V.A. Mohta, J.
1. The present second appeal by husband is against the judgment and decree passed by both the courts below dismissing his petition for annulment of his marriage under section 12 of the Hindu Marriage Act on the ground that his consent to marriage was obtained by fraud, namely, suppression of the fact of the wife's pregnancy from a third person at the time of the marriage.
2. Following are the established positions :---
1. The marriage between the parties took place on 13-5-1971 and at that time the husband was aged nearly 24 and wife aged 20.
2. Wife delivered a female child on 22-11-1971 at her mother's place and the said child survived for nearly 8 days.
3. According to husband it was a fully grown child and according to the wife it was premature.
4. The husband had given a notice to the wife long before the delivery intimating that the child in her womb was not his and that this fact of the prior pregnancy of the wife was discovered by him during the first visit.
5. Even according to the wife, the bed-ceremony took place on the third day of the marriage and no cohabitation had taken place before that date.
6. Even according to the wife the child died for want of mother's milk. Child's health was very hazardous and yet he was not shown to any doctor. In the written statement as well as her examination in chief there is no reference to the premature birth or to the hazardous condition of the child.
7. The mother of the wife and some other ladies who are reported to have attended the delivery have not been examined.
8. The child was buried in the house and not in the burial ground and no outsider was present then.
9. No direct message about the birth of the child was given to the petitioner or his family members.
The petitioner has examined P.W. 3 Sonabai the midwife from village Tandulwadi - who according to him attended the delivery of the child. P.W. 3 Sonabai - has given the detailed version about the condition of the child and has been consistent throughout in her statement that it was a fully grown and developed child delivered after full period of 9 months and 9 days. The child was tall, having regular hair and nails and had no wrinkles. She has been disbelieved on the ground that her husband and son had shifted from the village few years before to Indoor despite the voters' list containing her name as a resident of the village in the year 1971. Even witnesses examined by the wife have admitted that there are mid-wives in the village who do the work turn by turn and Sonabai was one of them.
3. It is against the aforesaid back drop that the legality of the findings recorded has to be judged.
4. When the duration of gestation is shorter than normal the aspect of viability of a child assumes great importance. A child may be viable after seven months of intra-uterine life. Even in such cases the fetus is immature. In the present case we are dealing with a case of child born within 6 months and a week of the first cohabitation and of his survival without any medical aid for a week. Its death has occurred because it was unable to get mother's milk. In these circumstances its condition at the time of birth assumes decisive importance. The case of the husband is that it was full grown and whereas wife's case is that it was premature. What was the condition of the child is a matter within special knowledge of the wife and hence burden was heavy upon her to show that child was premature. This aspect of burden of proof is completely lost sight of by the courts below and rightly argued by Shri Palshikar the learned Counsel for the appellant this has vitiated the entire approach. Absence of pleadings about the condition of the child or its premature birth goes to the very root of the matter. In the whole examination-in-chief the wife did not even make a whisper about the condition of the child. Even according to the wife her mother and other neighbourers attended her at the time of delivery. None of them have been examined. The grand father could not be a proper witness to depose about the condition of the child. Indeed, the wife has stated in her evidence that sue would be examining her mother but despite this positive declaration she has not been examined. Under these circumstances, adverse inference for their non-examination had to be drawn against the wife and no attention has been paid by the two courts below to this aspect of the matter.
5. The conduct of the wife and her family members in not even giving medical help to the child despite the knowledge of the premature birth and so also the fact of its death for want of mother's milk goes a long way to indicate what must have been in the minds of the wife and her family members. The unceremonious burial of the child in the house itself indicates that what was done was intended to be done secretly. There was no reason for not giving direct message to the petitioner or his father about the birth of a child. The evidence about giving message to Rama Bonde which fact Rama Bonde as a witness had refused to accept cannot be accepted at its face value only because D.W. 5 Pujari highly interested person in the wife has deposed to that effect.
6. P.W. 3 Sonabai through whose evidence I have been taken by both the parties no doubt has referred to the shifting of the family of her husband and child few years before. It is in respondent's own witness's evidence that she used to come occasionally to village when her turn to do the job of midwifery came respondents have not stated as to which other mid-wife's turn it was during the relevant period. The entry in the voters list has been ignored on the ground that it was not relevant for the purposes of the suit. It is difficult to appreciate this line of thinking. For all these reasons, it seems to be clear that there has been basic errors in appreciating the whole case. It is unthinkable that the delivery would not be attended to by some professional mid-wife, specially when there is a custom in the village to that effect.
7. Shri Chandurkar, the learned Counsel for the respondent, has contended that the finding about premature birth was a pure question of fact. I do not agree. I have already indicated how the burden of proof to the present case has been wrongly placed and how certain salient features of the matter which goes to the very root have not been considered. My attention was invited to many other contradictions in evidence of the respondent and her witnesses. If it was a question of mere appreciation of that evidence and evidence of P.W. 3 Sonabai the matter would have been different. Even if Sonabai's evidence is ignored the other admitted or proved position on record are pointer to only one direction, namely that the wife given birth to a fully grown child which survived even without the milk of the mother for 8 days without medical aid. Under these circumstances, the findings recorded by both the courts have to be quashed and it will have to be held that the wife was pregnant from somebody else at the time of the marriage. Under these circumstances the decree dismissing the petition is set aside and in its place a decree for annulment of the marriage as prayed for in the petition under section 12 of the Hindu Marriage Act is granted. Under these circumstances there will be no orders as to costs.
Decree for annulment granted.