# MAHENDRA MANILAL NANAVATI v. SUSHILA MAHENDRA NANAVATI {RAGHUBAR DAYAL, N. RAJAGOPALA AYYANGAR AND J. R

- **Citation:** [1964] 7 S.C.R. 267
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** Raghubar Dayal, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahendra-manilal-nanavati-v-sushila-mahendra-nanavati-raghubar-dayal-n-3115
- **Pages:** 94

## Headnote

Hindu Law-Annulment of marriage on ground that respondent was at the time of marriage pregnant by some person
other than petitioner-Satisfaction of court under s. 23-Nature
of onus on husband in matrimonial cases-Whether court can
act upon admissions of parties in proceedings under Hindu
Marriage Act-Quantum of burden and its incidence-Difference
-Value of medical opinion-Duration of pregra;ocy-Period of
gestation-Substantial question of law-Co..'tcurrent finding of
fact--.Power of Court to remand a case-Inherent powers of
court-Exercise
of-Evidence Act, ss. 112, 114-Code of Civil
Procedure, s. 107. Order 41, !'1'. 20, 23, 2:;....constitution of India,
Art. 133(1)-Hindu Marriage Act, 1955, ss. 12 and 23.
The appellant is a resident of Bombay while the father of
respondent was a resident of Prantij in the former State of
Baroda. They were betrothed in 1945 and their marriage was·
solemnised at Bombay according to Hindu rites on March
10, 1947. On August 27, 1947, respondent gave birth to a
daughter after 5 months and 17 days of their marriage.
In April 1956. the appellant filed a petition for annulment
of his marriage with respondent on the ground that the child
had been conceived long prior to his marriage through someone
else, the respondent was, at the time of marriage, pregnant by
some one other than himself, that that fact was concealed from
him and that ever since he had learnt about the birth of the
<!hild he had not cohabited with the respondent nor had he any
relation with her whatsoever. The defence of respondent was
that she conceived the baby as a result of sex relations with
the appellant after their betrothel on being assured by him that
that was permissible in their community, and that the parents
of the appellant knew about the relations between the parties
and also about her having conceived prior to her marriage. The
trial court accepted the allegations of the appellant and held
that the respondent was not pregnant by the appellant but by a
person other t!'an the appellant even before marriage. Respondent went m appeal to. the High Court against the order
of ann1:11ment passed by the trial court. The High Court was
not satisfied w•th. the findings of the trial court and remanded
!he case to the tnal court after framing the following two new
issues:-
1. I~ it proved ~hat the .respondent was pregnant at th."
time of marnage?
2. Is it prove~ .that marital intercourse with the consent
of the petitioner h3;8. not taken place since the discovery by the petitioner of the
existence of the
grounds for a. decree?
·
Respondent further alleged th t th
h'ld
conception after the marri e a
e !! 1
was the result of
tionaI evidence and came t':f the ~cltn~ cothurt recorded addiusion
at the respondent
19~4
March 18
268
SUPREME COURT REPORTS·
[19641
1964
was not pregnant at the time of marriage and that no sexual
-
. intercourse with the consent of appellant took place after the
M~ndra
Ml Ma,..lal discovery by appellant of the
grounds for a decree. These
"': '
findings were submitted to the High Court which held that it
s .. Aila Makendra was not proved that respondent was pregnant at the time of
Nanamti
marriage and that it was proved that petitioner had marital
intercourse with the respondent subsequent to his discovery
of the existence of the grounds for the decree. The High Court
allowed the appeal of respondent and dismissed the petition for
annulment of marriage. Appellant came to this Court after
obtaining a certificate of fitness from the High Court. Accepting the appeal,
Held (Mudholkar, J. dissenting). (i) The child born to respondent on August '2:/, 1947 was practically a mature child and
weighed 4 lbs. in weight and therefore it could not have been
the resu:lt of conception taking place on or after March 10, 1947.
The child was conceived prior to March 10, 1947 and therefore
respondent was pregnant at the time of marriage ty some one
other than appellant. Hence, appellant was entitled to annulment of his marriage.
(

## Text

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7 S.C.R.
SUPREME COURT REPORTS
267
MAHENDRA MANILAL NANAVATI
v.
SUSHILA MAHENDRA NANAVATI
{RAGHUBAR DAYAL, N. RAJAGOPALA AYYANGAR AND J. R.
MUDHOLKAR, JJ.]
Hindu Law-Annulment of marriage on ground that respondent was at the time of marriage pregnant by some person
other than petitioner-Satisfaction of court under s. 23-Nature
of onus on husband in matrimonial cases-Whether court can
act upon admissions of parties in proceedings under Hindu
Marriage Act-Quantum of burden and its incidence-Difference
-Value of medical opinion-Duration of pregra;ocy-Period of
gestation-Substantial question of law-Co..'tcurrent finding of
fact--.Power of Court to remand a case-Inherent powers of
court-Exercise
of-Evidence Act, ss. 112, 114-Code of Civil
Procedure, s. 107. Order 41, !'1'. 20, 23, 2:;....constitution of India,
Art. 133(1)-Hindu Marriage Act, 1955, ss. 12 and 23.
