JUDGMENT RAGBUBAU DAYAL J. -[Rajagopala Ayyangar J. concurring, Mudholkar J. dissenting]. This appeal, on a certificate granted by the Bombay High Court, arises out of a petition praying for the annulment of the petitioner appellants marriage with the respondent, under section 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. 2. The facts leading to the proceedings are that the appellant and the respondent were betrothed sometime in June -July 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 sometime in November 1947, but the parties did not live together thereafter. 3. 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. 4. 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 his 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 be had not lived or co -habited with the respondent nor had any relations with her whatsoever. 5. 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 had conceived as a result of sex relations with the petitioner after their betrothal, on being assured by him that that was permissible in their community. 5. 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 had conceived as a result of sex relations with the petitioner after their betrothal, on being assured by him that that was permissible in their community. She further stated that her relations -in -law, viz., her father -in -law, mother -in -law and sister -in -law knew about such relations between the parties and about her having conceived prior to the marriage. She further alleged that she flatly refused to carry out abortion and that, therefore, at the instance of the appellant, the marriage was performed in Bombay and not at her parents place. She denied that the child born to her was by any person other than the appellant. 6. 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 led 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. 7. On the pleadings of the parties, six issues were framed, but those relevant for our purpose were: 1. 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 8. 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. 9. 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. 9. 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 and that he did not cohabit with her after knowing of her being pregnant by someone else at the time of marriage. On these findings, the petition for annulment of the marriage was allowed. 10. The respondent preferred an appeal to the High Court. The High Court agreed with the trial Court in its finding that the respondent had failed to establish that she was pregnant by the petitioner at the time of the marriage, as also regarding the petitioner knowing of her pregnancy at that time. The learned Judges, however, held that the petitioner had not proved to their satisfaction that the respondent was pregnant by someone other than the petitioner at the time of the marriage and that the petitioner was not the father of the child which was born and, considering that the trial Court had not framed an issue about there being no marital intercourse between the parties after the petitioners knowing that the respondent had been pregnant at the time of the marriage, framed two issues and remitted them to the trial Court for recording finding. The two issues framed by the High Court were: "1. Is it; proved that the respondent; was pregnant; at the time of the marriage 2. Is it proved that marital intercourse with the consent of the petitioner has no taken place since the discovery by the petitioner of the existence of the ground for a decree" 11. Thereafter, the trial Court recorded further evidence. The petitioner, besides examining himself, examined Dr. Champaklal, husband of his sister, Madhuben, who was a. mid wife at the Prantij Municipal Dispensary, Maternity Ward, in 1947 and who attended at the respondents confinement and two doctors, Dr. Ajinkya and Dr. Udani as experts: The respondent, for her part, examined Dr. Mehta as an expert witness, Kacharabhai, who was a compounder at the Prantij Municipal Dispensary in 1947, Khodidas, a Doctor, and herself. Khodidas did not state anything material to the case. Ajinkya and Dr. Udani as experts: The respondent, for her part, examined Dr. Mehta as an expert witness, Kacharabhai, who was a compounder at the Prantij 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 of 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. 12. 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 respondents appeal and dismissed the petition. It is against this judgment and decree of the High Court that the petitioner has preferred this appeal on a certificate granted by the High Court, under Article 133 (1) (c) of the Constitution, as already mentioned. 13. Before dealing in detail with the contentions of the parties, we may set down the relevant provisions of the Act, quoting the various sections: "12. (1) Any marriage solemnized, whether before or after the commencement of the Act, shall be voidable and may be annulled by a decree .of nullity on any of the following grounds, namely: - (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (1) Any marriage solemnized, whether before or after the commencement of the Act, shall be voidable and may be annulled by a decree .of nullity on any of the following grounds, namely: - (d) 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 (1), no petition for annulling marriage……… (b) on the ground specified in clause (d) of sub section (1) 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) that marital intercourse with the consent of the petitioner bas not taken place since the discovery by the petitioner of the existence of the grounds for a decree." "20. (l) 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 collusion between the petitioner and the other party to the marriage. (2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing be referred to as evidence." "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, at far as may be, by the Code of Civil Procedure, 1908 (V of 1908)". "23. 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, at 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 satisfied that - (a) any of he grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for be 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 improper delay in instituting the proceeding and (e) 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 proceeding 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 jurisdiction 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." 14. 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 section 23. 15. Two questions of 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 relevant 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. 16. 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. 16. The High Court had to remit the second issue for a finding as it was necessary for the determination of the case and the trial Court had not framed specific issue in regard to it. In the absence of such an issue, the parties could not be expected to have produced evidence directed to that point and, therefore, the High Court rightly remitted that issue for a finding. 