Ajinkia, there are two  types
\nof  toxemia,  one  appearing in\t the  early  months,  i.e.,,
\nbetween\t the 2nd and 3rd month of pregnancy, and  the  other
\nfrom the 7th month onwards, and that in the first case there
\nis  severe  vomiting,  dehydration and\tjaundice  which\t may
\nresult\tin death due to liver necrosis, while in the  latter
\ncase  there  is\t swelling  of  the  tissues  due  to   water
\nretention.  (oedema),  rise of\tblood-pressure,\t passage  of
\nalbumen\t in  the  urine, headache,  disturbance\t of  vision,
\nsometimes  culminating\tin  fits.  He  further\tstated\tthat
\noedema, high blood-pressure and passing of albumen in  urine
\nmay  take place in the 4th month of pregnancy in a  case  of
\nchronic\t kidney disease suffered by a women previously,\t but
\nnot  in\t other cases.  There is no evidence in\tthe  present
\ncase  that  the\t respondent had suffered  from\tany  chronic
\nkidney disease.\t Dr. Ajinkia stated that he would call it  a
\nsevere\ttype of toxemia, if a pregnant woman suffering\tfrom
\noedema\tall over the body, passing albumen in the urine\t and
\nhaving\thigh blood-pressure does not respond  to  treatment.
\nIn  cross-examination  he  states that\tthe  first  type  of
\ntoxemia does not occur again and again during the period  of
\npregnancy and that it does not appear after the third month,
\nand that if the second type of toxemia appears in the  early
\nstage  of  pregnancy it can be concluded that the  woman  is
\nsuffering from chronic nephritis.\n<\/p>\n
Dr.  Mehta  states in examination-in-chief that\t passage  of
\nalbumen\t in  urine and oedema usually occur  at\t the  second
\nperiod\tof pregnancy which he described to be after the\t 3rd
\nmonth  and before the 7th month of pregnancy, but in  cross-
\nexamination states that these can occur at any time and that
\nit is not the case that these occur only in the last two  or
\nthree  months of pregnancy.  When referred to a\t passage  in
\nWilliams on ‘Obstetrics’, which contained the statement.\n<\/p>\n
\t      “It  is  a disease of the last  two  or  three
\n\t      months  of’  gestation for the most  part\t and
\n\t      rarely occurs prior to the twenty-fourth week.
\n\t      It is most often seen in young  primigravidae.
\n\t      Pre-eclampsia is the fore-runner of  prodromal
\n\t      stage  of eclampsia.  In other  words,  unless
\n\t      the   pre-eclamptic  process  is\tchecked\t  by
\n\t      treatment\t or by delivery, it is more or\tless
\n\t      likely  that eclampsia (convulsions and  coma)
\n\t      will ensue.”\n<\/p><\/blockquote>\n
he  said  that\the agreed with what was\t stated\t there.\t  He
\nargeed\t with  the  statement  in  “Progress   in   Clinical
\nObstetrics and
\n297<\/span>
\nGynaecology”  by  Lews\tto the\teffect\tthat  the  condition
\n,appears  in between 3 and 10 per cent of pregnancies,\tgen-
\nerally\tlater than the thirty second week.  He\talso  agreed
\nwith  the statement in British Obstetric and  Gynaecological
\nPractice by Holland, 11 Edition, P. 256:\n<\/p>\n
\t      “In  the\tmajority of cases  of  pre-eclampsia
\n\t      signs of the disease do not appear until after
\n\t      mid-term\tand in the majority not until  after
\n\t      the thirtieth week of pregnancy.”
\n\t      He  agreed  with\twhat was  stated  in  Dugald
\n\t      Baird’s  Combined\t Text Book of  Obstetrics  &
\n\t      Gynaecology, 6th Edition, to Ike effect:
\n\t      “Sometime\t  about\t  the  thirtieth   week\t  of
\n\t      pregnancy\t  the  patient,\t most\tcommonly   a
\n\t      primigravida,  will  be  found  to  have\tsome
\n\t      elevation\t of blood pressure and she may\thave
\n\t      noticed  some  puffiness\tof  her\t ankles\t and
\n\t      hands.   After the lapse of days or a week  or
\n\t      two,  the blood pressure may rise further\t and
\n\t      albumen,\toften not more than a trace, can  be
\n\t      demonstrated  in\tthe urine.  There may  be  a
\n\t      progressive  rise\t in the\t blood-pressure\t and
\n\t      oedema  becomes more marked.  In severe  cases
\n\t      the   face,  abdominal  wall  and\t libia\t are
\n\t      effected.”\n<\/p><\/blockquote>\n
It  is\tthus clear that this type of  severe  toxemia  which
\nresults\t in increased blood-pressure, passing of ablumen  in
\nurine  and swelling of the body appears in the later  stages
\nof  pregnancy  and  not usually before the end\tof  the\t 6th
\nmonth, i.e., not during the period of 168 days of pregnancy,
\nthat is to say, not to take place before August 10, 1947  in
\nthe case of the respondent who was married on March 10, even
\nif  for\t the purpose of duration 14 days are  added  to\t the
\nperiod following March 10.\n<\/p>\n
The respondent stated in the examination-in-chief that\twhen
\nshe went to Prantij from Bombay, which was about the 4th  of
\nJune 1947, she had swelling on her feet, hands and face.  In
\ncross-examination  she further stated that she had  swelling
\nover  these parts and also high blood-pressure in  June\t and
\nthat the passing of albumen and swelling of hands -and\tfeet
\ncontinued till delivery but there was no high  bloodpressure
\nat the time of delivery.  The Court below did not act on the
\nstatement of the respondent about her having the symptoms of
\ntoxemia\t in  the  month of June as none of  the\t letters  on
\nrecord\twritten in June makes reference to such a  condition
\nof  hers.  This is true, but that does not necessarily\tmean
\nthat  she did not have such symptoms in the month  of  June.
\nThey  might  not have been very severe that  month  and\t the
\nseverity  appeared in the month of July.  Letters on  record
\namply make out that she was suffering from a severe type
\n298<\/span>
\nof toxemia in July.  It has been urged for the respondent in
\nconnection  with her alleged toxemic condition in the  month
\nof June that her statement in her letter dated June 28 about
\nher walking 2 miles a day is not compatible with her  state-
\nment in Court and the suggestion for the petitioner that she
\nwas  suffering\tfrom  toxemia in the  month  of\t June.\t The
\nstatements  of\tthe respondent in her letters  can  be\tused
\nagainst\t her  as her admissions, but cannot be used  in\t her
\nfavour accepting them to be correct statements.\t If she\t was
\npregnant at the time of marriage she must take such steps up
\nto  the time of delivery as to allay the suspicion that\t she
\nhad  been really pregnant at the time of marriage.  She\t may
\ntherefore  be  inclined\t to make  wrong\t statements  in\t her
\nletters\t to prepare for any plausible explanation  when\t the
\ndelivery took place before the expected time on the basis of
\nher conception after marriage.\tThere is therefore no reason
\nnot to believe her statement that she did have such  trouble
\nof a milder kind in the month of June.\tSevere trouble\tdoes
\nnot usually come at once.  It develops from a mild stage.
\nBy  June  4,  1947, the duration of pregnancy,\tif.  due  to
\ncoitus\ton  or after March 10, can be at most  100  days,  a
\nlittle over 3-1\/8 lunar months, and according to the medical
\nopinion,  toxemia in the form of blood-pressure, oedema\t and
\npassing\t of  albumen in urine does not occur  after  such  a
\nshort  period of pregnancy.  It is to be concluded  that  by
\nthe end of May the duration of her pregnancy was of about  6
\nmonths.\t This fits in with the petitioner’s contention\tthat
\nshe was pregnant on March 10, when the marriage took place.
\nA brief reference to the correspondence which shows that she
\nwas  suffering from toxemia from the month of June 1947\t may
\nbe  made now.  The first letter in this connection is  dated
\nJuly  12,  1947.   It is Champaklal’s  letter  to  Kodarlal,
\nfather of the respondent, and was written on receipt of\t the
\nrespondent’s  letter  addressed to Sharda.   The  respondent
\nmust  have  written  that  letter  on  or  about  July\t 10.
\nChampaklal  expresses  worry on having the  news  about\t her
\nhealth.\t He states:\n<\/p>\n
\t      “It  is not a good sign if she has  oedema  on
\n\t      the legs and abdomen in passing the urine, and
\n\t      hence  you keep Sushilabehn immediately  under
\n\t      the treatment of a doctor either in  Ahmedabad
\n\t      or at Bombay.  Dr. Pandya at Ahmedabad is also
\n\t      a good doctor… continue the medicine as long
\n\t      as she advises.  You can consult her and\tthen
\n\t      inform us immediately.”\n<\/p><\/blockquote>\n
\t      Sharda  had herself written to the  respondent
\n\t      on July 13, 1947 suggesting that she should go
\n\t      to  Bombay for consultation about her  health.
\n\t      Champaklal again wrote to
\n\t      299<\/span>
\n\t      Koderlal\ton July 20, after receipt of  letter
\n\t      from him and stated :<\/p><\/blockquote>\n
\t      “The  medicine  prescribed by  Dr.  Pandya  is
\n\t\t\t    proper  and\t I  am\tsure  that  there
\n will  be
\n\t      complete\tcure.  Follow her advice as  regards
\n\t      medicine\tand  food directions.\tIf  she\t has
\n\t      given  advice  for  her not.  taking  salt  do
\n\t      follow  it and if advised to live entirely  on
\n\t      fruits and milk do follow the same because  if
\n\t      proper  care  is not taken  for  this  disease
\n\t      there  will be epileptic fits at the  time  of
\n\t      child  birth  and the case  will\tbe  serious.\n<\/p>\n
\t      Your  doctor  has\t warned\t you  from  now\t  by
\n\t      examining\t the urine and it is good  that\t you
\n\t      have  taken a warning and you have taken\tgood
\n\t      precautions from now and hence I am sure\tthat
\n\t      she will definitely improve.”\n<\/p>\n
Champaklal’s  letter  dated July 28, again on receipt  of  a
\nletter from the respondent’s father, asks the latter to\t in-
\nform him as to how the respondent’s oedema stands.
\nOn  July  24,  the respondent’s father wrote  to  the  peti-
\ntioner’s father stating therein:\n<\/p>\n
\t      “My  daughter Sushilaben was got\texamined  by
\n\t      Miss  Pandya  and her opinion is that  she  is
\n\t      passing  albumen in her urine and that she  is
\n\t      suffering from blood pressure.  Her health  is
\n\t      good.  This is all.”\n<\/p><\/blockquote>\n
\t      Manilal,\tthe petitioner’s father\t replies  to
\n\t      this letter on July 27 and writes:
\n\t      “Very  pleased  to learn that  Sushilabai\t has
\n\t      been  ‘shown’ to the doctor and  the  medicine
\n\t      has  been\t continued and that she\t is  keeping
\n\t      good  health.  Very pleased to learn that\t you
\n\t      and  the\tmembers of your family\tare  keeping
\n\t      well.  Here we all of us are keeping well,  so
\n\t      much”. With affection of Manilal’s
\n\t\t\t\t      Jai Gopal.”\n<\/p><\/blockquote>\n
The letter in a way, is a cold one.  He has not stated\twhat
\nwould  have  been both an expression of his feeling  at\t the
\ntime  and  would also have been very polite in\tthe  circum-
\nstances.  He expressed no concern and did not write that  he
\nbe  informed about the respondent’s condition from  time  to
\ntime  just  as Champaklal happened to write in each  of\t his
\nletters.  It is to be noted, however, that both Kodarlal and
\nManilal\t use  language\twhich could not\t have  been  correct
\nfactually.   Kodarlal says her health is good’\tand  Manilal
\nexpresses his pleasure on receipt of the letter.\n<\/p>\n
300<\/span><\/p>\n
The  respondent’s  letter dated July 2, 1947  was  the\tonly
\nletter\twritten to the petitioner in the month of July.\t  No
\nother  letter is on the record and the petitioner states  in
\nhis letter dated July 27 that he had not received any letter
\nfrom  her  for\ta  long time and  was  therefore  very\tmuch
\nworried.\n<\/p>\n
The  petitioner\t wrote to the respondent on August  6,\t1947
\nstating that he was awaiting her letter and that  Champaklal
\nand Sharda had informed him that her health was very bad and
\nshe  was not in a position to write a letter.  He  asks\t for
\nfurther news of her health by wire.\n<\/p>\n
It  is\this  letter  dated August 12,  1947  which  makes  a
\nreference to the respondent’s letter dated August 4 which he
\nthought\t was  received after about a month of  her  previous
\nletter.\t  Thus\tit is clear that for about a  month  between
\nJuly  2 and August 4, 1947, the respondent’s  condition\t was
\nsuch  that she was not even able to write a letter.  It\t was
\nwhen her condition had become very bad that news of her ill-
\nhealth was conveyed to Sharda by letter on or about July 10.
\nThe  last  letter which the respondent writes to  the  peti-
\ntioner is dated August 13.  In this letter she writes:\n<\/p>\n
\t      “As my health was very bad, a letter was\tsent
\n\t      to Shardaben and my father also wrote a letter
\n\t      to  Champaklal.  At that time he\thad  written
\n\t      that Dr. (Miss) Pandya would be called in\t and
\n\t      treatment\t by her would be started; so we\t are
\n\t      taking  her the treatment by her\taccordingly.
\n\t      We did not write to you for the simple  reason
\n\t      that that would have caused you anxiety.\t The
\n\t      treatment is still continued.  But there is no
\n\t      change.  There are swellings all over my\tbody
\n\t      and    I\t  am   feeling\t  extremely    weak.
\n\t      Consequently, I have not even the strength  to
\n\t      write a letter.  We had consulted Miss  Pandya
\n\t      and  Dr.\tDe Monte and  Doctor  Anklesaria  at
\n\t      Ahmedabad.   So  according to them  poison  is
\n\t      passing  in the urine and along with it  there
\n\t      is also the blood-pressure and so it is likely
\n\t      that the case may be serious case of  delivery
\n\t      and  I  might get convulsions  at\t that  time.
\n\t      That   is\t why,  right  from  now\t they\thave
\n\t      altogether  stopped  me from taking  salt\t and
\n\t      they  have also stopped me taking food, so  as
\n\t      to avoid the rise of blood pressure.  I am  on
\n\t      the  diet\t of mere milk and  fruit.   Also  my
\n\t      medicines\t  are  continued.   My\t dear,\t the
\n\t      exertions\t of  writing  even  this  much\t are
\n\t      causing a severe giddiness in my head and so I
\n\t      now stop.”\n<\/p><\/blockquote>\n
\t      301<\/span><\/p>\n
\t      As  a  post-script  to  this  letter  she\t had
\n\t      further written:\n<\/p><\/blockquote>\n
\t      “They  are  attending all right  on  me  here.
\n\t      Possibly,\t they  are  going  to  take  me\t  to
\n\t      Ahmedabad\t or.   Bombay,\tfor  the   delivery,
\n\t      because in a village’ like this, there is\t not
\n\t      sufficient equipment available.”\n<\/p><\/blockquote>\n
The   petitioner’s  letter  dated  August  25,\t1947   makes
\nreference  to the letter from the respondent’s sister  dated
\nAugust 17.\n<\/p>\n
The  respondent’s  letter  dated August 13 is  a  very\tgood
\nsynopsis of her condition and of the reasons for not inform-
\ning the petitioner of her ill-health.  It is clear from this
\nletter\tthat Shardaben was informed in about the first\tweek
\nof  July  only when her health had deteriorated to  a  large
\nextent\tas she said in the letter that a letter was sent  to
\nShardaben  as  her health was very bad.\t  Kodarlal  informed
\nManilal\t even  later,. on July 24.  There  is  therefore  no
\nreason not to accept the respondent’s statement on oath that
\nshe had suffered from blood-pressure, swellings and  passing
\nof  albumen in the urine in the month of June and  that\t she
\nhad oedema on her legs, ankle and feet when she left  Bombay
\nfor Prantij on or about June 4, 1947.\n<\/p>\n
The  doctors who examined her and whose names are  given  in
\nher  letter  dated August 13, have not\tbeen  examined.\t  No
\nexplanation  has been given for not examining Dr.  De  Monte
\nand Dr. Anklesaria.  It is said that Miss Pandya refused  to
\nappear\tas  a witness as she had not kept  notes  about\t the
\nrespondent’s  condition,  remembered nothing  about  it\t and
\nwould  not be able to depose anything in Court.\t We  do\t not
\nconsider  this\tto be a good explanation for not  calling  a
\nrelevant witness.  Under the stress of oath and cross-exami-
\nnation Dr. Pandya might have recollected things which  could
\nhave  a bearing on the case.  Madhuben, the  nurse  examined
\nfor the petitioner, deposed about the respondent’s condition
\nand that is not much different from what the respondent her-
\nself stated in Court and in her letters.  Madhuben states in
\nthis connection:\n<\/p>\n
\t      “About  two  months  before the  date  of\t the
\n\t      delivery of the respondent I was called at the
\n\t      house  of\t Sushilabai.   At that\ttime  I\t had
\n\t      examined\tSushilabai.  At that time I  noticed
\n\t      that  there  was swelling over the  hands\t and
\n\t      feet  of\tSushilabai.   I\t also  noticed\tthat
\n\t      Sushilabai was weak in her health and she\t had
\n\t      trouble  about the passing of the urine.\t Her
\n\t      urine  was examined.  It was noticed that\t she
\n\t      was passing albumen in urine.  At the
\n\t      302<\/span>
\n\t\t    time  when I examined Sushilabai at\t her
\n\t      house,  she  had the 7th month.  She  was\t not
\n\t      taking proper food.”\n<\/p><\/blockquote>\n
 As  the  delivery  took place on August  27,  Madhuben\t was
\ndescribing the respondent’s condition in about the last week
\nof June.  She has been disbelieved for remembering this con-
\ndition of the respondent as she was not expected to remember
\nthis after such a lapse of time.  We see no reason to disbe-
\nlieve  her when the respondent herself admits her  suffering
\nfrom these symptoms of toxemia.\t If Madhuben concluded\tfrom
\nthese  symptoms that the respondent was in the 7th month  of
\nher pregnancy, there is nothing to be surprised at that, as,
\naccording  to  the medical opinion already  discussed,\tsuch
\nsymptoms  do  not  appear before the  7th  month.   Madhuben
\ndeposes\t that she used to visit the respondent at  intervals
\nof  8  or 10 days during those two months.   The  respondent
\ndenies that Madhuben ever attended on her except at the time
\nof her delivery.  According to her, a lady doctor of  Himat-
\nnagar  used to look her up every Sunday.  This\tlady  doctor
\nhas not been examined.\tIt is alleged that she had left\t the
\nplace  and her address could not be known.   The  respondent
\nsaid in her letter to the petitioner, dated June 28, 1947:
\n“A nurse comes to examine (me) every Sunday”.
\nThere is some dispute about the word ‘nurse’.  The  original
\nword in Gujarati was ‘bai’.  The correctness of the official
\ntranslation  of that word does not appear to  be  questioned
\nbefore\tthe trial Court or in the grounds of appeal  to\t the
\nHigh  Court.   We  see no reason  to  disbelieve  Madhuben’s
\nstatement  which, so far as the condition of the  respondent
\ngoes, finds support from what the respondent herself  states
\nand  also from the medical opinion about the stage of  preg-
\nnancy when the symptoms observed by her occur.
\nThe respondent’s letter dated August 13, 1947 indicates\t the
\nextreme severity of the toxemic condition she was in at that
\ntime.\tDoctors\t were contemplating the possibility  of\t the
\nrespondent’s  suffering from convulsions at the time of\t de-
\nlivery\tand therefore of moving her to Ahmedabad  or  Bombay
\nwhere there was sufficient equipment to deal with a  compli-
\ncated case of delivery.\n<\/p>\n
Now,  we may consider the expected condition of\t the  child,
\nborn  after  171  days of conception, as  a  result  of\t the
\nrespondent’s  suffering from mild toxemia for about a  month
\nand  thereafter from severe toxemia for about 8 weeks  prior
\nto delivery.\n<\/p>\n
With  respect to the effects of toxemia from which a  mother
\nsuffers,  on the expected baby, Dr. Ajinkia states  that  if
\ntoxemia starts at the end of the 4th month of pregnancy
\n\t\t\t    303<\/span>
\nand in spite of the treatment there is no change in  toxemia
\nfor  a\tperiod of 7 weeks thereafter, the condition  of\t the
\nchild  delivered  169  days after the  marriage\t would\tmost
\nprobably be a still birth.\n<\/p>\n
Dr.  Mehta states that the effect of toxemia in the  mother,
\nspeaking generally, is that the baby will be under-sized and
\nfeeble, though if toxemia be ‘of a short duration, the\tbaby
\nmay  not  be  affected.\t He, however,  states  that  toxemia
\nstarting  at  the  end of the 4th  month  of  pregnancy\t and
\nshowing\t no change in spite of treatment for a period  of  7
\nweeks  thereafter, would result either in the child’s  dying
\nin the womb or in being delivered of on a premature date.
\nThe  respondent’s  suffering from toxemia  for\tabout  2-1\/2
\nmonths at least prior to the delivery and from a very severe
\ntype  of  toxemia  for about 7 weeks  before  the  delivery,
\naccording  to  the medical opinion, would  be  an  important
\nfactor in reducing the weight of the child born.  There\t was
\nnothing\t in the progress of the pregnancy of the  respondent
\nwhich  could be conducive to the increase in weight  of\t the
\nfoetus which would result from conception on or after  March\n<\/p>\n
10.   A\t child born of a mother, who had  so  suffered\tfrom
\ntoxemia,  after the full period of gestation can be  4\tlbs.
\nbut  a child born of such a mother after a period of 171  or
\n185 days of gestation cannot be 4 lbs. and will be less than
\n2 lbs.\tIn fact, according to the medical opinion, the child
\nborn  in  such circumstances, should have been\teither\tdead
\nalready, or one which would die soon after delivery.
\nThe  High Court -relied on the statement of Dr.\t Mehta\tthat
\nthough Such is the normal expectation, certain children\t may
\nsurvive\t on account of their’ inherent vitality.  We do\t not
\nthink that an extremely premature baby born of a mother\t who
\nhad  suffered from severe toxemia has any chance  of  having
\nsuch inherent vitality.\n<\/p>\n
The delivery took place at the Prantij Municipal Dispensary,
\nMaternity Ward.\t Madhuben, witness No. 2 for the petitioner.
\nwas  working as a mid-wife at the hospital and had  attended
\nto the delivery of the respondent.  She states that she\t had
\nweighed the child and it weighed 4 or 4-1\/2 pounds, that  it
\nwas  a mature child which was born after the expiry  of\t the
\nfull  period  of gestation and that the child was  a  normal
\none.  Her statement finds support from Exhibit K, one of the
\nin-door\t case  papers  relating to  the\t respondent  at\t the
\nhospital.  Madhuben states that Kachrabhai, the\t compounder,
\nmade entries in this paper under her instructions.
\nExhibit K, as printed, shows that the portion of the  column
\nunder  ‘disease’  was torn.  We have seen the  original\t and
\ncould clearly read the word ‘normal’ and the other word\t may
\nbe
\n304<\/span>
\neither\t‘labour’, as stated by Madhuben, or ‘delivery’.\t  It
\nrecords. ‘Female child, weight 4 pounds’.  The details noted
\nabout the interval between the starting of the labour  pains
\nand  the  delivery do not indicate that there  was  anything
\nabnormal.\n<\/p>\n
Kacherabai,  the compounder, was examined by the  respondent
\nas  witness No. 2. According to him, a white paper known  as
\n‘the  maternity card’ is also prepared along with the  brown
\npaper,\twhich Exhibit K is, and that the white\tpaper  which
\nmust have accompanied Exhibit K was missing from the record.
