JUDGMENT 1. THE decision of this appeal by a Hindu wife, sm. Rani Bala Debnath, turns on a correct answer to the question formulated below: when Ram Krishna Debnath, also a Hindu and now respondent, marries rani Bala, now appellant, believing her to be a chaste virgin, and afterwards finds her to be a girl deflowered, if that, may such marriage, duly solemnized, be annulled by a decree of nullity under section 12, subsection 1, clause (c) of the Hindu Marriage Act 25 of 1955 ? 2. THE trial judge answers the question in the affirmative and annuls the marriage by a decree of nullity, on the petition dated January 13, 1965, to that end by the husband Ram krishna. Hence this appeal by Rani Bala. The Hindu Marriage Act 25 of 1955 came into force on May 18, 1955. And the relevant section, just mentioned, reads, in so far as it is material here : 12. Voidable marriages. (1) 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 : * * * (c) that the consent of the petitioner. . . . was obtained by. . . . . fraud. 3. RAM Krishna, now respondent, was twenty-seven years, and rani Bala, now appellant, was twenty years of age or thereabouts, when they were married on December 12, 1964. At an early stage during the carriage of the present matrimonial proceedings in the court of first instance, a controversy arose about the age of rani Bala who was sued as a minor, represented by her father. But the controversy was resolved in favour of rani Hala whom the judge, by order no. 15 bearing date July 15, 1965, found to be an adult, upon evidence led on her behalf: her own and her father's-evidence which was considered "worthy of reliance. " Such finding means that, born in 1945, Rani Bala was about twenty years of age on December 12, 1964. This has little importance now, save that, Ranibala having completed the age of more than eighteen years on the date of her marriage, the consent of her father was not required for such marriage: section 5, clause (vi), read with section 13, subsection 1, clause (c), of the Act. This has little importance now, save that, Ranibala having completed the age of more than eighteen years on the date of her marriage, the consent of her father was not required for such marriage: section 5, clause (vi), read with section 13, subsection 1, clause (c), of the Act. Hence, in reproducing the latter provision (paragraph 3), the portion touching consent of the guardian has been omitted. 4. NOW to the question this judgment opens with-a question on the true determination of which hang the fortunes of this painful litigation between two very humble fellow-citizens of ours. It will be noticed, a question as this falls into two parts. The first part is factual : can ante-nuptial loss of virginity on the part of Rani Bala be found as a fact upon the whole of the evidence and pleadings ? The second part is in the realm of law : can concealed unchastity of hers constitute fraud within the meaning of section 12, subsection 1, clause (c), of the Act and vitiate her marriage with ram Krishna ? We proceed to consider these two aspects one after another. To the first aspect first. The respondent Ram Krishna, who examines himself as the fifth witness of his own, and Abinash, his first witness, are brothers. Ram Krishna is the younger of the two. But how much younger ? abinash is 33 - the age he gives in court on solemn affirmation as a witness. Ram Krishna is 22-the age he gives in court on solemn affirmation. The date he gives his age so is March 21, 1966, when he examined himself as a witness at the trial. Is Ram Krishna then younger than Abinash by eleven years? no; that cannot be. Because, in the very first paragraph of his petition bearing date January 18, 1965, for a decree of nullity, he affirms, such affiirmation being true to his knowledge, that he was "a bachelor aged about 27 years" on December 12, 1964, when he "was married in fact, though not in law," to Rani Bala. Now, twenty-seven years of age on December 12, 1964, he could not have been, sure enough, twenty two on March 21, 1966, when he gave evidence in court. Not that anything hinges on it. Nothing much. It only shows the humble rank such a one comes of, completely unmindful of his own age. 5. Now, twenty-seven years of age on December 12, 1964, he could not have been, sure enough, twenty two on March 21, 1966, when he gave evidence in court. Not that anything hinges on it. Nothing much. It only shows the humble rank such a one comes of, completely unmindful of his own age. 5. MORE is yet to come. The two brothers, Abinash and Ram Krishna, are pedlars. Abinash peddles bread at dharamtola in the very heart of the town of Calcutta. Ram Krishna peddles as a greengrocer at Sarsuna, far into the south-western outskirts thereof. And it is here at Sarsuna, both the brothers live separately from one another, each in a house of his own,. Ram krishna is modest enough to admit that the house he has is a small one and that his income is Rs. 20 to Rs. 30 a month. More, Abinash has, and Ram Krishna has not, a grocery. Such is the: introduction of two brothers, of whom abinash, the elder one, appears to be much better off than Ram Krishna, the younger one, who is apt to strike a prudent man, upon the whole of the evidence, as simple to a degree, if not a simpleton. 