Case: Baldev Raj Miglani Vs. Urmila Kumari

for, in her cross-examination done on April 4, 1963, she clearly stated that respondents delivery might take place in May 1963 which fact ultimately turned out to be true for the respondent did deliver on May 20, 1963. There is one more aspect of her evidence which requires to be noted. If the respondents version were true that conception had commenced subsequent to the wedding then by October 30, 1962 her pregnancy at the highest would have been of 21 or 22 days and it is well-known that it is not possible to positively confirm such pregnancy except by performing some special biological tests and admittedly in the instant case it was without performing any special biological test this doctor had confirmed positively respondents pregnancy. This aspect also lends corroboration to her evidence that respondents pregnancy must have been in advanced stage such as 2.5 months as deposed to by her. Having regard to these aspects, therefore, it seems to us clear that the High Court was in error in rejecting the testimony of this witness. The evidence of this witness clearly established the fact that the respondent was pregnant since long before the date of the wedding and if that be so, on admitted facts, it must be the result of sexual relations not with the appellant but with some person other than the appellant. 5. Apart from the evidence of Dr. Daljit Dhillon, Dr. (Mrs.) S. Ganda Singh (AW 2), Assistant Professor Obstetrics and Gynaecology, Government Medical College, Patiala, had medically examined the respondent on March 6, 1963 and she found that on that day the size of the uterus of the respondent was 34 weeks and according to her also the respondents pregnancy might have started round about second week of July, 1962. It appears that the respondent was got medically examined on January 4, 1963 by Dr. Surinder Kaur (AW 4) under the orders of the Court and according to her evidence the duration of the pregnancy of the respondent was on that day about 16 to 18 weeks which means that the pregnancy must have started latest on September 14, 1962. Lastly, there was evidence of the respondents own witness Dr. Mrs. P. Kanta, who actually attended the delivery of the respondent on May 20, 1963. This witness clearly admitted that it was a case of nearly full term delivery. She described the condition of the child at the time of the birth in the following terms : When the child was born he was blue in colour and he did not cry for 4 and 5 minutes. After that the child cried and became pink in colour. There was good crop of hair over his head. The child was covered with vernix caseosa. The lanigo was not present except on shoulders. The nails of the fingers were just beyond the tip of the fingers, nails of the toes were behind the tip of the toes. Both testicles were descended. The trial Judge noted that Dr. R. W. Johnstone in his textbook on Midwifery at page 132 has stated that the aforesaid signs (Mentioned by Dr. P. Kanta) are the signs of full term and mature delivery and relying upon the evidence of Dr. P. Kanta supported as it was by expert opinion of Dr. Johnstone, came to the conclusion that the child that was born to the respondent on May 20, 1963 was a case of full term delivery and, therefore, it could not be the child of the appellant. 6. It is surprising that the aforesaid evidence was brushed aside by the High Court by relying upon certain passages occurring in Dr. Johnstones treatise as also in Modis Medical Jurisprudence dealing with exceptional or freak cases. For instance, the High Court referred to the following passage in Dr. Johnstones textbook on Midwifery at page 90 : Fully developed children have been recovered as being after gestation as short as 240 days and as long as 313, 320 and even 331 days from the commencement of the last period. The High Court also referred to a case mentioned in Modis Medical Jurisprudence and Toxicology (15th ed.) at page 323 where "a woman aged 30 years gave birth to a girl after gestation of 210 days - ten times three weeks - which was her normal inter-menstrual period. The child cried lustily at birth, had good crop of hair, was well coated with vernix caseosa, measured twenty inches in length, and weighed seven pounds. The finger and toenails were fully developed and the child sucked vigorously on being put to breast". The High Court felt that the respondents child answered almost all the description mentioned by Modi in the aforesaid case and further observed that it would not be correct to presume from the physical appearance of the child at the time of the birth that it was born 280 days after gestation. It is obvious that the case in point referred to in Modis book is an exceptional case and not a normal case, but what is more the High Court has failed to notice that in the instance mentioned by Modi in his book the menstrual cycle of the woman concerned was a three-week cycle, whereas in the instant case, according to the respondents evidence, hers was a four-week menstrual cycle. In our view, therefore, the High Court was clearly in error in relying upon passages occurring in textbooks of medical experts dealing with exceptional cases and rejecting the positive and clear evidence that was led by the appellant in regard to the pregnancy of the respondent and the delivery which took place on May 20, 1963. In face of the positive and clear evidence that was led by the appellant in the case we are of the view that the High Courts findings were based on conjectures and surmises and the trial Court was right in coming to the conclusion that the appellant had satisfactorily discharged the burden which lay upon him.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The High Court also referred to a case mentioned in Modis Medical Jurisprudence and Toxicology (15th ed.) at page 323 where "a woman aged 30 years gave birth to a girl after gestation of 210 daysten times three weekswhich was her normall period. The child cried lustily at birth, had good crop of hair, was well coated with vernix caseosa, measured twenty inches in length, and weighed seven pounds. The finger and toenails were fully developed and the child sucked vigorously on being put to breast". The High Court felt that the respondents child answered almost all the description mentioned by Modi in the aforesaid case and further observed that it would not be correct to presume from the physical appearance of the child at the time of the birth that it was born 280 days after gestation. It is obvious that the case in point referred to in Modis book is an exceptional case and not a normal case, but what is more the High Court has failed to notice that in the instance mentioned by Modi in his book the menstrual cycle of the woman concerned was ak cycle, whereas in the instant case, according to the respondents evidence, hers was ak menstrual cycle. In our view, therefore, the High Court was clearly in error in relying upon passages occurring in textbooks of medical experts dealing with exceptional cases and rejecting the positive and clear evidence that was led by the appellant in regard to the pregnancy of the respondent and the delivery which took place on May 20, 1963. In face of the positive and clear evidence that was led by the appellant in the case we are of the view that the High Courts findings were based on conjectures and surmises and the trial Court was right in coming to the conclusion that the appellant had satisfactorily discharged the burden which lay upon him.