T. Sathiadev, J.
1. The appellant was the petitioner in O. P. No. 478 of 1973 filed before VI Assistant City Civil Judge, Madras. It was a petition filed by him under Section 12(1)(d) of the Hindu Marriage Act for annulment of the marriage by a decree of nullity on the ground that his wife was already pregnant by some one other than the petitioner even before the marriage.
2. In the petition he claimed that the marriage with Girija, the respondent herein took place on 8th February, 1973 at Ambur and before the marriage, his relations bad gone to see her is her father's house and she wag a having a slightly prominent abdomen, but his relations were told that her constitution was such and that nothing was wrong with her. He had not known her before marriage and had no occasion to meet her. Betrothal took place on 18th December, 1972 and after marriage, he was living with her in a separate house at Madras for just a month and within three months of marriage on 12th May, 1973, she complained of pain and immediately appellant brought a nurse working in the Corporation to attend on her and a child was born on that date at about 7.20 A.M. Shocked by the birth of the baby, he immediately informed her sister, sad later during the course of the day, the respondent along with the child was handed over to her sister at Madras. Hence, he has filed the present petition.
3. In the counter statement, the allegations made above have been refuted and it is claimed that at no point of time, any objection was taken regarding the prominence of the abdomen and that she was leading a happy married life for a short while at Madras, and thereafter the husband and his relations teased her for some reason or other and ultimately jewels worth thirty sovereigns were snatched away and she was forced to leave for her place. She did not give birth to any child on 12th May, 1973, as she was not pregnant by somebody else and the petition is filed only to harass her.
4. The trial Court, on a consideration of the oral evidence as spoken to by the appellant as P. W. 1 and of the evidence tendered by the nurse as P. W. 2 and of the testimony of P. Ws 3 and 4, who are his close relations and of the sole evidence tendered by the elder sister of the respondent and of Exhibits A-1 to A-7 marked by the appellant, came to the conclusion that the respondent was pregnant ever at the time of marriage by some person other than the appellant, and hence the marriage is a nullity within the meaning of Section 12(1)(d) of Act XXV of 1955. On appeal, the lower appellate Court in C. M. A. No. 120 of 1977 disagreed with the findings of the trial Court and held
The petitioner has failed to discharge this onus of proof upon him and under such circumstances, he will not be entitled to the relief claimed by him.
5. In this Civil Miscellaneous Second appeal filed by the husband, it is claimed that the lower appellate court had not properly considered about the discharge of burden of proof and failed to note that when respondent had pleaded about abortion only at the time of evidence and not earlier, it necessarily results in an admission on her part that she had become pregnant, and about the claim of abortion there being no plea raised is the proceedings at any earlier stage, and no evidence let in by her, the lower appellate court had misguided itself by holding that the appellant had not discharged the onus of proof, which admittedly rests upon him.
6. Yet another contention taken is, there being no plea raised at any stage of the proceedings, except when P. W. No. 1 was examined in court, about abortion, the lower appellate court erred in law, in considering the oral and documentary evidence 1st in by the appellant by taking into account a factor, which in law, cannot be considered, add thereby it had thoroughly misguided itself in allowing the appeal. Since the reasons given by lower appellate court for rejecting the official documents maintained by the Corporation of Madras are flimsy and are based on surmises, the appellant is entitled to the relief as prayed for, when he had discharged his burden by adducing cogent and relevant oral and documentary evidence.
7. Mr. R. S. Venkatachari, learned counsel for the respondent takes the preliminary objection regarding the maintainability of the appeal on the ground that there can be no second appeal to this Court in view of what is provided under Section 28 of Act XXV of 1955 and even if it be maintainable, since the restraints found in Section 100, Civil Procedure Code would be applicable to this appeal, it will not be open to the appellant to canvass on questions of fact, and farther he contends that even if there can be consideration of the evidence on record to find out whether the onus had been properly discharged or not, when there are apparent contradictions in the evidence of P. Ws. No. 3 and 4 and when no reliance can be placed on Exhibit A-5, A-6 and A-7, there is no cause to interfere with the findings of the lower appellate court particularly in a matrimonial matter in which the future of a girl is involved.