6. IF Ram Krishna somehow signs his name in Bengali in full at the foot of his deposition in court, so does Rani bala, her handwriting looking a little better. "slightly literate," she read up to Class III or IV,-just the evidence she opens her cross-examination with. She is the first witness for herself. The next witness for her-and the last one too-is her father Rajani Mohan Nath. Illiterate, he is an humble employee in the "loco-shed", presumably of the railways, on Rs. 80 a month. Having thus come to know the parties and their important relations, we now turn to evidence on breach of rani Bala's chastity before marriage. Solemnization of the marriage ever on december 12, 1964, Rani Bala, as usual, came to her matrimonial home and started living there. While so living, this is what had happened, according to abinesh's evidence in chief: "ram Krishna informed my wife that the respondent (Rani Bala) had illicit intimacy with a Hindusthani named Ramprosad Hela and one Tarak nath Banerjea. My wife reported it to me. While so living, this is what had happened, according to abinesh's evidence in chief: "ram Krishna informed my wife that the respondent (Rani Bala) had illicit intimacy with a Hindusthani named Ramprosad Hela and one Tarak nath Banerjea. My wife reported it to me. I could not believe my wife and so with my wife I took the respondent (Rani Bala) to N. R. S. Hospital. "-an abbreviation for Nil Ratan Sarkar Hospital, formerly known as Campbell Hospital. 7. HOW far can such evidence go? not very. Ram Krishna reports to his sister-in-law who, in turn, reports to her husband, Abinash. The sister-in-law, abinash's wife, is not examined. But the truth of what she had, in fact, reported to her husband Abinash is very much at issue here, not merely the fact that she had made a statement, quite apart from its truth. It is clearly, therefore, hearsay and inadmissible. Indeed, in the case of (1) Subraniam v. Public prosecutor, (1956) 1 WLR 965 (970), the judicial Committee of the Privy council, Lord Radcliffe, Lord Tucker, and mr. L. M. D. De Silva being members of the Board, expressed its opinion so: "evidence of a statement made to a witness by a person who is not himself called as a witness (just as Abinash's wife is not) may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement (as here). It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement but the fact that it was made. " Certainly, it is not proposed to establish by the evidence of Abinash, not the truth of the statement his wife made to him, but the fact that it was made. On the contrary, it is proposed to establish by such evidence the truth of what his wife had reported to him. 8. THE passage from the opinion of the Judicial Committee of the Privy council, that is being quoted, concludes: "the fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness. . . . . . in whose presence it was made. " Does Abinash's evidence reproduced. THE passage from the opinion of the Judicial Committee of the Privy council, that is being quoted, concludes: "the fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness. . . . . . in whose presence it was made. " Does Abinash's evidence reproduced. above (paragraph 9) pass this test and lift itself above hearsay ? Ram Krishna who "did not hear about Rani Bala's scandal from any outside source", as he says on cross-examination, but from rani Bala direct, as he says in chief, told Abinash's wife, going by Abinash's evidence, that Rani bala had "illicit intimacy" with two named persons: Ramprosad and Tarak nath. And his wife reported that to him. What did he (Abinash) do on having bean reported so? Why, he could not bring himself to believe it. So, with his wife- and Rani Bala, he made a beeline for the Nil Ratan Sarkar Hospital, for having Rani Bala examined. What would the doctors over there in the gynaecological department do ? whatever the method they could resort to, they would not be able to find out Rani bala's "illicit intimacy" with two named persons on January 6, 1965, when she was taken there, as is evident from the ticket for out-door patients, bearing that date, exhibit 1, and by when, it is ordinarily to be expected, she had lived in the matrimonial home with her husband far some twenty-three or twenty-four days from December 13, 1964, to january 6, 1965. So, on the evidence of Abinash, as it stands, the mental state and conduct of his, in rushing Rani bala to the hospital, seem to be a misfit with what he was told by his wife on the basts of what she, in turn, was told by Ram Krishna: Rani Bala's "illicit intimacy" with Ramprosad and Tarak nath. Even one like Abinash, thirty-three years of age on March 21, 1966, though a pedlar but a grocer too, can perhaps be credited with this little of knowledge that no manner of medical examination can detect "illicit intimacy" of a woman before marriage, and that too a little less than a month after the marriage, during which period she has been living with her husband. Let it not be lost sight of that all that Abinash speaks of, on the basis of hearsay of the third degree-Rani bala to Ram Krishna, Ram Krishna to abinash's wife, and Abinash's wife to abinash-, is "illicit intimacy" of Rani bala with two named persons: Ramprosad and Tarak Nath. He does not speak a word about Rani Bala's pregnancy, parturition or abortion, and all that. More, he is definite,-and says so, on cross-examination, -that he did not hear about the unchastity of Rani bala from Ram Krishna direct, but that he heard all about it from his wife. 9. THOUGH in this three-ply communication-Rani Bala to her husband ram Krishna, Ram Krishna to his brother Abinash's wife, and Abinash's wife to Abinash-one ply, namely, the evidence of Abinash's wife is missng, two other plies are there: the evidence of Abinash and the evidence of Ram krishna. What the evidence of Abinash is like has been noticed. The evidence of Ram Krishna, just touched an the fringe, be noticed now in full. 10. TWO or three days after the marriage, that is to say, on December 14 or 15, 1964, Rani Bala's conduct attracted the suspicion of her husband ram Krishna. So says Ram Krishna in. chief, using the Bengali word "habbhab", pertaining to the doings of his wife, two or three days after the marriage. The trial judge translates the Bengali word as "movement". We translate the word as "conduct". No matter what the correct rendering is, what is it that drew the suspicion of Ram Krishna? Let this question be answered in his words, as translated and recorded by the trial judge: "she always spoke about her Father's family and was in