17. The High Court remitted the first issue as it was of opinion that it was for the petitioner to prove to the 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 petitioners marital intercourse with the respondent after the marriage, the learned Judges holding that in these proceedings the Court could not base it decision on the mere admission of parties. 18. The High Court is certainly right in stating that the petitioner had, in order to succeed, to prove beyond reasonable doubt that the respondent wall 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 circumstance 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. 19. In White V. White1, this Court construed the expression satisfied on the evidence in section 14 of the Divorce Act and said (p. 1(20): " …….. The important words requiring consideration are satisfied on the evidence. On the facts of the present Case, however, the decision did not rest on the admissions of the parties alone. 19. In White V. White1, this Court construed the expression satisfied on the evidence in section 14 of the Divorce Act and said (p. 1(20): " …….. 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 -Jones2, 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 aground for dissolution, with something less than proof beyond reasonable doubt. The Court further observed (p. 1421): "In a suit baled on a matrimonial offence it is not necessary and it is indeed rarely Possible to prove the issue by any direct evidence for in very few cases can such proof be obtainable…….. 20. It follows that what the Court has to see in these proceedings is whether the petitioner has proved beyond reasonable doubt that the respondent was pregnant by someone else at the time of marriage. The petitioner has to establish such facts and circumstances which would lead the Court either to believe that the respondent was pregnant at the time of marriage by someone else or to hold that a prudent man would, on those facts and circumstances, be completely satisfied that it was so. 21. It is true that in divorce cases under the Divorce Act of 1869, 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. 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 pot 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. 22. Section 58 of the Evidence Act inter alia provides that no fact need be proved in any proceedings 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 Order VIII, Civil Procedure Code, 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. 23. Both these provisions, however, vest discretion in the Court to require any fact so admitted to be proved otherwise than by such admission. Rule 6 of Order 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. 24. Section 23 of the Act requires the Court to be satisfied on certain matters before it is to pass a decree. 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. 24. Section 23 of the Act requires the Court to be satisfied on certain matters before it is to pass a decree. The satisfaction of the Court is to be on the matter on record as it is on that matter that it has to conclude whether a certain fact has been proved or not. The satisfaction can be baaed on the admissions of the parties. It can be based on the evidence, oral or documentary led in the cue. The evidence may be direct or circumstantial. 25. In Arnold V. Arnold2, Woodroffe J. said: "In the present case admissions have been proved. Doubtless, caution is required is 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 oases. In Robison V. Robinson 3a, Sir Alexander Cookburn says: The Divorce Court is at liberty to act end 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 admission 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 criminal or wrongful act ,has at all times and in all systems of jurisprudence been considered as most cogent and conclusive proof; and in 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……… 26. Reference may also be made to Over V. Over4. It was a suit for dissolution of marriage. The respondent did not appear throughout the proceedings. The evidence originally consisted of affidavits by the petitioner and his son to prove 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 (p. 255): …….. The respondent did not appear throughout the proceedings. The evidence originally consisted of affidavits by the petitioner and his son to prove 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 (p. 255): …….. I have dealt with this case at some length in view of 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 circumstances, as disclosed in the evidence. I see no reason to doubt the genuineness of the admission made by the wife, and in the words of Cockburn C.J. it ill our duty to act upon such admissions, although there might be a total absence of all other evidence to support them." Marten J. said (p. 261): " ……. As already stated, I think that such a concession 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". 27. The aforesaid rule of prudence loses its importance when 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 12 (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 n~ connivance of the petitioner in the coming into existence of the ground on which he seeks annulment of the marriage. Such a finding necessarily implies that before reaching it the Court has satisfied itself that there had been n~ 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 under restriction on the Courts 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. 28. 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 of the Evidence Act 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 circumstance 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 establish the facts admitted, unless of course the admissions are contradicted by the facts proved or a doubt is created by the proved facts as regards the correctness of the facts admitted. 29. The trial Court had recorded a finding on the basis of the statements of the respondent in the written statement, statements which were supported by her on oath when examined 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 trial Court had recorded a finding on the basis of the statements of the respondent in the written statement, statements which were supported by her on oath when examined 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 respondents 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 consider the new ease 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 i8Bue to the trial Court for recording findings on the basis of each 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 are very pertinent at page 402. “……….. Your Lordships would, I think, regard it as undesirable that the burden should be imposed upon litigants in this class of ease of adducing evidence of the character which in Gaskill V. Gaskill5 Lord Birkenbead thought it expedient for the Attorney General to ask for the assistance of the court. That may be unavoidable where medical evidence in regard to the period is called by the respondent there is nothing to prevent a ease becoming the battle ground of experts. But, I am dealing with such a case as that out of which the appeal arises, 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 end no question of an abnormal period of gestation bad 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 recorded and would content ourselves by simply stating our new that the High Court might well have decided the case on that basis without remitting the 6rst issue to the trial Court. 