Laik, J.
1. This appeal, by the petitioner Nishit, whom I will call 'the husband', appears to have been limited to a consideration of the provision of Section 12(1)(d) of the Hindu Marriage Act. 1955, (for short, the Act) namely, suppresio veri by the respondent Anjali, whom I will call 'the wife' who admittedly was a pregnant woman at the date of the marriage -- a pregnancy per allium. The in-jured spouse is the husband, whose application for declaring the marriage a nullity on the ground that he was not responsible for the wife's pregnancy, was dismissed by the learned Additional District Judge, Hooghly, which it is plain, raises a question of peculiar difficulty.
2. It was a ceremonial marriage on July 3, 1960. The wife started her labour and was delivered at a hospital, of a normal full term child, weighing more than 6 lbs. on December 16 1960 without unusual difficulty, who is still alive. The notional period of pregnancy from the date of marriage and the usual normal period of human gestation (about 280 days) from the date of first fruitful coition after marriage, is absent in this case. The period between the date of marriage and the date of birth was too short for a mature child to be born Counting both days, it will be 167th day.
3. It is one of the misfortunes in the instant case that the wife is not free from pre-nuptial misconduct but the question still remains whether it allows the wife (of such gentle birth) who allows a male person to impregnate her before marriage to retain the marriage bond and the status of the parties intact I do not ignore that it is with jealous care that we should interfere with the obligations of the marriage vow and the grant or the rejection of the declarationprayed for, is a matter of grave import and further that we should exercise our discretion cautiously along with the Act, in the matter of granting or withholding the relief.
4. It is equally true that the public interest requires that the marriage bond shall not be set aside lightly or without strict enquiry. The terms of the statute recognise this plainly. The Act has not favoured and encouraged divorce, dissolution or declaration of nullity of marriage except on very strict grounds and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the Court might be satisfied in respect of the said grounds with something less than proof beyond reasonable doubt. Though the Act seems to break violently with the past but I am confirmed in my opinion and I do not accept the rule as a general proposition of law that it would be usually permissible to plead anti-nuptia! incontinence on the ground that marriage operates as oblivion to all that has passed. I am aware that Section 12(1)(d) of the Act adopts the language of Section 8(1)(d) Including the proviso of the English Matrimonial Causes Act, 1950 and Section 7(d) of the earlier English Act of the year 1937, and the very many cases on the same, yet I have no uneasy feeling to hold that where no case of betrothal applies, it seems improper even for a so-called enlightened wife, in an alleged high class society, to have a voluntary co-habitation with a person even if she knew that the said person was going to be her husband. It would, I think, be closing one's eves to realitv not to recognise this.
5. Here is a case put by Mr. Apurba Dhan Mukherjee, the learned Advocate for the husband appellant, which has been largely decided by the court below on the wife's verbal evidence though 10 witnesses deposed for the plaintiff. He points out the contradictions in wife's evidence about conveying the news to Nishit of the stoppage of her monthly courses, both before and after marriage, which evidence was not consistent with her being a respectable woman with an easy conscience. The wife has not furnished the exact particulars, as emphasised by Mr. Mukherjee about the time and place of sexual intercourses before the marriage except very vague and sweeping statements of several intercourses by Nisith against her wish, in the months of Falgun and Chaitra 1366 B. S., in a middle room of small size, out of 3 rooms occupied by 18 persons, in the presence of 6 nieces, aged about 9 to 7 years, and the door of which was not bolted, at any time during such intercourses, which seems to be repugnant and became so little in accord with the common relations of mankind. The learned District Judge did not consider the society to which the parties belonged and the class they adhere to. The husband is a day labourer -- does hammering work in the Dunlop Factory, earning Rs. 150 per month. The wife's fatheron the other hand has two houses. He admitted the talk of settlement of the case deposed to by Nishit. There is no dispute that he took her daughter out from the hospital even when the haemorrhage did not stop. Two priests out of the 6 witnesses attempted to prove fortuitous circumstances on behalf of the wife. One of them is an accused in 3/4 criminal cases and the contradictory evidence of the other is to be disbelieved on its face, the evidence of the midwife, being similar.
6. Mr. Panchanan Pal for the wife attempted likewise to meet the said points and the whole of the evidence was again placed by him to which Mr. Mukherjee pointed out that the court below itself discarded the entire oral, evidence of both sides and proceeded to decide the case on surrounding circumstances and probabilities.
7. On Ext. A (Nishit's letter to Anjali dated November 7, 1960), about six weeks before the delivery of the child, Mr. Mukherjee submitted that the husband, with the knowledge of the wife's pregnancy, cannot write such a letter to his wife. He submits with eloquence that it fits in with a husband who wants to be manly and who likes to behave with his wife properly and does not like to RO to bed singly, which shows the husband's frame of mind of having no knowledge about wife's pregnancy. It is only admirable retorts Mr. Pal. The old saying that 'none so blind as those who won't see' argued by Mr Pal forcefully for the wife, is not applicable according to Mr. Mukherjee, who further submitted that the learned Judge wrongly interpreted the said letter to hold that it belied the fact of Anjali's total period of stay with Nishit, of not exceeding 30 days.