The appellant is a resident of Bombay while the father of
respondent was a resident of Prantij in the former State of
Baroda. They were betrothed in 1945 and their marriage was·
solemnised at Bombay according to Hindu rites on March
10, 1947. On August 27, 1947, respondent gave birth to a
daughter after 5 months and 17 days of their marriage.
In April 1956. the appellant filed a petition for annulment
of his marriage with respondent on the ground that the child
had been conceived long prior to his marriage through someone
else, the respondent was, at the time of marriage, pregnant by
some one other than himself, that that fact was concealed from
him and that ever since he had learnt about the birth of the
<!hild he had not cohabited with the respondent nor had he any
relation with her whatsoever. The defence of respondent was
that she conceived the baby as a result of sex relations with
the appellant after their betrothel on being assured by him that
that was permissible in their community, and that the parents
of the appellant knew about the relations between the parties
and also about her having conceived prior to her marriage. The
trial court accepted the allegations of the appellant and held
that the respondent was not pregnant by the appellant but by a
person other t!'an the appellant even before marriage. Respondent went m appeal to. the High Court against the order
of ann1:11ment passed by the trial court. The High Court was
not satisfied w•th. the findings of the trial court and remanded
!he case to the tnal court after framing the following two new
issues:-
1. I~ it proved ~hat the .respondent was pregnant at th."
time of marnage?
2. Is it prove~ .that marital intercourse with the consent
of the petitioner h3;8. not taken place since the discovery by the petitioner of the
existence of the
grounds for a. decree?
·
Respondent further alleged th t th
h'ld
conception after the marri e a
e !! 1
was the result of
tionaI evidence and came t':f the ~cltn~ cothurt recorded addiusion
at the respondent
19~4
March 18
268
SUPREME COURT REPORTS·
[19641
1964
was not pregnant at the time of marriage and that no sexual
-
. intercourse with the consent of appellant took place after the
M~ndra
Ml Ma,..lal discovery by appellant of the
grounds for a decree. These
"': '
findings were submitted to the High Court which held that it
s .. Aila Makendra was not proved that respondent was pregnant at the time of
Nanamti
marriage and that it was proved that petitioner had marital
intercourse with the respondent subsequent to his discovery
of the existence of the grounds for the decree. The High Court
allowed the appeal of respondent and dismissed the petition for
annulment of marriage. Appellant came to this Court after
obtaining a certificate of fitness from the High Court. Accepting the appeal,
Held (Mudholkar, J. dissenting). (i) The child born to respondent on August '2:/, 1947 was practically a mature child and
weighed 4 lbs. in weight and therefore it could not have been
the resu:lt of conception taking place on or after March 10, 1947.
The child was conceived prior to March 10, 1947 and therefore
respondent was pregnant at the time of marriage ty some one
other than appellant. Hence, appellant was entitled to annulment of his marriage.
(ii) Th€ appellant did not have marital intercourse with
respondent after he discovered that she had been pregnant by
some one else at the time of marriage.
1
'
In divorce cases, the court usually does not decide merely
l'
on the basis of the admissions of the parties. This is a rule
of prudence and not a requirement of law. However, where
'
there is no room for supposing that parties are colluding decision can be based on the admission of the parties.
It is undesirable that the burden should be imposed on
litigants in this class of cases, in which the substantial issue
between the parties was whether the husband had at what was
considered the relevant times any opportunity of intercourse
with his wife and no question of an abnormal period of gestation had been raised until the trial and then only by the commissioner himself, of adducing medical ev:idence re: the period
of gestation. However, tliat may be unavoidable where medical evidence in regard to the period is called by respondent and
then the case tecomes the battle-ground of experts.
(iii) The case of Clark v. Clark is not a good guide both
on facts and law for the determination of the question about
the legitimacy of the child of the respondent. In that case,
delivery after 174 days of the conception was proved to be on
account of the fact that the mother of the child "fell a day before delivery.
It is not correct to add a lunar month to the ascertained
period of gestation in cases of a known date of conception
merely on the ground that when books speak of foetus of a certain number of months, that foetus might be due to a con"7ption
taking place on any day of the lunar !'10nth correspo!'dmg. to
the menstruation prior to the conception and the m18'!penod
after conception.