30. 30. We may now deal with some general aspects of the ease. The petitioner has been consistent throughout. He took the position that he was not the father of the child born to the respondent in August 1941 as the period err gestation between the date of marriage and the date of birth was too short for a mature child to be born. This does not mean that his case was as has been considered by the Court below that the child born was a fully mature child in the sense that it was born after the normal period of gestation of about 280 days. He could not have stated so positively as that could not be known to him. Eye 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 petitioners 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 premature 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 relation from the time they learnt of the respondents 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 respondents parents. The petitioners sister Sharda, however, appears to have written just one letter in acknowledgment of the respondents sisters 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 bad not given any thought to the matter. In 1948, 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. 31. The respondent, on the other hand, has not been consistent. 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. 31. 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 petitioners 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 tried by remitting an issue…….. 32. The main question for determination in this case is whether the child born to .the respondent on August 27, 1947, could be the child of the petitioner, who, on the finding of the Courts below which was accepted by learned counsel for the respondent before us, did not co -habit with the respondent earlier than March 10, 1947. Counting both the days, i.e., March 10 and August 27, the total period between those dates comes to 171 days. The child born to the respondent is said to have weighed 4 pounds, the delivery being said to be normal. The child survived and is said to be even now alive. It is not disputed that the usual period of gestation from the date of the first coitus is between 265 and 270 days and that delivery is expected in about 280 days from the first day of the menstruation period prior to a woman conceiving a child. The child survived and is said to be even now alive. It is not disputed that the usual period of gestation from the date of the first coitus is between 265 and 270 days and that delivery is expected in about 280 days from the first day of the menstruation period prior to a woman conceiving a child. We shall later be examining the point urged before us by learned counsel for the respondent, as regards the possibility of a living child being delivered after a gestation of this duration, but it is sufficient at this stage to point out that, if the delivery "as normal, the child born also was normal and alive, it was not suggested that it was possible in the course of nature for such a child being born unless the conception took place long before March 10, 1947. 33. In this connection, reference may again be made to what was said by Lord Simonds in Preston -Jones case at p. 402, when considering the question whether a normal child born 360 days after the last intercourse of a man and a woman was the child of that man or not. He said: "…….... It would, I think, appear a fantastic suggestion to any ordinary man or woman that a normal child born 360 days after the last intercourse of a man and a woman was the child of that man and it is to me repugnant that a court of justice should be so little in accord with the common notions of mankind that it should require evidence to displace fantastic suggestions." 34. Of similar effect is the observation of Lord Normand at p. 407, it being: "1 have felt great doubt whether the House ought not to say that, though it is not possible to draw the line at an actual number of days, 360 days is too long a period, unless evidence of medical knowledge is adduced by the respondent to show the contrary." 35. Lord Morton of Henryton also said (p. 413) : ……… If a husband proves that a child has been born 360 days alter he last had an opportunity of intercourse with his wife, and that the birth was a normal one, and if no expert evidence is called by either side, I am of opinion that the husband has proved his case beyond reasonable doubt." 36. W. V. W.6 a similar observation was made by Cairns J. in proceedings on an application for ordering the wife and child to undergo blood -test in order to furnish evidence that the child was not the petitioners. The child was born 195 days after the marriage. He said (p. 386) : ……… The marriage was on Oct. 7, 1961. The child was horn on Apr. 19, 1962. It is, therefore, obvious that the wife was pregnant at the time of the marriage." We have then to see whether the evidence on the record is such which would justify the Courts holding against what it should normally hold on proof of the fact that the child was born after 171 days of the first coitus between the parties. (After considering the evidence in the case the judgment proceeds.] 37. On the basis of the evidence discussed above and the probabilities of the case, we are of opinion that the child born to the respondent on August 27, 1947, was practically a mature child and weighed 4 lbs in weight and that therefore, it could not have been the result of a conception taking place on or after March 10, 1947. It follows that it was conceived prior to March 10 and that, therefore, the respondent was pregnant at the time of marriage. 38. Lastly, we may refer to ss. 112 and 114 of the Evidence Act. section 114 provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to facts of the particular case. The conclusion we have arrived at about the child born to the respondent being not the child of the appellant, fits in with the presumption to be drawn in accordance with the provisions of this section. People in general consider that the child born, being of a gestation period of 185 days, cannot be a fairly mature baby and cannot survive like a normal child. Medical opinion, as it exists today and as is disclosed by text books on Obstetrics and Gynaecology, however, refer to some rare exceptions of live -births even with gestation period of a few days less than 180 days. Medical opinion, as it exists today and as is disclosed by text books on Obstetrics and Gynaecology, however, refer to some rare exceptions of live -births even with gestation period of a few days less than 180 days. But we have no found it possible to accept the respondents case of the conception having taken place from and after March 10, 1947 for several reasons which we have explained in details at the relevant place. We should observe that in the case before us the earliest date on which conception through the husband could have taken place is fixed with certainty, a matter which could not be said of the freak cases referred to in medical literature, for in them the earliest date of conception was a matter of guess or inference. Besides, we have the feature in the present case, of evidence regarding the various phenomena and bodily changes attending" on pregnancy at different stages of its course, and the combined effect of these does preclude any argument of a conception on or after March 10,1947. Lastly, we have definite evidence, oral and documentary, of the condition of the child at birth which is wholly inconsistent with a gestation of less than six months duration, assuming that a live birth and the child healthy enough to survive is possible with such short duration of pregnancy. In passing we might add that we consider it probable that it was because the physical condition of the child at birth approximated to a normal mature child, that the respondent originally put forward a case of pre -marital intercourse with the husband -a story she could not sustain and which she ultimately abandoned. 