8. On the preliminary objection taken regarding maintainability of the Civil Miscellaneous second appeal, in dealing with the scope of Section 28 of the Act, in Gurbachan Kaur v. Sardar Swaran Singh : AIR1978All255 it has been held that the words 'decrees and orders' contained in Section 28 of the Hindu Marriage Act, according to their plain and natural sense, include not only original decrees and orders, but also appellate decrees and orders.
9. A division Bench of this Court in D. S. Seshadri v. Jayalakshmi : AIR1963Mad283 has taken the view that Section 28 of the Hindu Marriage Act, 1955, confers a right of appeal against all decrees and orders passed by the Court in any proceedings under the Act, and it is not necessary that such decrees or orders should satisfy the definition of the term 'decree' under Civil Procedure Code, and the right of appeal should co-exist along with any other law of procedure for the time being in force, and therefore when an order is made under Section 12 of the Act, it will be subject to a (SIC) of appeal under Section 28 of the Act.
10. In Bai Imiyabehn v. Ambalal Laxmidas : AIR1966Guj139 an identical view had been taken by holding that the right of appeal conferred by the Section and the jurisdiction and powers of the Court in dealing with the appeal are governed by the provisions of the Civil Procedure Code, and therefore a right of second appeal is conferred under Section 28, but it is limited to the grounds set out is Section 100, Civil Procedure Code and can be exercised only on questions of law and not on questions of fact.
11. Similar is the view taken in Dhulappa Shivarai Molke v. Krishnabai AIR 1962 Mys 172 to the effect that the decisions made under the Act, shall be appealable in like manner as the decrees of the Court in civil suits, and they shall be appealable in like manner as orders in suits or other original proceedings. Not only an appeal can be preferred under Section 28 of Act XX of 1955 read with Section 96, Civil Procedure Code, but it will also extend to the right of presenting a further appeal against the decree passed on appeal under Section 28 of the Act read with Section 100, Civil Procedure Code on any of the grounds mentioned in the latter.
12. Yet another decision placed is the one reported in Valliammal Ammal v. Periasaml Udayar : AIR1959Mad510 wherein it was held that the decision rendered under Section 12 of the Act should be deemed to be a decree and an appeal would lie to the District Court and in turn a second appeal would lie to the High Court.
13. In the light of what has been held above in these decisions this appeal is maintainable, and the preliminary objection taken by the learned counsel for the respondent therefore fails.
14. The next point taken by him is that n dealing with an appeal of this nature, this court has no jurisdiction to re-assess the evidence and come to a different conclusion though it may think that evidence ought to be appreciated differently or that some part of the testimony ought not to be believed and for this proposition, he relies upon the decision of a Division Bench of this Court in Subbarama Reddiar v. Saraswathi Ammal : AIR1967Mad85 . There can be no dispute over this aspect because, even while dealing with the maintainability of this appeal, in the decisions above referred to, it bat been clearly held that an appeal preferred under Section 28 of the Act, has to be necessarily read with Section 100, Civil Procedure Code, wherein only on a substantial question of law, an appeal can be entertained. Therefore, relief, it any, that can be granted in this appeal, should not transgress the limits provided under Section 100 Civil Procedure Code.
15. The substantial question of law that was framed at the time of admission of this appeal is to the following effect:
Whether the conclusion of the appellate Court is justified on the evidence on record.
16. Both the counsel said that this cannot be a substantial question of law and therefore there is need for considering whether any substantial question of law arises for consideration or not.
17. Mr. Vedantham Srinivasan, learned counsel for the appellant pleaded that the substantial question of law involved in this Civil Miscellaneous second appeal is:
Whether onus is properly discharged, according to law and whether the lower appellate Court had properly understood of what should be the nature of evidence that is required under law to be adduced for discharging the onus which rests on the petitioner, in a petition filed under Section 12(1)(a) of Act XXV of 1955'?
18. To find out whether the lower appellate Court had properly understood what is considered as 'onus to be discharged by the appellant' which aspect is the substantial question of law that had arisen for consideration in this civil miscellaneous second appeal, initially it will be necessary to look into what has been taken into account by the lower appellate Court and how exactly it has approached this essential point, while disposing of the civil miscellaneous appeal. It came to the conclusion:
I am only inclined to say that the petitioner has failed to discharge the onus of proof upon him and under such circumstances, he will not be (SIC) to the relief claimed by him.