Per Mudholkar, J. If the birth_ of an apparen~ly nonnal
child 171 or 186 days after conception Is an JD1po8Slble phenomenon and if its impossibility is notorious, then alone a court
7 S.C.R.
SUPREME COURT REPORTS
269
can take notice of it and the question of drawing a presumption
1964
arises. All that can be said is that such an occurrence is at best Mahend;;;-Manilal
unusual but it is a far cry to say that it is impossible. It is true
Nana""'i
that courts have taken notice of the fact that the normal period
v.
of gestation is 282 days but courts have also taken note of the Sushila
Makendrrs
fact that there are abnormal periods of gestation depending
Nana•ali
on various factors. It is not sate to base a conclusion as to the
illegitimacy of a child and unchastity of its mother solely on
the assumption that tecause its birth and condition at birth
appeared to be normal, its period of gestation must have been
normal, thus placing its date of conception at a point of time
prior to the marriage of its parents.
When a court is called upon to decide a matter mainly, if
not wholly, on the opinion of medical men, it must proceed
warily. Medical opinion. even of men of great experience and
deep knowledge, is after all generalisation founded upon the
observation of particular instances, however numerous they
may be. When the Court finds that in individual cases departure from the norm has in fact been observed by some experts
and when again the experts themselves do not speak with the
same voice, the need for circumspection by the court becomes
all the more necessary. rt may land itself into an error involving cruel consequences to innocent beings if it were to treat
the medical opinion as decisive in each and every case. The
responsibility for the . decision of a point arising in a case is
solely upon the court and while it is entitled to consider all the
relevant marerials before it, it would be failing in its duty if it
acts blindly on such opinion and in disregard of other relevant
materials placed before it.
Under the Hindu Marriage Act, 1955 and the Divorce Act,
1869, the condition for the grant af relief is the satisfaction of
the court as to the existence of the grounds for granting the
particular relief. The satisfaction as to the existence of the
ground must be, as in a criminal proceeding beyond reasonat le
doubt and must necessarily be founded upon material which is
relevant for consideration of the court which would of course
include evidence adduced in the case. Although in the Indian
Divorce Act, 1869 the words used are "satisfied on the ev>idence"
while in the Hindu Marriage Act, the legislature has used the
words "if the court is satisfied" their meaning is the same.
When the law places the burden of proof upon a party, it
requires that party to adduce evidence in support of his allegations. unless he is relieved of the necessity to do so by reason
of admissions made or the evidence adduced on behalf of his
opponent. The law does not speak of the quantum of burden
but only of its incidence and it would be mixing up the concepts
of the incidence of the burden of prQl)f v.-.ith that of the discharge of the burden to say that in one case it is light and in
another heavy.
Unless it is shown that important or relevant evidence has
been overlooked or misconstrued, it is not in consonance with
the practice of Supreme Court to ~xamine a concurrent finding of fact, particularly when the findings are based on appreciation of evidence.
Case law referred to.
270
SUPREME COURT REPORTS
[1964]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 166/
Mahendra Manilal 1963.
Appeal from the judgment and decree dated April 28,
Nanavati
1961 of the Bombay High Court in First Appeal No. 135 of
1964
v.
1958.
S .. hila
Ma/l<ndra
Nanavati
S. T. Desai, S. Singhvi, J. B. Dadachanji, 0. C. Mathur
and Ravinder Narain, for the appellant.
Purushottam Trikamdas, M. H. Chhatrapati and /. N.
Shroff, for the respondent.
March 18, 1964. The judgment of RAGHUBAR DAYAL and
AYYANGAR, JJ. was delivered by RAGHUBAR DAYAL J.
MuDHOLKAR J. delivered a dissenting Opinion.
Baghubar Dc.yal, J.
RAGHUBAR DAYAL, J.-This appeal, on a certificate
granted by the Bombay High Court, arises out of a petition
praying for the annulment of the petitioner-appellant's marriage with the respondent, under s. 12 of the Hindu Marriage
Act, 1955 (Act XXV of 1955), hereinafter called the Act, on
the ground that the respondent was, at the time of marriage,
pregnant by some person other than the petitioner.
The facts leading to the proceedings are that the appellant and the respondent were betrothed sometime in JuneJuly 1945 and were married on March 10, 1947. The appellant
went abroad about the end of April 1947. A daughter was
born to the respondent on August 27, 1947. The appellant
returned to India some time in November 1947, but the parties did not live together thereafter.
The appellant instituted a suit, No. 34 of 1947-48, in the
Court of the State of Baroda, at Baroda, for the declaration
of nullity of the marriage. The suit was, however, dismissed
on September 30, 1949 as the appellant failed to establish that
he had his domicile in that State.
The Act came into force on May 18, 1955. The appellant
took advantage of its provisions and on April 18, 1956 filed
the petition for annulment of bis marriage with the respondent.