8. Mr. Mukherjee was equally critical of another letter Ext. 4, written by Anjali's father, Krishna, to Nishit's father, just after he took out Anjali from the hospital, where Krishna admits that he has no face to showbut he begged of his Behai ogkMZ to save him. The learned District Judge was not right in taking recourse, as a last resort, the alleged demeanour of Krishna in the witness box -- goes Mr Mukherjee's submission.
9. There was considerable argument that the court below did not at all consider the other documentary evidence and particularly another letter Ext. 7. It did not come to any finding on the fact of condonation by the husband after the marriage, as the whole evidence is directed to prove that Nishit was the father of the child. The issues again were not properly framed, keeping in view the nature of the pleadings and the provisions of the section. The court below failed to record a finding even that the petition was not presented or prosecuted in collusion. The finding of the learned Judge that 'Nishit knew about the pregnancy long before 16-12-60' does not carry us anywhere. Mr. Mukherjee further pointed out that thereis no evidence by the wife that at the time of the marriage she had such ostensible symptoms which could have led the husband to discover that she had been pregnant at the time of the marriage. Mr. Mukherjee went on saying further that it does not appear from the evidence that the husband was fixed with the knowledge at the time, he had his sexual intercourse with his wife that she was pregnant, because a reasonable man would not have thought it proper to make such enquiries on the date of marriage. There is no evidence either that the coitus took place only in the day light. The suggestion about the wife's general immorality and about her misconducting before the marriage with Balai, a college student of about 21/22 years of age, her step maternal uncle, was not considered. Neither was it considered that the instant application, being genuine, was filed within seven days of the child birth, The urgency of the wife of leaving for the hospital could have been due to her feeling that it would be difficult to keep her unduly advanced state of pregnancy a secret for any more appreciable time. The other inference from the conduct and behaviour of Nishit that he knew that he was responsible for the pre-nuptial pregnancy of his wife is too much to accept. These are the arguments of Mr. Mukherjee.
10. Then Mr. Mukherjee of great experience and deep knowledge, fell on the theory of the size of Anjali's abdomen and took the learned Judge below, along with him, not leaving Mr. Pal. He argued with vehemence, firstly that a woman who is pregnant for the first time, has her abdominal tissues so tense that a non-medical person (far less his client) coming into her contact by act of coitus would not be able to detect the enlargement of the abdomen, when the pregnancy is not highly advanced and secondly most importantly, that the abdomen changes its shape materially, according as the woman is in the upright or horizontal position, being much less prominent when she is lying down and accordingly contended that the learned Judge's judgment, being based upon his own speculations about the size of the abdomen, without considering the above positions, has become erroneous. In spite of Mr. Pal's strong reply, to the effect that whatever be the position, a knave and a fool only would not notice the size. I think Mr. Mukherjee's arguments deserve careful consideration.
11. Two other connected matters namely the age of the wife on the date of the marriage and the application for test of the husband's blood might be referred to briefly, in order to get them out of the way and to get the substantial issue as to the onus and standard of proof in such cases, to be observed by the Court, for exercising its jurisdiction.
12. Mr. Pal contended that the wife's age on the date of marriage was about 18years and that she could not behave in the way as was sought to be made out, to which Mr. Mukherjee protested. As the wife on her own evidence had just completed 18 years on the date of marriage, we need not be reminded like the protest of Prince Henry in the year 1505 against his marriage with Catherine of Aragon under the age of 14.
13. Application and counter application were made requiring the Court's direction for the blood test and to accept the Report thereon by way of additional evidence. On either version, I remain of the same opinion that in such cases the Court should not authorise any interference like taking of blood from a person's body, more so, when it could not extend to establishing the scientific impossibility of the husband being the father of the child. If we can do so, it would mean that in the case of one party alleging that some internal injury thereby has been suffered by the negligence of the other party, it would be open to the Court to direct an extensive exploratory operation by Surgeon on the body, against the party's will. Further I am quite satisfied in my own mind that there would then be nothing to prevent such cases becoming the battle-ground of experts with bloody hands. Voluntary donation of blood for testing and the Court's drawing of presumption on proper materials in appropriate cases however, is a different matter.
14. Coming now to the question of onus of proof, Mr. Pal stubbornly contended that the burden is entirely on the husband to prove that he did not impregnate Anjali before the marriage and he must prove all the essential conditions in spite of weakness of the wife's evidence in order to succeed in such cases Mr Mukherjee repelled the said contention by saying that there has surely come a time when a husband is entitled to say: having regard to the ordinary course of nature and to the interval between the marriage and the birth of the child, it is for the wife to raise a reasonable doubt that the wife is pregnant by a person who became her husband The principle has the attraction of a clear and direct application to the facts of this case but the learned Judge remained content only by assuming, after a brief reference in the last paragraph of his judgment that the burden is entirely on the husband without any discussion whatsoever. It is at this point the question of law assumes a vital importance.