\nA  photo  copy\tof the pro-forma white paper  was  taken  on
\nrecord.\t  It  requires\tentries\t about\tprevious   obstetric
\nhistory\t and various other matters observed at the  time  of
\nadmission  of  a  maternity case.  There  is  no  reason  to
\nsuppose\t that the relevant white paper was removed from\t the
\nrecords by the petitioner or by someone at his instance\t and
\nthat  it contained matters which would show the\t entries  in
\nExhibit\t K  to be wrong or the statement of Madhuben  to  be
\ninaccurate.   Kachrabai states that all the records  at\t the
\nhospital remain in the custody of the Doctor, that they\t are
\nkept  under  lock  and key, that the key  remains  with\t the
\ndoctor\tor  with  him  and  that  they\twere  the  only\t two
\nresponsible  persons in the dispensary. he has\talso  stated
\nthat in the file there were some other brown papers also for
\nwhich  there were no corresponding white papers and that  he
\ndid not charge the petitioner with the removal of any  white
\npaper  from  this  file\t and that it was  no  fault  of\t the
\npetitioner  if any white paper was not on the file.  He\t has
\nalso  proved  the  entry with respect  to  the\trespondent’s
\ndelivery in the Maternity Admission Register.  The entry  is
\nExhibit 15.  It also mentions the weight of the child to  be
\n4 lbs.\tIt has a ‘dash’ in the column for ‘conditions of the
\nchild’.\t  Kacherabai states that this ‘dash’ meant that\t the
\ncondition  was good.  A ‘dash’ which is found in the  column
\n‘still\tborn,  miscarriage, abortion’  cannot  mean  ‘good’.
\n‘Dash’ in the column of ‘condition of child’ may mean ‘good’
\nas  deposed  to by Kacherabai.\tAny way, it must  mean\tthat
\nthere was nothing particular to note about the condition  of
\nthe baby.\n<\/p>\n
Gokhale J., accepted Mahuben’s statement about the weight of
\nthe baby and its condition but did not accept the  statement
\nthat the baby was born after a full period of gestation.  He
\nconsidered the delivery to be premature.\n<\/p>\n
Patel J., considered Madhuben to be unreliable, assumed\t the
\nweight\tof  the\t baby to be 4 lbs.  and\t accepted  the\tres-
\npondent’s statement about the condition of the baby and\t its
\nbeing born premature.\n<\/p>\n
Patel  J. remarked, in meeting the submission for the  peti-
\ntioner that Madhuben was living at Vrindaban and was leading
\na pious life and had no reason to make untrue statements
\n305<\/span>
\nthat  sometimes\t such persons might be bigoted\tand  narrow-
\nminded.\t He did not believe her statement that the child was
\nkept  on  glucose  for\ttwo  days  in  accordance  with\t the
\npractice’  followed  in the Prantij  Hospital,\tas  normally
\nmother’s  milk\tis available only after two days  after\t the
\nbirth of the child. The statement is said to be contrary  to
\nthose  of  most\t of the standard books referred\t to  by\t the
\nexperts\t on  behalf  of\t the  parties.\t Madhuben  was\t not
\nquestioned  about  it and we have not been referred  to\t any
\nstatement to the contrary in any book on the subject.
\nHe  did\t not rely on the entry about the  condition  of\t the
\nchild  as the various entries in Exhibit 17 showed that\t the
\ncondition  of children weighing 3 lbs. or 4 lbs. or  6\tlbs.
\nwas similarly noted.  The description of the condition of  a
\nchild  as good, need not have a necessary relation with\t the
\nweight of the child born.  It is to be noted that, according
\nto the entries in the Maternity Admission Register,  Exhibit
\n17,  most  of  the children born  in  the  Prantij  Hospital
\nweighed\t 4 lbs. or less.  The condition of all the  children
\ncould not have been such as to require special mention.\t  It
\nmay,  however,\tbe pointed out that no entry in\t Exhibit  17
\nshows the weight of the child to be 6 lbs.\n<\/p>\n
Patel  J., suspected the genuineness of the entries  in\t the
\nhospital  records as he mis-read Kacherabai’s statement\t and
\nso erroneously thought that the hurry with which the  papers
\nwere   produced\t by  the  Doctor  raised   some\t  suspicion.
\nKacherabai,  the compounder, examined for the respondent  on
\nMay 7, 1950, stated:\n<\/p>\n
\t      “Doctor has returned to Prantij yesterday.  He
\n\t      had gone to attend some marriage about 3 or  4
\n\t      days ago.”\n<\/p><\/blockquote>\n
\t      Patel  J., however, happened to mis-read\tthis
\n\t      statement\t and observed, in dealing  with\t the
\n\t      question of normal delivery,
\n\t      “Keshavbhai (Kacherabai?), the witness of\t the
\n\t      respondent,  the\tcompounder,  said  that\t the
\n\t      doctor  left  only  a day\t before\t his  giving
\n\t      evidence, i.e. he, left on the 6th.  The hurry
\n\t      with  which  the papers were produced  by\t the
\n\t      doctor may raise some suspicion.”\n<\/p><\/blockquote>\n
The  fact is that Dr. Modi who was attached to\tthe  Prantij
\nMunicipal Dispensary in May 1959 was present in Court on May
\n2, 1959 to produce the documents summoned from him.  He\t was
\nnot in a position to be present in Court between 3rd and 6th
\nMay on account of a marriage which was to take place on\t May\n<\/p>\n
4.  He, therefore, filed an affidavit that day\tstating\t the
\nfacts  and requesting the Court to excuse his  absence\tfrom
\nMonday, May 4, 1959, till the morning of Thurs-\n<\/p>\n
306<\/span><\/p>\n
day,  May  7,  and expressing his  readiness  to  leave\t the
\nrecords in the custody of the Court or such other person  as
\nthe Court directed.\n<\/p>\n
The  order sheet of the trial Court dated May  2,  1959shows
\nthat  the petitioner’s counsel requested the Court  to\ttake
\nthe  papers in its custody as the Doctor had come  with\t the
\nrelevant  papers.  Counsel for the respondent had no  objec-
\ntion.  The records came in the custody of the Court in this.
\nway.  Patel J., says:\n<\/p>\n
\t      “The white paper in respect of the  respondent
\n\t      is  missing.  The petitioner and his  advisers
\n\t      had  the first glimpse of the hospital  record
\n\t      in connection with this case if any one had it
\n\t      and  it  is  a mystery that  the\twhite  paper
\n\t      should disappear.”\n<\/p><\/blockquote>\n
\t      The  order  sheet of May 2,  1959\t shows\tthat
\n\t      counsel  for the; petitioner had\ttendered  in
\n\t      Court  Entry No. 63 for the year\t1947,  i.e.,
\n\t      Exhibit  J.  and\tindoor-case  papers  of\t the
\n\t      respondent, Exhibit K. It adds:
\n\t      “Shri Mehta says that Dr. Modi (the doctor  at
\n\t      the Prantij  Municipal Dispensary who produced
\n\t      Exs.  J  & K) does not know  of  his  personal
\n\t      (knowledge)  and he is producing\tthe  records
\n\t      (maintained)   in\t the  ordinary\t course\t  of
\n\t      business.\t   Mr.\t Shah\t(counsel   for\t the
\n\t      respondent) has no objection.”\n<\/p><\/blockquote>\n
It  appears  that Dr. Modi did not file in Court  any  white
\npaper.\t There\tis no evidence that the petitioner  had\t the
\nfirst glimpse of the hospital record and this is clear\tfrom
\nthe learned Judges using the expression ‘if anyone had\tit’.
\nThe petitioner is not to blame for the missing of the  white
\npaper.\t When the learned Judge suspected the  bonafides  of
\nDr.  Modi and the petitioner in connection with the  missing
\nof the white paper relating to the respondent’s delivery and
\nwas  to base a finding on such a suspicion, he\tshould\thave
\nsummoned  Dr. Modi and examined him in that  connection\t and
\nshould not have left the matter by a mere observation:\t‘The
\ndoctor\twho produced it could not be cross-examined,  as  he
\nproduced the papers in a hurry’.  We should, however,  point
\nout  that what transpired when Exhibits J & K were  produced
\ngave no room for the comment made by the learned Judge.
\nPatel J., was further of opinion that it was not expected of
\nMadhuben  to  remember the condition of the child  after  so
\nmany  years of the event and because the respondent  herself
\ndescribed  the condition of the child very much\t differently
\nand the latter could be expected to have better reasons\t for
\nremembering  its condition than the mid-wife.  We may  quote
\nthe  statements\t of the respondent and\tMadhuben  about\t the
\ncondition of the child.\t The respondent said:\n<\/p>\n
\t      “The child born to me was a very weak one.  It
\n\t      was  a  very.  small one.\t She was  not  in  a
\n\t      position to cry at
\n\t      307<\/span>
\n\t      the  time of her birth.  She did not  cry\t for
\n\t      two  days\t after\ther birth.   Her  eyes\twere
\n\t      closed.  There were, no hair on her head.\t She
\n\t      had no nails on her fingers and toes.  She was
\n\t      not able to suck my milk.\t She was reddish  in
\n\t      colour.\tAs  the baby was unable to  suck  my
\n\t      milk,  milk  was pumped out.  That,  milk\t was
\n\t      thrown  away.  The baby was given glucose\t and
\n\t      brandy. 12 or 13 days after delivery the\tbaby
\n\t      was able to feed from the breast.”
\n\t      Madhuben said:\n<\/p><\/blockquote>\n
\t      “After the delivery Sushilabai appeared to  be
\n\t      weak but the child was normal.  It was crying.
\n\t      The  movement  of the limbs was  normal.\t The
\n\t      eyes of the child were open and the child\t was
\n\t      taking  glucose.\t The  cries  of\t the   child
\n\t      indicated that the child was a healthy one.”
\n\t      “At  the time of the delivery  of\t Sushilabai,
\n\t      Dr.  Chimanlal  was  not\tpresent.   No  other
\n\t      doctor  or  nurse was called at  the  time  of
\n\t      Sushilabai’s  delivery.  I alone\tattended  to
\n\t      the delivery of Sushilabai.”\n<\/p><\/blockquote>\n
Madhuben  was  not cross-examined  regarding  her  statement
\nabout  the  condition  of the  child  and  the\trespondent’s
\nversion about the condition of the child was not put to her.
\nThe  only explanation suggested for this omission  has\tbeen
\nthat  the respondent herself was not present in\t Court\tthat
\nday  and therefore could not have instructed the counsel  in
\nthat regard.  The explanation is feeble.  The respondent was
\nin  Bombay on the day Madhuben was examined.  She must\thave
\nknown  that Madhuben had been summoned for evidence on\tthat
\nparticular day and if she did not attend the Court that\t day
\nit  must  have\tbeen with a purpose.  A party  has  to\tgive
\ninstructions to his counsel in good time and has not to\t put
\nthat off till the actual date of hearing.\n<\/p>\n
Madhuben was questioned as to how she remembered these facts
\nand  stated  that  during the proceedings  of  the  case  at
\nBaroda,\t somebody had made enquiries from her and  therefore
\nshe  was  reminded of the respondent’s delivery.   This\t too
\nmust  have  happened  in 1.948. It appears to  us  that\t the
\nreason\tfor her remembering the details of the\trespondent’s
\ndelivery could be the very fact which is the matter in issue
\nin  this  case.\t The respondent belonged  to  a\t respectable
\nfamily\tof the place which is not a large one.\tThe date  or
\nat  least  the month of the marriage would be known  in\t the
\nlocality.  The delivery took place within an unusually short
\nperiod\tof  the\t marriage.  It appears that  people  of\t the
\nlocality talked about it.  In these circumstances,  Madhuben
\ncould  have  recollected of this  particular  delivery\twhen
\nquestioned about it.\n<\/p>\n
308<\/span><\/p>\n
It  is very difficult for a witness to state on oath why  he
\nremembers  a certain fact which took place long ago and\t the
\nwitness therefore makes his best to answer it at the spur of
\nthe  moment.   We do not consider the  long  period  lapsing
\nbetween\t the  delivery\tand Madhuben’s\tstatement  in  Court
\nsufficient to justify ignoring her statement or consider her
\nto be an unreliable witness when there is no reason for\t her
\nto depose falsely, nor the fact that she stayed at the place
\nof  Manilal, fattier of the petitioner, in Bombay  when\t she
\ncame to give evidence sufficient to discredit her.  She went
\nto  Bombay from Vrindaban where she had been residing  after
\nshe  gave  up  service and bad been living  the\t life  of  a
\ndevotee.\n<\/p>\n
It  is\ttrue  that  a mother is not  likely  to\t forget\t the
\ncondition  of  the child born to her, but the value  of\t the
\nrespondent’s  statement depends on her veracity.   Both\t the
\ntrial Court and the High Court in their judgements held\t her
\nto  be\tan  unreliable witness.\t Patel\tJ.,  relies  on\t her
\nstatement  only so far as it is about the condition  of\t the
\nchild.\tWe do not consider her statement about the condition
\nof  the\t child\tborn  to her  to  be  worth  reliance.\t She
\ndescribes  this\t condition to be  practically  exactly\twhat
\nought  to  be  the condition of a child after  a  period  of
\ngestation  amounting to 171 days.  The description given  by
\nher  exactly  fits in with the details of  the\tdescriptions
\nfound  in text books on obstetrics.  She was examined  after
\nthe doctors examined for the petitioner and for her had made
\ntheir  statements.   Apart from this, she  could  know\tfrom
\nother  sources what condition a baby born after that  period
\nof  gestation  should  have and could  therefore  mould\t her
\nstatement accordingly.\n<\/p>\n
Before\tthe remand of the issues by the High Court,  it\t was
\nnot her case that the child was born prematurely or that its
\ncondition  was\tsuch as would have been the condition  of  a
\nchild born after that period of gestation.  If the condition
\ndescribed  now\twas the real condition of  the\tchild  born,
\nthere  could have been no reason for her to think  that\t her
\ntrue  story  of having conceived by her\t husband  after\t the
\nmarriage might not be accepted by the Court.  She could have
\ndoubts about it only when the condition of the child did not
\nfit  in\t with the expected condition of a child\t born  after
\nthat period of gestation.  If the condition of the child was
\nsuch  as described by her, there was no reason why  Madhuben
\nwould not have given instructions about the condition to the
\ncompounder,  for noting in the Hospital records.   That\t was
\nnot the normal condition of the child born, be it after\t the
\nfull expiry of the usual period of gestation or after almost
\nthe full period of gestation.  There is no difference in the
\nstatements of the doctors examined in the case with  respect
\nto  the care and attention necessary to be given to  a\tbaby
\nborn  after such a period of gestation.\t The respondent\t was
\nin the hospital till September 8,
\n309<\/span>
\n1947.\tShe states that great care was taken of\t the  child,
\nbut  if that extreme care was taken, there would  have\tbeen
\nsome  note about it in the hospital records and that  itself
\nwould have been a very good reason for Madhuben to  remember
\nabout the.., child’s condition.\n<\/p>\n
We  see\t no  reason why Madhuben be not\t believed  when\t the
\navailable  hospital records support her.  She has no  reason
\nto  depose  falsely.   In these\t circumstances,\t we  are  of
\nopinion\t that  Patel  J., was in  error\t in  preferring\t the
\nstatement of the respondent to that of Madhuben.
\nThe weight of a child born, is again a factor which tends to
\nsupport the statement of Madhuben about the condition of the
\nchild and goes against the statement of the respondent.\t The
\nchild  weighed 4 lbs.  Again, there is no difference in\t the
\nopinion\t of  the doctors examined for the parties  that\t the
\nweight\tof a child born at about the 6th month of  pregnancy
\nwould be about 2 pounds.  Such a statement is borne out from
\nwhat is noted in the various books on that subject.  We\t see
\nno  reason  to\tdoubt the statement of\tMadhuben  about\t the
\nweight\tof  that child.\t The entries in Exhibits  K  and  15
\nsupport it.\n<\/p>\n
We  do\tnot see any reason to disbelieve  the  statement  of
\nMadhuben  that\tthe child was a mature\tchild.\t The  normal
\nweight\tof a child born after the full period  of  gestation
\nis, -said to be 6 to 7 pounds, according to Dr. Ajinkia\t and
\n5  to 7 pounds, according to Dr. Mehta, but the weight of  a
\nnormal\tchild depends upon various circumstances.   In\tthis
\nconnection,  it is worth noticing that Exhibit\t17  contains
\nentries\t about\t35 cases of births at the  Prantij  Hospital
\nbetween\t  December,  1942  and\tAugust\t1952,  about   which
\nKacherabai was questioned by the respondent’s counsel in the
\nexamination-inchief.  Out of these the majority of  children
\nweighed\t less  than 4 lbs.  Only one weighed 5 lbs.,  one  4
\nlbs.  and 8 ounces, and twelve weighed 4 lbs.  Only one\t out
\nof  them  appears to have died.\t It can be  taken  that\t the
\nnormal weight of the children born at this hospital is about
\n4  lbs.\t It is too much to expect that all these were  cases
\nof  premature  deliveries.   It should not  therefore  be  a
\nmatter\tfor surprise and for disbelieving Madhuben when\t she
\nstates\tthat the child born to the respondent was  a  mature
\nchild born after the expiry of the full period of gestation.
\nOf  course,  her statement cannot be taken to  be  literally
\ncorrect.   What\t it amounts to is that the  child  was\tborn
\nafter  practically  the\t full period of\t gestation  and\t was
\ndefinitely  not\t a  child born in the 6th or  7th  month  of
\npregnancy.\n<\/p>\n
There  had  been  some difference  of  opinion\tbetween\t Dr.
\nAjinkia\t and Dr. Mehta examined for the petitioner  and\t the
\nrespondent  respectively,  about the definition\t of  ‘normal
\nlabour’ or ‘normal delivery’.  Both are agreed with what the
\n310<\/span>
\nexpression  ‘labour’ means.  Dr. Ajinkia states that  normal
\nlabour would mean a series of processes by which the  mature
\nor  almost mature products of conception are  expelled\tfrom
\nthe  mother’s body and referred to, in this connection,\t the
\ndefinition  of\t‘labour’  in  Williams’\t ‘Obstetrics’,\t10th
\nEdition,  p. 324.  Dr. Mehta agrees with the definition\t but
\nwould not associate maturity or almost maturity of the child
\nwith the expression ‘normal labour’ and would restrict\tthat
\nexpression  to mean labour during which no artificial  means
\nare used.  He had to admit later that labour has  connection
\nwith maturity.\tWhen questioned whether normal labour  could
\nbe  compatible\twith premature birth, Dr.  Mehta  stated  in
\nexamination-inchief :\n<\/p>\n
“It may be termed as a normal labour, but one specifies\t the
\nterm that it was a. premature one.”\n<\/p>\n
We are inclined to prefer Dr. Ajinkia’s view on this  point.
\nHowever,  nothing, much turns on it in view of, our  opinion
\nabout  the  weight of the child born and  the  weight  being
\nconsistent  with the weight of a child born after  almost  a
\nfull period of gestation, as would be discussed later.
\nWe, therefore, accept as true the statement of Madhuben\t and
\nhold  that  the child born to the respondent on\t August\t 27,
\n1947  was  after normal labour and weighed 4 lbs.   We\talso
\nbelieve\t her  statement that it was a mature child  and\t had
\nbeen  born  after  almost a full  period  of  gestation\t for
\nreasons we now state.\n<\/p>\n
We  now deal with the question whether the child born  after
\n171  days of marriage could survive and live for years,\t and
\nif so, whether the respondent’s child was born premature  or
\nafter almost the full period of gestation and refer to\twhat
\nDr. Ajinkia and Dr. Mehta had said in this connection
\nDr. Ajinkia states that if special care is taken at the time
\nof delivery and also in the treatment of a child prematurely
\nborn  at the 28th week of conception, then it  may  survive.
\nThe  special  care  he refers to is  not  just\tgiving\tmore
\nattention to the baby by the relations, but of a  particular
\ntype.  He has described the special care to be taken in\t the
\nprocess\t of  delivery  and  the\t care  required\t after\t the
\ndelivery.  During the delivery the special care required  is
\nin regard to the following matters:\n<\/p>\n
\t      1.    The\t labour should not be allowed to  be
\n\t      prolonged.\n<\/p><\/blockquote>\n
\t      2.    As\tsoon as the baby is  delivered,\t its
\n\t      temperature should be maintained.\n<\/p><\/blockquote>\n
\t      3.    Oxygen should be given to the child,  by
\n\t      special incubators.\n<\/p><\/blockquote>\n
\t       4.   Some    respiratory\t  and\t circulatory
\n\t      stimulants will also be required.\n<\/p><\/blockquote>\n
\t       5.   Baby will be required to be handled very
\n\t      gently.\n<\/p><\/blockquote>\n
\t       6.   Since its resistance to fight  infection
\n\t      is  low,\tall  the care is  taken\t to  prevent
\n\t      infection.\n<\/p><\/blockquote>\n
\t       The care required after delivery is in  these
\n\t      respects:\n<\/p><\/blockquote>\n
\t      1. Maintenance of warmth.\n<\/p><\/blockquote>\n
\t       2.   Maintenance of proper nourishment.\n<\/p><\/blockquote>\n
\t       3.   Prevention of cyanotic attacks by giving
\n\t      oxygen.\n<\/p><\/blockquote>\n
\t       4.   Prevention\t of  infection\t as   stated
\n\t      before.\n<\/p><\/blockquote>\n
 The  respondent remained in the hospital for about 12\tdays
\ntill  September 8. Madhuben does not state of any such\tcare
\nbeing  taken either during the delivery or  afterwards.\t  In
\nfact.  the  hospital did not have the  requisite  equipment.
\nMadhuben has stated that abnormal cases of delivery were not
\nattended to at the hospital.\n<\/p>\n
Dr.   Ajinkia further deposed that in his opinion even\twith
\nthe skilled care, a child born within the 7th calendar month
\ncannot\tsurvive,  and in this he is not fully  supported  by
\nwhat Taylor states at p. 32 in his ‘Principles & Practice of
\nMedical Jurisprudence’, 11th Edn., Vol. II:\n<\/p>\n
\t      “In  the absence of any skilled care  Hunter’s
\n\t      dictum  on the unlikelihood of  survival\twhen
\n\t      born before the 7th calendar month remains  as
\n\t      true as it was.”\n<\/p><\/blockquote>\n
There  cannot  be any positive definite statement  in  these
\nmatters\t by any one including a doctor and  especially\twhen
\nthere have been exceptional cases of whatever veracity\tmen-
\ntioned\tin medical books.  Possibly there had been  no\tsuch
\ncase in the personal experience of Dr. Ajinkia where a child
\nborn before the 7th calendar month survived in spite of\t the
\ncare given to the child presumably at the hospital.
\nDr.  Mehta states that lie had not applied his mind  to\t the
\nquestion  whether a child born after 169 or 171\t days  after
\nconception would be born alive, but had applied his mind  on
\nthe  footing of 184 days counted from the first day  of\t the
\nlast menstruation.  He was not, therefore, in a position  to
\nchallenge  the\tstatement of Dr. Ajinkia that a\t child\tborn
\nafter  169  days from the date of conception would  be\tborn
\ndead.\n<\/p>\n
Williams,  in his book on Obstetrics, states at p. 186\tthat
\nat  the\t end of the 6th month, the foetus weighs  about\t 600
\ngrains\tand  a foetus born at this period would\t attempt  to
\nbreath, but almost always perishes within a short time.\t  He
\nfurther\t states that in the 7th month the foetus  attains  a
\nweight\tof about 1,000 grams and that a foetus born at\tthis
\ntime  moves  its feet quite energetically and cries  with  a
\nweak voice and as.\n<\/p>\n
312<\/span><\/p>\n
a rule it cannot be reared, but occasionally expert care  is
\nrewarded  by  a,  successful  outcome.\t Williams,  however,
\nstates\tthat  generally speaking the length affords  a\tmore
\naccurate criterion of the age of the focus than its  weight.
\nThe  weight  of the child, however, is a good index  of\t the
\nperiod of gestation,  though it is not as good and  accurate
\nas  the\t length of the child born.  The baby’s weight  of  4
\nlbs. at birth is not consistent with its being born after  a
\ngestation period of 185 days.  It is, therefore,  reasonable
\nto  conclude  that  the child born  to\tthe  respondent\t and
\nweighing 4 lbs. was not a child born on the 6th or 7th month
\nof pregnancy.  This supports Dr. Ajinkia’s statement.
\nMadhuben  does\tnot  state that the  child  was\t weak.\t The
\nrespondent states so.  We do not believe her.  Reference  to
\ncertain letters may be made in this connection.