The appellant alleged in his petition that on learning of
the birth of the child on August 27, 1947,. five months and
seventeen days after the marriage, he felt surprised and suspected that the child had been conceived long prior to the
marriage through someone else, that the respondent was, at
the time of their marriage pregnant by someone other than
himself, that this fact was concealed from him and that ever
since he had learnt of the birth of the child he had not lived
or cohabited with the respondent nor had any relations with
her whatsoever.
The respondent, in her written statement, raised various
defences. She admitted therein to have conceived the baby
prior to the marriage, but alleged that she bad conceived as a
result of sex relations with the petition!lf after their betrothal,
. '
la
7 S.C.R.
SUPREME COURT REPORTS
271
on being assured by him that that was permissible in their
1964
community. She further stated that her relations-in-law, viz., Makendra Manila!
her father-in-law, mother-in-law and sister-in-law knew about
Na11avati
such relations between the parties and. about her having 8 h"Ta v.M k d
conceived prior to the marriage. She further alleged that she "' 'Nanav:ti en "'
flatly refused to carry out abortion and that therefore, at the
instance of the appellant, the marriage was performed in R09kubar Dayal, J.
Bombay and not at her parents' place. She denied that the
child born to her was by any person other than the appellant.
Due to her allegation about pre-marital sexual relations
with the appellant and to her having conceived from such
relations, she was required to· furnish [Particulars about the
time when, and the place or places where, the parties had
sexual relations which she alleged to have Jed to her pregnancy. According to the particulars furnished by her, such
sexual relations took place about or after Christmas, 1946,
and again after about the middle of January 1947.
On the pleadings of the parties, six issues were framed.
but those relevant for our purpose were:
I. Whether the respondent was at the time of the
marriage pregnant by someone other than the
petitioner as alleged in para 9 of the petition?
2. Whether at the time of the marriage the petitioner
was ignorant of the aforesaid fact?
3. Whether the petitioner is entitled to have the marriage declared null and void?
The petitioner examined himself and his father. The
respondent" examined herself and one other witness. The documentary evidence adduced by the parties consisted mostly of
letters written by the petitioner to the respondent and the
respondent to the petitioner, since their betrothal, and letters
written by other relations of the family to one another.
The trial Court did not accept the allegation of the respondent about the pre-marital sex relations with her husband
and held that it was not established that she was pregnant by
the petitioner. It also held that she was pregnant at the time
of the marriage by some other person, that the petitioner did
not know about her pregnancy at the time of the marriage
an~ that he did not cohabit with her after knowing of her
bemg pregnant by someone else at the time of marriage On
these findings, the petition for annuhnent of the marrlage
was allowed.
T~e respondent pref~rred an _appeal to the High Court.
The· High Court agr~ with the trial Court in its finding that
the respoll:d.ent had fail~ to establish that she was pregnant
by the petitioner at the time of the marriage, as also regardin;;
272
SUPREME COURT REPORTS
[1964]
~
the petitioner knowing of her pregnancy at that time.
The
M.,..ndra Manila! learned Judges however held that the petitioner had not
Nanavati
proved to their satisfaction that the respondent was pregnant
8.,hihl ;c.,,,ndra by someone other than the petitioner at the time of the marriNanavati
age and that the p~titioner was not the father of the child
h ba D
al J which was born and, considering that the trial Court had not
Rag • '
•Y '
• framed an issue about there being no marital intercourse between the parties after the petitioner's knowing that the respondent had been pregnant at the time of the marriage framed two issues and remitted them to the trial Court for ;ecording findings.
The two issues framed by the High Court were:
I. Is it proved· that the respondent was pregnant at
the time of ihe marriage?
2. Is it proved that-marital intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of the existence of the
grounds for a decree?
Thereafter, the trial Court recorded further evidence. The
petitioner, besides examining himself, examined Dr. ChampakIal, husband of his sister, Madhuben, who was a midwife at
the Prantij Municipal Dispensary, Maternity Ward, in 1947
and who attended at the respondent's confinei;nent and two
doctors, Dr. Ajinkya and Dr. Udani as experts. The respondent, for her part, examined Dr. Mehta as an expert witness,
Kachrabhai, who was a compounder at the Pantij Municipal
Dispensary in 1947, Khodidas a Doctor, and herself. Khodidas
did not state anything material to the case. The trial Court,
after considering the fresh evidence recorded by it, found that it
was not proved that the respondent was pregnant at the time
<0f marriage. This was on the first issue framed by the High
Court. On the other issue it recorded a finding that it was
proved that no sexual intercourse with the consent of the
petitioner took place since the discovery by the petitioner of
the existence of the grounds for a decree. These findings were
then submitted to the High Court.
In the High Court, objections were filed by the parties
to these findings.
Patel and Gokhale JJ., heard the appeal
and delivered separate judgments. They agreed with the
trial Court that it was not proved that the respondent was
pregnant at the time of marriage.