39. Section 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. The question of the legitimacy of the child born to the respondent does not directly arise in this case, though the conclusion we have reached is certain to affect the legitimacy of the respondents daughter. The question of the legitimacy of the child born to the respondent does not directly arise in this case, though the conclusion we have reached is certain to affect the legitimacy of the respondents daughter. However, the fact that he was born during the continuance of the valid marriage between the parties cannot betaken to be conclusive proof of her being a legitimate daughter of the appellant, as the various circumstances dealt with by us above, establish that she must have been begotten sometime earlier than March 10, 1947, and as it has been found by the Courts below, and the finding has not been questioned here before us, that the appellant had no access to the respondent at the relevant time. 40. It has been found by the Courts below that the petitioner had no sexual intercourse with the respondent prior to marriage on March 10. This finding has not been challenged before us and appears to us to be well founded. The only conclusion is that the respondent was pregnant at the time of marriage by someone other than the petitioner. 41. The next question to determine is whether the petitioner had marital intercourse with the respondent after he had discovered that she was pregnant at; the time of marriage by someone other than himself. The trial Court found that the petitioner did not have such intercourse after he had discovered about the respondent being pregnant at the time of marriage. Patel J. did not agree with that finding. Gokhale J. considered the view of the trial Court to be correct. 42. The petitioner states that he discovered the respondent being pregnant at the time of marriage by another person when he learnt of her delivering the child on August 27, 1947, and when he felt that that could not be his child. He has further stated that since his return from abroad he had no intercourse with her and that is not disputed. The respondent admits it. There is no evidence to the contrary either. 43. The last marital intercourse the petitioner had with his wife was Bombay, before he left for abroad. That was between April 23 and 27. The question then is whether he could have known during those days about the respondent's being pregnant at the time of marriage. The respondent admits it. There is no evidence to the contrary either. 43. The last marital intercourse the petitioner had with his wife was Bombay, before he left for abroad. That was between April 23 and 27. The question then is whether he could have known during those days about the respondent's being pregnant at the time of marriage. The respondent does not state that at the time she had such ostensible symptons which could have led the petitioner to discover that she had been pregnant at the time of marriage. The opinion of the experts on this point is not very decisive ……… 44. We consider these statements to be of no help in coming to a finding on the point whether the petitioner could discover on April 26 that his wife was not only pregnant but was pregnant from same day much earlier than the tenth day of March 1947 when they were married. Neither of the two doctors was questioned as to whether the petitioner could have known that his wife's pregnancy was of more than 1½ Month's duration, and, unless the petitioner knew that, he could not be said to have discovered on April 26 that the respondent had been pregnant by someone else at the time of marriage, irrespective of the fact whether the coitus that night took place in darkness or in light. 45. We may also say that the mere fact that the petitioner alleges that the respondent gave birth to the child after a full period of gestation, does not actually mean that the child was born after such a period. The petitioner could, not have known when the child was conceived. By that statement he simply expresses his view, based on the fact that a fairly mature child was born on August 27,1947, though the marriage had taken place on March 10. 46. The fact that the child born to the respondent was a mature baby does not mean that it was conceived on November 20, 1946. We have already indicated that the weight of the child and the surrounding circumstances could only indicate that the child was born after almost the usual period of gestation, though it could not be said that it must have been conceived 280 days earlier. 47. We have already indicated that the weight of the child and the surrounding circumstances could only indicate that the child was born after almost the usual period of gestation, though it could not be said that it must have been conceived 280 days earlier. 47. We, therefore, hold that the petitioner did not have marital intercourse with the respondent after he had discovered that she had been pregnant by someone else at the time of marriage. 48. We have already said that there is no collusion between the parties. The petitioner filed the petition within time. There is no legal ground which would justify refusing the petitioner a decree for declaring the marriage between the parties to be null and void. 49. We, therefore, allow the appeal, set aside the decree of the Court below and annul the marriage between the parties by a decree or a nullity. We direct the parties to bear their own costs throughout. MUDBOLKAR J. -I regret my inability to agree with the judgment proposed by my brother, Raghubar Dayal J. [ ... After stating the facts the judgments proceeds. -] 51. Before us the first point urged by Mr. S. T. Desai appearing for the appe1lallt is that the High Court was in error in 'ordering the recording of fresh evidence. It is indeed surprising that the High Court which has correctly stated the legal position obtaining in divorce petitions, should have, upon it considered view that the evidence already adduced by the appellant was not sufficient to justify a passing of a decree for annulment of marriage, sent down, despite the opposition of Mr. Amin on behalf of the appellant, two issues for recording fresh findings by the City Civil Court after permitting the parties to adduce additional evidence. It may be mentioned that the High Court thought that it was doing so to afford to the respondent, whose whole life was at stake as observed by Patel J., an opportunity to defend her honour and chastity. This question, however, did not really arise, if, in fact, the High Court felt that the appellant ,had not discharged the