19. This conclusion makes it quite clear that the appeal was allowed on the ground, that the appellant herein has failed to discharge the onus of proof which rests upon him under law.
20. It will be useful even at this stage to extract another passage in the judgment of the Court below which is to the following effect:
If it is established clearly that on 12th May, 1973, the respondent delivered a child there can be absolutely no hesitation in coming to the conclusion that she was pregnant by some other person at the time of marriage. It is not the case of the respondent that the petitioner had access to her prior to the marriage.
The above extracted portion makes it cleat that the lower appellate Court had properly approached the matter in seeking to find out whether the appellant was able to establish about the birth of a child on 12th May, 1973, or not. It came to the conclusion that the appellant was not able to establish about the birth of the child on the following grounds and the first of which is that the appellant did not mention the sex of the child in the petition and also in his deposition. P. W. 2, the Nurse attached to the Corporation of Madras, had stated that she attended on the respondent and a female child was born at 7. 20 A.M. on 12th May, 1973, that she remained there till 8. 30 A.M. and that she issued Exhibit A. 6, a certificate which is required for making entries in Birth and Death Registers. She has marked Exhibit A-5, the Register, where entries are made regarding the visits made, and there is an entry in the calls Register that on 12th May, 1973, a female child was born prematurely. According to her, it must be seven months old. Exhibit A. 7 is a Register of calls, maintained by her wherein also the necessary entries had been made by her about the birth of the female child. Lower appellate Court held that P. W. (SIC) 3 and 4, who are close relations of the appellant, are highly interested and their evidence has to be scrutinised with great caution. But so far as the evidence tendered by P. W. 2 is concerned, she is an independent witness. She has spoken about entries made in the registers maintained in public offices. The ground on which the entries had been disbelieved is on a surmise that they have been manipulated because the elder brother of the appellant is working as a store-keeper in the Corporation of Madras. The appellant himself is only a cooly, and it is not correct to expect such a person to go round for the purpose of tampering with the records maintained in public office, wherein the entry relating to the birth of a child on 12th May, 1973, is one of hundreds of entries made in the register regarding the calls made by the Nurses of the Corporation for birth of children and for other purposes. Without giving any reasons, the lower appellate court had rejected the documentary evidence produced by the appellant on a flimsy ground, that they have been manipulated.
21. It was observed that there is no seal in Exhibits A-6 forgetting that there is no requirement in law that it should bear a seal because it is a certificate issued by a visiting Nurse about birth of a child to enable entries to be made immediately in the Registers of Birth and Deaths. P W. 2, the Nurse has stated that the word 'premature' had been written in 'red Ink' and a comment had been made that there are manipulations and alterations. But the Register contains similar entries in respect of births of several children and the use of red ink or an underlining, in respect of such odd cases, is a required procedure to be carried out. Thus, it will be seen that the lower appellate Court had initially stumbled upon a very irrelevant aspect of the failure of the appellant to mention about the sex of the child and that only P. W. 2, the Nurse, was able to speak about it and therefore it cannot be said that the claim made by him about the birth of a child cannot be believed.
22. I am not at this stage expressing any opinion as to the credibility of the evidence, being fully aware that it is not for this Court to re-assess the evidence. But I have touched upon the manner in which the lower appellate Court had dealt with the evidence to find out ultimately as to whether the lower appellate Court had properly understood as to what is the onus that rests upon a petitioner and what can be the acceptable and relevant evidence necessary for discharging such onus and whether in this ease inspite of acceptable evidence being produced, the lower appellate Court was not in error in rejecting them by holding that the onus has not been discharged.