\nTile  respondent’s sister sent a letter to Sharda on  August
\n27  or 28 to which Sharda replied on August 3 1. It  appears
\nfrom  Sharda’s letter that the respondent’s sister’s  letter
\nhad said that the health of the respondent as well as of the
\nbaby  was good.\t The sister’s letter does not, in  any\tway,
\nconvey\tthe information that the baby was very weak  and  of
\nsuch a condition as is now described by the respondent.\t  On
\nAugust\t30, the respondent’s father sent a telegram  to\t the
\npetitioner  and said that both the respondent and  the\tbaby
\nwere  well.  On September 3, seven days after the  birth  of
\nthe child, Koderlal sends a letter to the petitioner.  It is
\nin this letter that he states:\n<\/p>\n
\t      “After  I\t had been to  Marwar,  our  daughter
\n\t      Sushila\thas  given  birth  to\ta   daughter
\n\t      prematurely on 27th August 1947, at ‘about  10
\n\t      A.M.  in the morning ……… and the  health
\n\t      of both is very well Intimation has been given
\n\t      to your father by wire and through letter\t but
\n\t      there is no reply from him.”\n<\/p><\/blockquote>\n
This  letter was written after the petitioner’s parents\t had
\nnot   responded\t in  any  way  except  by  showing   extreme
\nindifference  to  the  news of the birth  of  a\t grandchild.
\nThat,  along  with local gossip, must have put\tKoderlal  on
\nguard and even then he does not write anything with  respect
\nto  the\t extremely weak condition of the  child\t and  simply
\nstates that the delivery was premature.\t Sushila also writes
\nto Sharda, on the same day, i.e., September 3. She was still
\nin  the hospital and ordinarily the mother of a baby 6 or  7
\ndays  old  would not have written a letter to  anyone.\t She
\nwrites in this letter:–\n<\/p>\n
\t      “The  health  of myself, and my  baby  is\t all
\n\t      right.  The baby is very weak  Two letters and
\n\t      a\t telegram about the birth of the  baby\twere
\n\t      sent  to the respected Mamma, but there is  no
\n\t      reply at all from the respected Pappa.  Hence,
\n\t      all here are
\n\t\t\t\t   313<\/span>
\n\t      very much worried as to why there is no  reply
\n\t      from   the  ‘Vevai’  (in-laws)  even  to\t the
\n\t      telegram.\t And as I did not keep good  health,
\n\t      the baby was born prematurely before the\tfull
\n\t      period which of course is a matter over  which
\n\t      the Almighty has dispensation.  I do not\tknow
\n\t      what idea he (PappaVevai) must be entertaining
\n\t      about  me.   To  whom,  but  to  you,  can   I
\n\t      write?……… A telegram was sent to  London
\n\t      to your brother, informing him about the birth
\n\t      of  the  baby but God knows why  there  is  no
\n\t      reply from him.”\n<\/p><\/blockquote>\n
The  contents  of this letter tend to confirm what  we\thave
\nsaid  in  connection  with the letter  of  the\trespondent’s
\nfather to the petitioner.  The respondent and her people had
\na  definite feeling that the petitioner and his people\twere
\nnot responding to the communications probably on account  of
\nthe idea that the child born was not the petitioner’s child.
\nThe respondent indirectly gave expression to such a  feeling
\nby saying that she did not know what idea her  father-in-law
\nwas  entertaining about her.  Any way, her letter  does\t not
\nstate  in  what\t respect  the  baby  was  very\tweak.\t The
\nexpression that the baby was weak in no way conveys the idea
\nthat the baby’s condition was such as has been now described
\nby  the\t respondent.   For  a baby  of\tmature\tperiod,\t the
\nrespondent’s  child was certainly weak, but for a baby\tborn
\nafter  a period of about 6 months’ gestation, the baby\tborn
\nwas not weak at all.\n<\/p>\n
The respondent sends a letter to the petitioner on  December\n<\/p>\n
22. 1947.  She expresses her grievance at not being informed
\nfirst of the petitioner’s return to the country, and states,
\n“No  one  can be a match for nature; God  alone\t stands\t for
\ntruth.\tPlease forgive my mistakes if any.”
\nThese expressions also make out that she was fully conscious
\nby  this time that the indifference of her  husband  towards
\nher  was on account of the feeling that the child  born\t was
\nnot  his.   Still in this letter she does not  give  a\tfull
\npicture\t of the condition of the child born to her in  order
\nto impress the correctness of her implied statement that the
\nchild was really of the petitioner.  That was the time\twhen
\nshe and her people, could have placed facts and evidence  in
\nthe form of either statements from the doctors or references
\nto  the doctors to whom the petitioner could refer for\tsuch
\ninformation  which  could have\tsupported  the\trespondent’s
\nassertion.\n<\/p>\n
When no reply was received to this letter, it was then\tthat
\nthe  respondent wrote a letter to Sharda on January 8,\t1948
\nand  over  a month later to the petitioner on  February\t 16,
\n1948.\n<\/p>\n
314<\/span><\/p>\n
Reference  has\tbeen  made  to\tthese  letters\tearlier\t  in
\nconnection  with the allegation that Champaklal had examined
\nthe respondent’s body in May 1947.\n<\/p>\n
  In  her letter to Sharda, she is more explicit  than\twhat
\nshe was in her letter to the petitioner on December 27.\t She
\nsaid:\n<\/p>\n
\t      “Hence  I open out my heart to you  this\tvery
\n\t      day  (and say) that I am absolutely  innocent.
\n\t      I\t was  in  M.C. about  ten  days\t before\t the
\n\t      marriage\tIt did not occur to me, even  in  my
\n\t      dream,  that an accusation of such  a  roguery
\n\t      would  be\t brought against me  ……To  throw
\n\t      such  an\tinfamy\ton  a  person  coming  of  a
\n\t      respectable family would indeed be the  limit;
\n\t      Behen: You are kind and please think full well
\n\t      over  this matter and bring it to end. …  As
\n\t      to whether it is your child or not, well,\t you
\n\t      may see it and satisfy yourself as to  whether
\n\t      or not its appearance and features tally (with
\n\t      yours).”\n<\/p><\/blockquote>\n
It  is clear now, from this letter that she was\t fully\tcon-
\nscious\tof  the\t accusation against  her,  conveyed  through
\nsilence if not through letters.\t Yet, in this letter, except
\nfor asserting her innocence, she does not come out with\t the
\nfacts  about the condition of the baby and the extreme\tcare
\ntaken  by her.\tShe wrote in similar strain to tier  husband
\non February 16, and stated in that letter:\n<\/p>\n
\t      “I  was keeping weak health and was  suffering
\n\t      from  blood-pressure  and only on\t account  of
\n\t      that  the delivery has taken place earlier  It
\n\t      is,  therefore  only the\tfeeling\t of  revenge
\n\t      entertained  by the persons who have  poisoned
\n\t      your  ears  towards me and the members  of  my
\n\t      family.  Further, if I were at fault and if  I
\n\t      wanted to hide something from you then I would
\n\t      not  have taken proper care of the  child\t who
\n\t      was  and\tis still weak due to  its  premature
\n\t      birth and consequently it would have died\t and
\n\t      I\t would have told (you) that there was  some-
\n\t      thing like miscarriage.  But as my  conscience
\n\t      was  clear  and as I had trust in you  I\ttook
\n\t      proper   care   of  it   and   brought   about
\n\t      improvement in its health. …… It may\twell
\n\t      be  that as you have not known me\t fully\tthat
\n\t      you have got suspicious.\tBut if you live with
\n\t      me you will be convinced that out of  jealousy
\n\t      and  revenge  an absolutely false\t charge\t has
\n\t      been put on an innocent woman.”\n<\/p><\/blockquote>\n
It  is for the first time in this letter that  something  is
\nsaid of taking proper care of the child who was weak.\tEven
\nin  this  letter  she had not given  a\tdescription  of\t the
\ncondition of the
\n\t\t\t    315<\/span>
\nchild at the time of its birth a condition which would\thave
\nsufficed  to convey the idea that the child born was  really
\nam, child of about 6 months’ pregnancy.\n<\/p>\n
The  letters of the respondent and her relations  subsequent
\nto  the birth of the child do not bear out the\trespondent’s
\nstatement  about the condition of the child at the  time  of
\nits  birth and. therefore, do not in any way  discredit\t the
\nstatement of Madhuben about the condition of the child\tborn
\nand its weight.\n<\/p>\n
True that there had been instances of children born after  a
\ncomparatively  short period of gestation and that  they\t had
\nsurvived–a few for some years too.  But such cases are\t few
\nand it may be open to doubt whether the period of  gestation
\nreported was absolutely correct.  In this connection we\t may
\nrefer  to  Table  No. 2 at p. 560 of  ‘British\tObstetric  &
\nGynaecological Practice’ by Holland & Bourne, 11 Edn., which
\nrelates\t to  Total Consecutive Births, Male,  Classified  by
\nBirth  Weight  &  Gestation Time.  It  also  mentions  still
\nbirths\tand  neo-natal deaths among them.  It  appears\tfrom
\nthis  table that out of 7,037 cases of births, there were  3
\nbirths\ti.e., .043 per cent with a gestation period  between
\nabout  155 and 175 days, that all those three were cases  of
\nstill births or neo-natal deaths and that the weight of each
\nchild  was 1 lb. or so.\t There were 4 births i.e.  .057\t per
\ncent with a gestation period between 170 and 185 days.\t All
\nthe  four of them, were cases of still births and  neo-natal
\ndeaths.\t Only one of them weighed 6 lbs.  Two weighed 2 lbs.
\neach and one weighed 1 lb. 13 i.e., .19 per cent were births
\nwith  a period of gestation between 185 and 200 days. 12  of
\nthem were cases of still births and neo-natal deaths.\tOnly
\ntwo weighed 5 lbs. each, one of them surviving; one  weighed
\n4 lbs.\tThree weighed 3 lbs. each.  Six weighed 2 lbs.\teach
\nand one weighed 1 lb.\n<\/p>\n
Dr.  Mehta states that a baby born 169 days after conception
\nwould  weigh between 1 1\/2 and 2 lbs.  A child whose  weight
\nat birth is 4 lbs. might in rare cases be a full term  baby,
\nbut  ordinarily\t it  was  taken\t to  be\t a  premature  baby,
\naccording  to  him. and a 4 lbs. full-term baby was  a\trare
\noccurrence.\n<\/p>\n
The  learned  Judges considered the  delivery  premature  on
\naccount of the respondent suffering from toxemia.  We do not
\nagree.\n<\/p>\n
Dr.   Ajinkia states that a premature delivery is one  which
\ntakes place between the 28th week and the 40th week from the
\ndate of conception and that miscarriage means the  expulsion
\nof  the product of conception before the 28th week  of\tcon-
\nception.  He has also stated that the shorter the period  of
\ngestation,  the\t more feeble would be the  child  and  fewer
\nwould  be the hours of its survival, while a child born\t out
\nof  miscarriage\t could not survive even\t with  special\tcare
\nbecause it
\n316<\/span>
\nwas  not a viable child.  By viable he meant that the  child
\nhas\tbeen  sufficiently developed  to  continue  separate
\nexistence  from\t the mother.  He is emphatic  that  a  child
\ncould  not be viable\teven before the 28th week, say\t25th
\nor 26th week.\n<\/p>\n
Dr.  Mehta,  on the other hand, states that a child  is\t sup
\nposed to be normally viable about the 28th week, that  there
\ncan  be\t exceptions and a child might be viable\t before\t the
\n28th  week  and could be born alive and could  survive.\t  He
\nsaid  that he made this statement on the basis of  knowledge
\nwhich  he had acquired from the standard books and  referred
\nto three cases mentioned in De Lee’s Book.\n<\/p>\n
Dr.  Mehta  has\t further stated with  respect  to  premature
\ndeliveries that premature delivery could be before the\t28th
\nweek.\tAt  first he stated that he could not say  how\tlong
\nbefore such a delivery could be, but when pressed in  cross-
\nexamination  he stated that a 20 weeks’ foetus,\t if  ejected
\nalive  or  dead\t from  the body of a woman  it\twould  be  a
\npremature  birth.  He admitted that abortion  was  different
\nfrom premature delivery and also stated that if the delivery
\ntook  place  before  the  28th week  it\t was  termed  either
\nmiscarriage  or abortion, but added that if the\t child\tborn
\nwas  a viable child, then such a delivery would be called  a
\npremature delivery.\n<\/p>\n
He could not contradict Dr. Ajinkia’s statement that a child
\nborn  after  169 days from the date of conception  would  be
\nborn dead.\n<\/p>\n
We  may refer to what is stated about premature\t termination
\nof pregnancy in British Obstetric Practice by Holland,
\nat pp. 559-561, 2nd Edition:\n<\/p>\n
\t      “Premature  termination  of pregnancy  may  be
\n\t      defined as termination of the pregnancy  after
\n\t      the   twentyeighth  week\t(accepted  date\t  of
\n\t      viability\t of  the  foetus)  and\tbefore\t the
\n\t      fortieth week, counting from the first day  of
\n\t      the last menstrual period.  On the other hand,
\n\t      most  writers  on the subject  of\t prematurity
\n\t      tend  to define the condition in terms of\t the
\n\t      weight of the baby rather than in terms of the
\n\t      maturity of the pregnancy.  It was first\tlaid
\n\t      down by the American Academy of Pediatrics  in
\n\t      1935  that  a  premature infant  is  one\tthat
\n\t      weighs   5-1\/2   lb.  (2,500  gm)\t  or   less,
\n\t      regardless  of the period of gestation.\tThis
\n\t      definition  was accepted by the  International
\n\t      Medical Committee of the League of Nations and
\n\t      has  gained universal acceptance, in spite  of
\n\t      its scientific inaccuracy.  Most obstetricians
\n\t      have  seen babies of less than 5-1\/2 lb.\tborn
\n\t      after  a\tgestation period of  more  than\t 280
\n\t      days.   Indeed, birth weight and\tduration  of
\n\t      pregnancy\t are far from perfectly\t correlated.
\n\t      Infants weighing less than 5-1\/2 lb. at  birth
\n\t      may even be post mature.\tThis
\n\t      317<\/span>
\n\t      is  well shown in Table 2 constructed by\tKane
\n\t      and  Penrose  from  7,037\t live  births\tfrom
\n\t      University  College Hospital records.   It  is
\n\t      seen  that 470 babies weighed less than  5-1\/2
\n\t      lb.,  but\t that III (23.6 per cent)  of  these
\n\t      under-weight  babies  were  born\tat  term  or
\n\t      later,  according\t to the ordinary  method  of
\n\t      calculation.   The  term immaturity  has\tbeen
\n\t      suggested\t as an alternative in view of  these
\n\t      discrepancies,   but  it\thas   not   received
\n\t      universal acceptance.  There is, however, more
\n\t      than  academic significance in the  difference
\n\t      because  maturity\t as  such,  irrespective  of
\n\t      weight,  is  of  the  greatest  importance  in
\n\t      relation\tto  foetal survival.  A\t baby  whose
\n\t      birth weight is 4 lb., if born at thirty-eight
\n\t      weeks stands a far better chance of  survival,
\n\t      and  is more likely to develop into a  healthy
\n\t      child, both mentally and physically, than\t one
\n\t      of the same weight born a month earlier.”\n<\/p><\/blockquote>\n
 What has been said above about the viability of a  child or
\nits  premature\tbirth is with respect to a child born  of  a
\nmother whose pregnancy progressed normally.  The chances  of
\nsurvival  of a baby born, of a mother who had suffered\tfrom
\nsevere\ttoxemia for about two months prior to the  delivery,
\nare  bound to be much less and would be further less  if  no
\nspecial\t care is taken during delivery and thereafter.\t The
\nweight of the respondent’s baby, its condition at birth\t and
\nits having lived as a mature child born after full period of
\ngestation  does,  together  with  the  other   circumstances
\nconnected with the progress of the pregnancy, amply  support
\nthe petitioner’s case that the child born to the  respondent
\ncould not be of the petitioner.\n<\/p>\n
We have been referred to several cases in which the question
\nabout a child being conceived from the husband or not arose.
\nSuffice it to say that cases fall into two categories.\t One
\nwhere delivery takes place much more than 280 days after the
\nhusband\t had last opportunity to cohabit with his  wife\t and
\nthe  other where it takes place much earlier than  280\tdays
\nfrom the first day of menstruation prior to conception.\t The
\nfirst  type of cases, to which reference need not  be  made,
\ninvolve\t the determination of the question as to the  period
\nit took for a sperm to fertilize the ovum.  Nothing  precise
\nabout the period was known when cases prior to the  decision
\nof Preston Jones’ case(1) came up for consideration.  It was
\nconsidered to vary much and so children born so long as\t 349
\ndays after the known period of cohabitation were held to  be
\nlegitimate, as not proved to be the results of adultery.  No
\nsuch  question however arises in the other type of cases  as
\nthe decision is to be given on the assumption that there had
\nbeen fertilisation on the first day possible for the  coitus
\nbetween the husband and wife.  The question to determine  in
\nsuch cases is (1)(1951) A.C. 391.\n<\/p>\n
318<\/span><\/p>\n
whether the short period of gestation would justify the con-
\nclusion\t that  the child was born of  conception  from\tthat
\ncoitus\tor  was\t born  as a  result  of\t some  other  sexual
\nrelations between the woman and someone prior to that coitus
\nbetween\t the husband and wife.\tOne such case was  Clark  v.
\nClark(1) on which much reliance has been placed by the Court
\nbelow.\n<\/p>\n
In  this divorce case, on the petition of the husband  there
\nwas  no evidence of misconduct on the part of the  wife\t and
\nthe only evidence of adultery was the fact of the birth of a
\nchild the period of gestation of which, assuming the husband
\nto  be\tthe father, could not have exceeded 174\t days.\t The
\nchild  lived, and,. at tile date of the hearing was about  3
\nyears  old.  The medical evidence was to the effect  that  a
\nchild of so short a period of foetal life would not  survive
\nfor  more  than day or two.  In view of tile fact  that\t the
\ndate  of  conception  could be fixed  very  rarely,  it\t was
\nconsidered that the periods of gestation generally spoken of
\nwere notional periods and that therefore where\t  the  (late
\nof conception could be fixed and thus the actual period\t   of
\ngestation be ascertained, such period was comparable to\t the
\nlonger notional period and consequently a six months’  child
\nmight be comparable to what was called a 7 months’ child.
\nThe  facts  of that case were very much different  from\t the
\npresent\t case  and must have naturally influenced  the\tview
\nthat a six months’ child be comparable to a 7 months’ child.
\nThe Court considered the allegation of the husband who lived
\nquite  close to where the wife lived for about a year  after
\nthe delivery, that the child when born was a fully developed
\n9 months’ child, grotesque.  The Court believed the evidence
\nof  the nurse with 30 years’ experience that the child\tborn
\nwas  one of the two most extreme cases of  premature  births
\nshe had seen.  The wife’s mother deposed about the condition
\nof  the child which corresponded to a child born  after\t 174
\ndays of the conception.\t The Court believed the statement of
\nthe mother of the child.  The lower limbs of the child\twere
\nin irons even about 3 year& after its birth.  Tile  delivery
\nwas  hastened on account of an accident.  The mother of\t the
\nchild  had fallen a day earlier.  The weight of\t the  child,
\nthough noted as 3-1\/2 lbs. was not more. than 2-1\/2 lbs., as
\nthe former weight included the weight of the towel.
\nThe  notional  period of pregnancy is  calculated  from\t the
\nfirst  day of the menstruation preceding the conception\t and
\nit  is on this account that 14 days are added to the  period
\nof  pregnancy  from the actual date of conception.   On\t the
\nbasis  of  notional calculation, the fully mature  child  is
\nborn  after  280  days.\t  On  the  basis  of  the  date\t  of
\nconception, the child is born (1) [1939] 2 All E.P. 59.\n<\/p>\n
319<\/span><\/p>\n
between\t 265 and 2’70 days.  The development of\t the  foetus
\nundoubtedly  depends on its age as counted from the date  of
\nconception  and\t it  is for this reason that  the  books  on
\nObstetrics mostly deal with the development of the foetus on
\nthe  basis of, days or weeks after conception, for a  period
\nof  about  2 months and thereafter they begin  to  note\t its
\ndevelopment  with  respect,  to\t the  end  of  the  3rd\t and
\nconsecutive  months.  This must be due to the fact  that  by
\nthat time a difference of about a fortnight in the period of
\ngestation  does not bring about a substantial difference  in
\ntile  description of the development of the  foetus.   After
\nall, the entire knowledge with respect to the development of
\nthe foetus with respect to the period of gestation is  based
\non  a  consideration  of a large number of  cases  and\tthen
\narriving  at some generalized conclusion about the  develop-
\nment of the foetus corresponding to its age from the date of
\nconception.  It would not therefore be very correct to add 1
\nlunar month to the ascertained period of gestation in  cases
\nof a known date of conception merely on the ground that when
\nbooks  speak of a foetus of a certain number of months\tthat
\nfoetus might be due to a conception taking place on any\t day
\nof  the lunar month corresponding to the menstruation  prior
\nto the conception and the miss-period after conception.
\nIn the present case, however, it is known that the  earliest
\n,date  for  conception\tcan be March 10, 1947.\t It  is\t the
\nstatement of the respondent herself that about 10 days prior
\nto  the\t marriage she had her monthly course.  It  is  clear
\ntherefore  that\t the  notional period of  pregnancy  in\t the
\npresent case cannot execeed the period from March 10 by more
\nthan  10  days.\t  This means that  the\tnotional  period  of
\ngestation of the respondent’s child -cannot be more than 181
\ndays.  We have, however, considered the case on the  footing
\nof  185 days which is equal to the period between  March  10
\nand  August 27 (both days inclusive) -plus 14  days.   There
\ncan  therefore\tbe no justification in the present  case  to
\nconsider  that the respondent’s child, though of  171  days’
\ngestation  after conception, if it be taken to be  conceived
\non March 10, could be notionally equivalent to an age of 171
\ndays plus 28 days, i.e., 199 days.\n<\/p>\n
We are therefore of opinion that Clark’s case(1) cannot be a
\ngood guide, both on facts and law, for the determination  of
\nthe  question before us about the legitimacy of the  respon-
\ndent’s child.\n<\/p>\n
It  may be mentioned that Clark’s case(1) was  distinguished
\nin Guardianship of Infants Act, 1886 & 1925.  In re. and  In
\nre.   S. B. an Infant.(2)B. v. B. where it was held  that  a
\nperiod\tof 188 days is too short to be accepted in law as  a
\nperiod\tof :gestation on the ground that in Clark’s  case(3)
\nthe child was
\n(1) [1939] 2 All E.R. 59.\n<\/p>\n
(2) 1949(1) Ch. 108.\n<\/p>\n
320<\/span><\/p>\n
not held to be a fully developed nine months’ child but\t was
\nheld,  in view of the evidence of the experienced  mid-wife,
\nto be an extreme case of premature birth.  It was said at P.
\n110:–\n<\/p>\n
\t      “There is, as I have said, no such evidence of
\n\t      prematurity  here, and it would  be  straining
\n\t      the  facts  to assume that the birth  was\t the
\n\t      result of intercourse that took place only 188
\n\t      days previously.”\n<\/p><\/blockquote>\n
It  is\ttrue that no allegation of any kind  has  been\tmade
\nabout the respondent’s general immorality or about her\tmis-
\nconducting  with someone at the time when the child born  to
\nher could be conceived.\t The mere fact that her character in
\ngeneral\t is  not challenged does not suffice  to  rebut\t the
\nconclusion arrived at from the various circumstances already
\ndiscussed.   The only question before us is whether  on\t the
\nevidence  led  it is possible for the petitioner to  be\t the
\nfather of the child.  The facts and matters we have set\t out
\nearlier\t clearly establish that the conception-to produce  a
\nchild  of the type delivered –must have taken place  before
\nMarch,\t 10,  1947,  and  if,  as  is  now  the\t case,\t the
\npetitioner’s first sexual contact with the respondent was on
\nMarch 10, 1947, it follows that the respondent was  pregnant
\nby  someone  other than the petitioner at the  time  of\t her
\nmarriage.\n<\/p>\n
The respondent, in her letter dated February 16, 1948 to her
\nhusband said:–\n<\/p>\n
\t      “Further,\t you  know that one  has  to  insult
\n\t      wicked  persons  in order\t to  remain  chaste.