burden which the law had placed upon him to satisfy the Court beyond doubt that the respondent was pregnant by a person other than himself before the marriage, and that he was not aware of it. This question, however, did not really arise, if, in fact, the High Court felt that the appellant ,had not discharged the burden which the law had placed upon him to satisfy the Court beyond doubt that the respondent was pregnant by a person other than himself before the marriage, and that he was not aware of it. The two issues sent down for retrial by the High Court would seem to suggest that these essential points had been missed by the trial Court. I have quoted in extenso the issues framed by the trial Court, and issues (1), (2) and (5) seem to coyer both the additional issues settled by the High Court. No doubt, the first issue "reads thus : "Whether the respondent at the time of the marriage was pregnant by someone other than the petitioner as alleged in para. 9 of the petition" This itself consists of two parts, the first being whether the respondent was pregnant at the time of the marriage, and the second being whether she was pregnant through a person other than the appellant. The fifth issue is undoubtedly couched in general terms, but it certainly includes the content of the second additional issue. The High Court was itself cognizant of this, because, after reproducing (see judgment of Patel J.) the terms of section 23 (1) it has let out what, according to it, would be the issues which would arise. Section 23 (1) so far as relevant reads as follows: "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 disability for the purpose of such relief, .... (0) the petition is not presented or prosecuted in collusion with the respondent, and (d) there has not been an unnecessary or improper delay in instituting the proceedings, and (e) there is not other legal ground why relief should not be granted, then and in such case, but not otherwise, the Court shall decree such relief accordingly." The issues which would arise, however, would be, as pointed out by Patel J., the following: "(1) Whether the respondent was pregnant at the date of marriage. (2) If she was, whether she was pregnant by someone other than the petitioner. (2) If she was, whether she was pregnant by someone other than the petitioner. (3) Whether the petitioner was at the time of marriage ignorant of the facts alleged. (4.) Whether 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' decree …… That the trial Court was itself aware of this, would be clear from para. 43 of its judgment. It has dealt with the argument of Mr. Shah on behalf of the respondent that the condition precedent laid down in section 12 (2) (b) (iii) was not complied with by 'the appellant. I, therefore, agree with Mr. Desai that the remission of the issues was wholly unjustified and should not have been allowed. The effect of this, however, would be that the entire evidence adduced thereafter including the evidence upon which Mr. Desai has placed such strong reliance before us will have to be completely left out of consideration. 52: No doubt, an appellate Court has the power under section 107 of the Civil Procedure Code to remand a case or to frame issues and refer them for trial, or to take additional evidence or require such evidence to be taken. But the exercise of these powers is regulated by the provisions of Order XLI, rules 23 to 25 and 27. Under rule 23, an appellate Court has the power is remand a case where the suit has been disposed of by the trial Court upon a preliminary point and its decision is reversed by the appellate Court. Rule 24 provides that where the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, it may do so and may proceed wholly upon the ground other than that on which the appellate Court proceeds. For this purpose it can also resettle the issues if it finds it necessary so to do. Rule 24 provides that where the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, it may do so and may proceed wholly upon the ground other than that on which the appellate Court proceeds. For this purpose it can also resettle the issues if it finds it necessary so to do. A power to frame additional issues is conferred by rule 25, which reads as follows: "Where the Court from whose decree the appeal is preferred hall omitted to frame or try any issue or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Courts to take the additional evidence required; and such Court shall proceed to try such issues, and ,ball return the evidence to the Appellate Court together with its findings thereon and the reasons therefor." Rule 27 deals with production of additional evidence in the appellate Court and prescribes the conditions upon which additional evidence can be allowed to be adduced in the appellate Court. 53. Rule 25 circumscribes the powers of the appellate Court to frame an issue and refer the same for trial to the Court below, if need be by taking additional evidence, and permits it to adopt this course only if (a) the trial Court had omitted to frame an issue, (b) try an issue or (c) to determine any question of fact which appears to the appellate Court essential to the right decision of the wit upon the merits. In this case, the High Court has purported to exercise its powers upon the ground that proper issues were not framed by the trial Court. I have already indicated above that the content of the two additional iS8ues framed by the High Court is to be found in three of the issues raised by the City Civil Court. Therefore, there was no scope for the exercise by the High Court of its power under rule 25. No doubt, the High Court has made no. I have already indicated above that the content of the two additional iS8ues framed by the High Court is to be found in three of the issues raised by the City Civil Court. Therefore, there was no scope for the exercise by the High Court of its power under rule 25. No doubt, the High Court has made no. reference to rule 25 when it framed the additional issues and sent them down for a finding; but its action must be referable to rule 25, because that is the provision of law which deals with the question of remitting issues for trial to the trial Court. I may add that in view of the express provisions of this rule the High Court could not have had recourse to inherent powers, because it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. 54. Upon this view it would, therefore, follow that this appeal must be decided only on the basis of the evidence which was before the City Civil Court prior to the interlocutory judgment of the High Court remitting to it two issues for findings, leaving altogether out of consideration the evidence subsequently brought on record by the parties. 