23. Proceeding further to consider the assessment of evidence made by the lower apellate Court for the purpose just now stated, the respondent had pleaded that there was only abortion and no delivery took place. Undoubtedly this factor had prevailed upon the mind of the Court, even though there toad been no pleading on this aspect. It is not disputed that such a claim was never made either at the time when the reply notice was sent for the first time by the respondent under Exhibit A-4 through her counsel or even in the objection statement filed later or in the counter statement filed in the main O. P. itself. When no such plea is taken, as to whether evidence on that aspect can be let in, and even so, whether any finding can be rested on it, Mr. R. S. Venkatachari, contends that in matrimonial matters what is paramount is to consider the consequential effect on the matrimonial happiness of the parties and merely because the respondent is absent or no proper evidence is left in, no Court shall immediately conclude that the claim made by the petitioner is established, and that there is a duty cast on the Court to satisfy itself whether the evidence tendered by the petitioner by itself would establish what is claimed in the petition filed under Act XXV of 1935. To sustain this contention he refers to the Full Bench decision of this Court in A. B. Manual v. Mrs. Lilian Margaret Manual : AIR1970Mad178 wherein it was held that the mere fact that the respondent did not care to contest the proceedings and remained ex parte, is no justification for the Court to treat the proceedings as purely formal and (so act upon the evidence of the plaintiff or petitioner, uncorroborated as though is were evidence given by the plaintiff in a civil proceeding in which the defendant had remained ex parte, and that in matrimonial matters when the status of the individuals is involved and which in turn involves the interests of the Society, the Court shall not dispose of the matter in a formal sense, but must satisfy itself about the veracity and the adequacy of the evidence adduced.
24. Mr. Vedantham Srinivasan, refers to the decision rendered in Rajendra Singh Yadav v. Chandra Sea : AIR1979SC882 in order to contend that what is not pleaded, cannot be allowed to be subject-matter of evidence. That was a case which arose under Act XLIII of 1951, Representation of the People Act-and he contended that the solitary evidence of R. W. 1 and the suggestion mad to the appellant about abortion for the first time; in his cross examination cannot be treated as evidence at all, and that the lower appellate Court had taken into consideration such an irrelevant and unentertainable factor to come to the conclusion that the onus of the appellant had not been properly discharged. As to the burden of proof in matters of this nature, several decisions have been placed before me and I will be referring to them later on, and there can be no dispute that the entire burden rests only on the petitioner-appellant herein.
25. In a case where oral and documentary evidence is produced realizing the onus which rests upon the appellants petitioner and when the respondent fails to take up the truthful stand in the reply notice or in the counter statement, and for the first time she comes forward with a different version of what had happened on the crucial date, undoubtedly, what is pleaded by her has to be established only by her by adducing oral and documentary evidence. It would not be proper to make a suggestion during cross-examination of what had happened and fail to adduce any evidence whatsoever, in support of such a claim. A false evidence taken would act against the interests of the respondent and it is to this fact, a division Bench of this Court in H. T. Vira Reddi v. Kistamma : AIR1969Mad235 held that as a general rule, the burden of proof has to be discharged by the applicant, bat at the same time putting forward a false defence will destroy the respondent's credibility.
26. Thus it is clear that when the respondent had come forward with the version of abortion having taken place on 12th May, 1973, and there being no acceptable evidence let in on this aspect, the lower appellate Court had committed an error in law in approaching the entire matter with such a possibility, and trying to find out whether the appellant was able to discharge such a possibility.
27. The lower appellate Court then took into account the discrepant and inconsistent deposition rendered by P. Ws. 3 and 4 who are admittedly close relations of the appellant. In an inquiry of this nature, a person can only look to either close friends or near relatives. The appellant is only a cooly and he is not a person who has extra resources in a situation of this nature to get at the services of doctors and others to attend on the birth of a child within 3 months of the marriage and therefore necessarily he had to go in for his relations to come and attend on his wife. They had spoken about what had happened on that day in the morning and also on the respondent being taken in a taxi to the house of her sister in Madras where she was left along with the child. It is entirely within the jurisdiction of a lower appellate Court to believe or disbelieve a witness and this Court is not for finding out whether there are discrepancies and inconsistencies as made out. Even eschewing from considering the evidence of P. Ws. 3 and 4, it will have to be seen whether appellant had discharged the onus which rests upon him, on the evidence tendered by him as P. W. 1 and by the Nurse P. W. 2 and by the Exhibits A-1 to A-7 marked by him, of which three are public documents.
