Description
A legal dispute carried out in the Supreme Court on which judgement was passed by the bench comprising Raghubar Dayal, N. Rajagopala Ayyangar and J.R. Mudholkar on 18/03/1964.
The appellant is a resident of Bombay while the father of respondent was a resident of Prantij in the former State of Baroda. They were betrothed in 1945 and their marriage was solemnised at Bombay according to Hindu rites on March 10, 1947. On August 27, 1947, respondent gave birth to a daughter after 5 months and 17 days of their marriage. In April 1956. the appellant filed a petition for annulment of his marriage with respondent on the ground that the child had been conceived long prior to his marriage through someone, else, the respondent was, at the time of marriage, pregnant by some one other than himself, that that fact was concealed from him and that ever since he had learnt about the birth of the child he had not cohabited with the respondent nor had he any relation with her whatsoever. The defence of respondent was that she conceived the baby as a result of sex relations with the appellant after their betrothel on being assured by him that that was permissible in their community, and that the parents of the appellant knew about the relations between the parties and also about her having conceived prior to her marriage. The trial court accepted the allegations of the appellant and held that the respondent was not pregnant by the appellant but by a person other than the appellant even before marriage. Respondent went in appeal to the High Court against the order, of annulment passed by the trial court. The High Court was not satisfied with the findings of the trial court and remanded the case to
the trial court after framing the following two new issues: -
1. Is it proved that the respondent was pregnant at the time of marriage?
2. Is it proved that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree?
Respondent further alleged that the child was the result of conception after the marriage. The trial court recorded additional evidence and came to the conclusion that the respondent was not pregnant at the time of marriage and that no sexual intercourse with the consent of appellant took place after the discovery by appellant of the grounds for a decree. These findings were submitted to the High Court which held that it was not proved that respondent was pregnant at the time of marriage and that it was proved that petitioner had marital intercourse with the respondent subsequent to his discovery of the existence of the grounds for the decree. The High Court allowed the appeal of respondent and dismissed the petition for annulment of marriage. Appellant came to this Court after obtaining a certificate of fitness from the High Court. Accepting the appeal, Held (Mudholkar, J. dissenting). (i) The child born to respondent on August 27, 1947 was practically a mature child and weighed 44bs. in weight and therefore it could not have been the result of conception taking place on or after March 10, 1947. The child was conceived prior to March 10, 1947 and therefore respondent was pregnant at the time of marriage by some one other than appellant. Hence, appellant was entitled to annulment of his marriage.
(ii) The appellant did not have marital intercourse with respondent after he discovered that she had been pregnant by some one else at the time of marriage. In divorce cases, the court usually does not decide merely on the basis of the admissions of the parties. This is a rule of prudence and not a requirement of law. However, where there is no room for supposing that parties are colluding decision can be based on the admission of the parties. It is undesirable that the burden should be imposed on litigants in this class of cases, in which the substantial issue between the parties was whether the husband had at what was considered the relevant times any opportunity of intercourse with his wife and no question of an abnormal period of gestation had been raised until the trial and then only by the commissioner himself, of adducing medical evidence re: the period of gestation. However, that may be unavoidable where medical evidence in regard to the period is called by respondent and then the case becomes the battle-ground of experts.
(iii) The case of Clark v. Clark is not a good guide both on facts and law for the determination of the question about the legitimacy of the child of the respondent. In that case, delivery after 174 days of the
conception was proved to be on account of the fact that the mother of the child fell a day before delivery. It is not correct to add a lunar month to the ascertained period of gestation in cases of a known date of conception merely on the ground that when books speak of foetus of a certain number of months, that foetus might be due to a conception taking place on any day of the lunar month corresponding to the menstruation prior to the conception and the missperiod after conception. Per Mudholkar, J. if the birth of an apparently normal child 171 or 186 days after conception is an impossible phenomenon and if its impossibility is notorious, then alone a court can take notice of it and the question of drawing a presumption arises. All that can be said is that such an occurrence is at best unusual but it is a far cry to say that it is impossible. It is true that courts have taken notice of the fact that the normal period of gestation is 282 days but courts have also taken note of the fact that there are abnormal periods of gestation depending on various factors. It is not safe to base a conclusion as to the illegitimacy of a child and unchastity of its mother solely on the assumption that because its birth and condition at birth appeared to be normal, its period of gestation must have been normal, thus placing its date of conception at a point of time prior to the marriage of its parents. When a court is called upon to decide a matter mainly, if not wholly, on the opinion of medical men, it must proceed, warily. Medical opinion, even of men of great experience and deep knowledge, is after all generalisation founded upon the observation of
particular instances, however numerous they may be. When the Court finds that in. individual cases departure from the norm has in fact been observed by some experts and when again the experts themselves do not speak with the same voice, the need for circumspection by the court becomes all the more necessary. It may land itself into an error involving cruel consequences to innocent beings if it were to treat the medical opinion as decisive in each and every case. The responsibility for the decision of a point arising in a case is solely upon the court and while it is entitled to consider all the relevant materials before it, it would be failing in its duty if it acts blindly on such opinion and in disregard of other relevant, materials placed before it. Under the Hindu Marriage Act, 1955 and the Divorce Act, 1869, the condition for the grant of relief is the satisfaction of the court as to the existence of the grounds for granting the particular relief. The satisfaction as to the existence of the ground must be, as in a criminal proceeding beyond reasonable doubt and must necessarily be founded upon material which is relevant for consideration of the court which would of course include evidence adduced in the case. Although in the Indian Divorce Act, 1869 the words used are "satisfied on the evidence" while in the Hindu Marriage Act, the legislature has used the words "if the court is satisfied" their meaning is the same. When the law places the burden of proof upon a party, it requires that party to adduce evidence in support of his allegations, unless he is relieved of the necessity to do so by reason of admissions made or the evidence adduced on behalf of his opponent. The law does not speak of the quantum of burden but only of its incidence and it would be mixing up the concepts of the incidence of the burden of proof with that of the discharge of the burden to say that in one case it is light and in another heavy. Unless it is shown that important or relevant evidence has been overlooked or misconstrued, it is not in consonance with the practice of Supreme Court to re-examine a concurrent finding of fact, particularly when the findings are based on appreciation of evidence. Case law referred to.