temper. " that a girl, twenty years of age, and new-married, would speak often of her father's family in her new surroundings has little in it to rivet one's suspicion upon. Much too much must not be made of "always", a stimulating adverb one of Ram Krishna's type is apparently addicted to, when speaking about his wife he wants to get rid of. Presumably, he too means no more than this: that Rani bala used to speak often about his father's family-quite a natural thing for her to do, so soon after marriage, and in her new home. At any rate, what was there to be suspicious about ? nothing. Presumably, he too means no more than this: that Rani bala used to speak often about his father's family-quite a natural thing for her to do, so soon after marriage, and in her new home. At any rate, what was there to be suspicious about ? nothing. What was needed was a little sympathy to make Rani Bala, cut off from her twenty years' association with her parents and all, feel herself at home, in her new home. And such sympathy is not the monopoly of the bourgeois only ; it permeates the proletariat too, the traits of love, affection and hatred being the same amongst the high-born and the low-born. Thus, Ram Krishna's evidence that such nostalgia, given vent to by Rani Bala, so soon after marriage, drew his suspicion, even though Ram krishna, twenty-seven years of age, is a pedlar as a greengrocer, draws largely on our belief. Then Rani Bala was in temper, as Ram Krishna found only two or three days after marriage. This is all the type of conduct Ram Krishna complains of. Such irascibility on the part of a wife, fresh in her matrimonial home, might provoke irascibility in her partner. That is all. But suspicion? Not in the least probable. 11. TO run on with Ram Krishna's version, he enquired of Rani Bala "why she was doing that," why she was behaving herself so. And at once she replied: 'i gave birth to a child. I am not in a proper frame of mind and temper. ' Rani Bala gave birth to a child two to three months before marriage, as ram Krishna says earlier in chief, though he does not include such a statement in the confession he foists upon rani Bala. Here again is a version which in itself draws largely on our belief. It is a version which, to put it on a very low side, does not "carry a reasonable degree of probability," to quote the expression used by Lord denning in (2) Miller v. Minister of pension, (1947) 2 All. ER 372: (1947)63 TLR 474, demonstrating the difference between the degree of cogency required to discharge a burden in a criminal case and the degree of cogency required to discharge a burden in a civil case. Let us guard ourselves against being misunderstood. ER 372: (1947)63 TLR 474, demonstrating the difference between the degree of cogency required to discharge a burden in a criminal case and the degree of cogency required to discharge a burden in a civil case. Let us guard ourselves against being misunderstood. We do not say, Rani Bala having blurted out so, as Ram Krishna says she did is impossible. We do not, because nothing is impossible on a matter as this. No two human minds are alike. There are girls and girls. The vast majority of them will do all they can not to hide from their husbands the gadding about they had indulged in before marriage. One or two, affected by neurosis or much too conscience smitten, may not. So, such outburst by Rani bala, confessing to her husband that she had given birth to a child, before marriage, leaves only a remote possibility in favour of Ram Krishna's version. To that, the answar is, to quote Lord denning again from (2) the Miller case, in one sentence : "of course it is possible, but not in the least probable. " Indeed, upon the whole of the evidence, including rani Bala's denial, to which we are coming soon enough, we think such confession Ram Krishna attributes to rani Bala far more improbable than probable. 12. TO such improbability -and so great an improbability- assurance is lent by what Ram Krishna himself says in chief, after the concession he seeks to fasten Rani Bala with : "i reported the i'act (Rani Bala's confession) to Bowdi (Abinash's wife). I told my Bowdi that I would not live with Rani Bala as husband and wife. My Bowdi and elder brother thereafter took Rani Bala to Campball Hospital (same as Nil Ratan Sarkar Hospital, its present name : paragraph 9). Rani Bala was taken to hospital on (the) 6th december 1964. I was married on (the)26th Agrahayana 1371 B. S. Rani Bala was taken to the hospital one day after the marriage. She was taken to the hospital twice. I did not live with Rani bala as husband and wife after I came to know about the character of Rani bala," from Rani Bala herself, not "from any outside source", as Ram Krishna makes it clear, on cross-examination. She was taken to the hospital twice. I did not live with Rani bala as husband and wife after I came to know about the character of Rani bala," from Rani Bala herself, not "from any outside source", as Ram Krishna makes it clear, on cross-examination. Very various incongruities -and so damaging they are - meet the eye, in the excerpt quoted above from ram Krishna's testimony, when considered in the light of the whole of the materials we see before us : evidence as much as pleadings. Here are they : 13. ONE, all that Ram Krishna reported to his sister-in-law (Bowdi), that is, Abinash's wife, is that Rani Bala had confessed to having given birth to a child, before marriage, for which she was not in calms. He did not report anything else. How is it then that abinash's wife reported to Abinash, as abinash says she did, that Rani Bala had "illicit intimacy" with a Hindusthani named Ramprosad Hela and a Bengali named Tarak Nath Banerjea, and that too on the basis of what Ram Krishna had told her ? Be it remembered, Ram krishna does not say, either in the extract quoted or anywhere else, in his evidence, that he told his sister-in-law anything about 