28. The other aspect is of the stand taken by the respondent in the earlier stages of the proceedings. On 14th May, 1973, itself, within two days of the birth of the child, the appellant wrote to the Corporation of Madras that his name should not be entered in the Register. He sent a lawyer's notice under Exhibit A-3 on that day itself adverting to the birth of a baby and that the pregnancy of respondent was suppressed at the time of the marriage. This was replied on 31st May, 1973, by the counsel for the respondent under Exhibit A-4 wherein it was stated that she was illtreated and her valuable jewels had been taken away and it was not correct to say that a child was born to her and she is entitled to claim damages of Rs 10,000 for mental agony caused to her. To what extent, she had the where-withal to have so much of jewels, is itself questionable, when it is stated that she did not have even resources to travel to Madras to give deposition in this case. She lives at Ambur about 120 miles away and her sister is working at Madras as a teacher and her father had come and attended the proceedings. In such a situation to claim that nothing happened on 12th May, 1973, and it was only because the appellant was bent upon marrying another person, she had been driven out, are only timeserving statements and they cannot be treated as evidence to hold that the appellant had not discharged the burden cast upon him.
29. The next aspect considered, was that if the child was seven months old at the time of marriage she must have been at least pregnant by four months and when the appellant has admitted that he has had intercourses with her it would not have been impossible for him to know that she was pregnant even on the date of marriage and that the women-folk in the house would have definitely known about it in or about 8th February, 1973, These are all surmises and the Court should not proceed on presumption to find out whether the appellant is a person who could have realised as to what was happening, himself having been unaware of what is the course of pregnancy. It is not in evidence that he had been married already or that she had at any earlier point of time informed him that she was pregnant. It has been observed that she could have been taken for medical examination to know about her pregnancy. But this could have been possible, if only she had informed him of what was developing. Therefore the lower appellate Court had made a negative approach to the point involved in this case and even though it had begun by properly comprehending what requires to be considered which I have extracted above, it had failed to properly understand by what nature of evidence the 'onus' of the petitioner can be discharged, but merely stated that the onus is on the petitioner and thereafter rejected every one of the acceptable evidence produced by him and the rejecting of the petition would not mean that the lower appellate Court had already assessed the evidence which precludes this Court to interfere with the findings arrived at by the lower appellate Court. Undoubtedly this Court would not reappreciate or reassess the evidence, but if it is made out that acceptable evidence or required evidence under law is available to Court, but rejected as not proper, then it necessarily results in an error of law being committed even though the lower appellate Court had known that the onus is only on the petitioner.
30. In a petition of this nature, on whom the burden of proof lies has been deal with in several decisions and Mr. R. S. Venkatachari to begin with would refer to the decision in Lachman Utamchand Kirpalani v. Meena alias Mota : 4SCR331 wherein it was held that in case of desertion pleaded the legal burden is upon the petitioning spouse to establish by convincing evidence beyond any reasonable doubt that the respondent intentionally forsook and abandoned him or her without reasonable cause.
31. In Yaduray Bansi v. Suderbai AIR 1969 Guj 21 it was held that for proving cruelty while no direct evidence to support a party may be had there must be some reliable circumstances which tend to support the testimony of the petitioner.
32. In H. T. Vira Reddi v. Kistamma : AIR1969Mad235 a Division Bench of this Court held that depending upon the particular facts of each case and also depending upon the nature of the competing rival theories it will not be improper for the Court to take into consideration the fact that the case of one party had been proved to be completely false and at the same time it has to be borne in mind that, that, by itself would not amount to holding that the applicant has discharged the burden........... Undoubtedly matrimonial proceeding is an ordinary civil proceeding. But as it involves the disruption of marital tie, law imposes a stricter degree of scrutiny of the evidence if uncorroborated. Such corroboration is demanded as a rule of precaution and prudence so that a well-instructed mind may be able after bringing to bear its own observation and experience of life, to judge from the pros and cons of each particular case, whether the sols ipsi dixit readers possible the theory set out.
33. In E. J. White v. Mrs. K. O. White : 1SCR1410 , dealing with the scope of the words 'satisfied on the evidence' found in the Divorce Act (1869) it was held that it is for the petitioner to prove the claim made and that the guilt must be proved beyond reasonable doubt and its on that principle that the Courts in India approach matrimonial matters, because grave consequences follow on findings rendered in such proceedings.
34. Yet another decision he refers to is the one reported in Bipin Chander Jaisingh Bhai Shah v. Prabhawati : 1SCR838 , wherein it was held that desertion is a matter of inference to be drawn from the facts and circumstances of each case and the burden is on the plaintiff to prove that the deserting spouse has been in desertion throughout the statutory period of four years.