15. It seems to this Court that to put a burden in such cases entirely on the husband, is to put an increasing burden on him. The burden of proving a negative co-habitation by the husband in such cases is too high On the point of law raised, I consider that such a burden on the husband should be a provisional and not a compelling one. If however, circumstances appear in a given case, which lead to a reasonable doubt, they would then counterbalance the provisionalpresumption and leave the wife with the burden of proving that the husband is the father of the child. This case affords ammunition to that body of opinion, which holds that the problem should not be approached in the general way, however just and attractive it may seem. If we could have looked at the problem broadly and even if it be held that the burden of proof is entirely on the husband, it should be that such a standard of proof is a light one and it should be taken to be discharged where there is admission of the parties, and it should be taken to be greatly shaken, when the period of gestation differs radically and diverges largely from the normal--the period of course, being a matter in which from time out of mind, strict proof has always been required. This principle which we lay down runs counter to the minority judgment of Mudholkar J. of the Supreme Court in the case of Mahendra v. Sushila, : [1964]7SCR267 but we are bound by the majority judgment where it was held at page 275 of the said S. C. Reports: 'It is however not correct in law in holding that the Court, in these proceedings, could in no circumstances base its decision on an admission of the parties'. In other words, we have taken it to mean that a decree of proof is not demanded in such cases, such as in a scientific inquiry would justify the conclusion that such and such an event is impossible. The departure from the normal course of things is so extra-ordinarv in this case that the matter seems to have allowed the wife, argues Mr. Mukherjee, to patter with the truth and might have Induced others to lend themselves to prevarication.
16. We accordingly do not approve the very wide proposition laid down in very general terms by the learned Judge, Anantanarayanan J. singly, in the case of P. S. Sivaguru v. P. S. Saroja, : AIR1960Mad216 referred to by Mr. Pal, to the effect that 'there is no onus of proof upon the respondent (the wife), in such cases, with regard to any of the essential conditions upon which the husband can obtain a decree of nullity of marriage', after himself having stated at the beginning of the judgment: 'The point relates to the burden of proof in such cases, and may not be very material at the present stage in the sense that the entire evidence was before the lower court .....'. Mr. Pal's second citation of another judgment of a learned Single Judge Patel J. of the Bombay High Court, in the case of Devyani v Kantilal, : AIR1963Bom98 is not a good guide both in facts and law, the case arising on Section 13 of the Act. Another Bombay High Court decision in the case of Sushila v. Mahendra. AIR 1960 Bom 117, I am not referring to purposely, as the same was set aside by the Supreme Court, as referred to above, and the marriage was annulled at the instance of the husband bv a decree of nullity. Moreover Mr. Pal did notnotice that the letters in Mahendra's case referred to the fact of pregnancy which is not so in the instant case.
17. I also avoid referring to other reported cases on the subject, not cited, as some of them naturally tend to creep up on each other and as there is little good guidance in some others to be gleaned. I do not find it possible to go further and lay down any hard and fast rule capable of general application in such cases, except to say, that if a line has to be drawn in such cases, I think it should be drawn, so as to allow, an ample and generous margin, for it may be as difficult for the wife to prove, as for any one else, that the husband is the father of the child. It need hardly be added that due regard must be paid to all the relevant evidence as a whole, on which I prefer to relate my conclusion.
18. It therefore ultimately reduces itself to the question as to whether the trial Court's judicial knowledge of natural laws rightly enabled it to say, without considering the whole evidence, that the husband, not disrespectable, should get no relief. I do not intend to go into this matter at any greater length because at the end of the case, Section 23 of the Act requires the Court to be satisfied. Of particular significance is this principle that the said satisfaction is to be on the matter on record, as it is on that matter that it has to conclude whether a certain fact had been proved or not and the judgment should not be rendered on a mere balance of probabilities and circumstances. I find considerable difficulty in accepting the learned Judge's application of law, particularly as to the onus of proof to the facts of the instant case. I should regard it as fatal, if the judgment and the decree of the Court below are affirmed it seems to me obvious that a remit is justified for a rehearing of the case afresh, according to law, in the light of the discussions made in this judgment and on the materials on record as well as on further materials to be proved for which liberty is given to the parties. The Court below would make every attempt to have the most important evidence of the wife's mother. If possible Balai's evidence should also be taken.
19. Fortunately there is no large proportion of such cases in our Country but before I conclude I must draw attention that the Court's duty is to act with sound discernment and not in the way as it has been done in this case.
20. I accordingly reach the conclusion that this appeal must be allowed but without any order for costs.
A.C. Gupta, J.
21. I agree.