'illicit intimacy" between his wife Rani Bala and two such named persons. Indeed, how could he have said so to his sister-in-law when his wife, the only source of his information, there having been no "outside source", as his own admission is, had not told him so : illicit intimacy with two named persons. No doubt, pre-nuptial childbirth, Rani Bala is said to have confessed, must have been the result of illicit intimacy with one of the opposite sex. But to confess to the husband "i gave birth to a child before marriage" is one thing. And to say : "i was in illicit intimacy with two named persons" is quite another. That is v/hat is being tested now. By such test, what ram Krishna says he posted his sister-in-law with, and what Abinash says his wife, that is, Ram Krishna's sister-in-law, posted him with, on the foot of what ram Krishna had told her, defy reconciliation. Both cannot stand together. 14. TWO, appearances are very much in favour of Rani Bala's illicit intimacy with two named persons, ramprosad and Tarak Nath having been a subsequent invention. Both cannot stand together. 14. TWO, appearances are very much in favour of Rani Bala's illicit intimacy with two named persons, ramprosad and Tarak Nath having been a subsequent invention. If Abinash is to be believed, Ram Krishna said so to abinash's wife a little earlier than january 6, 1965, if not right on January 6. That being so, it looks somewhat odd to a degree that the second paragraph of Ram Krishna's pleading : his petition dated January 13, 1985, bears only this : "2. That the Respondent had illicit sexual connexions with two young persons of the neighbourhood of her father's house as a result of which she became pregnant about 8 months before the date of the said pretended marriage." If the names of these two young persons were known on or before january 6, 1285, as Ramprosad Hela and tarak Nath Eanerjea, as Abinash says on oath they were, why have such names been withheld from the pleading of January 18, 1985 ? To plead so is not to plead evidence, but to "state as distinctly as the nature of the case permits the facts on which the claim to relief is founded", just what section 20, subsection 1, of the Hindu Marriage Act, 25 of 1955, enjoins. The nature of Ram krishna's case is pre-marital unchastity of his wife Rani Bala, and that too with two young men whose names he, Abinash and Abinash's wife knew even on or about January 6, 1965, going by what abinash says. Certainly such a case permits it to be stated very distinctly that Rani Bala's breach of chastity before marriage was because of her illicit intimacy with Ramprosad Hela and Tarak Nath Banerjea, the names already known some twelve days before the filing of the pleading in court. Yet all that is pleaded is her illicit connexions with two young men of the locality. To plead so is not to state facts distinctly, far less as distinctly as the nature of the case permits. To plead so is to state facts indistinctly, reference to two young men of the neighbourhood, even though their names are supposed to have been known from before, being a specimen, in itself, of what an indistinct statement of facts is and what a distinct statement of facts is not. To plead so is to state facts indistinctly, reference to two young men of the neighbourhood, even though their names are supposed to have been known from before, being a specimen, in itself, of what an indistinct statement of facts is and what a distinct statement of facts is not. In all probability, therefore, these two names, Ramprcsad and Tarak nath, could not have been decided upon even on January 18, 1965. Three, such an avernment in paragraph 2 of Ram Krishna's pleading is true to his knowledge, as the verification at the foot thereof says. How that can be completely beats us. If he had knowledge about Rani Bala's loss of virginity, illicit intimacy with two named persons, or pregnancy, before marriage, then certainly he would not have taken her as his wife. That apart, in his substantive evidence, Ram krishna does not even utter the names of Ramprosad and Tarak Nath. He does not, because Rani Bala, in the confession attributed to her, does not name them either. And this has been Ram krishna's only source of information, not knowledge. It was left to Abinash to bring out the names of these two persons for the first time from the witness-box on March 21, 1966 - the date he was giving evidence in court, and that too on the basis of information imparted to him by his wife who, it is said, had got it from Ram Krishna, Ram krishna however saying not a word about it. The less said about it, the better. A poor specimen, such evidence stands self-condemned. 15. FOUR, when did Rani Bala confess so ? Two or three days after marriage, that is, on December 14 or 15, 1964, as Ram Krishna says once; on or about December 6, 1964, when Rani Bala was taken to hospital, as Ram Krishna says another time. But the spouses were married on December 12, 1954. So, december 6, 1984, it could not be. Yet, the type Ram Krishna is, be remembered. One who peddles as a greengrocer, he was presumably "drilled" to say : January 6, 1965. "drilling" perhaps failed him, while in the witness-box, and he said instead : December 6, 1934, leave it alone, coming as it does from a witness of his type. Yet, the type Ram Krishna is, be remembered. One who peddles as a greengrocer, he was presumably "drilled" to say : January 6, 1965. "drilling" perhaps failed him, while in the witness-box, and he said instead : December 6, 1934, leave it alone, coming as it does from a witness of his type. But of the Bengali date of his marriage : Agrahayana 26, 1371 B. S., corresponding to December 12, 1964, he is sure. That is so natural for such a one. Let this part of his evidence be accepted, worthy as it is of acceptance. But, we ask ourselves again, when did Rani Bala make the confession, Ram Krishna says she did ? she must have made the confession before she was taken to Nil Ratan Sarkar hospital - the first hospital she was taken to for examination, with a view to confirming the suspicion. And when was she taken there ? Ram Krishna answers in chief : "rani Bala was taken to the hospital one day after the marriage. " That is to say, on Agrahayana 27, 1371 B. S., corresponding to December 13, 1964. So, the confession was made earlier than that, but on the same day. Certainly such confession was not made on the very day of the marriage : december 12, 1964. But, on Ram krishna's own evidence, she made the confession, he says she did, on December 14 or 15, 1964. 