55. Before I deal with that evidence, it would be desirable to set out in brief the requirements of the law in a petition of this kind. The appellant" sought annulment of his marriage with the respondent upon the ground that she was pregnant by a person other than himself before the marriage, and that he was not aware of this fact. The law of divorce in India is, broadly speaking, modelled on the law of England. It will, therefore, be useful to refer to the decisions of the Courts in England. In Ginesi V. Ginesi 1, it was said that in matrimonial cases the same strict proof of adultery is required as in criminal cases, and that the matrimonial offence must be proved beyond all reasonable doubt to the satisfaction of the tribunal of fact. This decision was criticised in Gower V. Gower 2. In Ginesi V. Ginesi 1, it was said that in matrimonial cases the same strict proof of adultery is required as in criminal cases, and that the matrimonial offence must be proved beyond all reasonable doubt to the satisfaction of the tribunal of fact. This decision was criticised in Gower V. Gower 2. Ginesi V. Ginesi was actually followed in Fairman V. Fairman 3, where it was observed that when a witness gives evidence in matrimonial proceedings that he or she has committed adultery with a party to those proceedings, that evidence must be treated with the same circumspection as the evidence of an accomplice in a criminal case. 56. The view taken in Ginesi's case has also been accepted in Preston -Jones V. Preston -Jones 4 and Galler V. Galler 5. In the first of these two cases, which is a decision of the House of Lords, it was established by evidence that during the period between 186 and 360 days before the birth of the child to the wife the husband had been continuously absent abroad and that there had been an opportunity for intercourse between them. The child was normally delivered, and appeared a normal, healthy and full• time child. It w 8contended on behalf of the husband that in these circumstances the child must be deemed to have been born of adulterous intercourse by the wife with someone else. With the exception of Lord Oaksey, the view of the House of Lords was that the onus of proof on the husband in a case of this kind did not extend to establishing the scientific impossibility of his being the father of the child. Lord Simonds, Lord Oaksey and Lord MacDermott were of the view that in the case of an interval of 360 days between intercourse with her husband and the birth of child the Court cannot in the absence of further evidence, regard adultery by the wife as established. Lord Normand was dubitante, and Lord Morton of Henryton dissented from this view. In the course of his speech, Lord Simonds observed (p. 400): …….. The result of a finding of adultery in such a cue us this is in effect to bastardize the child. That is a matter in which from time out of mind strict proof has been required. In the course of his speech, Lord Simonds observed (p. 400): …….. The result of a finding of adultery in such a cue us this is in effect to bastardize the child. That is a matter in which from time out of mind strict proof has been required. But that does not mean that a degree of proof is demanded such as in a scientific inquiry would justify the conclusion that such and such an event is impossible. In this context at -doubt no higher proof of a fact is demanded than that it is established beyond all reasonable doubt: see Head V. Head 6…….. The utmost that a Court of law can demand is that it should be established beyond all reasonable doubt that a child conceived so many dare after a particular coitus cannot be the result of that coitus." He then added that since writing his opinion he had had the advantage of reading that of Lord MacDermott and he concurred in what Lord MacDermott. 57. It would be convenient now to refer to the observations of Lord MacDermott. At page 417 of the Report are his relevant observations: “The evidence must, no doubt, be clear and satisfactory, beyond a mere balance of probabilities, and conclusive in the sense that it will satisfy what Lord Stowell, when, Sir William Scott, described in Lowden V. Loveden 7, as the guarded discretion of a reasonable and just man'; but these desiderata appear to me entirely consistent with the acceptance of proof beyond reasonable doubt as the standard required …. I am unable to subscribe to the view which, though not propounded here, has had its adherents, namely, that ion its true construction the word 'satisfied' is capable of connoting something less than proof beyond reasonable doubt. The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict inquiry. The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict inquiry. The terms of the statute recognized this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the Court might be 'satisfied', in respect of a ground for dissolution, with something less than proof beyond reasonable doubt," After saying that he did not base his conclusion as to the appropriate standard of proof on any analogy drawn from criminal law since the two jurisdictions are distinct, he observed: "……. The true reason, as it seems to me, why both accept the same general standard proof beyond reasonable doubt -lies not in any analogy, but in the gravity and public importance of the issues with which each is concerned." Lord Oaksey, after pointing out that the only thing suggested against the wife was that her child was born 360 days after her husband had access to her, observed (p. 409): “……….. In such circumstances the law, as I understand it, has always been that the onus upon the husband in a divorce petition for adultery is as heavy as the onus which rests upon the prosecution in criminal cases. That onus is generally described as being a duty to prove guilt beyond reasonable doubt but what is reasonable doubt is always difficult to decide and varies in practice according to the nature of the case and the punishment which may be awarded. The principle upon which this rule of proof depends is that it is better that many criminals should be acquitted than that one innocent person should be convicted. But the onus in such a case as the present is not founded solely upon such considerations but upon the interest of the child and the interest of the State in matters of legitimacy, since the decision involves not only the wife's chastity and status but in effect the legitimacy of her child." 58. One of the decisions relied upon before the House of Lords was Gaskill V. Gaskill 8 in which the birth of the child had taken place after an interval of 331 days between it and the coitus with the husband. One of the decisions relied upon before the House of Lords was Gaskill V. Gaskill 8 in which the birth of the child had taken place after an interval of 331 days between it and the coitus with the husband. Lord Birkenhead, L. ., who tried the case sitting as a Judgment of first instance, said, in regard to the wife (p. 434:): ………. I can only find her guilty if I come to the conclusion that it is impossible, having regard to the present state of medical knowledge and belief, that the petitioner can be the father of the child. The expert evidence renders it manifest that there is no such impossibility. In these circumstances I accept the evidence of the respondent, and find that she has not committed adultery, and accordingly I dismiss the petition." Referring to this decision Lord Morton of Henryton observed in Preston -Jones V. Preston -Jones (p. 415): "My Lords in the case of Gaskill V. Gaskill the birth was far from being a normal one, but. I think that Lord Birkenhead placed too heavy a burden of proof upon the husband. It is not the law to -day, in my view, and with all respect to Lord Birkenhead I do not think it wall the law in 1921, that a husband is bound to prove that he cannot possibly be the father of the child; and I do not think that the case of Morris V. Davies 9 cited by Lord Birkenhead, established the strict rule which he laid down. He then referred to Wood V. Wood 10, in which the interval was 346 days and Hadlum V. Hadlum 11, where the interval was 349 days, and observed: "But I think that the case of Gaskill Wood and Handlum put an unwarranted and increasing burden upon a husband who seeks to prove his wife's adultery." On the other hand, he expressed his agreement with the view of Ormerod, J., in M.P. V. M.P. and the Official Solicitor 12, where the interval was 340 days, and acting upon the medical evidence to the effect that the husband could not have been the father of the child, the learned Judge without saying anything about the burden of proof granted a decree to the husband. 