35. In P. S. Sivaguru v. V. P. S. Saroja : AIR1960Mad216 , the learned Judge held that it is for the petitioner to show that he was ignorant of the facts upon the concealed pregnancy at the time of marriage and proceedings should be instituted within the period of limitation and it is only for the husband to satisfy the Court that he is entitled to a decree of nullity of marriage and there is no onus of proof on the respondent at all.
36. In V. Varadarajulu Naidu v. Baby Ammal : AIR1965Mad29 , it was held that there is up role of law precluding the Court from acting upon such uncorroborated evidence and the true test is to find out whether the Court is satisfied from the surrounding circumstances of what has been pleaded.
37. A Division Bench of the Delhi High Court in S. v. R. : AIR1968Delhi79 held that the doctrine of want of sincerity and the doctrine of approbate and reprobate are not applicable in respect of proceedings instituted in this Court under Act XXV of 1955 and it is for the husband to discharge the burden as the petitioner of what has been pleaded by him and that findings of fact arrived at by the Courts below will not be interfered with in an appeal of this nature.
38. I have adverted to these decisions to restate the approach that has been made already by this Court that it is entirely for the appellant to establish about the birth of the child within three months of marriage As pointed out by the lower appellate Court it is not the case of the respondent that the petitioner had any access to her prior to marriage. The lower appellate Court had also held that if the birth of the child within three months of marriage is proved, undoubtedly the appellant will be entitled to the relief as prayed for.
39. I have already held that the factors which had been taken into account by the lower appellate Court to hold that the appellant had not discharged the burden, are quite beside the point which should not prevail upon its mind in the light of what has been held in the decisions above referred to. When the onus is on the petitioner to prove about pre-marital pregnancy he is to establish about the birth of the child and that it was subsequent to marriage and that he had no access before marriage. In cases where long after marriage during a period when the husband has no access if a child is conceived he has to prove that during the period of gestation he never had access and lived with the wife. In dealing with a similar situation in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati : 7SCR267 , it was held that no doubt that burden is on the husband and the period of gestation can be taken as 282 days and it is for the Court to find out from the medical opinion of the duration of pregnancy.
40. The other case dealing with pre-nuptial pregnancy of wife relied on is the one reported in Nishit Kumar v. Anjali : AIR1968Cal105 , wherein it was held that no doubt the burden is entirely on the husband but the standard of proof is a light one and it should be taken to be discharged where there is admission of the parties and should be taken to be greatly shaken when the period of gestation differs radically and diverges largely from the normal period, of course being a matter in which strict proof has to be required and that a Court can derive its satisfaction only on matters on record.
41. Mr. Vedantham Srinivasan, on the aspect of period of gestation refers to the decision in Preston Jones v. Preston Jones (1951) A.C. 391, wherein it was held that when the husband was able to establish his absence between 360 and 186 days before birth and the child born was a normal and full grown child, the Court can take judicial notice of these facts even in the absence of expert medical opinion that the child Must have been conceived outside wedlock.
42. As for the nature of medical opinion that may be required, in Baldev Raj v. Urmila Kumari : AIR1979SC879 , it was held that the testimony of the doctor could not be rejected on the ground that she had not specialised in gynaecology.