16. FIVE, what goes in the preceding paragraph may in itself be a trifle, coming as it does from one Ike Ram krishna. But when it is considered with what more Ram Krishna says, as also his brother Abinash, the absurdity of the whole thing looks apparent. For example, ram Krishna says, he did not live with Rani Bala as husband and wife, after he came to know about her character, implying in the context that they did not live so for a single day. Now, if Rani Bala had confessed, as ram Krishna says she did, on the very first day in her matrimonial home, that is to say. on December 13, 1964, that may well be true. The couple did not then live as husband and wife for a single day. But two considerations stand in the way of such a favourable view for Ram Krishna. on December 13, 1964, that may well be true. The couple did not then live as husband and wife for a single day. But two considerations stand in the way of such a favourable view for Ram Krishna. First : as Abinash says as the hospital ticket of the nil Ratan Sarkar Hospital, exhibit 1, shows, Rani Bala was taken there for the first time on January 6, 1965. The probability, therefore, is that Rani bala made no confession either one day after marriage (December 13, 1964) or two to three days thereafter (December 14 or 15, 1964). She made the confession, if at all, on or about january 6, 1965. Second : such probability is rendered into a certainty by what Ram Krishna himself says on cross-examination : "rani Bala admitted her guilt on (the) 5th January 1965. There was great unhappiness (Ashanti) over this." with this be considered what Ram krishna says in chief : "i did not live with Rani Bala as husband and wife after I came to know about the character of Rani Bala. " He came to know that, as he says on cross-examination, on January 5, 1965. So, from January 5, 1965, he did not live with Rani Bala as husband and wife, as his own evidence comes to. But what about prior to that : december 13, 1964 or thereabouts to January 4, 1965-a period of twenty-two days? is it to be believed that a young man of twenty-seven years of age, Ram krishna, and a young woman of twenty years of age, Rani Bala, newly married, lived together in the same house, a small house of Ram Krishna's own, for some twenty-two days, but not as husband and wife ? Not in the least probable; no remote possibility even; truth to tell, well-nigh impossible. The very call of flesh, inherent in every ordinary man and woman as in Ram krishna and Rani Bala, in one flesh then, militates against such a possibility. Thus, the deeper we go into the evidence of Ram Krishna, the most vitally affected party before us, and of his brother Abinash, the greater becomes the improbability which forces itself upon us of the truth of the version ram Krishna conies to Court with. Thus, the deeper we go into the evidence of Ram Krishna, the most vitally affected party before us, and of his brother Abinash, the greater becomes the improbability which forces itself upon us of the truth of the version ram Krishna conies to Court with. And such is the indication, even though we have been considering so long the evidence of Ram Krishna and Abinash, much the most important evidence though, as if this matrimonial cause has no other evidence and has been an undefended one. But there is other evidence; and the cause has not been that : an undefended one. It has been defened, though with an amazing degree of incompetence. Let us, therefore, now come to the evidence of Rani bala and her father Rajani Mohan nath, so humble and illiterate. 17. RANI Bala says in her evidence in chief : "after marriage I went to the house of my husband. I never told him or any one of his house that I had a miscarriage before marriage. " rajani, her father, says in his evidence in chief : "it is not a fact that before marriage rani Bala had an abortion. " But, how does the question of abortion or miscarriage come in? abinash, as noticed, speaks of Rani Bala's illicit intimacy with Ramprosad and tarak Nath; nothing like any abortion or miscarriage. Ram Krishna speaks of, as noticed, Rani Bala having given birth to a child, not her abortion or miscarriage. Yet such question is made to crop up in four ways. First: to Jatindra mohan Debnath, Ram Krishna's sister's husband and second witness, rani Bala is said to have made another confession still on or about january 6, 1965, about her five-month pregnancy before marriage and abortion. Second : the tickets of Nil Ratan sarkar Hospital and Ramkrishna mission Seva Pratisthan, exhibits 1 and 1 (a) respectively, as also a prescription, exhibit 2, issuing from the latter institution, lend support to Rani Bala's pre-marital pregnancy and interference therewith. Third : there are written confessions dated January 13, 1965, to that end by Rani Bala over her signature, exhibit 3, exhibit 3 1 being her signature, and by her father Rajani mohan over his thumb-impression, exhibit 3 (a). Third : there are written confessions dated January 13, 1965, to that end by Rani Bala over her signature, exhibit 3, exhibit 3 1 being her signature, and by her father Rajani mohan over his thumb-impression, exhibit 3 (a). Fourth : two letters, exhibits 4 and 4 (a), said to have been written by Rani Bala to Ram Krishna, show too, it is contended, that her chastity was broken before marriage. Let these four matters be examined one after another in the light of the whole of the evidence on record. 