Case: Baldev Raj Miglani Vs. Urmila Kumari

1. The appellants petition under Section 12 of the Hindu Marriage Act, 1955 for the annulment of his marriage with the respondent on the ground that at the date of the marriage (October 8, 1962) the respondent was already pregnant by some other man, of which he was ignorant then, was decreed by the trial Court on August 26, 1963 but on appeal the decree was reversed and his petition was dismissed by a learned single Judge of the Punjab and Haryana High Court on February 20, 1968; a Letters Patent appeal by the appellant was summarily dismissed by the Division Bench of that Court on August 23, 1968. Hence this appeal by special leave.      2. Few admitted facts in the case may be stated : The appellant was married to the respondent on October 8, 1962 at Patiala. After the marriage he cohabited with the respondent on few occasions but on October 30, 1962 he came to know that the respondent was already pregnant. After that revelation he had no cohabitation with her but immediately on the following day i.e. November 2, 1962 he filed the petition praying annulment of his marriage on the aforesaid ground. The respondent contended that she became pregnant from the appellant and that she never had sexual intercourse with any other person. Admittedly, the respondent delivered a male child on May 20, 1963, which according to the appellant, was a full term and mature delivery. The question that arose before the lower courts was whether the respondent at the time of her marriage with the appellant was pregnant by some person other than the appellant or whether the pregnancy, which ultimately resulted in the delivery of a male child on May 20, 1963, was a result of marital relations between the parties between October 8, 1962 (the date of marriage) and October 30, 1962 (when the respondents pregnancy got revealed for the first time). Besides the oral evidence furnished by the parties themselves, medical evidence of experts was also furnished on either side. On an appreciation of the evidence that was led before it the trial Court came to the conclusion that the respondent at the time of her marriage with the appellant was pregnant by some other than the appellant, that the appellant at the time of the marriage was ignorant of that fact and that since the discovery by the appellant of the existence of such pregnancy of the respondent the appellant had no sexual intercourse with her and, therefore, the appellant was entitled to a decree of nullity of the marriage. In appeal preferred by the respondent, the learned single Judge of the High Court took the view that the child delivered by the respondent on May 20, 1963 had not been conclusively established by the appellant to be an illegitimate one and, therefore, he allowed the appeal. The question before us in this appeal is whether the appellant could be said to have discharged the burden that lay upon him to prove that the respondent was at the date of the marriage pregnant by some person other than himself. After going through the entire material on record we are clearly of the view that the appellant has satisfactorily discharged the burden which lay upon him and the trial Courts decree deserves to be restored.

Reasoning: 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.