\n\t      Therefore\t those wicked persons who have\tbeen
\n\t      insulted are ready to take revenge.  Hence  it
\n\t      is only out of jealousy that they poison\tyour
\n\t      ears.”\n<\/p><\/blockquote>\n
If  this statement is correct, it shows that persons in\t her
\nvillage\t had  evil eyes on her and that she  had  to  reject
\ntheir advances.\n<\/p>\n
We may also now mention certain other circumstances on which
\nthe respondent relied to show that however unusual it  might
\nbe,  the child born to her was by the  petitioner’s  marital
\nintercourse with her after their wedding.  They are: –\n<\/p>\n
\t      1.    Reluctance\tof  the respondent  to\tmeet
\n\t      even the petitioner before the marriage though
\n\t      the  engagement continued for a period of\t two
\n\t      years and she loved him.\n<\/p><\/blockquote>\n
\t      2.    Suggestion\tto break off the  engagement
\n\t      as late as January and February.\n<\/p><\/blockquote>\n
\t      3.    Reluctance to abort the child.\n<\/p><\/blockquote>\n
\t      4.    Symptoms   of   vomiting   and    nausea\n\t      immediately after the miss of period.\n\t      321<\/span>\n\t      5.    The\t   fact\t  that\t  Champaklal,\t the\n<\/pre>\n
\t      brother-in-law  of  the  petitioner  did\t not
\n\t      notice  the pregnancy of the respondent  which
\n\t      would  be\t sure to have far  advanced  if\t the
\n\t      allegation  were true, though she\t lived\twith
\n\t      him,, and was examined by him.\n<\/p><\/blockquote>\n
\t      6.    She stayed up to the end of May at Vile-
\n\t      Parle in the house of the petitioner’s  father
\n\t      and yet the pregnancy was not noticed.\n<\/p><\/blockquote>\n
\t      7.    The\t progress  of  pregnancy  from\t the
\n\t      beginning\t which\twas  consistent\t only\twith
\n\t      pregnancy by marriage.\n<\/p><\/blockquote>\n
\t      8.    The\t child\tbeing very weak\t and  under-
\n\t      weight.\n<\/p><\/blockquote>\n
\t      9.    Sudden delivery.\n<\/p><\/blockquote>\n
The first circumstance can only indicate that she was  moral
\nand  did not want to have any irregular connection with\t the
\npetitioner  prior to the marriage.  The petitioner  has\t not
\nchallenged her character.  A good general character does not
\nnecessarily  mean that nobody could have had  sexual  inter-
\ncourse\twith her even by force, a possibility  indicated  by
\nher letter just quoted.\n<\/p>\n
The  second  circumstance urged is that if  she\t had  become
\npregnant, she could have accepted the suggestion of breaking
\noff  the engagement when the petitioner had been  expressing
\nhis  dissatisfaction at his engagement with her.  She  could
\nnot have been very independent about it.  The engagement was
\nbrought\t about\tby  the\t parents  of  the  parties   though,
\npossibly,  with\t the implied or express consent\t of  theirs.
\nBreaking off the engagement might have led to scandals.\t She
\nwrote  to the petitioner in her letter dated May,  15,\t1946
\nthat  people  asked her as to why marriage  was\t not  taking
\nplace.\tA betrothal period of about 2 years is ordinarily  a
\nlong period, when the parties were of marriageable age.\t  So
\nthis circumstance, again, is of no force.\n<\/p>\n
The  third  circumstance about her reluctance to  abort\t the
\nchild,\tagain, is not of any value.  Abortion, as  suggested
\nby the petitioner in his letters of April 5 and 8, too would
\nhave led to complications and scandal and it could not\thave
\nbeen certain that the abortion would not disclose the longer
\nage of the foetus than what it ought to have been if it\t was
\nof a connection after the marriage.\n<\/p>\n
We  have  already  dealt with the  symptoms  of\t nausea\t and
\nvomiting  appearing immediately after the first miss of\t the
\nperiod\tand ceasing suddenly about the middle of  April\t and
\nheld that they appeared to be more consistent with the peti-
\ntioner’s case than with the respondent’s.
\nL\/P(D) ISCI-11
\n322<\/span>
\nWe  have  also dealt with the possibility  of  Champaklal’s.
\nobserving the stage of her pregnancy when she was at Gamdevi
\nin the month of May and have held that he could not possibly
\nhave noticed it.\n<\/p>\n
It is true that there is no evidence that her parents-in-law
\nnoticed during her stay at Bombay, from about the middle  of
\nMay  to June 4, that she was in an unduly advanced stage  of
\npregnancy.  Reference has already been made to the  implica-
\ntion  of the statement in her letter that her  mother-in-law
\nasked  her to take all the ornaments with her when  she\t was
\nleaving, for her paternal place on or about June 4.
\nWe  have also referred to a letter of her father-in-law\t ex-
\npressing  no  surprise and showing coldness on his  part  on
\nlearning of her condition in the last week of July 1947\t and
\nto  persons talking about her and the petitioner by May\t 24,
\n1947.  It is therefore not possible to say that the advanced
\nstage  of pregnancy wits not noticed when she was at  Bombay
\nin the month of May.\n<\/p>\n
We  have  already dealt with the progress of  the  pregnancy
\nand.  need not say anything more in that connection.  It  is
\nnot established that the child was very weak and was  under-
\nweight.\n<\/p>\n
The last circumstance urged on behalf of the respondent.  is
\nthe fact of sudden delivery.  The only circumstance  alleged
\nin  this  regard is that her father was not  at\t Prantij  on
\nAugust\t27. Koderlal stated in his letter to the  petitioner
\non  September  3  that after lie had been  to  Marwar  their
\ndaughter  Sushila  had given birth to a daughter.   If\tthis
\nstatement, as translated, is correct, it shows that Koderlal
\nhad  returned  from  his visit to Marwar and  not  that\t the
\ndelivery  took\tplace when he was away\tfrom  Prantij.\t The
\nrespondent’s  bare statement that her father was not in\t the
\nvillage that day, therefore, does not suffice to lead to the
\nconclusion  that  the  delivery\t was  sudden  and  that\t  no
\narrangements  had. been made for the delivery and  that\t the
\ndelivery  did  take  place after six  months  of  pregnancy.
\nFurther, a sudden delivery need not be a delivery of the six
\nmonths’ child.\tIt may be a delivery sometime before the ex-
\npected\t date.\t  Even\tin  such  a  case,   no\t  particular
\narrangements  for  the\tconfinement might  be  made  by\t the
\nrelations.   We\t have already referred to  the\trespondent’s
\nstatement  in  her  letter dated August 13,  1947  that\t the
\ndoctors were contemplating arrangements for the respondent’s
\nconfinement  in view of expected delivery, be it on  account
\nof the normally expected time of delivery approaching or  of
\nexpecting  an  early  delivery on  account  of\tthe  toxemic
\ncondition  of the respondent.  She said in that letter\tthat
\nthey  were going to take her to Ahmedabad or Bombay for\t the
\ndelivery  since\t in  a\tvillage\t like  hers  there  was\t not
\nsufficient equipment available.\t It cannot therefore be said
\nthat the delivery was so sudden as to bear out the.\n<\/p>\n
323<\/span><\/p>\n
respondent’s case that the delivery took place when she\t bad
\njust completed 6 months of pregnancy.\n<\/p>\n
On  the basis of the evidence discussed above and  the\tpro-
\nbabilities  of\tthe case, we are of opinion that  the  child
\nborn to,, the respondent on August 27, 1947 was\t practically
\na  mature  child  and  weighed 4  lbs  in  weight  and\tthat
\ntherefore it could not have been the result of a  conception
\ntaking place on or after March 10, 1947.  It follows that it
\nwas  conceived\tprior .to March 10 and\tthat  therefore\t the
\nrespondent was pregnant at the time of marriage.
\nLastly, we may refer to ss. 112 and 114 of the Evidence Act.
\nSection\t 114  provides\tthat  the  Court  may  presume\t the
\nexistence  of  any  fact  which it  thinks  likely  to\thave
\nhappened,  regard being had to the common course of  natural
\nevents,\t human\tconduct and public and private\tbusiness  in
\ntheir  relation\t to  facts  of\tthe  particular\t case.\t The
\nconclusion  we have arrived at about the child born  to\t the
\nrespondent  being  not the child of the appellant,  fits  in
\nwith  the  presumption to be drawn in  accordance  with\t the
\nprovisions of this section.  People in general consider that
\nthe  child  born, being of a gestation period of  185  days,
\ncannot\tbe  a fairly mature baby and cannot survive  like  a
\nnormal child.  Medical opinion, as it exists today and as is
\ndisclosed  by  text  books on  Obstetrics  and\tGynaecology,
\nhowever,  refer to some rare exceptions of  livebirths\teven
\nwith  a gestation period of a few days less than  180  days.
\nBut we have not found it possible to accept the respondent’s
\ncase  of  the conception having taken place from  and  after
\nMarch  10, 1947 for several reasons which we have  explained
\nin detail at the relevant place.  We should observe that  in
\nthe  case  before us the earliest date on  which  conception
\nthrough\t the  husband could have taken place is\t fixed\twith
\ncertainty,  a  matter which could not be said of  the  freak
\ncases  referred\t to in medical literature, for in  them\t the
\nearliest  date\tof  conception\twas a  matter  of  guess  or
\ninference.   Besides,  we have the feature  in\tthe  present
\ncase, of evidence regarding the various phenomena and bodily
\nchanges\t attending on pregnancy at different stages  of\t its
\ncourse,\t and the combined effect of these does preclude\t any
\nargument  of  a\t conception  on or  after  March  10,  1947.
\nLastly, we have definite evidence, oral and documentary,  of
\nthe  condition\tof  the\t child\tat  birth  which  is  wholly
\ninconsistent  with  a  gestation of less  than\tsix  months’
\nduration,  assuming that a live birth and the child  healthy
\nenough\tto survive is possible with such short\tduration  of
\npregnancy.   In\t passing, we might add that we\tconsider  it
\nprobable  that it was because the physical condition of\t the
\nchild  at birth approximated to a normal mature child,\tthat
\nthe respondent originally put forward a case of\t pre-marital
\nintercourse with the husband—a story she could not sustain
\nand which she ultimately abandoned.\n<\/p>\n
1\/P(D)ISCI-11
\n324<\/span>
\nSection 112 of the Evidence Act provides that the fact\tthat
\nany  person  was  born during the  continuance\tof  a  valid
\nmarriage between his mother and any man shall be  conclusive
\nproof  that he is the legitimate son of that man, unless  it
\ncan be shown that the parties to the marriage had no  access
\nto each other at any time when he could have been  begotten.
\nThe question of the legitimacy of the child born to the res-
\npondent\t does  not directly arise in this case,\t though\t the
\nconclusion  we\thave  reached  is  certain  to\taffect\t the
\nlegitimacy of the respondent’s daughter.  However, the\tfact
\nthat  she  was\tborn during the\t continuance  of  the  valid
\nmarriage   between  the\t parties  cannot  be  taken  to\t  be
\nconclusive  proof of her being a legitimate daughter of\t the
\nappellant,  as\tthe various circumstances dealt with  by  us
\nabove,\testablish  that\t she  must  have  begotten  sometime
\nearlier than March 10, 1947, and as it has been found by the
\nCourts\tbelow, and the finding has not been questioned\there
\nbefore\tus.  that  the\tappellant  had\tno  access  to\t the
\nrespondent at the relevant time.\n<\/p>\n
It  has been found by the Courts below that  the  petitioner
\nhad no sexual intercourse with the respondent prior to\tmar-
\nriage on March 10.  This finding has not been challenged be-
\nfore us and appears to us to be well-founded.  The only con-
\nclusion\t is that the respondent was pregnant at the time  of
\nmarriage by someone other than the petitioner.
\nThe next question to determine is whether the petitioner had
\nmarital\t intercourse with the respondent after he  had\tdis-
\ncovered\t that  she was pregnant at the time of\tmarriage  by
\nsomeone other than himself.  The trial Court found that\t the
\npetitioner  did\t not  have such\t intercourse  after  he\t had
\ndiscovered  about the respondent being pregnant at the\ttime
\nof  marriage.\tPatel J., did not agree with  that  finding.
\nGokhale\t J.,  considered the view of the trial Court  to  be
\ncorrect.\n<\/p>\n
The  petitioner\t states that he\t discovered  the  respondent
\nbeing  pregnant\t at the time of marriage by  another  person
\nwhen  he  learnt of her delivering the child on\t August\t 27,
\n1.947 and when be felt that could not be his child.  He\t has
\nfurther\t stated that since his return from abroad he had  no
\nintercourse  with  her\tand  that  is  not  disputed.\t The
\nrespondent admits it.  There is no evidence to the  contrary
\neither.\n<\/p>\n
The  last  marital intercourse the petitioner bad  with\t his
\nwife  was  at Bombay, before he left for abroad.   That\t was
\nbetween\t April 23 and 27.  The question then is\t whether  he
\ncould  have known during those days about  the\trespondent’s
\nbeing pregnant at the time of marriage.\t The respondent does
\nnot  state  at that time she had  such\tostensible  symptoms
\nwhich  could have led the petitioner discover that  she\t bad
\nbeen  pregnant at the time of marriage.\t The opinion of\t the
\nexperts on
\n\t\t\t    325<\/span>
\nthis point is not very decisive.  Dr. Ajinkia has stated  in
\ncrossexamination that ordinarily the petitioner should\thave
\nbeen  aware  about  the respondent’s condition\twho  was  in
\nadvanced  pregnancy when he had coitus with her on April  26
\nwhen  the  foetus  would  have been  157  days\told  on\t the
\nassumption’ that it had started its life i.e., the ovum\t had
\nfertilised  on\tember 20, 1946.\t He however  added  that  it
\nwould not be possible for the petitioner to detect that\t the
\nrespondent  was\t pregnant  if  the  coitus  took  place\t  in
\ndarkness.  He further stated that the woman who is  pregnant
\nfor the first time has her abdominal tissues so tense that a
\nnon-medical.  person  coming into contact by act  of  coitus
\nmight not be able to detect the enlargement of the  abdomen.
\nA  husband,  without  having  medical  knowledge,  can\tfeel
\nabdominal  enlargement without any difficulty during  coitus
\nonly when the pregnancy is advanced above 6 months.
\nDr. Mehta, stated in examination-in-chief that a man  having
\nCoitus with his wife 157 days after pregnancy begins,  would
\nimmediately know about her being in a fairly advanced  stage
\nof  pregnancy  and added in answer to the  Court’s  question
\nthat  he would not know that she had been pregnant  for\t 157
\ndays but only know that she was merely pregnant.  When asked
\nby  the respondent’s counsel whether the, husband  would  or
\nwould not have noticed the difference between 1-1\/2  months’
\npregnancy  and pregnancy of 5 months and 17 days he  replied
\nthat  the  husband  would not notice a\tpregnancy  of  1-1\/2
\nmonths’ but would certainly notice 5-1\/2 months’ pregnancy.
\nWe consider these statements to be of no help in coming to a
\nfinding\t on the point whether the petitioner could  discover
\non  April  26 that his wife was not only  pregnant  but\t was
\npregnant  from some day much earlier than the tenth  day  of
\nMarch 1947 when they were married.  Neither of the two\tdoc-
\ntors was questioned as to whether the petitioner could\thave
\nknown  that  his  wife’s pregnancy was of  more\t than  1-1\/2
\nmonths’\t duration, and, unless the petitioner knew that,  he
\ncould  not be said to have discovered on April 26  that\t the
\nrespondent had been pregnant by someone else at the time  of
\nmarriage,  irrespective of the fact whether the coitus\tthat
\nnight took place in darkness or in light.\n<\/p>\n
In this connection, we may again refer to what Williams says
\nin his’Obstetrics’, 12th Edition, at p. 270 : —\n<\/p>\n
\t      “It   should  also be borne in mind, that\t the
\n\t      abdomen changes its shape materially according
\n\t      as  the woman is in the upright or  horizontal
\n\t      position,\t being much less prominent when\t she
\n\t      is lying down.”\n<\/p><\/blockquote>\n
We  may\t also  say that the mere fact  that  the  petitioner
\nalleges that the respondent gave birth to the child after  a
\nfull
\n326<\/span>
\nperiod\tof gestation, does not actually mean that the  child
\nwas   born  after such a period.  The petitioner  could\t not
\nhave known when the child was conceived.  By that  statement
\nhe  simply  expresses  his view, based on the  fact  that  a
\nfairly\tmature child was born on August 27, 1947 though\t the
\nmarriage had taken place on March 10.\n<\/p>\n
The fact that the child born to the respondent was a  mature
\nbaby  does  not mean that it was conceived on  November\t 20,
\n1946.\tWe  have already indicated that the  weight  of\t the
\nchild and the surrounding circumstances could only  indicate
\nthat  the  child was born after almost the usual  period  of
\ngestation,  though  it could not be said that it  must\thave
\nbeen conceived 280 days earlier.\n<\/p>\n
We  therefore hold that the petitioner did not have  marital
\nintercourse with the respondent after he had discovered that
\nshe  had  been\tpregnant  by someone else  at  the  time  of
\nmarriage.\n<\/p>\n
We have already said that there is no collusion between\t the
\nparties.   The\tpetitioner filed the petition  within  time.
\nThere  is no legal ground which would justify  refusing\t the
\npetitioner  a decree for declaring the marriage between\t the
\nparties to be null and void.\n<\/p>\n
We  therefore allow the appeal, set aside the decree of\t the
\nCourt below and annul the marriage between the parties by  a
\ndecree of nullity.  We direct the parties to bear their\t own
\ncosts throughout.\n<\/p>\n
MUDHOLKAR,  J–I  regret  my inability\tto  agree  with\t the
\njudgment proposed by my brother, Raghubar Dayal, J.
\nThe  appeal arises out of a petition for divorce  instituted
\nby  the appellant on April 18, 1956 in the City Civil  Court
\nof Bombay against his wife, the respondent under s.12(1) (d)
\nof  the Hindu Marriage Act, 1955.  The petition was  decreed
\nby  the\t City  Civil Court, but on appeal,  the\t High  Court
\ndismissed it.\n<\/p>\n
Certain\t broad\tfacts which are not in dispute\tare  briefly
\nthese: The appellant is a resident of Bombay, while the res-
\npondent’s  father  was a resident of Prantij in\t the  former
\nState of Baroda.  They were betrothed to each other in\tJune
\nor  July, 1945, and their marriage was celebrated at  Bombay
\naccording to Hindu rites on March 10, 1947.  Thereafter, the
\ncouple lived together as husband and wife for a short while,
\nand  the  respondent  then went to  her\t parents’  house  at
\nPrantij where she stayed till the third week of April, 1947.
\nDuring her stay there she wrote to her husband informing him
\nthat she was in the family way.\t The appellant was to  leave
\nfor  the  United  States  in  connection  with\tthe   family
\nbusiness, and, therefore, the respondent returned to  Bombay
\ntowards the end of April of
\n\t\t\t    327<\/span>
\nthat  year.   The husband and wife  admittedly\thad  martial
\nrelations  during  this visit of the respondent\t to  Bombay.
\nAfter them appellant’s departure. for the United States, the
\nrespondent  stayed  with the appellant’s father\t for  a\t few
\ndays,  and  thereafter\tat  Gamdevi  in\t the  hous  of\t the
\nappellant’s  sister,  Sharda and her  husband.\t She  stayed
\nthere  for about four weeks, and then again returned to\t her
\nfather-in-law’s\t   house   at\tVile   Parle.\t From\t the
\ncorrespondence\tbetween\t the parties, it  appears  that\t the
\nrespondent  and her mother-in-law were not getting on  well,
\nand the appellant, therefore, advised her to arrange for her
\nreturn\tto her father’s house as early as she  could  manage
\nit.   In pursuance of this, the respondent returned  to\t her
\nfather’s house along with some one who had been sent by\t her
\nfather to fetch her.  There was considerable  correspondence
\nbetween\t the  parties subsequent to this  until\t August\t 27,
\n1947,  on which date the respondent gave birth to  a  female
\nchild  at Prantij.  Information about this was\tcommunicated
\ntelegraphically\t as well as by a letter to  the\t appellant’s
\nfather and also to the appellant himself.  According to\t the
\nappellant, he was shocked when he learnt that the child\t was
\nborn to the respondent only 5 months and 17 days after their
\nmarriage,  and\the  suspected  that  this  child  had\tbeen
\nconceived before the marriage through some one else.
\nAfter his return to India in November, 1947 he instituted  a
\nsuit  in  a Baroda Court for the annulment of  the  marriage
\nunder the Baroda State Divorce Act, but that suit, which was
\ndefended  on merits by the respondent, was dismissed by\t the
\nBaroda\tCourt  on the ground of want of\t jurisdiction.\t The
\nHindu  Marriage Act, 1955 came into force on May  18,  1955.
\nUnder this Act, it was competent to a person, though married
\nprior  to the commencement of the Act, to apply for  divorce
\nupon certain grounds including those set out in\t s.12((1)(d)
\nwithin\tone year of the commencement of the  Act.   Availing
\nhimself\t of  this  provision,  the  appellant  preferred   a
\npetition, out of which this appeal arises.
\nIn  the petition the appellant made allegations against\t the
\nrespondent  to\tthe effect that the child born\tto  her\t was
\nconceived  by her through a person other than  himself,\t and
\nthat she was actually in the family way before the marriage,
\nof which fact he was not aware at that time.  In her written
\nstatement  the\trespondent denied  these  allegations.\t She
\nstated\tthat  after  their betrothal she  succumbed  to\t the
\nentreaties  and\t representations made by the  appellant\t and
\npermitted him to have sex relations with her, and that as  a
\nresult\tof  this, she had conceived from him.\tShe  further
\naverred that the appellant, his sister and her husband\twere
\nall aware of this before the marriage, and thus no fraud had
\nbeen  practised\t upon the appellant and the members  of\t his
\nfamily by her.\tIt may be mentioned that such a plea was not
\ntaken by the respondent in the written
\n328<\/span>
\nstatement which she had filed in the proceedings, which\t bad
\nbeen  instituted  in  the Baroda Court.\t  In  her  evidence,
\nhowever,  she has confined her averment only to\t having\t had
\nsex  relations with the appellant before the  marriage,\t and
\nstated\tthat she was not aware at the time of  the  marriage
\nthat  she was pregnant.\t She added that she came to know  of
\nher  pregnancy\tonly when she started  vomiting,  which\t was
\nafter her return to Prantij subsequent to the marriage.\t She
\nhas  not repeated in her evidence the allegations  that\t the
\nappellant  or  any members of the family were aware  of\t the
\nfact of her pregnancy before the marriage.
\nUpon  the  pleadings of the parties, the  City\tCivil  Court
\nraised the following six issues:-\n<\/p>\n
\t      “(1) Whether the Respondent at the time of the
\n\t      marriage\twas pregnant by some one other\tthan
\n\t      the  Petitioner  as alleged in para 9  of\t the
\n\t      Petition’?\n<\/p><\/blockquote>\n
\t      (2)   Whether at the time of the marriage\t the
\n\t      petitioner was ignorant of the aforesaid fact?
\n\t      (3)   Whether the petition is not maintainable
\n\t      for  the reasons alleged in para 2 of  written
\n\t      statement?\n<\/p><\/blockquote>\n
\t      (4)   Whether  the Petitioner’s claim  in\t the
\n\t      petition\tis barred by the Law  of  Limitation
\n\t      for  the reasons alleged in paras 3 and  4  of
\n\t      the written statement?\n<\/p><\/blockquote>\n
\t      (5)   Whether  the Petitioner is\tentitled  to
\n\t      have the marriage declared null and void?\n<\/p><\/blockquote>\n
\t      (6)    To\t what  relief  the   petitioner\t  is\n\t      entitled?\"\n<\/pre>\n
The  Court answered issues (1), (2) and (5) in the  affirma-\n<\/p><\/blockquote>\n
tive,  and issues 3 and 4 in negative, and granted a  decree
\nto the appellant in terms of the prayer in the plaint.