18. FIRST to what Jatindra Mohan attributes to Rani Bala. After marriage, says he, Ram Krishna sends for him. He comes over there, only to be told by ram Krishna that Rani Bala had abortion three months before marriage and that "she had run mad. " So, put at its highest, this may be reckoned only as corroborative evidence, under the "at or about" rule embodied in section 157 of the Evidence Act 1 of 1872, corroborating what Ram Krishna had told him. But Ram Krishna does not say he told Jatindra Mohan anything, far less rani Bala's abortion, three months before marriage, or her having run mad. Indeed, an issue is struck at the trial : issue No. 4 - "is the respondent (Rani bala) a lunatic ?" The trial Judge records in his judgment ; "issue No. 4: -Not pressed. " so that is that. And there being no substantive evidence of Ram Krishna that Rani Bala had abortion three months before marriage and that he had told Jatindra Mohan so, the corroborative evidence of Jatindra Mohan has nothing to corroborate and necessarily fails. To run on with the evidence of Jatindra Mohan, he himself went to rani Bala, then in the kitchen, and enquired of her whether what he had heard was ture or not. But he, we find as a fact upon evidence, had heard nothing whatever from Ram Krishna, the only source of his information, as he says. No doubt, Abinash says, he too sent information to his "bhagnipati" (sister's husband) Jatindra Mohan to come. But he says also, Jatindra Mohan came to his house "a few days after" -which, in the context of his evidence, means that he came even a few days after January 6, 1965, when Rani Bala was taken to Nil Ratan Sarkar Hospital. 19. But he says also, Jatindra Mohan came to his house "a few days after" -which, in the context of his evidence, means that he came even a few days after January 6, 1965, when Rani Bala was taken to Nil Ratan Sarkar Hospital. 19. JATINDRA Mohan however has a different version to narrate. But, first to the confession Rani Bala made before him, as he says she did. On having been asked whether what he had heard was true or not, though, We repeat, he had heard nothing, as we find upon evidence. "rani Bala admitted that she had illicit intimacy with two men - (no names yet) - and that she became pregnant but she got rid of it with country medicine when the pregnancy was 5 months old. " upon such admission by Rani Bala, he held consultation with Abinash and decided to take Rani Bala to hospital. But be admits he did not go to hospital. How could he if what Abinash says is true : that Jatindra Mohan came to their house ''a few days after" rani Bala was taken to hospital on january 6, 1965 ? The consultation jatindra Mohan speaks of, therefore, with Abinash, and the decision taken by him to take Rani Bala to hospital, appear then to be plainly unture. 20. NOTHING is easier than to attribute to a girl, twenty years of age, while in the kitchen, in the midst of her new surroundings, a confession of the type Jatindra Mohan, aged forty-two on March 21, 1966, therefore, double the girl's age and in business, does. The girl, Rani Bala, denies it, with dignity and firmness : "i never told him (husband Ram krishna) or any one of his house that 1 had a miscarriage before marriage. " What appears to be striking is that the husband Ram Krishna - and who can bo more aggrieved and injured than he ? - does not attribute to his wife Rani Bala a five-month old pregnancy and miscarriage through some indigenous quackery. All he attributes to her is parturition before marriage, adding of his own : "2/3 months before her marriage" Not that Rani Bala confused so before him about the timing. So Rani Bala told Jatindra Mohan much more than what she had told her husband. Herein lies the inherent tinprobability of what Jatindra Mohan would have the court believe. All he attributes to her is parturition before marriage, adding of his own : "2/3 months before her marriage" Not that Rani Bala confused so before him about the timing. So Rani Bala told Jatindra Mohan much more than what she had told her husband. Herein lies the inherent tinprobability of what Jatindra Mohan would have the court believe. The same approach again as in paragraph 16 ante, and with much greater force, even though the cross-examiner, in his wisdom, does not cross-examine Jatindra mohan on such confession made to him by Rani Bala. The rule, that failure to cross-examine a witness on a certain point may amount to acceptance of the truth of his testimony thereon, has its exceptions, one of which is that the story itself is, in the words of Lord morris, in (3) Browne v. Dunn, (1894)6 R. 67, "of so incredible and romancing a character that the most effective cross-examination would be to ask him (the witness) to leave the box. " Such may well be said of Rani Bala's confession. The very instinct of self-interest and self-preservation will deter her, like anybody else, from committing suicide, so to say, by telling her husband and his people her aberrations, if any, in the recent past. But Rani Bala is made to do just the opposite. It is difficult even for credulity to swallow all this, cross-examination or no cross-examination. Again, it appears to be equally striking that Abinash does not say anything either, about Rani Bala's pregnancy of five months' standing and abortion, on the basis of what he was told by his wife on the foot of what was reported to her by Ram Krishna. All he says is about Rani Bala's illicit intimacy with Ramprosad and Tarak nath - persons Jatindra Mohan does not name; nor the second paragraph of rani Krishna's pleading, bearing date january 18, 1965. In the circumstances, rani Bala's denial of her pre-marital pregnancy and abortion, reinforced by the denial of her father, no less by her own assertion that the root of all her trouble and the