Patel J., further held that
it was proved that the petitioner had marital intercourse with
the respondent subsequent to his discovery of the existence of
the grounds for the decree. Gokhale J., expressed the view
that the finding of the trial Court, on this point, appeared to
be correct. In the result, the High Court allowed the respondent's appeal and dismissed the petition. It is against this
judgment and decree of the High Court that the petitioner has
'1 S.C.R.
SUPREME COURT REPORTS
273
preferred this appeal on a certificate granted by the High
1964
Court, under Art. 133(l)(c) of the Constitution, as already Mahendra Manila!
mentioned.
Nanavati
v.
Before dealing in detail with the contentions of the par- Suahila
Mtdiendra
.
h
1
• .
f th A
Nanavah
ties, we may set down t e re evant prov1S1ons o
e
ct,
_
quoting the various sections:
R09kubar Dayal, J.
"12. (!) Any marriage solemnized, whether before or
after the commencement of this Act, shall be
voidable and may be annulled by a decree of nullity on any of the following grounds, namely: -
•
•
•
•
•
(b) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section
(!), no petition for annulling a marriage-
•
•
•
•
•
(b) on the ground specified in clause (d) of sub-section
(!) shall be entertained unless the court is satisfied-
(i) that the petitioner was at the time of the
marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the
case of a marriage solemnized before the commencement of this Act within one year of
such commencement and in the case of marriages solemnized after such commencement
within one year from the date of the marriage;
and
(iii) 1hat marital intercouse with the conaent of the
petitioner has not taken place since the dis->
covery by the petitioner of the existence of
the grounds for a decree."
"20. (!) Every petition presented under this Act shall
state as distinctly as the nature of the case permits
the facts on which the claim to relief is founded
and shall also state that there is no coTftlsion betweell: the petitioner and the other party to the
marnage.
(2) The statements contained in every petition under this
Act sha II be verified by the petitioner or some
other competent person in the manner required
by law f9.r the verification of plaints, and may, at
the hearing, be referred to as evidence."
1964
.Jl.fahendra Manilal
Nanat•ati
v.
Busldla Mahendra
]..~anavat-i
Raahubar Dayal, J.
274
SUPREME COURT REPORTS
[1964)
"21. Subject to the other provisions contained in this
Act and to such rules as the High Court may make
in this behalf, all proceedings under this Act shall
be regulated, as far as may be, by the Code of
Civil Procedure, 1908 (V of 1908)."
"23(1) In any proceeding under this Act, whether
defended or not, if the Court is satisfied that-
(a) any of the grounds for granting relief exists
and the petitioner is not in any way taking
advantage of his or her own wrong or dis·
ability for the purpose of such relief, and
•
•
•
•
(c) the petition is not presented or prosecuted in
collusion with the respondent, and
(d) there has not been any unnecessary or impro·
per delay in instituting the proceeding, and
(el there is no other legal ground why relief
should not be granted,
then, and in such a case, but not otherwise, the
Court shall decree such relief accordingly."
"28. All decrees and orders made by the Court in any
procee.ding under this Act shall be enforced in
like manner as the decrees and orders of the Court
made in the exercise of its original civil ju.risdic·
tion are enforced, and may be appealed from
under any law for the time being in force;
Provided that there shall be no appeal on the subject
of costs only."
It is to be seen that, according to the provisions set out
above, statements contained in any petition could be referred
to as evidence, the provisions of the Code of Civil Procedure
apply to the proceedings under the Act and a Court has to pass
a decree in the proceedings only when it is satisfied about
certain matters specified in s. 23.
Two questions cf law raised at the hearing of this appeal
may now be disposed of as their determination will govern
the consideration of the other matter on record with respect
to the revelant points to be decided in the case. These are: (i)
whether the High Court was right in remitting the two issues
for a finding to the trial Court and (ii) what is the standard of
proof required for the satisfaction of the Court before it can
pass a decree in these proceedings.
The High Court had to remit the second issue for a find·
ing as it was nece~ary for the determination of the case and
7 S.C.R.
SUPREME COURT REPORTS
275
the trial Court had not framed a specific issue in regard to it.
1964
In the absence of such an issue, the parties could not be ex- Mahend;;;-Manila!
peeled to have produced evidence directed to that point and
Nanavali
!herefore the High Court rightly remitted that issue for a find- s .. hila v.Mah<ndl'a
mg.
Nanavati .
The High Court remitted the first issue as it was of Raghubar Dayal, J.
opinion that it was for the petitioner to prove to their satisfaction, beyond reasonable doubt, which he had failed to do, that
the respondent was pregnant at the time of marriage. He had
also to establish that the child could not possibly be born as
a result of the petitioner's marital intercourse with the respondent after the marriage, the learned Judges holding that in
these proceedings the Court could not base its decision on the
mere admission of parties.