\nWhen the matter went up in appeal before the High Court, the
\ntwo learned Judges.  Gokhale and Patel, JJ. who heard it did
\nnot  feel satisfied that the appellant had proved  that\t the
\nrespondent  was pregnant by some one other than\t the  appel-
\nlant, and that the appellant was not the father of the child
\nwhich  was born to the respondent.  In his judgment,  Patel,
\nJ. observed : —\n<\/p>\n
“The question then is whether we should dismiss the petition
\non  this  ground.  As mentioned before the evidence  is\t not
\ndecisive  of  the  pregnancy of the  respondent\t before\t her
\nmarriage.   The effect of a decree of nullity might be\tvery
\nserious\t to the child who is living and who is now 10  years
\nold as also to the respondents.”\n<\/p>\n
Gokhale, J. expressed his agreement generally with the\tview
\ntaken  by Patel, J, and after pointing out the necessity  of
\nobtaining  on  record expert evidence, said  that  the\tcase
\nshould\tbe sent down to the trial Court to record a  finding
\nas to whether
\n\t\t\t    329<\/span>
\nit  was proved that the respondent was pregnant at the\ttime
\nof  marriage.\tAccordingly, the following two\tissues\twere
\nframed\tby the High Court and the case was remitted  to\t the
\nCity Civil Court for recording a finding: –\n<\/p>\n
\t      1.    Is\tit  proved that the  respondent\t was
\n\t      pregnant at the
\n\t      time of the marriage?\n<\/p><\/blockquote>\n
\t      2.    Is\tit proved that\tmarital\t intercourse
\n\t      with  the\t consent of the petitioner  has\t not
\n\t      taken   place  since  the\t discovery  by\t the
\n\t      petitioner of the existence of the grounds for
\n\t      a decree ?”.\n<\/p><\/blockquote>\n
It  may\t be mentioned that Mr. Amin, who  appeared  for\t the
\npresent appellant, contended that a great injustice would be
\ndone  to him if these issues were required to be  determined
\nnow.   His objection was, however, overruled by\t the  Court.
\nPatel,\tJ. pointing out that it would be the respondent\t who
\nwould be in greater difficulty, as her father was dead,\t and
\nthe Munim who was attending to the affairs of the family was
\ndead,  and  the\t doctor,  who attended\ton  her\t during\t her
\npregnancy, was also dead.  After the matter went back to the
\ntrial Court, five additional witnesses were examined by\t the
\nappellant, including his brother-in-law, who is a doctor and
\na  Gynaecologist, Dr. Ajinkya and a pediatrician Dr.  Udani.
\nThe  respondent\t examined herself as well as  Dr.  Mehta,  a
\nGynaecologist and two other witnesses.\tUpon a consideration
\nof  the\t additional  evidence, the High\t Court\tallowed\t the
\nappeal.\n<\/p>\n
Before us, the first point urged by Mr. S. T. Desai  appear-
\ning for the appellant is that the High Court was in error in
\nordering  the  recording of fresh evidence.   It  is  indeed
\nsurprising  that the High Court which has  correctly  stated
\nthe  legal position obtaining in divorce  petitions,  should
\nhave,  upon  its considered view that the  evidence  already
\nadduced\t by  the appellant was not sufficient to  justify  a
\npassing\t of  decree for annulment of  marriage,\t sent  down,
\ndespite\t the  opposition  of  Mr.  Amin\t on  behalf  of\t the
\nappellant,  two issues for recording fresh findings  by\t the
\nCity Court after permitting the parties to adduce additional
\nevidence.   It may be mentioned that the High Court  thought
\nthat  it  was doing so to afford to  the  respondent,  whose
\nwhole  life  was  at stake, as observed\t by  Patel,  J.,  an
\nopportunity  to\t defend\t her  honour  and  chastity.\tThis
\nquestion,  however, did not really arise, if, in  fact,\t the
\nHigh  Court felt that the appellant had not  discharged\t the
\nburden\twhich  the law had placed upon him  to\tsatisfy\t the
\nCourt  beyond  doubt that the respondent was pregnant  by  a
\nperson\tother than himself before the marriage, and that  he
\nwas  not aware of it.  The two issues sent down for  retrial
\nby the High Court would seem to suggest that these essential
\npoints had been missed by the trial Court.  I have quoted in
\nextenso the\n<\/p>\n
330.
\nissues\tframed by the trial Court, and issues (1),  (2)\t and
\n(5)   seem to cover both. the additional issues\t settled  by
\nthe High Court.\t No doubt, the first issue reads thus:
\n“Whether  the  respondent at the time of  the  marriage\t was
\npregnant by some one other than the petitioner as alleged in
\npara 9 of the Petition?”.\n<\/p>\n
This  itself consists of two parts, the first being  whether
\nthe respondent was pregnant at the time of the marriage, and
\nthe  second being whether she was pregnant through a  person
\nother  than the appellant.  The fifth issue  is\t undoubtedly
\ncouched\t in  general terms, but it  certainly  includes\t the
\ncontent of the second additional issue.\t The High Court\t was
\nitself\tcognisant  of this because  after  reproducing\t(see
\njudgment  of Patel, J.) the terms of s.23(1) it has set\t out
\nwhat,  according  to  it, would be the\tissues\twhich  would
\narise.\tSection 23(1) so far as relevant reads as follows:-\n<\/p>\n
\t      “In  any\tproceeding under this  Act,  whether
\n\t      defended\tor  not, if the court  is  satisfied
\n\t      that\n<\/p><\/blockquote>\n
\t      (a)   any\t of the grounds for granting  relief
\n\t      exists  and the petitioner is not in  any\t way
\n\t      taking  advantage of his or her own  wrong  or
\n\t      disability for the purpose of such relief,\n<\/p><\/blockquote>\n
\t      (b)   the\t  petition  is\tnot   presented\t  or
\n\t      prosecuted in collusion with the respondent,\n<\/p><\/blockquote>\n
\t      (c)   there  has not been any  unnecessary  or
\n\t      improper delay in instituting the proceedings,
\n\t      and\n<\/p><\/blockquote>\n
\t      (d)   there  is  no  other  legal\t ground\t why
\n\t      relief should not be granted, then and in such
\n\t      a\t case,\tbut not otherwise, the\tCourt  shall
\n\t      decree such relief accordingly.”
\n\t      The issues which would arise, therefore, would
\n\t      be, as pointed out by Patel, J. the following:\n<\/p><\/blockquote>\n
\t      –\n<\/p><\/blockquote>\n
\t      “(1)  Whether the respondent was\tpregnant  at
\n\t      the date of marriage.\n<\/p><\/blockquote>\n
\t      (2)   If\tshe was whether she was pregnant  by
\n\t      some one other than the petitioner.
\n\t      (3)   Whether  the petitioner was at the\ttime
\n\t      of marriage ignorant of the facts alleged.
\n\t      (4)   Whether  marital  intercourse  with\t the
\n\t      consent of the petitioner has not taken  place
\n\t      since  the discovery by the petitioner of\t the
\n\t      existence of the grounds for a decree.”\n<\/p><\/blockquote>\n
That  the  trial Court was itself aware of  this,  would  be
\nclear from paragraph 43 of its judgment.  It has dealt\twith
\nthe  argument of Mr. Shah on behalf of the  respondent\tthat
\nthe
\n331<\/span>
\ncondition  precedent  laid down in s.12(2)(b)(iii)  was\t not
\ncomplied with by the appellant. 1, therefore, agree with Mr.
\nDesai\tthat  the  remission  of  the  issues\twas   wholly
\nunjustified and should not have been allowed.  The effect of
\nthis,  however,\t would be that the entire  evidence  adduced
\nthereafter  including the evidence upon which Mr. Desai\t has
\nplaced\tsuch  strong  reliance before us  will\thave  to  be
\ncompletely left out of consideration.\n<\/p>\n
No  doubt, an appellate Court has the power under s. 107  of
\nthe Civil Procedure Code to remand a case or to frame issues
\nand refer them for trial, or to take additional evidence  or
\nrequire\t such  evidence to be taken.  But  the\texercise  of
\nthese powers is regulated by the provisions of 0.41, rr.  23
\nto  25 and 27. Under r.23, an appellate Court has the  power
\nto remand a case where the suit has been disposed of by\t the
\ntrial  Court  upon a preliminary point and its\tdecision  is
\nreversed  by  the appellate Court.  Rule  24  provides\tthat
\nwhere  the evidence upon the record is sufficient to  enable
\nthe appellate Court to pronounce judgment, it may do so\t and
\nmay proceed wholly upon the ground other than that on  which
\nthe appellate Court proceeds.  For this purpose it can\talso
\nre-settle  the issues if it finds it necessary so to do.   A
\npower to frame additional issues is conferred by r.25, which
\nreads as follows:\n<\/p>\n
\t      “Where the Court from whose decree the  appeal
\n\t      is  preferred has omitted to frame or try\t any
\n\t      issue,  or to determine any question of  fact,
\n\t      which appears to the Appellate Court essential
\n\t      to  the  right decision of the suit  upon\t the
\n\t      merits, the Appellate Court may, if necessary,
\n\t      frame issues, and refer the same for trial  to
\n\t      the  Court  from whose decree  the  appeal  is
\n\t      preferred, and in such case shall direct\tsuch
\n\t      Court   to   take\t the   additional   evidence
\n\t      required; and such Court shall proceed to\t try
\n\t      such  issue and shall return the\tevidence  to
\n\t      the Appellate Court together with its findings
\n\t      thereon and the reasons therefor.”\n<\/p><\/blockquote>\n
Rule 27 deals with production of additional evidence in\t the
\nappellate  Court  and prescribes the conditions\t upon  which
\nadditional  evidence  can be allowed to be  adduced  in\t the
\nappellate Court.\n<\/p>\n
Rule  25 circumscribes the powers of the appellate Court  to
\nframe  an  issue and refer the same for trial to  the  Court
\nbelow, if need be by taking additional evidence, and permits
\nit  to\tadopt this course only if (a) the  trial  Court\t had
\nomitted\t to  frame  an issue, (b) try an  issue\t or  (c)  to
\ndetermine  any\tquestion  of  fact  which  appears  to\t the
\nappellate Court essential to the right decision of the\tsuit
\nupon the merits.  In this case, the High Court his purported
\nto exercise its powers
\n332<\/span>
\nupon  the ground that proper issues were not framed  by\t the
\ntrial  Court.\tI  have already\t indicated  above  that\t the
\ncontent\t of  the two additional issues framed  by  the\tHigh
\nCourt  is to be found in three of the issues raised  by\t the
\nCity  Civil  Court.  Therefore, there was no scope  for\t the
\nexercise  of  the High Court of its power under r.  25.\t  No
\ndoubt, the High Court has made no reference to r. 25 when it
\nframed\tthe  additional\t issues and sent  them\tdown  for  a
\nfinding; but its action must be referable to r. 25,  because
\nthat  is the provision of law which deals with the  question
\nof remitting issues for trial to the trial Court.  I may add
\nthat in view of the express provisions of this rule the High
\nCourt  could  not  have had  recourse  to  inherent  powers,
\nbecause\t it  is\t well settled that inherent  powers  can  be
\navailed\t of  ex\t debito justitiae only\tin  the\t absence  of
\nexpress provisions in the Code.\n<\/p>\n
Upon this view it would, therefore, follow that this  appeal
\nmust be decided only on the basis of the evidence which\t was
\nbefore\tthe  City  Civil Court prior  to  the  interlocutory
\njudgement of the Hight Court remitting to it two issues\t for
\nfindings,  leaving  altogether\tout  of\t consideration\t the
\nevidence subsequently brought on record by the parties.
\nBefore\tI deal with that evidence, it would be desirable  to
\nset  out in brief the requirements of the law in a  petition
\nof  this  kind.\t The appellant had sought annulment  of\t his
\nmarriage  with the respondent upon the ground that  she\t was
\npregnant by a person other than himself before the marriage,
\nand that he was not aware of this fact.\t The law of  divorce
\nin  India,  is\tbroadly speaking, modelled  on\tthe  law  of
\nEngland.   It  will, therefore, be useful to  refer  to\t the
\ndecisions of the Courts in England.  In Ginesi v. Ginesi(1),
\nit was said that in matrimonial cases the same strict  proof
\nof  adultery is required as in criminal cases, and that\t the
\nmatrimonial  offence  must be proved beyond  all  reasonable
\ndoubt  to  the satisfaction of the tribunal of\tfact.\tThis
\ndecision  was  criticised in Gower v. Gower(2).\t  Ginesi  v.
\nGinesi(l)  was actually followed in Fairman v. Fairman\t(3),
\nwhere it was observed that when a witness gives evidence  in
\nmatrimonial  proceedings  that\the  or\tshe  has   committed
\nadultery  with\ta party to those proceedings  that  evidence
\nmust be treated with the same circumspection as the evidence
\nof an accomplice in a criminal case.\n<\/p>\n
The view taken in Ginesi’s case(1) has also been accepted in
\nPreston-Jones  v. Preston-Jones(4) and Galler v.  Galler(5).
\nIn the first of these two cases, which is a decision of\t the
\nHouse  of Lords, it was established by evidence that  during
\nthe period between 186 and 360 days before the birth of\t the
\nchild
\n(1)(1948) 1 All E.R. 373.    (2)  (1939) 1 All E.R. 804.
\n(3)L.R. 1949 P. 341.\t\t  (4) 1951 A.C. 393.\n<\/p>\n
(5)  (1954) 1 All E.R. 536.\n<\/p>\n
333<\/span><\/p>\n
to the wife the husband had been continuously absent  abroad
\nand that there had been no opportunity for intercourse\tbet-
\nween them.  The child was normally delivered, and appeared a
\nnormal,\t healthy and full-time child.  It was  contended  on
\nbehalf of the husband that in these circumstances the  child
\nmust  be deemed to have been born of adulterous\t intercourse
\nby the wife with some one else.\t With the exception of\tLord
\nOaksey, the view of the House of Lords was that the onus  of
\nproof  on the husband in a case of this kind did not  extend
\nto  establishing the scientific impossibility of  his  being
\nthe  father  of the child.  Lord Simonds.  Lord\t Oaksey\t and
\nLord  Mac  Dermott were of the view that in the case  of  an
\ninterval  of 360 days between intercourse with\ther  husband
\nand the birth of a child the court cannot, in the absence of
\nfurther\t  evidence,   regard  adultery\tby   the   wife\t  as
\nestablished.  Lord Normand was dubitante, and Lord Morton of
\nHenryton  dissented  from this view.  In the course  of\t his
\nspeech, Lord Simonds observed; —\n<\/p>\n
“The result of a finding of adultery in such a case as\tthis
\nis  in effect to bastardize the child.\tThat is a matter  in
\nwhich from time out of mind strict proof has been  required.
\nBut  that does not mean that a degree of proof\tis  demanded
\nsuch as in a scientific enquiry would justify the conclusion
\nthat such and such an event is impossible.  In this  context
\nat least no higher proof of a fact is demanded than that  it
\nis  established\t beyond all reasonable doubt;  see  Head  v.
\nHead(1).  The utmost that a court of law can demand is\tthat
\nit should be established beyond all reasonable doubt that  a
\nchild  conceived  so  many days after  a  particular  coitus
\ncannot\tbe  the result of that coitus.” He then\t added\tthat
\nsince  writing\this  opinion he had  had  the  advantage  of
\nreading\t that  of Lord MacDermott and he concurred  in\twhat
\nLord MacDermott bad to say.\n<\/p>\n
It  would be convenient now to refer to the observations  of
\nLord MacDermott.  At page 417 of the Report are his relevant
\nobservations: –\n<\/p>\n
\t      “The  evidence  must, no doubt, be  clear\t and
\n\t      satisfactory,   beyond  a\t mere\tbalance\t  of
\n\t      probabilities,  and  conclusive in  the  sense
\n\t      that  it will satisfy what Lord Stowell,\twhen
\n\t      Sir  William  Scott, described in\t Loveden  v.
\n\t      Loveden(2)  as  ‘the guarded discretion  of  a
\n\t      reasonable and just man’; but these desiderata
\n\t      appear  to  me entirely  consistent  with\t the
\n\t      acceptance of proof beyond reasonable doubt as
\n\t      the standard required………… I am  unable
\n\t      to  subscribe  to the view which,\t though\t not
\n\t      propounded  here, has its\t adherents,  namely,
\n\t      that on
\n\t      (1)Sim  and  S. 150.\t (2) (1810)  2\tHag.
\n\t      Con., 13.\n<\/p><\/blockquote>\n
\t      334<\/span><\/p>\n
\t      its true construction the word ‘satisfied’  is
\n\t      capable of connoting something less than proof
\n\t      beyond  ‘reasonable doubt’.  The\tjurisdiction
\n\t      in divorce involves the status of the  parties
\n\t      and  the\tpublic interest\t requires  that\t the
\n\t      marriage\tbond shall not be set aside  lightly
\n\t      or  without strict inquiry.  The terms of\t the
\n\t      statute recognize this plainly, and I think it
\n\t      would be quite out of keeping with the anxious
\n\t      nature  of  its provisions to  hold  that\t the
\n\t      court  might be ‘satisfied’, in respect  of  a
\n\t      ground  for dissolution, with  something\tless
\n\t      than proof beyond reasonable doubt.”\n<\/p><\/blockquote>\n
After  saying that he did not base his conclusion as to\t the
\nappropriate  standard  of proof on any\tanalogy\t drawn\tfrom
\ncriminal  law since the two jurisdictions are  distinct,  he
\nobserved
\n\t      The  true reason, as it seems to me, why\tboth
\n\t      accept the same general standard-proof  beyond
\n\t      reasonable doubt-lies not in any analogy,\t but
\n\t      in  the gravity and public importance  of\t the
\n\t      issues with which each is concerned.”\n<\/p>\n
Lord  Oaksey,  after pointing out that the only\t thing\tsug-
\ngested\tagainst\t the wife was that her child  was  born\t 360
\ndays, after her husband had access to her, observed:-\n<\/p>\n
\t      ”\t  In  such  circumstances  the\tlaw,  as   I
\n\t      understand  it, has always been that the\tonus
\n\t      upon  the\t husband in a divorce  petition\t for
\n\t      adultery\tis as heavy as the onus which  rests
\n\t      upon the prosecution in criminal cases.\tThat
\n\t      onus is generally described as being a duty to
\n\t      prove  guilt beyond reasonable doubt but\twhat
\n\t      is  reasonable  doubt is always  difficult  to
\n\t      decide and varies in practice according to the
\n\t      nature  of the case and the  punishment  which
\n\t      may be awarded.  The principle upon which this
\n\t      rule  of\tproof depends is that it  is  better
\n\t      that  many criminals should be acquitted\tthan
\n\t      that one innocent person should be  convicted.
\n\t      But the onus in such a case as the present, is
\n\t      not  founded solely upon\tsuch  considerations
\n\t      but  upon\t the interest of the child  and\t the
\n\t      interest\t of   the  State   in\tmatters\t  of
\n\t      legitimacy,  since the decision  involves\t not
\n\t      only  the\t wife’s chastity and status  but  in
\n\t      effect the legitimacy of her child.”\n<\/p><\/blockquote>\n
One  of the decisions relied upon before the House of  Lords
\nwas  Gaskill v. Gaskill(1), in which the birth of the  child
\nhad taken place after an interval of 331 days between it and
\n335<\/span>
\nthe coitus with the husband Lord Birkenhead, L.C., who tried
\nthe  case  sitting as a judge of first\tinstance,  said,  in
\nregard to the wife: –\n<\/p>\n
\t      “I  can only find her guilty if I come to\t the
\n\t      conclusion  that\tit  is\timpossible,   having
\n\t      regard   to  the\tpresent\t state\tof   medical
\n\t      knowledge and belief, that the petitioner\t can
\n\t      be  the  father  of  the\tchild.\t The  expert
\n\t      evidence renders it manifest that there is  no
\n\t      such impossibility.  ‘In these circumstances I
\n\t      accept  the evidence of. the  respondent,\t and
\n\t      find that she has not committed adultery,\t and
\n\t      accordingly I dismiss the petition.”
\n\t      Referring\t to  this decision, Lord  Morton  of
\n\t      Henryton observed in Preston-Jones v. Preston-
\n\t      Jones(1):-\n<\/p><\/blockquote>\n
\t      “My   Lords,  in\tthe  case  of\tGaskill\t  v.
\n\t      Gaskill(2)  the  birth was far  from  being  a
\n\t      normal  one, but I think that Lord  Birkenhead
\n\t      placed  too heavy a burden of proof  upon\t the
\n\t      husband.\t It  is not the law  to-day,  in  my
\n\t      view, and with all respect to Lord  Birkenhead
\n\t      I do not think it was the law in 1921, that  a
\n\t      husband  is  bound  to prove  that  he  cannot
\n\t      possibly\tbe the father of the child and I  do
\n\t      not think that the case of Morris v. Davis(3),
\n\t      cited  by\t Lord  Birkenhead,  established\t the
\n\t      strict rule which he laid down.”\n<\/p><\/blockquote>\n
He  then referred to Wood v. Wood(4), in which the  interval
\nwas 346 days and Hadlum v. Hadlum(5), where the interval was
\n349 days, and observed:-\n<\/p>\n
“But  I\t think\tthat the cases of  Gaskill(2),\tWood(4)\t and
\nHadlum(5)  put an unwarranted and increasing burden  upon  a
\nhusband who seeks to prove his wife’s adultery.”
\nOn the other hand, he expressed his agreement with the\tview
\nof Ormerod, J., in M-T v. M-T(6), where the interval was 340
\ndays,  and  acting upon the medical evidence to\t the  effect
\nthat  the  husband  could not have been the  father  of\t the
\nchild,\tthe learned Judge without saying anything about\t the
\nburden of proof granted a decree to the husband.
\nIn Galler v. Galler(7), Hodson L.J. has observed at p. 540:\n<\/p>\n
\t      “I  have\tused  the  language  which  I  have,
\n\t      because,\tsince  Fairman\tv.  Fairman(8)\t was
\n\t      decided, the much debated question whether the
\n\t      standard of proof in a divorce suit, which  is
\n\t      a kind of civil action, is the\t  same\t  as
\n\t      that ina criminal case, and whether the
\n\t      (1) (1951) A.C. 391. (2)(1921) P. 425.
\n\t      (3)5 Cl. & F. 163.\t(4) (1947) P. 103.
\n\t      (5)(1949) P. 197.\t\t(6)(1949) P. 331.
\n\t      (7)(1954)\t 1  All E.R. 536.(8)L.R,  (1949)  P.\n<\/p><\/blockquote>\n
\t      341.
\n\t\t\t\t   336<\/span>
\n\t      case  rules apply, has been considered by\t the
\n\t      House  of Lords in Preston-Jones\tv.  Preston-
\n\t      Jones(1).”\n<\/p><\/blockquote>\n
\t      and  has\tquoted with  approval  the  opinions
\n\t      expressed by Lord Simonds and Lord MacDermott.
\n\t      He then observed:-\n<\/p><\/blockquote>\n
\t      “It  might  appear from the passages  which  I
\n\t      have read
\n\t      from  the\t judgment in Fairman  v.  Fairman(2)
\n\t      that the anology of criminal law was the ratio
\n\t      of  that decision, but I think the  result  is
\n\t      the  same by whichever road one  travels.\t  In
\n\t      divorce,\tas  in crime, the court\t has  to  be
\n\t      satisfied beyond reasonable doubt.”
\n\t      A\t similar  view\thas been  expressed  by\t Sir
\n\t      Lallubhai\t Shah  in John Over v.\tMurial\tA.I.
\n\t      Over(3).\tThe learned Judge has said: —
\n\t      “I  desire  to make it clear that\t in  divorce
\n\t      cases, great care and caution are necessary in
\n\t      dealing with the admissions of parties and  it
\n\t      is  only\tthe exceptional circumstances  of  a
\n\t      given  case  that could justify the  Court  in
\n\t      acting  upon  the admissions of  party  as  to
\n\t      adultery without any corroboration.  Generally
\n\t      speaking\tas  a  matter  of  prudence  it\t  is
\n\t      desirable\t   to\t insist\t   upon\t    evidence
\n\t      corroborative of the admissions.”