present litigation is the aversion for her of her mother-in-law and sister-in-law ("ja") who consider her to be a bad woman, on which there is no cross-examination, sounds far more probable than the highly discrepant and irreconciliable evidence of Jatindra Mohan, Ram Krishna and abinash taken together. But the question of Rani bala's illicit intimacy with Ramprosad and Tarak Nath remains, to be dealt with a little more, - indeed, it will be convenient to do so -, before the topic of the hospital tickets and prescription touching Rani Bala's pregnancy and abortion, before marriage, is taken up. As pointed out already, these two names were uttered for the first time from the witness-box by Abinash on march 21, 1966, on the basis of hearsay of the third degree - Rani Bala to ram Krishna, Ram Krishna to Abinesh's wife, and Abinash's wife to abinash. But Ram Krishna's evidence reveals that Rani Bala said nothing of the kind to him, far from having named those two persons : Ramprosad and Tarak Nath. So, the taint of hearsay apart, the very base of such evidence by Abinash crumbles. The base crumbling - and crumble it must -the evidence of Abinash cannot stand. 21. AGAIN, Rani Bala says, on cross-examination, that she knows neither Tarak Nath nor Ramprosad. Even though she says she knows not ramprosad, she is asked, on cross-examination, a question, composite and ensnaring, as is manifest from her answer : "i cannot say if Ramprosad was beaten for illicit connexion with me. " So, the question, in all likelihood, was : 'can you deny that Ramprosad was beaten for illicit connexion with you ?' We are constructing the question, as indeed we have to, because the evidence has been recorded, as it is always in the courts below, in a narrative form, not in the form of question and answer, under Order 18, rule 5, of the Procedure Code 5 of 1908. The trial judge, of his own motion, might have been well advised to take down the particular question, as is enjoined by rule 10 of the same Order. But he has not done so. Be that as it may, from the answer Rani Bala returns to such a question, composite and ensnaring, as we take it to be, it cannot be inferred that she admitted having sexual intercourse with Ramprosad. It would indeed be preposterous to infer so, when her evidence, not shaken in any manner, is that she does not know anybody named Ramprosad. It would indeed be preposterous to infer so, when her evidence, not shaken in any manner, is that she does not know anybody named Ramprosad. As the cross-examiner cannot ask a witness, for example : 'have you left off beating your wife?"-really two questions: (i) beating (which is assumed) and (ii) leaving off such beating: loaded into one, so he cannot put to Rani Bala two questions: (i) her illicit connection with Ramprosad (which is assumed) and (ii) Ramprosad being beaten for that: loaded into one. But this is just what he puts to Rani Bala, the trial judge lying by and not disallowing it, as he should have done. And Rani Bala's answer, reproduced above, can never lend itself to mean that she admitted having illicit connection with Ramprosad, a man she knows not. All it may mean is that she cannot say whether one, Ramprosad by name, when she does not know, was beaten or not. 22. RANI Bala's father, Rajani median, does not know Ramprosad either. But he knows Tarak Banerjea, to whose house his son used to go for reading. This is the sort of candour which is deserving of appreciation. He might have as well said he does not know anybody of that name, without being any the worse for it. More, in the house of Tarak's elder brother, rani Bala's marriage was celebrated. Such is the evidence of Rajani Mohan. Rani Bala says too that her marriage took place in the house of Khokan banerjea. It, therefore, looks, from the conjoint evidence of father and daughter, that Khokan is the elder brother of Tarak. But it does not necessarily mean that Rani Bala knows Tarak, though it is quite natural for her to know the name of khokan at whose house her marriage took place. Far less does it mean that she had illicit connexion with Tarak, khokan's younger brother. To come to so serious a finding, what is needed is first-rate evidence. What is seen here instead is no evidence Just so about an affair with Ramprosad. So, the story of Rani Bala having illicit connexion with Ramprosad and Tarak nath must be dismissed as a mere story with no evidence to support it. See paragraphs 20 and 21 (supra), as also paragraph 54 (infra). What is seen here instead is no evidence Just so about an affair with Ramprosad. So, the story of Rani Bala having illicit connexion with Ramprosad and Tarak nath must be dismissed as a mere story with no evidence to support it. See paragraphs 20 and 21 (supra), as also paragraph 54 (infra). Now to Rani Bala's pre-marital pregnancy and aboration, as alleged, in the light of the hospital tickets and prescription, the second prop in support thereof (paragraph 25), the first prop : confession by Rani Bala before Jatindra mohan : having been found to be thoroughly unreliable upon the whole of the evidence (paragraph 29). 23. ABINASH, in the course of his evidence in chief, says : "this (Ex. 1) is the out-door ticket. " and on such evidence, the ticket for out-door patients, bearing date january 6, 1965, at the Nil Ratan Sarkar Hospital, gets into the record and is marked exhibit 1. The Resident surgeon of the said Hospital, Dr. Purnima Chatterjee, M. B.,b. S. (Calcutta), d. G. O. (Calcutta) and M. R. C. O. G. (London), is called and examined as the sixth witness for Ram Krishna, now respondent, presumably to prove the out-door ticket and circumstances touching such ticket. But she speaks not a word about the ticket. All she deposes to is : 1. One Rani Nath was examined by Dr. C. S. Dawa in the outpatient department of the hospital on January 6, 1965. 