59. 59. In Galler V. Galler, Hodson L. J. has observed (p.540): "I have used the language which I have, because, since Fairman V. Fairman, was decided, the much debated question whether the standard of proof in a divorce suit. which is a kind of civil action, is the same as that in a criminal case, and whether the case rules apply, has been considered by the House of Lords in Preston -Jones V. Preston -Jones", and has quoted with the approval the opinions expressed by Lord. Simonds and Lord MacDermott. He then observed: "It might appear from the passages which I have read from the judgment in Fairman V. Fairman that the analogy of criminal law was the ratio of that decision, but I think the result is the same by whichever road one travels. In divorce, as in crime, the Court has to be satisfied beyond reasonable doubt." A similar view has been expressed by Sir Lallubhai Shah, Ag. C. J. in Over V. Over 13. The learned Judge has said (p. 256): "……. I desire to make it clear that in divorce cases great care and caution are necessary in dealing with the admissions of parties and it is only the exceptional circumstances of a given case that could justify the Court in acting upon the admissions of a party as to adultery without any corroboration. Generally speaking as a matter of prudence it is desirable to insist upon evidence corroborative of the admissions". Martin J. has observed in the same case (p. 259): "…….No doubt section 45 provides that -Subject to the provision herein contained, all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure. But that provision, in my opinion, does not override the express directions in Sections 7, 12, 13 and 14 to which I have already alluded." (The provisions referred to are those of the Indian Divorce Act, 1869). 60. Indeed, in White V. White 14, which was a case under the Indian Divorce Act, 1869, this Court has held that the words "satisfied on the evidence" in section 14 of the Act implied that it is the duty of the Court to pronounce a decree only when it is satisfied that the case has been proved beyond reasonable doubt as to the commission of a matrimonial offence. After pointing out that the evidence must be clear and satisfactory beyond the mere balance of probabilities, this Court has said that the rule laid down in Preston -Jones V. Presto. Jones should be followed by the Court while dealing in the cases under section 7 of the Indian Divorce Act, 1869. Section 23 (1) of the Hindu Marriage Act, 1955, which deals with the powers of the Court in a proceeding under the Act also provides that the Court shall decree the relief claimed by the petitioner, whether the petition is defended or not, if the Court is satisfied that any of the grounds for granting relief exists and certain other conditions are satisfied. Thus, under the Indian Divorce Act, 1869, as well as under the Hindu Marriage Act, the condition for the grant of a relief is the satisfaction of the Court as to the existence of the grounds for granting the particular relief. The satisfaction must necessarily be founded upon material which is relevant for the consideration of the Court, and this would include the evidence adduced in the case. Therefore, though in the former Act the words used are "satisfied on the evidence" and the Legislature has said in the latter Act "if the Court is satisfied", the meaning is the same. In my judgment, what the Court has said in White’s case about the applicability of the rule in Preston -Jones V. Preston -Jones, must also apply to a case under the Hindu Marriage Act. [After considering the evidence tendered at the trial the judgment proceeds") 61. Such was the material before the City Civil Court at the conclusion of the trial and before the High Court when it first heard the appeal. This material is insufficient for discharging the burden placed on the petitioner by section 23 of the Act. On the basis of this material, no Court could reasonably come to a finding that the respondent was pregnant at the time of her marriage and that, therefore, the appellant was entitled to the annulment of the marriage. As already pointed out by me, this is what the High Court itself felt, and having formed this view, it 'IS a matter of surprise to me that the High Court should have proceeded to frame additional issues and send them down for findings to the City Civil Court. As already pointed out by me, this is what the High Court itself felt, and having formed this view, it 'IS a matter of surprise to me that the High Court should have proceeded to frame additional issues and send them down for findings to the City Civil Court. The only thing the High Court could properly do was to allow the appeal and dismiss the appellant's petition for annulment of the marriage. Now, the High Court has, after receipt to the additional evidence and the fresh findings of the City Civil Court accepted one of those findings and dismissed the appellant's petition. If, therefore, I am right in my view that the letting in of the additional evidence for which the appellant had not even asked, was not permissible by law, then upon my view that the evidence originally adduced in the proceedings is inadequate for the purpose of granting the relied under section 23 of the Act, the appeal must be dismissed. I would accordingly dismi88 it with costs in this Court, and direct that the appellant shall pay the respondent/a costs in the High Court as well as in the City Civil Court. 62. This really ends the matter, but as my learned brother Raghubar Dayal J., has considered the medical and. other evidence in great detail, I should at least make a brief reference to it, even though, in my view, it has been illegally admitted. [After considering this evidence the judgment proceeds…... -] 63. All that I would say is that the medical evidence adduced in this case for establishing that the respondent had conceived before the marriage can in no sense be regarded as of a definite or conclusive nature. Indeed, in the case of Clark V. Clark 15, if the husband was assumed to be the father, the pregnancy could not have exceeded 174 days, and that child which was born, was alive at the hearing and was three years old. The medical evidence was to the effect that a child of so short a period of foetal life would not survive for more than a day or two. At the fame time the medical witnesses agreed that only rarely could the date of conception be fixed, and that the periods of gestation generally spoken of were notional periods. The medical evidence was to the effect that a child of so short a period of foetal life would not survive for more than a day or two. At the fame time the medical witnesses agreed that only rarely could the date of conception be fixed, and that the periods of gestation generally spoken of were notional periods. There was no evidence of misconduct on the part of the wife, and the only evidence of adultery was the fact of the birth of a child the period of gestation of which could not have exceeded 174 days. The Court held that the husband had not discharged the burden of proof in respect of the adultery and that it was sufficiently proved that the child was conceived in wedlock. It was further held that "where the date of conception can be fixed, and the actual period of gestation is ascertained, this ascertained period is comparable to the longer notional period, and for this reason what is in fact a six months child may be comparable to what is called a seven months child." 