\n\t      Martin,  J., has observed in the same case  at
\n\t      p. 259: –\n<\/p><\/blockquote>\n
\t      “No doubt section 15 provides that subject  to
\n\t      the    provisions\t  herein   contained,\t all
\n\t      proceedings  under this Act between party\t and
\n\t      party shall be regulated by the Code of  Civil
\n\t      Procedure.  But that provision, in my opinion,
\n\t      does  not override the express  directions  in
\n\t      ss.  7, 12, 13 and 14 to which I have  already
\n\t      alluded.”\t (The  provisions  referred  to\t are
\n\t      those of the Indian Divorce Act, 1869).\n<\/p><\/blockquote>\n
Indeed,\t in  White v. White(4), which was a case  under\t the
\nIndian Divorce Act, 1869, this Court has held that the words
\n“satisfied on the evidence” in s.14 of the Act implied\tthat
\nit is the duty of the Court to pronounce a decree only\twhen
\nit  is satisfied that the case has been proved\tbeyond\trea-
\nsonable doubt as to the commission of a matrimonial offence.
\nAfter  pointing\t out  that the evidence must  be  clear\t and
\nsatisfactory beyond the mere balance of probabilities,\tthis
\nCourt  had said that the rule laid down in Preston-Jones  v.
\nPrestonJones(1)\t should\t be  followed by  the  Courts  while
\ndealing\t with  cases under s. 7 of the Indian  Divorce\tAct,
\n1869,  Section 23(1) of the Hindu Marriage Act,\t 1955  which
\ndeals with the powers of the Court in a proceeding under the
\nAct  also  provides that the Court shall decree\t the  relief
\nclaimed by the petitioner, whether the petition is  defended
\nor not, if the Court is
\n(1) (1951) A.C. 391.\t\t     (2)L.R. (1949) P. 341.
\n(3)  27 Bom.  L.R. 251.\t\t    (4)1958 [S.C.R.] 1410.\n<\/p>\n
337<\/span><\/p>\n
satisfied that any of the grounds for granting relief exists
\nand certain other conditions are satisfied.  Thus, under the
\nIndian\tDivorce\t Act, 1869 as well as under  Hindu  Marriage
\nAct,  the  condition  for  the grant  of  a  relief  is\t the
\nsatisfaction of the Court as to the existence of the grounds
\nfor  granting the particular relief.  The satisfaction\tmust
\nnecessarily  be founded upon material which is relevant\t for
\nthe  consideration of the Court, and this would include\t the
\nevidence  adduced  in the case.\t Therefore,  though  in\t the
\nformer\tAct the words used are “satisfied oil the  evidence”
\nand the legislature has said in the latter Act “if the court
\nis  satisfied”,\t the meaning is the same.  In  my  judgment,
\nwhat  the  Court  has  said in\tWhite’s\t case(1)  about\t the
\napplicability  of  the\trule in\t Preston-Jones\tv.  Preston-
\nJones(2) must also apply to a case under the Hindu  Marriage
\nAct.\n<\/p>\n
Now,  let  us  consider the evidence  which  was  originally
\ntendered  at  the trial of the proceedings before  the\tCity
\nCivil Court.  In support of his case, the appellant examined
\nhimself\t and his father.  The gist of his evidence, when  he
\nwas examined in chief, is that he did not see the respondent
\nbetween the date of the betrothal and his marriage either at
\nBombay or at any other place, i.e., between November 1, 1946
\nand March 10, 1947, that he did not know at the date of\t the
\nmarriage  that the respondent was pregnant, that he and\t the
\nrespondent  lived together for 10 or 12 days at\t Vile  Parle
\nafter  the  marriage, that during this period  she  did\t not
\ndisclose  to  him that she had been pregnant  prior  to\t the
\nmarriage, that he left for U.S.A. in the last week of April,
\n1947,  that  the respondent who had gone to Prantij  in\t the
\nmeanwhile  returned  to\t Bombay\t only a\t day  prior  to\t his
\ndeparture, that he was aware before he left for U.S.A.\tthat
\nthe  respondent\t had become pregnant, and that\the  did\t not
\ndisclose  this\tfact  to any one, because he  was  not\tsure
\nwhether she was pregnant or not. lie further stated that  he
\nreturned to India towards the end of the year 1947 and\tthat
\nhe only learnt IO to 15 days prior to his departure to India
\nand  while he was in London, of the birth of a child to\t the
\nrespondent. and that he was shocked at the news and began to
\nsuspect her.  He denied having made any demand upon the res-
\npondent for having pre-marital sex relations or had said  to
\nher  that  betrothal was as good as marriage  and  that\t the
\nmarriage   ceremony  was  merely  a  legal   formality\t for
\n“legalising   children”.   In  his   cross-examination,\t  he
\nadmitted that he had seen the respondent before the marriage
\non  three  occasions, two of which were\t subsequent  to\t the
\nbetrothal.   He\t denied a suggestion made to him  in  cross-
\nexamination that he visited Ahmedabad where his father\towns
\na house, on many occasions between November, 1946 and March,
\n1947.  He also denied having
\n(1) [1958] S.C.R. 1410.\t\t(2)  [1951] A.C. 391.\n<\/p>\n
338<\/span><\/p>\n
expressed  his desire to see the respondent.   He,  however,
\nadmitted  that\the had written to her  suggesting  that\t she
\nshould come to Bombay where his sister was residing and that
\nhe  made this suggestion immediately after the betrothal had
\ntaken place.\n<\/p>\n
A number of letters written by the appellant to the  respon-
\ndent  in  which he had suggested that they should  meet\t and
\ncome in closer contact with each other were put to him,\t and
\nhe  admitted them.  He admitted having stated in his  letter
\ndated  July 11. 1945 that the object of betrothal two  years
\nprior to marriage was that both should come in contact\twith
\neach  other  so that they might be  “accommodative  to\teach
\nother  and not for the sake of betrothal.” He was  asked  to
\nexplain\t what  he meant by this and his explanation  was  “I
\nmeant  that  I and the respondent should try  to  know\teach
\nother  by writing letters and by knowing the views  of\teach
\nother.\tBy the word ‘Sugan’ used in that sentence (which  is
\nin  Gujarathi), he said that I meant that the marriage\tlife
\nmay be smoothened after (sic) each other.” He admitted\tthat
\nin,  one of her letters the respondent had stated  that\t her
\nfather\twas  objecting to her coming into contact  with\t the
\nappellant  before marriage.  He has admitted in\t his  cross-
\nexamination  that after he came to know that the  respondent
\nhad conceived he had written to her that she should  arrange
\nfor   an  abortion.   In   cross-examination,the   following
\nquestions were put to him:-\n<\/p>\n
\t      “Q.  In the letter dated 17th April 1947,\t you
\n\t      have  stated ‘I had already told you from\t the
\n\t      beginning but you did not pay any attention to
\n\t      my say.’ What do you mean by that sentence?
\n\t      A.    (The witness refers to the letter  dated
\n\t      17th   April  1947  written  by  him  to\t the
\n\t      respondent  part\tof Ex No. 3  and  gives\t the
\n\t      answer  after  reading  the  same).   By\tthat
\n\t      sentence I meant to convey that I had told the
\n\t      respondent  after\t the  marriage\twhen  I\t had
\n\t      sexual intercourse with her that we should not
\n\t      have  a child and for that purpose  we  should
\n\t      take  precautions\t but  in  spite\t thereof  no
\n\t      precautions  were\t taken and therefore  I\t had
\n\t      stated what is written in my letter dated 17th
\n\t      April 1947 part of Ex.No. 3.”\n<\/p><\/blockquote>\n
He  has also made admissions to the effect that he had\tsug-
\ngested abortion to the respondent several times.   According
\nto him, she also expressed a similar desire.  I have already
\npointed\t out that the appellant had said that he  wanted  to
\nkeep the fact of respondent’s pregnancy a secret, though  he
\nknew about it before his departure to U.S.A. He had to admit
\nthat  he  had suggested to the respondent  that\t she  should
\nintimate the fact to his sister, Sharada.  In that letter he
\nhad also said “Explain
\n\t\t\t\t   339<\/span>
\nall  things  to\t my  sister  Sharada”.\t According  to\thim,
\nhowever,  what\the  meant was that  she\t should\t explain  to
\nSharada” in connection with the posting of the letters to be
\nwritten by Sharada to me.” That is all his evidence.   There
\nis  nothing  in the evidence of his father,  which  has\t any
\nbearing\t upon  the Question of\tthe  respondent’s  pregnancy
\nbefore the marriage.\n<\/p>\n
In her evidence, the respondent has reiterated her denial of
\nhaving\tconceived  from a person other than  the  appellant.
\nShe  has, however, deposed to the fact that she had  visited
\nBombay\tbefore the marriage about the Christmas days in\t the
\nyear 1946 and stayed in the house of Ramanlal, Witness No. 2
\nfor  the  respondent,  who  is\ta  friend  of  her   father.
\nAccording to her, the appellant used to visit his house\t and
\ntake  her from there either to her father-in-law’s house  or
\nto  pictures or to some hotel.\tThen she has  deposed.\t “On
\nthose\toccasions   I  had  sexual  intercourse\t  with\t the
\npetitioner.  I agreed to submit to the sexual intercourse by
\nthe  petitioner\t because  he threatened\t to  break  off\t the
\nbetrothal  if  I  refused  to  permit  him  to\thave  sexual
\nintercourse.   Prior  to the date of my\t marriage  with\t the
\npetitioner,  I had no sexual intercourse with any man  other
\nthan the petitioner.” She has further said categorically  in
\nher  evidence  that  she did not know at  the  time  of\t her
\nmarriage that she was pregnant and that she became aware  of
\nthis  after  the marriage only when  she  started  vomiting.
\nThis was after she had returned to Prantij from Vile  Parle.
\nShe  has  also\tstated in her evidence,\t “After\t I  went  to
\nPrantij\t after my visit to Bombay in Christmas 1946,  1\t had
\nmonthly course.\t After I left for Prantij after my visit  to
\nBombay in January 1947 and before the marriage I had monthly
\ncourse.\t But on those occasions the bleeding was less.”\t She
\nwas  cross-examined at length with regard to her story\tthat
\nshe  had  sex  relations  with\tthe  appellant\tbefore\t the
\nmarriage,  and after asserting once again that she  had\t met
\nthe appellant in Bombay in December 1946 or January 1947 she
\nsaid in answer to the next question:-\n<\/p>\n
\t      “It  is not true that prior to the marriage  I
\n\t      knew that I was pregnant.\t It is not true that
\n\t      I\t deliberately  suppressed  the\tfact  of  my
\n\t      pregnancy\t from the petitioner  and  performed
\n\t      marriage with him.  It is not true that I\t was
\n\t      not  pregnant  as\t a  result  of\tthe   sexual
\n\t      intercourse  with the petitioner prior to\t the
\n\t      marriage.”\n<\/p><\/blockquote>\n
And  then in answer to the question “Before 10th March\t1947
\nMahendra, the petitioner, his sister Sharada and his  father
\ndid  not  know that you were pregnant?”, her  answer,  after
\ncertain hesitation was: –\n<\/p>\n
\t      “It  is  not  true that  the  petitioner,\t his
\n\t      sister Sharadaben and his father did not\tknow
\n\t      that I was pregnant
\n\t      340<\/span>
\n\t      prior  to the marriage.  According to  me\t the
\n\t      petitioner,  his\tfather and his\tsister\tknew
\n\t      prior to our marriage that I was pregnant.”<\/p><\/blockquote>\n
     In\t the letter dated January 8, 1948 written by her  to
\nthe  appellant’s sister she had stated “I am innocent”,\t and
\nin  crossexamination,  she  was asked as  to  what  was\t the
\nnecessity  for her to write that in her letter if the  child
\nwhich was born to her was conceived from the appellant,\t her
\nanswer was: –\n<\/p>\n
\t      “We came to know that a scandal was raised  by
\n\t      my  father-in-law\t and mother-in-law  at\tVile
\n\t      Parle  and  that is why I had  written  to  my
\n\t      sister-in-law   that  I  was  innocent.\t The
\n\t      scandal which I have referred to in my earlier
\n\t      answer  was  that\t the baby  born\t to  me\t was
\n\t      premature\t and  was  not\tthe  child  of\t the
\n\t      petitioner.”\n<\/p><\/blockquote>\n
She  was then asked why she did not inform  the\t appellant’s
\nsister,\t  Sharadaben,  that  she  had\tpre-marital   sexual
\nintercourse with the appellant, her answer was that she\t did
\nnot  do so in obedience to an injunction from  her  husband.
\nIt  may be mentioned that in the letter of January  8,\t1948
\nthe respondent had stated that she had her menstrual  period
\n10  days prior to the marriage.\t The question put to her  in
\ncross-examination was whether she stated this in her  letter
\nwith   the  object  of\tshowing\t that  she  had\t no   sexual
\nintercourse with any one before the marriage and her  answer
\nwas: –\n<\/p>\n
\t      “Even if the woman is pregnant she would be in
\n\t      monthly  course.\t It  is not  true  that\t the
\n\t      object  of my writing the aforesaid  statement
\n\t      in my letter was as you suggest.”
\n\t      When  again  pressed  to state  what  was\t the
\n\t      object  in  saying  “I am\t innocent”  in\tthat
\n\t      letter, she answered:\n<\/p><\/blockquote>\n
\t      “By  saying  that I was innocent, I  meant  to
\n\t      suggest  that  the scandal  which\t was  spread
\n\t      about  the child being not of  the  petitioner
\n\t      was a false scandal.”\n<\/p><\/blockquote>\n
When  asked why she did not write in that letter  that\tthis
\nchild was conceived as a result of the sex relations she had
\nwith  the appellant in December 1946 and January  1947,\t her
\nanswer\twas that the appellant knew the fact and  knew\tthat
\nlie  was  the father of the child.  When asked why  she\t had
\nthen  described the child as premature in that\tletter,\t her
\nanswer\twas  that  that\t was because  the  child  was  weak,
\nEventually, however, she admitted that the child born to her
\nwas   premature.   The\tonly  other  witness  examined\t was
\nRamanlal,  with\t whom the respondent claims to\thave  stayed
\nduring\ther visit to Bombay in December 1946-January,  1947.
\nHe  supports  her statement in that regard as  well  as\t the
\nother  statement  that during her stay there  the  appellant
\nused to visit her and take her out.\n<\/p>\n
341<\/span><\/p>\n
That  is all the evidence in the case, and the\tquestion  is
\nwhether upon this evidence it was open to a Court to make a.
\ndecree\tunder s. 23 of the Hindu Marriage Act annulling\t the
\nmarriage upon the ground that the respondent had  conceived,
\nfrom  a person other than the appellant before her  marriage
\nand  that  the appellant was not aware of this fact  at\t the
\ntime  of  the marriage.\t It is contended on  behalf  of\t the
\nappellant  that\t the  respondent has admitted  both  in\t her
\npleading  and in her evidence in the Court that she had\t had
\npre-marital  sex  relations and that this admission  by\t her
\nshould be construed against her.  An admission in a pleading
\nmust  be taken as a whole, and, therefore, if we are to\t act
\nupon  that admission, then that part of it which is  to\t the
\neffect\tthat she had such sex relations with  the  appellant
\nand  not anyone else must also be regarded.  No doubt,\twhat
\napplies\t to an admission in the pleading would not apply  to
\nstatements  made by a witness in evidence.  It seems to\t me,
\nhowever, that the defence taken by the respondent of  having
\nhad pre-marital sex relations with the appellant as well  as
\nthe evidence given by her in the Court was false.  Had there
\nbeen any truth in this, she would certainly have taken\tthat
\ndefence\t in the earlier suit, which was filed in the  Baroda
\nCourt.\t Apparently, faced with the fact that the child\t was
\nborn to her only five and half months after her marriage she
\nand her advisers found themselves in a difficult situation.
\nFor,  having  regard to the generally  accepted\t notions  of
\npeople regarding the normal period of gestation it would  be
\ndifficult to convince any one of the fact that the child was
\nlegitimate, particularly in view of the fact that it has  in
\nfact survived and so would be presumed to have been  normal.
\nIt may be because of this that she and her advisers  thought
\nof  an obviously false defence.\t Would this,  however,\tmake
\nany  difference either in the incidence or the discharge  of
\nthe  burden  which the law casts upon the  petitioner  in  a
\nproceeding  like  this, of  establishing  affirmatively\t the
\nexistence  of  the ground relied upon by him?  I  would\t say
\nwith   Lord  Normand  that  apart  from\t the  objection\t  of
\nprinciple,  it\twould in the circumstances of this  case  be
\nunjust\tto the respondent to infer or assume that the  false
\ndefence\t is tantamount to an admission of guilt.  If  it  is
\npossible  that\tan apparently normal child may be  born\t 171
\ndays  after  coitus (or even 186 days as  contended  by\t Mr.
\nPurshottam  Trikamdas)\tand would survive, and if  that\t was
\nwhat  had happened in this case, then in the words  of\tLord
\nNormand\t “the departure from the normal course of things  is
\nso extraordinary that the mother, conscious of innocence but
\nbelieving  herself the victim of a sport of  nature,  might,
\ndespairing  of establishing the true defence, allow  herself
\nto  palter with the truth, and might induce  others  closely
\nconnected with her to lend themselves to prevarication
\n342<\/span>
\n    or\tworse.”\t I  would, therefore, wholly  leave  out  of
\naccount the false defence set up by the respondent.  Even if
\nthe  appellant’s evidence is believed completely, the  facts
\nwhich  can be said to have been established by him are\tonly
\nthese:(a) that the child was born 171 or 186 days after\t the
\nmarriage;(b)   that  he\t never had  pre-marital\t intercourse
\nwith  the respondent; and (c) that he was not aware  of\t her
\npregnancy  before  the marriage.  Can it be said  that\tthis
\nevidence  justifies the conclusion that the child must\thave
\nbeen  conceived\t before\t the marriage,\tand  since,  if\t the
\nappellant’s statement is believed, it could not be conceived
\nfrom  him,  but\t from some one else?  It was  urged  by\t Mr.
\nDesai, apparently on the strength of an observation made  in
\none of the speeches in Preston-Janes’ case(1) that where the
\nperiod of gestation deducible in respect of a child deviates
\nmarkedly  from\tthe normal, the burden on  the\thusband\t who
\ndenies\tbeing  its father of  establishing  the\t matrimonial
\noffence alleged by him against his wife is a very light one.
\nWith  respect  I would say that the argument  is  untenable.
\nWhen  the  law places the burden of proof upon\ta  party  it
\nrequires  that\tparty to adduce evidence in support  of\t his
\nallegation, unless he is relieved of the necessity to do  so
\nby  reason of admissions made by or in the evidence  adduced
\non  behalf of his opponent.  The law does not speak  of\t the
\nquantum\t of burden but only of its incidence and to my\tmind
\nit  is mixing up the concepts of the incidence of burden  of
\nproof  with that of the discharge of the burden to say\tthat
\nin  one\t case it is light and in another heavy.\t  Looked  at
\nthat  way, the argument would amount, in effect, to be\tthat
\nthe appellant has fully discharged the burden of proving hi-
\n,  wife’s  pre-marital conception because,  admittedly,\t the
\nchild  was  born  only 171 or at most  186  days  after\t the
\nmarriage.   While it would be relevant to bear in  mind\t the
\nfact  that the child was born within 171 or 186 days of\t the
\nmarriage  for deciding the question whether  the  conception
\nwas  pre-marital, other relevant factors  and  circumstances
\ncannot\tbe  excluded.  For, it cannot be  assumed  that\t the
\ndelivery  was normal, the child was born at the end  of\t the
\nfull period, that it was a normal and mature child, that the
\nmother maintained normal health throughout the period and so
\non.   Again,  there  is\t no  evidence  whatsoever  that\t the
\nrespondent  was\t a woman of loose character.  On  the  other
\nhand, such little evidence as there is bearing on the  point
\nwould  show  that the respondent was a member  of  a  family
\nwhich\thad  strong  ideas  regarding  association   between
\nbetrothed couples and was herself reluctant even to meet the
\nappellant during the long period of their betrothal.   There
\nis  nothing in the evidence to indicate that the  respondent
\ncould have had an opportunity of coming in contact with male
\npersons at Prantij, where she lived before her marriage.
\n(1)  [1951] A.C. 391.\n<\/p>\n
343<\/span><\/p>\n
The  second  thing  is that if as  contended  on  behalf  of
\nthe .appellant, the respondent’s delivery was after the full
\nperiod\tof gestation, her pregnancy must have been of  about
\nfour months’ duration at the time of the marriage.  If\tthat
\nwere,  so, it is difficult to believe that this\t fact  would
\nnot  come  to’\tthe notice of the female  relatives  of\t the
\nappellant or the appellant himself, or of Dr. Champaklal the
\nappellant’s  brother-inlaw  who has been found by  the\tHigh
\nCourt to have examined her.  Moreover, had that been so, she
\nwould  not have shown readiness to break off her  engagement
\ntill as late as in February, 1947 and thus taken the risk of
\nbecoming  an unmarried mother.\tThe third thing is  that  if
\nthe respondent’s nausea started three weeks after  returning
\nto  Prantij, how could it be related to a pregnancy of\tfive
\nmonths’\t duration?   Fourthly,\tif the\trespondent  had\t her
\nmenstrual  period 10 days before the marriage, then  despite
\nwhat she herself says, how could she be said to be  pregnant
\nat  that  time?\t Indeed, the progress of  the  pregnancy  as
\nappearing from the evidence which was not challenged  before
\nus  is consistent only with post-marital conception.   There
\nis  also  the circumstance that despite exhortation  by\t the
\nappellant  she refrained from having an abortion,  which  is
\nmore  consistent with the pregnancy being post-marital\tthan
\npre-marital.   As against this, all that is relied  upon  on
\nbehalf of the appellant is the circumstance that it would be
\nagainst\t the generally accepted notions of mankind  to\thold
\nthat a normal child would be delivered after 171 or 186 days
\nafter  conception.   Can  it reasonably be  said  that\tthis
\ncircumstance  is sufficient in itself to outweigh the  other
\ncircumstances taken cumulatively?\n<\/p>\n
At  the stage with which I am dealing, there was no  medical
\nevidence  in the case.\tBut it was said that the live  birth
\nof  a child 171 or 186 days after conception  is  impossible
\nand it must be presumed that the child was conceived  before
\nmarriage  and  further\tthat  such  a  presumption  can\t  be
\ncompetently  drawn even in a proceeding of this nature.\t  If
\nthe  birth  of an apparently normal child 171  or  186\tdays
\nafter  conception  is an impossible phenomenon\tand  if\t its
\nimpossibility  is  notorious, then alone a  Court  can\ttake
\nnotice of it and the question of drawing a presumption would
\narise.\tAll that can be said is that such an occurrence\t can
\nat  best be said to be unusual; but it is a far cry  to\t say
\nthat  it would be impossible.  No doubt, courts\t have  taken
\nnotice\tof the fact that the normal period of  gestation  is
\n280 days, but the courts have also taken notice of the\tfact
\nthat there are abnormal periods of gestation depending\tupon
\nvarious factors.  It would appear from the medical  evidence
\nin  this case that one of such factors is a short  cycle  of
\nmenstruation.  Another is that where the mother is suffering
\nfrom  oedema and high blood pressure and passing albumen  in
\nher  urine  the\t period of gestation of the  child  will  be
\nshortened (see evidence of Dr. B. S. Mehta).\n<\/p>\n
344<\/span><\/p>\n
There may also be other factors which have not been  brought
\nout  in the evidence or which may not have yet come  to\t the
\nnotice of obstetricians.  Therefore, while the courts  ought
\nin  cases which largely turn upon medical evidence, to\thave
\nregard\tto  the\t existing state of  medical  knowledge\tthey
\nshould not overlook the fact that there is still a good deal
\nwhich  is  not\tknown.\tSo when a court is  called  upon  to
\ndecide\ta  matter  like the one before\tus  mainly,  if\t not
\nwholly,\t on  the  opinion of medical  men  it  must  proceed
\nwarily.\t Medical opinion even of men of great experience and
\ndeep  knowledge is after all a generalisation  founded\tupon
\nthe  observation of particular instances,  however  numerous
\nthey  may  be.\t When  further\tthe  Court  finds  that\t  in
\nindividual  cases departure from the norm has in  fact\tbeen
\nobserved  by  some  experts  and  when\tagain  the   experts
\nthemselves  do\tnot speak with the same voice the  need\t for
\ncircumspection by the court becomes all the more  necessary.