43. Therefore to find out whether the appellant had discharged the onus, according to law, himself having been confronted with a situation during the early hours of the morning of 12th May, 1973, he had rushed for aid of his relations initially and had also immediately secured the Nurse employed by the Corporation of Madras for attending to child births, who had spoken about the birth of a female child and of her making the consequential entries in the public records. To infer that the records have been manipulated because appellant's brother is working as a Store-keeper in the Corporation of Madras would not be a proper way of disbelieving official documents and it is entirely for the respondent to establish that the documents are not genuine or that the entries are false. A public document kept in the normal course is proof of the entries found therein and it will be legal evidence to establish a certain fact unless the contrary is made out. P. W. 1 had spoken about the embarrassing situation which he had faced on that day. The lower appellate Court had refused to take into account the evidence of P. Ws. 3 and 4 as interested because they are close relations. In a matrimonial matter, relationship cannot be a ground to reject their evidence. But since the lower appellate Court states that there are discrepancies in their evidence, as already held, they can be eschewed from consideration. To prove the birth, of the child there being the evidence of the Corporation Nurse who had spoken about it and who had filed the registers maintained by the Corporation, Exhibit A-6 certificate and corroborated by the evidence of the petitioner-appellant himself which had not been effectively assailed in the cross-examination it has to be held that he had properly discharged the burden cast on him according to law
44. It is in this context it will be necessary to look into what had been done by the respondent. Mr. R. S. Venkatachari contended that she can as well remain ex perte and she need not produce any evidence whatsoever and it is entirely for the appellant to prove the case. Even then, she comes forward with a new version for the first time when P. W. 1 was examined in the witness-box that she had abortion on 12th May, 1973 Therefore it necessarily results in an admission on her part that she had become pregnant by that date. She has avoided the witness-box. The excuse given by her sister who is the only witness who has been examined, is that the respondent does not have the means to go over to Madras and give evidence in this case. She further admitted that the respondent was employed on that date on a temporary job earning a sum of Rs. 80 per month and that she was not able to get leave to cone to Court. It was also admitted by her that respondent's father had attended the Court and on one occasion her mother had also come to Court and that she was herself employed as a secondary grade teacher at Madras and her husband is employed at Stanley Medical College, as a cashier.
45. Quite rightly the counsel for the appellant contends that the respondent had avoided being examined in Court and the plea that she does not have resources even to travel a distance of 120 miles is patent falsehood when her father and mother could come to Madras for the hearings. Respondent's sister had also admitted that on the day in question, respondent came to her house along with the appellant and P.W. 3 and it would be 6 O'Clock in the evening. If really it was a case of abortion for which the respondent had been handed over to her sister R. W. 1 on that date, as her husband is working in Stanley Hospital, it would not have been difficult for the respondent to be admitted in that hospital wherein necessary entries would be found as to what had happened. P. W. 3 had stated that when they took respondent by Taxi, R. W. 1 and respondent and another sister got into the same taxi and went away and this probabilities that she might have got admitted into some hospital. Nothing could have prevented the respondent from establishing that what happened on 12th May, 1973, was only an abortion and nothing more. When the factum of pregnancy is admitted at the stage of hearing, to a large extent, the case of the appellant that respondent had become pregnant being established the only other aspect is to find out whether the premature child of seven moths was born on that date or it was only an abortion. The onus which rests upon the petitioner, according to law, being to place before Court indisputable oral and documentary evidence and of the probabilities of the case and when such materials had been placed by the appellant, the findings of the lower appellate Court that he had not established that a child was born on that date, based on irrelevant conjectures being necessarily erroneous, results in an error of law and has to be set aside.
46. The appellant is a cooly, who cannot afford the type of medical evidence that may be called for, when such things happen among the affluent families. He can get only a Nurse employed by the Corporation of Madras to attend on child births and she had marked the registers maintained in the usual course and there being nothing to disbelieve the entries found therein he had adduced necessary medical evidence which is required about the birth of a baby. Even apart from the medical opinion, the birth of a child as such can be established. But in a case of this nature, it will be necessary to find out whether it was a full grown child or premature one. She had stated that if a child of six months is born, it will be dead and in this ca e, it was born alive and that it could have been seven months old As made out in Preston Jones v, Preston Jones 1951 A. C. 391(already referred to) it is the period of gestation that can be taken into account and in this case, the very fact that within three months of marriage, a premature baby seven months old was born, shows necessarily respondent must have become pregnant earlier to marriage Whether the appellant had access before the marriage is an aspect on which there is no doubt expressed by the Courts below because, even the lower appellate Court had begun by stating that it was not the case of the respondent that the appellant had access to her prior to marriage.
47. When legal and acceptable evidence required to establish a fact for which the onus is on the petitioner and such materials having been placed by him if in spite of it, the lower appellate Court is to hold that he had not discharged the onus cast upon him according to law, such a finding being erroneous and against law, in this civil miscellaneous second appeal, the order of the Court below has to be set aside resulting in the appellant securing the relief as prayed for by him O. P. No. 478 of 1973. The civil miscellaneous second appeal is allowed. No costs.