64. To sum up, the substance of the medical evidence led on behalf of the appellant is that the normal period of gestation of a child is 280 days, that child born 180 days after the last menstruation is not likely to be born alive or if born alive it will survive only if special care is taken, that such a case would not be that of normal delivery and its weight would be 1½ to 2 lbs. With the aid of the evidence of Madbuben the appellant bas sought to establish that the delivery was a normal one that the respondent appeared to have delivered at full term and the child born was a normal one. He has further sought to prove with the aid of the hospital papers that the child weighed four lbs. or so and was found to be a normal one. Madhuben's evidence has been rejected by both Courts of fact and for very good reasons. The hospital papers cannot be relied upon in the absence of the white paper. Besides, a look at the hospital records would suggest that entries therein were made in a casual manner regardless of actualities. Thus all that we are left with is the evidence of the experts and the case records in test books. The hospital papers cannot be relied upon in the absence of the white paper. Besides, a look at the hospital records would suggest that entries therein were made in a casual manner regardless of actualities. Thus all that we are left with is the evidence of the experts and the case records in test books. There is no unanimity amongst the three expert and even the text books refer to abnormal cases. Bearing in mind that the normal period of gestation evolved by the obstetricians is a generalisation deduced from particulars it cannot be regarded as an inflexible law of nature from which there can be no deviation. Indeed, reputed obstetricians have recorded cases where the period of gestation was found to be shorter in cases of mothers whose menstrual cycles were of three weeks. Again where toxaemia of pregnancy if found to be considerable the development of a child in the womb has been found to take place more rapidly than in normal pregnancies. There may be conceivably other factors contributing to the shortening of the period of gestation and a more rapid development of a child in the womb than that which medical science has so far been able to notice. In these circumstances it would not be reasonably safe to base a conclusion as to the illegitimacy of a child and unchastity of its mother solely on the assumption that because 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. 65. Thus, even if the additional evidence is taken into consideration, the appellant stands on no stronger grounds. 66. It has also to be remembered that on the question as to whether the respondent was pregnant before her marriage not only the High Court but also the City Civil Court has come to the conclusion that she was not. We have thus concurrent findings of fact on this crucial question. It is settled law that this Court does not interfere with such a finding merely on the ground that another view of the evidence adduced in the case commends itself to this Court. The appeal has come before us by certificate granted by the High Court under Article 133 (1) (b) of the Constitution. It is settled law that this Court does not interfere with such a finding merely on the ground that another view of the evidence adduced in the case commends itself to this Court. The appeal has come before us by certificate granted by the High Court under Article 133 (1) (b) of the Constitution. One of the requirements of clause (1) of Article 133 is that in a case other than the one referred to in sub -clause (c) the appeal must involve a substantial question of law where the judgment appealed from affirmed the decision of the Court immediately below. No doubt, strictly speaking, the judgment of the High Court cannot be regarded as judgment of affirmance of the City Civil Court because initially the City Civil Court had granted a decree for annulment of marriage to the appellant. Substantially, however, the decree of the High Court must be regarded as one of affirmance if we take into consideration the fact the High Court had affirmed the finding rendered by the City Civil Court on the additional issue framed by the High Court in regard to the question whether the respondent was pregnant at the time of the marriage. No doubt, technically, the High Court's decision is not one of affirmance because it has reversed the decree of the City Civil Court. But we must have regard to the substance of the matter. It is true that the City Civil Court has originally granted decree but the basis of that decree disappeared after it gave a contrary finding to the one rendered by it earlier on the crucial fact concerning the respondent's pregnancy before her marriage. The High Court having accepted that finding there can be no escape from the position that we have here a cue where upon the crucial question of fact, there are concurrent findings. Unless it is shown that a concurrent finding is vitiated by an error of law or procedure or unless it is shown that important or relevant evidence has been overlooked or misconstrued it would not be in consonance with the practice of this Court to re -examine that finding, particularly when, as here, the findings are based upon an appreciation of evidence. The Privy Council firmly adhered to this rule and this Court has accepted the Privy Council's practice in this regard. The Privy Council firmly adhered to this rule and this Court has accepted the Privy Council's practice in this regard. There are numerous decisions on the point but I may refer only to the following as instances of cases in which this Court has refused to disturb concurrent findings of fact: Narayan Bhagwantrao Gosavi Balajiwale V. Gopal Vinayak Gosavi 16; Gherulal Parakh V. Mahadeodas 17; Bkinka V. Charan Singh 18 and Shamrao V. Dominion of India 19. No case has been brought to our notice in which this Court or the Privy Council has re -appreciated evidence in an appeal by special leave or disturbed a pure finding of fact concurrently made by the Courts below. To do so now would be to ignore all precedents. 67. As already held by me the appeal must be dismissed with costs. ORDER In accordance with the opinion of the majority, the appeal is allowed. The parties will bear their own costs throughout. Appeal allowed.