\nIt   may   land\t itself\t into  an  error   involving   cruet
\nconsequences  to  innocent beings if it were  to  treat\t the
\nmedical\t opinion  as decisive in each and every\t case.\t The
\nresponsibility for the decision of a point arising in a case
\nis  solely  upon  the court and while it  is  entitled,\t nay
\nbound,\tto consider all the relevant material before it,  it
\nwould be failing in its duty if instead, it acts blindly  on
\nsuch  opinion and in disregard of other\t relevant  materials
\nplaced before it.\n<\/p>\n
Initially  no  attempt was ever made before the\t City  Civil
\nCourt  to adduce any scientific evidence i.e.,\tevidence  of
\nexperts, and in the absence of such evidence, can it be said
\nthat  there was anything else of which the City Civil  Court
\nought  to have taken judicial notice?  Should it have  drawn
\nany  presumption?   The only relevant  provisions  regarding
\npresumption  are  ss.  112  and 114  of\t the  Evidence\tAct.
\nSection 112 reads thus:\n<\/p>\n
\t      “The fact that any person was born during\t the
\n\t      continuance  of a valid marriage\tbetween\t his
\n\t      mother and any man, or within two hundred\t and
\n\t      eighty days after its dissolution, the  mother
\n\t      remaining unmarried, shall be conclusive proof
\n\t      that  he\tis the legitimate son of  that\tman,
\n\t      unless it can be shown that the parties to the
\n\t      marriage\thad no access to each other  at\t any
\n\t      time when he could have been begotten.”\n<\/p><\/blockquote>\n
It  refers to the upper limit of the duration  of  pregnancy
\nfor the purpose of determining the legitimacy of a child but
\nnot  to the lower limit.  Section 114 enables the  court  to
\npresume the existence of any fact which it thinks likely  to
\nhave  happened,\t regard being had to the  common  course  of
\nnatural\t events,  etc., in their relation to  facts  of\t the
\nparticular  case.  The question would then be  whether\tfrom
\nthe  circumstance  that\t the child was born  five  and\thalf
\nmonths or so after the marriage it could be presumed to have
\nbeen conceived before the
\n345<\/span>
\nmarriage,  regard being had to the common course of  natural
\nevents.\t If the only fact known was that the child was\tborn
\non  August 27, 1947 and nothing else was known, it would  be
\nopen  to the Court to presume that it was conceived so\tmany
\ndays  prior to its birth.  If, however, in addition to\tthis
\nthere  was  evidence to show that the mother  was  suffering
\nfrom eclempsis or that the child was weak and premature such
\na  presumption\twould  not arise.  In this  case,  there  is
\nevidence  of  both  these  facts.   This  consists  of\t the
\ntestimony of the respondent herself and of her letter to the
\nappellant,  Ex.\t 6  dated August 13, 1947  and\tof  that  to
\nSharadaben,  Ex.  F dated September 3, 1947 produced by\t the
\nappellant.   This is further supported by- the\tletters\t Ex.
\n11  written by Dr. Champaklal to the respondent’s father  on
\nJuly 12, 1947 and September 20, 1947.  It would,  therefore,
\nnot  be legitimate to raise the presumption that  the  child
\nwas  born  after the normal period of  gestation  and  must,
\ntherefore, have been conceived ‘before the marriage.
\nSuch  was  the material before the City Civil Court  at\t the
\nconclusion of the trial and before High Court when it  first
\nheard  the  appeal.   This  material  is  insufficient\t for
\ndischarging the burden placed on the petitioner by s. 23  of
\nthe  Act.   On the basis of this material,  no\tCourt  could
\nreasonably  come  to  a\t finding  that\tthe  respondent\t was
\npregnant  at the time of her marriage and  that,  therefore,
\nthe appellant was entitled to the annulment of the marriage.
\nAs  already pointed out by me, this is what the\t High  Court
\nitself felt, and having formed this view, it is a matter  of
\nsurprise to me that the High Court should have proceeded  to
\nframe  additional issues and send them down for findings  to
\nthe  City Civil Court.\tThe only thing the High Court  could
\nproperly  do  was  to  allow  the  appeal  and\tdismiss\t the
\nappellant’s  petition for annulment of the  marriage.\tNow,
\nthe High Court has, after receipt of the additional evidence
\nand the fresh findings of the City Civil Court accepted\t one
\nof  those findings and dismissed the  appellant’s  petition.
\nIf, therefore, I am right in my view that the letting in  of
\nthe additional evidence for which the appellant had not even
\nasked,\twas not permissible by law, then upon my  view\tthat
\nthe  evidence  originally  adduced  in\tthe  proceedings  is
\ninadequate  for the purpose of granting the relief under  s.
\n23  of\tthe  Act, the appeal must  be  dismissed.   I  would
\naccordingly dismiss it with costs in this Court, and  direct
\nthat  the appellant shall pay the respondent’s costs in\t the
\nHigh Court as well as in the City Civil Court.
\nThis  really  ends  the matter, but as\tmy  learned  brother
\nRaghubar  Dayal\t J., has considered the\t medical  and  other
\nevidence  in  great detail, I should at least make  a  brief
\nreference  to  it,  even though, in my\tview,  it  has\tbeen
\nillegally  admitted.  I will only refer to the\tevidence  of
\nthose witnesses
\n346<\/span>
\n  upon whose statements reliance was placed before us by one
\nparty  or  the other.  One is Madhuben, who claims  to\thave
\nbeen  working in the Prantij Municipal Dispensary from\t1939
\nto 1955.  She said that she atte nded to the delivery of the
\nrespondent, and that she had examined her two months  before
\nthe date of delivery, when she noticed swelling all over her
\nhands  and feet.  She also says that the respondent had\t ad-
\nvanced seven months in the pregnancy when she first examined
\nher and that the weight of the child which was born was 4 to
\n4-1\/2  lbs.   According to her, it was a  mature-child\tborn
\nafter  the  full  period of  gestation.\t  Her  evidence\t was
\ndiscarded  not only by the High Court but also by  the\tCity
\nCivil  Court  on the ground that she was deposing  to  these
\nfacts  12  years  after the delivery  is  supposed  to\thave
\noccurred, and deposed without reference to any records\tmade
\nby  her.  No doubt, the Hospital Indoor case paper, Ex.\t  K.
\nwas produced by a witness, Kacharabai, also examined at that
\nstage;\tbut  in\t the  absence of a  white  paper,  which  is
\nnormally  a  part of this particular record,  it  loses\t its
\nvalue.\t It is true that there was no.\tcrossexamination  on
\nbehalf of the respondent regarding Madhuben’s statement that
\nshe  had  examined  the respondent  two\t months\t before\t the
\ndelivery,  but\tit seems to me that from the fact  that\t she
\ndeposed\t 12 years after the event and the further fact\tthat
\nshe had to attend to at least 150 labour cases every  year-a
\ntotal  of  2,400  cases during the time she  worked  in\t the
\nhospital-her  evidence cannot be regarded otherwise than  as
\nartificial.   Indeed,  she  had long ceased  to\t be  in\t the
\nservice\t of the hospital, and had even left Prantij,  before
\nshe  was  summoned as a witness in the case.   According  to
\nher, she was contacted by some bania and it is obvious\tthat
\nshe  has been induced to speak to facts which  would  assist
\nthe  appellant\tin  this case.\t Her  evidence\twas  rightly
\nrejected by the courts below.\n<\/p>\n
The next witness is the appellant himself.  He has stated in
\nhis  evidence that his case was that the child born  to\t the
\nrespondent was born after the expiration of the full  period
\nof  gestation, and that the respondent must  have  conceived
\nsomewhere  in November or December, 1946.  He has,  however,
\nadmitted that when he had sex relations with the respondent,
\nher  clothes used to be removed, though he said that  lights
\nused to be switched off in the room in which they slept.  We
\ncannot\tlose sight of the fact that in Bombay  after  sunset
\nthe  streets are well illuminated and since the windows\t are
\nusually\t  kept\topen  the  light  coming  from\toutside\t  is
\nsufficient to illuminate the rooms adjacent to the  streets.
\nThey  therefore are not totally dark even at  night.   Apart
\nfrom  that, the appellant has admitted that he did not\tfeel
\nanything abnormal when he came in contact with her.  If\t her
\npregnancy  had\tactually  advanced to four  months,  in\t the
\nnormal course it would have been possible for him to  notice
\nher condition.\n<\/p>\n
347<\/span><\/p>\n
Then  there is the evidence of Dr. Ajinkya.  He has  deposed
\nto a large number of things, and the only points which it is
\nnecessary to mention are: (a) the normal period of gestation
\nis  280\t days,\twhich period is calculated  from  the  first
\nday,,,,,  of  the  last\t menstrual  period;  (b)  where\t the
\nhospital  record .shows that the woman delivered of a  child
\nhas normal labour and the child weighed 4 lbs and is living,
\nit  must  have been conceived 270 days before  the  date  of
\nbirth; (c) if a child is born within 169 days from the\tdate
\nof  marriage  it  would not be\tof  sufficient\tmaturity  to
\nsurvive; (d) confirmation of a pregnancy within three  weeks
\nof  conception\tis possible only by a biological  test;\t (e)
\nabdominal enlargement would be perceptible after the  fourth
\nmonth  of  pregnancy;  (f) viability  is  described  as\t the
\ncritical period of maturity and that this period is the 28th
\nweek  of conception and explained that the viable period  is
\ncalled critical period because it denotes the development of
\nthe  child’s  tissues  to  the\textent\tthat  it  can\thave
\nindependent  existence from its mother only after  that\t and
\nnot  before; and (g) a child born after the 28th  week\tfrom
\nconception would survive when special care and treatment  is
\ngiven  to it.  He has then described the special care  which
\nhas  to\t be taken in regard to such  child.   The  following
\npassage\t from  Taylor’s Principles and Practice\t of  Medical
\nJurisprudence, Vol 2, 11th Edn. p. 32 was put to him:\n<\/p>\n
\t      “It was the opinion of William Hunter that few
\n\t      children\tborn before 7th calendar  month\t (or
\n\t      210  days) are capable of living\tto  manhood,
\n\t      but  with\t advances  in  methods\tof  Neonatal
\n\t      Resuscitation and maintenance, this dictum has
\n\t      gradually\t receded into history.\tIt  remains,
\n\t      nevertheless, that the less mature the  infant
\n\t      the  less\t likely\t is it to  survive  and\t the
\n\t      critical\tperiod of maturation appears  to  be
\n\t      somewhere\t between the 5th and 6th month.\t  In
\n\t      the  absence  of any  skilled  care,  Hunter’s
\n\t      dictum on the likelihood of survival when born
\n\t      before the 7th calendar month remains as\ttrue
\n\t      as it was.”\n<\/p><\/blockquote>\n
According to him, this dictum was not wholly true, and\twhat
\nwas  attributed\t to  Hunter was really the  opinion  of\t the
\nauthor.\n<\/p>\n
I may mention here that Dr. Mehta has agreed with the  above
\nquotation  from\t Taylor’s  book.  Now, since  the  month  of
\npregnancy is a lunar month the respondent’s child which\t was
\nborn 26 weeks and four days after the marriage could be said
\nto be one born in the 7th month.  The fact that such a child
\nhas  survived its birth is no significant evidence of  matu-
\nrity.  Taylor points out that though infants born before the
\nseventh\t month of pregnancy are less likely to survive\tthey
\ncommonly  do  so.  The following cases of survival  of\tless
\nmature infants are referred to in this connection:\n<\/p>\n
348<\/span><\/p>\n
Bernardi  described the survival of a 1 lb. 9 oz. infant  in
\n1951, and Nanayakkara, in the same year, recorded a birth at
\n1 lb. 4 oz. which survived.\n<\/p>\n
MacDonald reported the survival of a 14 in. long 2 lb. 7 oz.
\ninfant-thought to be a gestation of 6 to 61 monthsthat,\t six
\nmonths later, weighed 5 lb. 6-1\/2 oz.
\nThe  considerable experience of Victoria Crosse in  problems
\nof prematurity resulted in the publication of the  following
\ntable, emphasising the high mortality of prematurity:
\nWeight of Infant (lb)Percentage leaving Hospital
\n0.2\t\t\t\t3
\n2-3\t\t\t       27<\/span>
\n3-4\t\t\t       60<\/span>
\n4-5\t\t\t       78<\/span>
\n5-5-1\/2\t\t\t       94<\/span>
\nThe author then refers to a case attended by Barker in which
\na female child born 22 weeks after intercourse was  observed
\nby him to have attained the age of II.\tSimilarly the author
\nrefers\tto a case from America when a child born  192  days,
\nafter  intercourse  was found alive at the  time  of  report
\nwhich  was  16 months after its birth.\tIn  the\t well  known
\nKinghorm  case the doubt cast on the legitimacy of  a  child
\nborn  174  days after the marriage between the\tparents\t was
\nfound not to have been substantiated.\n<\/p>\n
It  would be convenient to quote here two passages from\t the
\narticle by J. H. Peel at p. 557 onwards of British Obstetric
\nPractice  (22nd\t edn.)\ton “Duration of\t Pregnancy  and\t its
\nvariations”.   He begins by saying that the problem  of\t the
\nexact  duration\t of pregnancy has not yet been\tsolved\tthat
\nthis  is  due  to a large number of  variable  factors.\t  He
\npoints out that the common method of calculating the date of
\ndelivery ignores all the variables.  Dealing with  premature
\ntermination of pregnancy he says:\n<\/p>\n
\t      “Premature  termination  of pregnancy  may  be
\n\t      defined as termination of the pregnancy  after
\n\t      the   twentyeighth  week\t(accepted  date\t  of
\n\t      viability\t of  the  foetus)  and\tbefore\t the
\n\t      fortieth week, counting from the first day  of
\n\t      the last menstrual period.  On the other hand,
\n\t      most  writers  on the subject  of\t prematurity
\n\t      tend  to define the condition in terms of\t the
\n\t      weight of the baby rather than in terms of the
\n\t      maturity of the pregnancy.  It was first\tlaid
\n\t      down by the American Academy of Pediatrics  in
\n\t      1935  that  a  premature infant  is  one\tthat
\n\t      weighs 5 1\/2 lbs.\n<\/p><\/blockquote>\n
\t      349<\/span><\/p>\n
\t      or   less,   regardless  of  the\t period\t  of
\n\t      gestation.   This definition was\taccepted  by
\n\t      the  International  Medical Committee  of\t the
\n\t      League  of  Nations and has  gained  universal
\n\t      acceptance,   in\tspite  of   its\t  scientific
\n\t      inaccuracy.   Most  obstetricians\t have\tseen
\n\t      babies  of  less\tthan 51 lbs.  born  after  a
\n\t      gestation\t period\t of  more  than\t 280   days.
\n\t      Indeed, birth weight and duration of pregnancy
\n\t      are  far from perfectly  correlated.   Infants
\n\t      weighing less than 5-1\/2 lb. at birth may even
\n\t      be postmature.  This is well shown in Table  2
\n\t      constructed  by  Kane and Penrose\t from  7,037
\n\t      live  births from University College  Hospital
\n\t      records.\t It is seen that 470 babies  weighed
\n\t      less  than 5-1\/2 lb., but that III  (23.6\t per
\n\t      cent) of these underweight babies were born at
\n\t      term  or\tlater,\taccording  to  the  ordinary
\n\t      method  of calculation.  The  term  immaturity
\n\t      has  been suggested as an alternative in\tview
\n\t      of   these  discrepancies,  but  it  has\t not
\n\t      received\tuniversal  acceptance.\t There\t is,
\n\t      however,\tmore than academic  significance  in
\n\t      the  difference,\tbecause\t maturity  as  such,
\n\t      irrespective of weight, is of the greatest im-
\n\t      portance\tin relation to foetal  survival.   A
\n\t      baby  whose birth weight is 4 lb., if born  at
\n\t      thirty-eight weeks stands a far better  chance
\n\t      of  survival,  and is more likely\t to  develop
\n\t      into  a  healthy\tchild,\tboth  mentally\t and
\n\t      physically than one of the same weight born  a
\n\t      month earlier.”\n<\/p><\/blockquote>\n
 I  am\tnot reproducing the table constructed  by  Kane\t and
\nPenrose\t but I may only mention that the table shows  a\t few
\ncases  of deliveries in which the duration of pregnancy\t was
\n177  days,  though  they ended either  in  still  births  or
\nneonatal  deaths.The  conditions associated  with  premature
\nlabour are many and varied and Peel has classified themthus:
\n(1)  Maternal causes. (a) Pre-existing (b) Complications  of
\nPregnancy.\n<\/p>\n
(2)  Foetal and Placental causes.\n<\/p>\n
(3)  Idiopathic causes.”\n<\/p>\n
He has then dealt with these causations of premature  labour
\nbut  I would content myself by quoting a portion of what  he
\nhas  said  regarding ‘Idiopathic causes’.  This is  what  he
\nsays:\n<\/p>\n
\t      “In about 50 per cent of premature labours  no
\n\t      definite\tcause can be found.   Thus  Sandifer
\n\t      (1944),  analysing premature births  at  Queen
\n\t      Charlottee’s Hospital, found no definite cause
\n\t      in  372  out  of a total\tof  681\t spontaneous
\n\t      premature labours.\n<\/p><\/blockquote>\n
\t      350<\/span><\/p>\n
\t      doubt correlated with nutrition dependent upon
\n\t      social status.”\n<\/p><\/blockquote>\n
What does all this show?  It brings out the fact that  while
\nthe  natural  phenomenon of human birth\t follows  a  general
\npattern it does not do so invariably.  There are  variations
\nin it. A few have been recorded but in the nature of  things
\nthe  observations cannot be exhaustive, bearing in mind\t the
\nfact  that  every minute a new human is being born  in\tthis
\nworld-or  may  be  even more than one.\tSection\t 45  of\t the
\nIndian Evidence Act makes the opinion of scientists relevant
\nwhen  the  court has to decide a point of science.   But  it
\ndoes not make the opinions conclusive.\tTherefore, while the
\ncourts ought to pay due regard to the existing knowledge  of
\nscientists it does not necessarily follow that the  opinions
\nexpressed  by  scientists must be  always  accepted  without
\nscrutiny.   Every  phenomenon  is  the\tresult\tof  numerous
\nfactors\t and where all such factors are known to science  an
\nopinion\t of an expert concerning the  particular  phenomenon
\nought  ordinarily to be accepted.  But when all the  factors
\nwhich  come  into  play in a phenomenon are  not  known,  an
\nuncritical  acceptance\tof an expert’s opinion\twould  be  a
\ndangerous  thing.  Medical scientists do not lay claim to  a
\nknowledge  of every factor involved in human birth.  One  of
\nthe  factors they have to contend with is the  operation  of
\nthe life principle.  The mystery of its behaviour has yet to
\nbe unravelled and, therefore, if an expert makes a  dogmatic
\nassertion about any matter concerning child-birth dismissing
\ncontrary opinions based upon the observations of  departures
\nfrom  the  so-called norm with supersilious disdain  as\t Dr.
\nAjinkya\t has  done  or\tis unable  to  give  a\tsatisfactory
\nexplanation  for the departure from the normal\tobserved  by
\nother  scientists,  I  would put aside his  opinion  on\t the
\nground that his whole approach is unscientific.
\nIn  this  evidence  Dr. Ajinkya has  further  deposed  about
\ntoxaemia in pregnancy, enlargement of abdomen, weight of the
\nchild born after the full period of gestation.\tWhen he\t was
\nasked  the question: “If toxaemia starts at the end  of\t 4th
\nmonth  of pregnancy and in spite of the treatment, there  is
\nno  ,change  in\t toxaemia  for\ta  period  of  seven   weeks
\nthereafter what would be the condition of the child born 169
\ndays  after  marriage?” His answer was,\t “most\tprobably  it
\nwould  be  a still birth.” From this last statement  of\t the
\nwitness\t it  would  appear that if,  when  the\trespondent’s
\ntoxaemia  as evidenced by vomiting and nausea  started,\t she
\nwas  in the fourth month of pregnancy and not in the  second
\nmonth of pregnancy the child delivered by her on August\t 27,
\n1947 would be still born but in fact it was alive and is now
\n16 years of age.\n<\/p>\n
351<\/span><\/p>\n
The following passage from Mody’s Medical Jurispru dence and
\nToxicology, 12th edn. p. 305 was put to him:\n<\/p>\n
\t      “It   has\t  been\tobserved  in   women   whose
\n\t      intermenstrual  period  is  shorter  than\t the
\n\t      usual  time, pregnancy has terminated  in\t the
\n\t      8th  or  9th month or even earlier  the  child
\n\t      having  attained full  development.”  (Italics
\n\t      are mine).\n<\/p><\/blockquote>\n
Dr.  Ajinkya,  however,\t expressed  disagreement  with\t it.
\nAccording to him, the weight of the child born in the 5th or
\n6th  month  after the marriage would be 2-1\/2 lbs.  and\t the
\nchild  would  not  survive, whereas here  the  evidence,  if
\naccepted, is that the weight of the child was 4 to 41\/2 lbs.
\nIn  the\t table constructed by Kane and Penrose\tthree  Cases
\nhave been recorded in which the infant born in the 7th month
\nof  pregnancy  weighed between 5 and 6 lbs.   Dr.  Ajinkya’s
\nopinion\t cannot, therefore, be accepted.  He also said\tthat
\nif  a pregnant woman is suffering from oedema all  over\t the
\nbody,  is  passing  albumen in the  urine,  has\t high  blood
\npressure  and does not respond to treatment, it would  be  a
\nsevere\ttype of toxaemia and the child born to her would  be
\nstill-born.   If this opinion is accepted, then\t considering
\nit along with the fact that the child born to the respondent
\nis still alive, the evidence of Madhuben that the respondent
\nwas suffering from eclempsia and therefore she had to attend
\non her for two months before the delivery stands  falsified.
\nThe  witness has also said that the period of  gestation  is
\nusually counted in lunar months, meaning a month of 28\tdays
\nand  that  as doctors do not know the date of  the  fruitful
\ncoitus,\t they  calculate the period of\tgestation  from\t the
\nfirst day of the last menstruation of the woman.  As regards
\nnausea\tduring\tpregnancy,  he said  that  morning  sickness
\noccurs\tin the 1st or 2nd month and has expressed  agreement
\nwith the following passage from Mody’s Text Book:\n<\/p>\n
\t      “Nausea  or  vomiting  usually as\t a  sign  of
\n\t      pregnancy,  most frequently occurs soon  after
\n\t      the  woman rises from bed in the morning.\t  It
\n\t      commences\t about the beginning of\t the  second
\n\t      month and lasts generally till the end of\t the
\n\t      fourth month.  It may, however, commence\tsoon
\n\t      after conception.”\n<\/p><\/blockquote>\n
\t      Another passage from Mody was also put to him.
\n\t      A\t passage from Taylor, Vol. 2, 6th ed. at  p.
\n\t      152 was read out to him.\tIt runs as  follows:\n<\/p><\/blockquote>\n
\t      –\n<\/p><\/blockquote>\n
\t      “It  would be in the highest degree unjust  to
\n\t      impute illegitimacy to offspring, or a want of
\n\t      chastity to parents merely from the fact of  a
\n\t      six   months  child  being  born\tliving\t and
\n\t      surviving\t its birth.  There are,\t indeed,  no
\n\t      justifiable medical grounds for
\n\t      352<\/span>
\n\t\tadopting  such\tan  opinion-a\tfact clearly
\n\t      brought out by the answer to a question put to
\n\t      the principal medical witness in favour of the
\n\t      alleged  antenuptial conception.\tHe  admitted
\n\t      that  he had him self seen the case of  a\t six
\n\t      months  child who had    survived for  several
\n\t      days.   He could not assign anyreason why,  if
\n\t      after  such  a  period  of  gestation  it\t  is
\n\t      possible\tto prolong life for days, it  should
\n\t      not be possible to extend it to months.”\n<\/p><\/blockquote>\n
His only answer was that he was aware of this case, and\t ob-
\nserved: “If such speculation can take you away from truth in
\none  direction, it may also take you away from truth in\t the
\nother  direction.” In re-examination, the following  passage
\nfrom Taylor’s Book, 2nd Vol. 10th ed. at p. 37 was shown  to
\nhim:\n<\/p>\n
\t       “On the other hand, when a child is born with
\n\t      the full signs of maturity, at or under  seven
\n\t      months,  from possible access of the  husband,
\n\t      then there is a strong presumption that it  is
\n\t      illegitimate.”\n<\/p><\/blockquote>\n
 He expressed agreement with this passage.The evidence of
\n  This\twitness no doubt contains certain statements,  which
\nsupport\t the  appellant\t but I agree with the  view  of\t Mr.