The High Court is certainiy right in stating that the petitioner had, in order to succeed, to prove beyond reasonable
doubt that the respondent was pregnant by someone else at
the time of marriage. 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.
On the facts of the present case, however, the decision did
not rest on the admissions of the parties alone.
In White v. White(') this Court construed the expression
'satisfied on the evidence' in s. 14 of the Divorce Act and said
at p. 1420:
"The important words requiring consideration are
'satisfied on the evidence'. These words imply
that the duty of the Court is to pronounce a decree
if satisfied that the case for the petitioner has been
proved but dismiss the petition if not so satisfied .
. . . and it has been there held that the evidence
must be clear and satisfactory beyond the mere
balance of probabilities and conclusive in the sense
that it will satisfy ... the guarded discretion of a
reasonable and just man."
It approved of the observations in Preston Jones v. Preston
Jones(') to the effect that it would be quite out of keeping
with the anxious nature of the proviSions to hold that the
Court might be 'satisfied' in respect of a ground for dissolution, with something less than proof beyond reasonable doubt.
The Court further observed at p. 1421 :
"In a suit based on a matrimonial offence it is not
necessary and it is indeed rarely po8sible to prove
the iSsue by any direct· evidence for iri very few
cilses can such proof be obtainable."
(')[1958.] Sr•:. ~410.
(') [1951] AC. 391, 417.
276
SUPREME COURT REPORTS
[19641
1964
I f' II
.
__
.
. t o ows that wha~ ~e Court has to see m these proceedMalaendr• Manilal mgs IS whether the petitioner has proved beyond reasonable
Nanavati
doubt that the respondent was pregnant by some one else at
Smhila "'Malaendra the time of marriage. The petitioner has to establish such
Nanavali
facts and circumstances which would lead the Court either to
R h b -D 1 J believe that the respondent was pregnant at the time of marriag u ar
aya,'
b
1
hid h
d
'
age y someone e se or to o t at a pru ent man would, on
those facts and circumstances, be completely satisfied that it
was so.
It is true that in divorce cases under the Divorce Act of
I869, the Court usually does not decide merely on the basis
of the admissions of the parties. This is a rule of prudence and
not a requirement of law. That is because parties might make
collusive statements admitting allegations against each other
in order to gain the common object that both desire, for personal reasons. A decision on such admissions would be
against public policy and is bound to affect not only the parties to the proceedings but also their issues, if any, and the
general interest of the society. Where, however, there is no
room for supposing that parties are colluding, there is no reason why admissions of parties should not be treated as evidence just as they are treated in other civil proceedings. The
provisions of the Evidence Act and the Code of Civil
Procedure provide for Courts accepting the admissions made
by parties and requiring no further proof in support of the
facts admitted.
Section 58 of the Evidence Act inter alia provides that
no fact need be proved in any proceeding which the parties
thereto or their agents agree to admit at the hearing or which
by any rule of pleading in force at the time they are deemed
to have admitted by their pleading. Rule 5 of O. VIII,
C.P.C., provides that every allegation of fact in the plaint, if
not denied specifically or by necessary implication or stated
to be not admitted in the pleadings of the defendant, shall
be taken to be admitted except as against a person under
disability.
Both these prov1s1ons, however, vest discretion in the
Court to require any fact so admitted to be proved otherwise
than by such admission.
Rule 6 of 0. XII of the Code allows
a party to apply to the Court at any stage of a suit for such
judgment or order as upon the admissions of fact made either
on the pleadings or otherwise he may be entitled to, and empowers the Court to make such order or give such judgment
on the application as it may think just. There is therefore no
good reason for the view that the Court cannot act upon the
admissions of. the parties in proceedings under the Act.
7 S.C.R.
SUPREME COURT REPORTS
277
Section 23 of the Act requires the Court to be satisfied
1964
on certain matters before it,is to pass a decree. The satisfac- Mahemlra Manilal
tion of the Court is to be on the matter on record as it is on
Nanavati
that matter that it has to concl~de "Yhether a certain fact has Snshila vMahendr«
been proved or not. The sattsfact10n can be based on the
Nanavati
admissions of the parties. It can be based on the evidence,
1 /
oral or documentary, led in the case. The evidence may be Raghnbar Daya• •
direct or circumstantial.
In Arnold v. Arnold(') Woodroffe J., said:
"In the present case admissions have been proved.
Doubtless, caution is required in cases of divorce
to see that there is no collusion and an admission
must be examined from this point of view. But
if, as here, there is no reason to suspect collusion
an admission may be as cogent evidence in these
as in any other cases. In Robinson v. Robinson
(1859 1 Sw. & Tr. 362), Sir Alexander Cockburn
says: -'The Divorce Court is at liberty to act and
is bound to act on any evidence legally admissible by which the fact of adultery is established. If,
therefore, there is evidence not open to exception
of admissions of adultery by the principal respondent, it would be the duty of the Court to act on
these admissions although there might be a total
absence of all other evidence to support them.