\nJustice Patel that the witness though undoubtedly a  leading
\nobstetrician and gynaecologist, appears to have fenced while
\nanswering  questions which tended to throw doubt on some  of
\nthe opinions expressed by him.\tHis evidence, however,\talso
\nshows  that  if the respondent was in the  fourth  month  of
\npregnancy  at the time of the marriage her nausea would\t not
\nhave started soon after her return to Prantij.\tIn fact, her
\nnausea could have started much earlier, and even at the time
\nof  the\t marriage she should have been\tsuffering  from\t it.
\nThere  is no evidence whatsoever to the effect that she\t had
\nany  such  nausea at the time of the marriage.\t It  is\t not
\ndisputed by the appellant that she was suffering from nausea
\nfrom  the  time\t deposed to by her and\tfor  a\tconsiderable
\nperiod\tthereafter.  She could, therefore, not have been  in
\nthe  fourth  month of pregnancy towards the  end  of  April,
\n1947.\tFor, according to Dr. Ajinkya nausea starts  in\t the
\nfirst  or second month of pregnancy or again in the  seventh
\nmonth  of  pregnancy.\tTherefore, upon\t this  part  of\t Dr.
\nAjinkya’s  opinion, the appellant’s definite case  that\t the
\npregnancy  commenced in November or December, 1946 falls  to
\nthe  ground.   No  doubt,  the\topinions  of  this   witness
\nregarding  viability  of a child born after  five  and\thalf
\nmonths\tand  the  weight  of such child\t at  birth  and\t the
\nimpossibility  of  its\tsurvival  support  the\t appellant’s
\ncontention.   But  these  are matters upon  which  there  is
\ndivergence amongst experts.  I have
\n353<\/span>
\nalready referred to a passage from Taylor which was  brought
\nto the notice of this witness with which he disagreed.\tThis
\npassage as well as that in Peel’s article show that abnormal
\ncases  do  occur.  Dr. Mehta’s opinions run counter  to\t Dr.
\nAjinkya’s  on  certain crucial points.\tHe  has\t spoken\t not
\nmerely\tfrom his own observations as an obstetrician but  on
\nthe  strength of the findings of other scientists.  In\tthis
\nstate  of affairs can the court say that the  appellant\t has
\ndischarged  The\t burden which the law has cast upon  him  to
\nprove  that the respondent was pregnant at the time  of\t the
\nmarriage?   It is not enough for him to throw a\t doubt.\t  He
\nhas to establish he fact affirmatively.\n<\/p>\n
No   doubt   the  appellant  has  examined  Dr.\t  Udani,   a
\nPediatrician, but even his evidence does not take the matter
\nany further.  Therefore, I am referring to those passages in
\nhis,  evidence on which reliance was placed at\tthe  hearing
\nand  would  only say this that what I have  said  about\t Dr.
\nAjinkya’s evidence on similar matters applies equally to Dr.
\nUdani’s\t evidence.  According to him, a child born 5  months
\nand  17\t days after conception would die  immediately  after
\nbirth, though very often it would be a case of\tmiscarriage.
\nThe weight of such a child, according to him, would be 1-1\/2
\nto  2  lbs.  He has agreed with Dr.  Ajinkya  regarding\t the
\nnormal\tperiod;\t of gestation as well as  the  period  after
\nwhich a baby becomes viable.  He has admitted in his  cross-
\nexamination  that where the weight of a child at birth is  4
\nlbs.  it  would\t definitely be an  indication  of  premature
\nbirth.\t The  following question was put to  him  in  cross-
\nexamination:\n<\/p>\n
\t      “You  were  asked\t by  the  counsel  for\t the
\n\t      petitioner  a little while ago that you  could
\n\t      call certain signs as signs of maturity.\tNow,
\n\t      as  a responsible doctor, I take it  that\t you
\n\t      can do so on the assumption that such symptoms
\n\t      are reliably established or found?”
\n\t      His answer was:\n<\/p><\/blockquote>\n
\t      “All the signs and symtoms must be established
\n\t      before I can opine on them.<\/p><\/blockquote>\n
\t      If a baby can take the breast feed well by 3rd
\n\t      day of its life and that baby cries well, even
\n\t      though   such   a\t child\tmay   according\t  to
\n\t      international  definition be a premature\tone,
\n\t      nonetheless  it  is  a  fairly  well-developed
\n\t      child  as far as functions are concerned.\t  So
\n\t      far  as  its functions are concerned it  is  a
\n\t\t\t    matured  child.  This is particularly
\n true  if
\n\t      the  mother of the child has the disease\tlike
\n\t      Toxaemia\tthen that baby even if born  between
\n\t      36 and 40th week of pregnancy, that baby\twill
\n\t      be under-weight but it will be a matured child
\n\t      in function.”\n<\/p>\n
L\/P  P(D) ISCI–12 …\n<\/p>\n
354<\/span><\/p>\n
Mr. Vimadalal objected to the last part of the answer  given
\nBy the witness on the ground that it was volunteered by him.
\nEven,  however, if this is taken into account, it  makes  no
\ndifference,  because there is no positive evidence  to\tshow
\nthat them respondent was suffering from toxaemia right\ttill
\nthe termination of the pregnancy.  When asked whether in his
\nexperience or knowledge he has come across any case in which
\na child born 26 weeks and four days had survived, his answer
\nwas:\n<\/p>\n
\t      “I have seen two babies surviving between 27th
\n\t      and  28th\t weeks.\t One in London\tand  one  in
\n\t      Boston.\tBut in these cases exceptional\tcare
\n\t      was required both for delivery as well as\t for
\n\t      bringing it up.”\n<\/p><\/blockquote>\n
This answer to some extent, goes against the opinion of\t Dr.
\nAjinkya,  though he has qualified it by adding that in\tmost
\ncases such child would be still-born and that in exceptional
\ncases it would survive if special care and attention is paid
\nto it.\n<\/p>\n
There remains the evidence of Dr. Mehta who was examined  as
\na witness on behalf of the respondent.\tHe has also  deposed
\nthat  the period of gestation is counted from the first\t day
\nof the last menstruation, and in this connection, he  relied
\nupon  the  following  passage  from  British  Obstetric\t and
\nGynaecological\tPractice  by Sir Eardley Holland  and  Aleck
\nBourne, 1955 ed.:\n<\/p>\n
\t      “According to Naegele’s rule, which is  almost
\n\t      universally employed, seven days are added  to
\n\t      the first day of the last menstrual period and
\n\t      nine  months added, in order to arrive at\t the
\n\t      expected\tdate of delivery.  This is really  a
\n\t      simple way of adding 280 days of the first day
\n\t      to   the\t last  menstrual   period,   because
\n\t      experience has shown that this is the  average
\n\t      duration of pregnancy.”\n<\/p><\/blockquote>\n
\t      He also agreed with the following passage from
\n\t      Dougald\tBaird’s\t  Combined  Text   Book\t  of
\n\t      Obstetrics and Gynaecology, 6th ed:
\n\t      “It  has\tlong been known that the  length  of
\n\t      gestation\t in  the human is almost  ten  lunar
\n\t      months (280 days) if calculated from the first
\n\t      day of the last menstrual period.”\n<\/p><\/blockquote>\n
According  to him, a four pound full term baby that  is\t one
\nborn  280  days after the first day of\tthe  last  menstrual
\nperiod, is a rare occurrence.  He was asked the question:
\n“Doctor, if a woman suffers from swelling, i.e. oedema, high
\nblood  pressure and passing of albumen in urine, would\tthat
\nhave any effect on the period of delivery?”, and his
\n355<\/span>
\nanswer\twas that the child would be premature.\t He  further
\ndeposed\t that  oedema, high blood pressure  and\t passage  of
\nalbumen\t in urine occur in the second period  of  pregnancy,
\nbut  that  it  might occur earlier if  the  woman  had\tsome
\ntrouble,  with the kidneys or high blood pressure.   By\t the
\nsecond\tperiod of pregnancy, he meant after the third  month
\nof pregnancy and before the seventh month of pregnancy.\t  He
\nfurther\t stated that nausea in pregnancy usually  occurs  at
\nthe  time of the .second missed period, but it\tmight  occur
\nbefore or about the time of the first missed period.   While
\nhe agreed with the other medical witnesses examined in\tthis
\ncase  that  the child is supposed to be\t normal\t and  viable
\nafter  28 weeks, he said that there are some  exceptions  to
\nthis and that a child born earlier than the 28th week may be
\nborn alive and can survive.  He stated that his statement is
\nbased upon the following two passages in De Lee’s book:\n<\/p>\n
\t      “De  Lee delivered a viable child one  hundred
\n\t      and   eighty-two\t days  after  the   day\t  of
\n\t      conception and Green Hill delivered a baby one
\n\t      hundred\tand   ninety-one  days\t after\t the
\n\t      beginning\t of the last menses and one  hundred
\n\t      and  seventy-six days after the  last  coitus.
\n\t      The  baby weighed 735 gms (1 pound 10  ounces)
\n\t      and  survived.   The child is  now  normal  in
\n\t      every way…\n<\/p><\/blockquote>\n
The French law recognizes the legitimacy of a child born one
\nhundred\t and eighty days after marriage and  “three  hundred
\ndays  after  the death of the husband, the  German  law\t one
\nhundred\t and  eighty  one and three hundred  and  two  days,
\nrespectively.”\n<\/p>\n
He  then said the he was familiar with the case of  Cark  v.
\nClark,(1)  which  is also referred to  in  Taylor’s  Medical
\nJurisprudence, 2nd vol. 10th ed. at p. 36.  Referring to it,
\nhe said:\n<\/p>\n
\t      “I  agree with the proposition at page  35  of
\n\t      Taylor.  It is as follows:-\n<\/p><\/blockquote>\n
\t      ‘Hence  it  is established that  the  children
\n\t      born  at the 7th or even at the 6th month\t may
\n\t      be reared.’
\n\t      I\t believe  the expression month used  by\t the
\n\t      author is Lunar Month.  It also agree with the
\n\t      proposition  of Taylor at the same page  which
\n\t      runs as under–\n<\/p><\/blockquote>\n
\t      ‘It  would be in the highest degree unjust  to
\n\t      impute illegitimacy to offspring or a want  of
\n\t      chastity
\n\t      356<\/span>
\n\t      to  the parents merely from the fact of a\t six
\n\t      months  child being born living and  surviving
\n\t      its birth’.”\n<\/p><\/blockquote>\n
He  has\t also deposed about various matters such  as  normal
\nlabour,\t calculation  of  period and so on  but\t it  is\t not
\nnecessary to refer to that part of the evidence.
\nMr. Desai referring to the opinion of the witness  regarding
\nthe mode of confirmation of pregnancy within three weeks  or
\nso  of conception said that the respondent’s admission in  a
\nletter\tof 3rd April, 1947 that her pregnancy was  confirmed
\nthat  day  by a doctor who had apparently  not\tperformed  a
\nbiological  test would show that conception must have  taken
\nplace long before the date of marriage.\t The letter was\t not
\nproduced by the appellant and so we do not know what exactly
\nshe  had said in it.  Apart from that it is  quite  possible
\nthat  the doctor whom the respondent consulted, as  she\t was
\nhaving\tnausea may have tentatively opined that it was\tpro-
\nbably  due to the fact that she had conceived.\tThe  opinion
\nof that doctor cannot be placed higher than that.
\nRelying\t upon the admissions made by the respondent  in\t the
\nevidence  that there was swelling on her hands and  feet  in
\nthe month of June it was argued that she must have then been
\nin  the\t 7th  month of pregnancy because  according  to\t Dr.
\nAjinkya this kind of toxaemia appears after the 7th month of
\npregnancy.   It\t is to be remembered that she  was  deposing
\nabout this 12 years after the occurrence and as there was no
\nreference to such an important matter in her letters of\t the
\n14th June and 2nd July, but only in a subsequent letter, she
\nappears to have made a mistake about the month while  depos-
\ning  in\t court.\t  In fact she  first  complained  about\t the
\nswellings and high blood pressure only in her letter of\t the
\n13th August.  Again even according to Dr. Ajinkya a pregnant
\nwoman may develop such troubles in the 4th month if she were
\nsuffering from chronic kidney trouble.\tThere is no evidence
\nabout her suffering from such trouble but the possibility of
\nher  having such trouble has not been ruled out.  Dr.  Mehta
\nhas  also said that while swellings and high blood  pressure
\nusually\t occur in the second period of pregnancy, he  stated
\nthat  this period would be after the 3rd and before the\t 7th
\nmonth of pregnancy and supported his view by reference to  a
\npassage\t  at  P.  225  from  the  ‘British   Obstetric\t and
\nGynaecological\tPractice’.   In this state of  evidence,  it
\nwould not be reasonably safe to conclude that the respondent
\nwas in the 7th month of pregnancy in the month of June.
\nNo  doubt  Dr.\tAjinkya\t has said  that\t there\twould  be  a
\nperceptible  abdominal enlargement in ordinary\tcases  after
\nthe 4th month and the respondent has remarked in her letter
\n357<\/span>
\nof  the 28th June that her abdomen had the appearance  of  a
\nbig  water  pot.  But that was nothing\tmore  than  innocent
\nexaggeration and ought not to be taken literally.
\nA good deal of argument was advanced on the footing that the
\ndelivery  of  the respondent being normal, the\tbirth  of  a
\npremature baby cannot be regarded as a ‘normal delivery’  in
\nthe medical parlance.  Apart from the fact that Dr.  Ajinkya
\nand   Dr.  Mehta  have\tgiven  different  meanings  to\t the
\nexpression ‘normal delivery’, there is no reliable  evidence
\nto  the effect that the birth of a child to  the  respondent
\nwas  regarded  as  normal delivery.   As  already  observed,
\nMadhuben’s evidence is false and artificial and the hospital
\nrecords consisting of indoor case papers are incomplete.  It
\nwould  also appear that the column of ‘disease’ is torn\t and
\nattempts to reconstruct it seem to have been made.  Moreover
\nit  would seem that entries used to be made in the  hospital
\npapers\tmechanically without reference to  actualities.\t  On
\nthese grounds the entry regarding the weight of the child at
\nbirthstated  as 4 lbs-cannot be accepted at its face  value.
\nEven accepting it, there is unanimity of opinion amongst all
\nthe  three experts examined in this case that this would  be
\nthe weight of a premature baby and not that of a mature one.
\nConsidered  along with the circumstances that  the  delivery
\nwas  sudden and the respondent was then in a poor  state  of
\nhealth\tthe appellant’s case that the baby was a  full\tterm
\none and, therefore, illegitimate stands disproved.
\nAll that I would say is that the medical evidence adduced in
\nthis case for establishing that the respondent had conceived
\nbefore\tthe  marriage can in no sense be regarded  as  of  a
\ndefinite or conclusive nature.\tIndeed, in the case of Clark
\nv.  Clark(1). if the husband was assumed to be\tthe  father,
\nthe  pregnancy\tcould not have exceeded 174  days,  and\t the
\nchild which was born, was alive at the hearing and was three
\nyears  old.  The medical evidence was to the effect  that  a
\nchild of so short a period of foetal life would not  survive
\nfor  more than a day or two.  At the same time, the  medical
\nwitnesses  agreed  that\t only  rarely  could  the  date\t  of
\nconception  be\tfixed,\tand that the  periods  of  gestation
\ngenerally  spoken  of were notional periods.  There  was  no
\nevidence of misconduct on the part of the wife, and the only
\nevidence  of adultery was the fact of the birth of a  child,
\nthe period of gestation of which could not have exceeded 174
\ndays.\tThe Court held that the husband had  not  discharged
\nthe  burden of proof in respect of the adultery and that  it
\nwas  sufficiently  proved that the child  was  conceived  in
\nwedlock.   It was further held that “where the date of\tcon-
\nception can be fixed, and the actual period of gestation is
\n(1)  (1939) 2 All ~E.R. 59.\n<\/p>\n
358<\/span><\/p>\n
   ascertained, this ascertained period is comparable to the
\nlonger notional period, and for this reason what is in\tfact
\na  six\tmonth child may be comparable to what  is  called  a
\nseven  months child.”\n<\/p>\n
To  sum\t up, the substance of the medical  evidence  led  on
\nbehalf of the appellant is that the normal period of  gesta-
\ntion  of  a child is 280 days, that a child  born  180\tdays
\nafter  the last menstruation is not likely to be born  alive
\nor  if\tborn alive it will survive only if special  care  is
\ntaken, that such a case would not be that of normal delivery
\nand its weight would be 1-1\/2 to 2 lbs.\t With the aid of the
\nevidence  of Madhuben the appellant has sought to  establish
\nthat  the  delivery was a normal one,  that  the  respondent
\nappeared  to have delivered at full term and the child\tborn
\nwas  a normal one.  He has further sought to prove with\t the
\naid of the hospital papers that the child weighed four\tlbs.
\nor  so and was found to be normal one.\tMadhuben’s  evidence
\nhas  been rejected by both courts of fact and for very\tgood
\nreasons.   The hospital papers cannot be relied upon in\t the
\nabsence of the white paper.  Besides, a look at the hospital
\nrecords\t would suggest that entries therein were made  in  a
\ncasual\tmanner regardless of actualities.  Thus all that  we
\nare  left with is the evidence of the experts and  the\tcase
\nrecords\t in text books.\t There is no unanimity\tamongst\t the
\nthree  experts\tand even the text books\t refer\tto  abnormal
\ncases.\tBearing in mind that the normal period of  gestation
\nevolved\t by  the obstetricians is a  generalisation  deduced
\nfrom particulars it cannot be regarded as an inflexible\t law
\nof  nature  from which there can be no\tdeviation.   Indeed,
\nreputed\t obstetricians have recorded cases where the  period
\nof  gestation  was found to be shorter in cases\t of  mothers
\nwhose  menstrual  cycles were of three weeks.\tAgain  where
\ntoxaemia  of  pregnancy\t is found  to  be  considerable\t the
\ndevelopment  of a child in the womb has been found  to\ttake
\nplace more rapidly than in normal pregnancies.\tThere may be
\nconceivably other factors contributing to the shortening  of
\nthe  period of gestation and a more rapid development  of  a
\nchild in the womb than that which medical science has so far
\nbeen able to notice.  In these circumstances it would not be
\nreasonably safe to base a conclusion as to the\tillegitimacy
\nof  a  child  and unchastity of its  mother  solely  on\t the
\nassumption that because its birth and condition at birth ap-
\npeared\tto be normal its period of gestation must have\tbeen
\nnormal,\t thus placing its date of conception at a  point  of
\ntime prior to the marriage of its parents.\n<\/p>\n
Thus,  even if the additional evidence is taken into  consi-
\nderation, the appellant stands on no stronger grounds.\n<\/p>\n
\t\t\t    359<\/span><\/p>\n
It  has\t also to be remembered that on the  question  as  to
\nwhether the respondent was pregnant before her marriage\t not
\nonly  the High Court but also the City Civil Court has\tcome
\nto the conclusion that she was not.  We have thus concurrent
\nfindings  of fact on this crucial question.  It\t is  settled
\nlaw  that this Court does not interfere with such a  finding
\nmerely\ton  the\t ground that another view  of  the  evidence
\nadduced\t in  the case commends itself to  this\tCourt.\t The
\nappeal\thas come before us by a certificate granted  by\t the
\nHigh Court under Art. 133(1)(b) of the Constitution.  One of
\nthe  requirements of cl. (1) of Art. 133 is that in  a\tcase
\nother  than  the one referred to in sub-cl. (c)\t the  appeal
\nmust  involve  a  substantial  question\t of  law  where\t the
\njudgment  appealed  from affirms the decision of  the  Court
\nimmediately   below.   No  doubt,  strictly  speaking,\t the
\njudgment of the High Court cannot be regarded as judgment of
\naffirmance  of\tthe City Civil Court because  initially\t the
\nCity  Civil  Court  had granted a decree  for  annulment  of
\nmarriage  to  the appellant.   Substantially,  however,\t the
\ndecree\tof  the\t High  Court must  be  regarded\t as  one  of
\naffirmance  if we take into consideration the fact that\t the
\nHigh  Court  had affirmed the finding rendered by  the\tCity
\nCivil Court on the additional issue framed by the High Court
\nin  regard  to\tthe  question  whether\tthe  respondent\t was
\npregnant   at\tthe  time  of  the  marriage.\t No   doubt,
\ntechnically,  the  High\t Courts’  decision  is\tnot  one  of
\naffirmance  because it has reversed the decree of  the\tCity
\nCivil  Court.  But we must have regard to the  substance  of
\nthe  matter.   It  is true that the  City  Civil  Court\t had
\noriginally  granted  a decree but the basis of\tthat  decree
\ndisappeared  after  it gave a contrary finding\tto  the\t one
\nrendered  by it earlier on the crucial fact  concerning\t the
\nrespondent’s pregnancy before her marriage.  The High  Court
\nhaving accepted that finding there can be no escape from the
\nposition  that\twe have here a case where upon\tthe  crucial
\nquestion of fact, there are concurrent findings.  Unless  it
\nis  shown that a concurrent finding is vitiated by an  error
\nof law or procedure or unless it is shown that important  or
\nrelevant  evidence  has been overlooked or  misconstrued  it
\nwould  not be in consonance with the practice of this  Court
\nto re-examine that finding, particularly when, as here,\t the
\nfindings  are based upon an appreciation of  evidence.\t The
\nPrivy Council firmly adhered to this rule and this Court has
\naccepted the Privy Council’s practice in this regard.  There
\nare numerous decisions on the point but I may refer only  to
\nthe following as instances of cases in which this Court\t has
\nrefused\t to  disturb concurrent findings  of  fact:  Narayan
\nBhagwantrao  Gosavi  Balajiwale v. Gopal  Vinayak  Gosavi  &
\nors.<\/a>(1);  Gherulal  Parakh v. Mahadeodas  Maiya\t &  ors.<\/a>(2);
\nBhinka & others v.\n<\/p>\n
(1) [1960] 1 S.C.R. 733\t\t (2)  [1959] Supp. 2  S.C.R.\n<\/p>\n
406.
\n360<\/span>
\nCharan Singh(1); and Shamrao Bhagwanrao Deshmukh  v.Dominion
\nof India(2). No case has been brought to our notice in which
\nthis Court or the Privy Council has re-appreciated  evidence
\nin an appeal by special leave or disturbed a pure finding of
\nfact  concurrently made by the courts below.  To do  so\t now
\nwould be to ignore all precedents.\n<\/p>\n
As  already  held by me the appeal must\t be  dismissed\twith
\ncosts.\n<\/p>\n
(1)  [1959] Supp. 2 S.C.R. 798.\n<\/p>\n
(2)  A.I.R. 1955 S.C. 249.\n<\/p>\n
361<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mahendra Manilal Nanavati vs Sushila Mahendra Nanavati on 18 March, 1964 Equivalent citations: 1965 AIR 364, 1964 SCR (7) 267 Author: R Dayal Bench: Dayal, Raghubar PETITIONER: MAHENDRA MANILAL NANAVATI Vs. RESPONDENT: SUSHILA MAHENDRA NANAVATI DATE OF JUDGMENT: 18\/03\/1964 BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R. CITATION: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-123391","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMahendra Manilal Nanavati vs Sushila Mahendra Nanavati on 18 March, 1964 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mahendra-manilal-nanavati-vs-sushila-mahendra-nanavati-on-18-march-1964\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahendra Manilal Nanavati vs Sushila Mahendra Nanavati on 18 March, 1964 - 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