The admission of a party charged with a criminal
or wrongful act, has at all times and in all systems
of jurisprudence been considered as most cogent
and conclusive proof; and if all doubt of its genuineness and sincerity be removed, we see no
reason why such a confession should not., as
against the party making it, have full effect given
to it."
·
Reference may also be made to Over v. Over('). It was
a suit for dissolution of marriage. The respondent did I'':
appear throughout the proceedings. The evidence origina:
consisted of affidavits by the petitioner and his son to proh
the letters the respondent had written to the petitioner. Later,
their statements were also recorded. The letters were held
to be sufficient evidence of her having committed adultery. Sir
Lallubhai Shah, Ag. C. J., observed at p. 255:
"I have dealt with this case at some length in view of
the difficulty which we have felt on account of
there being no other corroborative evidence of the
admissions of the wife.
But, having regard to the
(') I.L.R. 38 Cal. 907, 912.
(') 27 B.L.R. 251.
278
SUPREME COURT REPORTS
[1964]
1964
circumstances, as disclosed in the evidence, I see
.Mahentira Manila!
no reason to doubt the genuineness of the admisNanavati
sion made by the wife, and in the words of Cock-
.s .. hila r£a1iendra
burn C. J., it is our duty to act upon such admisNanavati
sions, although there might be a total absence of
R huba D
J
all other evidence to supporLthem."
ag
r
,iyal, ·M t
J
·d
261
/
ar en ., sa1 at p.
:
"As already stated, I think that such a confession is
admissible in evidence, and I agree that there is no
rule of law which absolutely precludes the Court
from acting upon it. But as a rule of prudence the
practice of the Divorce Courts has been in general
not to act upon such confessions, unless corroborated."
The aforesaid rule of prudence loses its importance wqen
certain provisions of the Act enjoin upon the Court to be
satisfied with respect to certain matters which would enable
the Court to avoid passing a decree on collusive admissions.
Section l 2(2)(b) provides that no petition for the annulment
of the marriage shall be entertained unless the Court be satisfied that the petitioner was at the time of marriage ignorant of
the facts alleged and that no marital intercourse with the consent of the petitioner had taken place since his discovering
the existence of the grounds for the decree. Such a finding
necessarily implies that before reaching it the Court has satisfied itself that there had been no connivance of the petitioner
in the coming into existence of the ground on which he seeks
annulment of the marriage. Besides, section 23 also provides
that the Court can pass a decree only if it is satisfied that any
of the grounds for granting relief exists, that the petition is
not presented or prosecuted in collusion with the respondent
and that there was no legal ground on which the relief claimed
could not be granted. In these circumstances, it would be
placing undue restriction on the Court's power to determine
the facts in issue on any particular type of evidence alone,
specially when there be no such provision in the Act which
would directly prohibit the Court from taking into account
the admissions made by the parties in the proceedings.
We are of opinion that in proceedings under the Act the
Court can arrive at the satisfaction contemplated by s. 23 on
the basis of legal evidence in accordance with the provisions
c
of the Evidence Ai;t and that it is quite competent for the
Court to arrive at the necessary satisfaction even on the basis
of the admissions of the parties alone.
Admissions are to be
ignored on grounds of prudence only when the Court, in the
circumstances of a case, is of opinion that the admissions of
the parties may be collusive. If there be no ground for such
a view, it would be proper for the Court to act on those admissions without forcing the parties to lead other evidence to
•
7 S.C.R.
SUPREME COURT REPORTS
279
1964
establish the facts ·admitted, unless of course the admissions
are contradicted by the facts proved or a doubt is created by Maheiu!;:;;-Manila!
the proved facts as regards the correctness of the facts admit.
N anavati
ed
v.
t
·
Sushila
Mahendra
The trial Court had recorded a finding on the basis of
Nanavati
the statements of the respondent in the written statement, Raghubra Dayal J.
statements which were supported by her on oath when examin-
'
ed as a witness.
Support for these statements was found
from certain circumstances which the Court held established
on the basis of the correspondence between the parties and
certain oral evidence. The respondent's case that the child
born to her on August 27, 1947 was begotten by the petitioner
as they had intercourse at the relevant time sometime in
December 1946 or January 1947, left ·no room for the Court
to consid~r the new case that that child was conceived sometime after the marriage of the parties on March 10, 1947. In
these circumstances, it was not really right for the High Court
to remit an issue to the trial Court for recording a finding on
the basis of such further evidence including expert evidence
as be led by the parties on the question. In this connection,
the remarks of Lord Simonds in Preston Jones' case(') at p.
402, are very pertinent :
"Your Lordships would, I think, regard it as undesirable that the burden should be imposed upon
litigants in this class of case of adducing evidence
of the character which in Gaskill v. Gaskill (1921
P. 425) Lord Birkenhead thought it expedient for
the Attorney-General to ask for the assistance of
the court. That may be unavoidable where medi'
cal evidence in regard to the period is called by
the respondent; there is nothing to prevent a case
becoming the battle-ground of experts. But I am
dealing with such a case as that out of which this
appeal arises, in which the substantial issue between the parties was whether the husband had at
what was considered the relevant times any oppor·
tunity of intercourse with his wife and no question
of an abnormal period of gestation had been
raised until the trial and then only by the commissioner himself."
However, as evidence has been led by both the parties and
the. Courts below have considered it, we do not propose to
decide the case on the basis of the evidence originally record·
ed and w~uld content. ourselves by simply stating our view
that the _High Court might well have decided the ease on that
has is without remitting. the first issue to the trial Court.
We. ~ay now deal with some general aspects of the case.
The petit10ner has been consistent throughout. He ·took tlMt
(') (1951) A.C. 391.
280
SUPREME COURT REPORTS
[1964]
•
!!!!!
positi!l'Il that he. was not the father of the child born to the
M•htndra Manila/ respondent in August 1947 as the period of gestation between
Naaavati
the date of marriage and the date of birth was too short for a
Su•hila ;~htndrn mature child to be born. This does not mean that his case
Nanm·aa
was as has been considered by the Court below that the child
Raghuba-; Da~•I, J. bmn was a fully m~ture child in. the sense that it was born
after tlte normal period of gestal!on of about 280 days. He
could not have stated so positively as that could not be known
t-0 him.
Even the doctors are probably not in a position
to state that the child was born after a full period of gestation
i.e., after 280 days.
The petitioner's case was that the child
born was not a child whose period of gestation was 171 days
from the date of conception or who could be said to be a prema lure child, but was a child born after almost the full period
of gestation. He steadily stuck to this position. His conduct
and the conduct of his relations from the time they learnt of
the respondent's giving birth to the child had been consistent
with this view.
The petitioner had no correspondence or
connection with the respondent since he was informed of the
birth of the child. His parents too did not enter into any
correspondence with the respondent's parents. The petitioner's sister Sharda, however, appears to have written just
one letter in acknowledgment of the respondent's sister's letter
conveying the news of the birth of the child.
She has not ·
been examined as a witness.
She appears to have written
that letter when she was emotionally happy on the receipt of
the news and had not given any thought to the matter.
In
J 948, the petitioner instituted a suit for the annulment of the
marriage in the Court at Baroda and there too pleaded what
he pleaded in the petition giving rise to this appeal. The
respondent, however, put up a different case there. Any way,
that suit was dismissed on the preliminary ground that the
petitioner did not have the necessary domicile to institute a
suit in that Court.
The respondent, on the other hand, has not been consistent.
In her written statement filed in the Baroda Court she
stated that she had become pregnant as a result of the sexual
intercourse she had with the petitioner after marriage. The
same line was not adopted in her written statement in this
case, in which she admitted that she was pregnant at the time
of the marriage, but stated that this was due to sexual intercourse with the petitioner prior to her marriage.
She supported this statement vigorously on oath. Later, after the close
of the petitioner's evidence, and practically of her statement
in examination-in-chief, she wanted to change her case by an
amendment of the written statement to what had been said
in the Baroda Court. This was not allowed by the trial
Court. The High Court too did not allow this formally, but
in effect had that point trieli by remitting an issue.
•
'7 S.C.R.
SUPREME COURT REPORTS
281
No good motive was suggested for the petitioner and his
~
parents taking the view so firmly held by them about the childMahemlra ManilaT
being not of the petitioner from the very moment they learnt
Nanavati
of the birth of the child on August 27, 1947. Their attitude SU8hila "M.nendra
was not an attitude of mere suspicion in connection with
Nanavati
which enquiries and observations could be made. The attitude R h ba~E 7 J
was firm from the very beginning. They did not respond to ag •
'
aya ' •
letters from either the respondent or her father. What could
be the motive for them to take such an attitude?
The respondent stated in her written statement:
"The petitioner's father has stayed in Europe for
a
very long time and holds very advanced views so
also the petitioner but this entirely false litigation
has been put forward at the instance of the petitioner's mother who wants to sacrifice the respondent knowing full well the part played by her
son the petitioner and the other members of the
family."
Nothing like this was said in her written statement filed in
the Court at Baroda:
In her deposition before the findings were called for on
the issues, she stated that the relations between herself and
her mother-in-law were not very cordial. She said in her deposition, after the remission of the issues, that
"The parents of the petitioner were not on good terms
with my parents as at the time of pheramani the
petitioner's parents were not satisfied with the presents given by my parents."
This cause for bad relations has not been indicated in any
of the letters by the respondent or by the petitioner.