2. She cannot say anything about the patient (Rani Bala) whom she had neither examined nor seen even. 24. SO she says after Rani Bala is pointed out to her (Dr. Purnima Chatterjee)in court. So she says, presumably on the basis of some hospital records brought by her in court, though the trial judge does not record so. But all she says comes to little about the physical and mental condition of Rani bala on January 6, 1965, and the entries we come across in the hospital ticket, exhibit 1. Then, again Rani Bala is confronted with the ticket, and she says, on cross-examination : "this (Ex. 1) is the ticket granted to me by the hospital. " It looks like an exercise in futility. All hospital tickets of this type look alike. Then, again Rani Bala is confronted with the ticket, and she says, on cross-examination : "this (Ex. 1) is the ticket granted to me by the hospital. " It looks like an exercise in futility. All hospital tickets of this type look alike. Rani bala, who who read up to Class III or iv, either knows no English or knows so little English, as will make it impossible for her to identify the ticket, evincing somewhat of a curlicue of a handwriting and containing words which are plainly beyond her, as a ticket issued for her. The recorded evidence does not record either, that she goes through the ticket and then says that this ticket was granted to her. Indeed, the learned judge, no less the learned advocate for Ram krishna, proceed mechanically and get the ticket into evidence in this manner from Rani Bala as much as from abinash.- And whether Abinash, who signs his name in Bengali at the foot of her recorded evidence, knows English or not remains unknown. It is anybody's guess. This is not the way to get a document proved, and admitted to the record, in accordance with section 67 of the Evidence Act 1 of 1872, neither the signature nor the writing being proved in accordance therewith. To show a document as this to Abinash or Rani Bala is virtually to show it to one who is blind. And each appears to be really blind, so far as a document written in English, and that too in a curlicue of a handwriting, as the ticket, exhibit 1, is written, goes. Upon such evidence, therefore, the ticket is wholly inadmissible in evidence. 25. YET there is a point to be taken into reckoning in favour of the respondent Ram Krishna. When the ticket does get into the record, even on such a mechanical approach, on the testimony of Abinash, such reception is not prevented, though it could have been, by raising a simple objection on the score of neither the handwriting nor the signature having been proved. Were that done, the respondent might have made an attempt to get it proved in accordance with law. Here is, therefore, relevant evidence let in without objection. What is made a casualty of is only the mode of proof. Not that it is irrelevant evidence per se inadmissible, as, for example, hearsay is. Were that done, the respondent might have made an attempt to get it proved in accordance with law. Here is, therefore, relevant evidence let in without objection. What is made a casualty of is only the mode of proof. Not that it is irrelevant evidence per se inadmissible, as, for example, hearsay is. So soon as that is said, come into play a long line of authorities, such as (4) Robinson and Co. v. Davies and Co., (1879) LR 5 QBD 26, (5) Miller v. Babu Madho Das, (1896) LR 23 IA 106, (6) Sri Rajah Prakasarayanim Garu v. Y. P. Venkata Rao, (1915) ILR 38 madras 160, (7) Jainab Bibi Saheba v. Hyderally Saheo, (1920) ILR 43 Madras 609 (FB), (8) Kumar Kalikananda singh v. Shiva Nandan Prasad Singh, air 1922 Patna 122, (9) Ambar Ali v. Lutfe Ali, (1927) 21 CWN 996, (10)Gopal Das v. Sri Thakurji, (1943) 47 cwn 607 (PC), and others, which I dealt with, if I may refer to my decision, in (11) The Church of Scotland trust v. George Devadas, a summary of the said decision having since come into the reports : (1968) 72 CWN xxxvii (XXXV). And from this catena of decisions, two broad propositions I deduced : I. Where a document is in itself inadmissible, if no objection is taken at the time it is tendered, marked as an exhibit, and admitted to the record, omission to object so will not convert it into a document admissible at law in. all subsequent stages. II. Where, however, a document is not in itself inadmissible, but gets admitted to the record without any objection, it stays in as good evidence, incapable of being dislodged by a subsequent objection on the mode of proof only. 26. THE hospital ticket, exhibit 1, falls under the second proposition, and stays in as good evidence, in spite of the mode of proof being in flagrant vlolation of section 67 of the Evidence act 1 of 1872. But when we say this, this is all we can say in favour of the respondent Ram Krishna. Because, the maker of the ticket is not examined. So, the court is deprived of the best evidence on the contents thereof. What the contents are like will presently be seen. But when we say this, this is all we can say in favour of the respondent Ram Krishna. Because, the maker of the ticket is not examined. So, the court is deprived of the best evidence on the contents thereof. What the contents are like will presently be seen. Nor is it elicited from Abinash and Rani Bala that the entries in the ticket are made on the basis of what rani Bala or Abinash or both haw stated before the doctor who writes out the ticket. All we get from Resident surgeon Furnima Chatterjee, the sixth witness of the respondent Ram krishna, is that one Dr. C. S. Dawa examined Rani Bala. Dr. Dawa is not examined. No reason is given either for his non-examination. While the resident Surgeon says so, Abinash says : "the respondent (Rani Bala) was given an out-door ticket and was examined by a lady doctor. " Is that lady doctor Amiyabala bose, a woman, as the very name signifies ? At any rate, it is suggested so, on behalf of Ram Krishna, to Resident surgeon Purnima Chatterjee, eliciting the reply : "there is no doctor by the name of Amiyabala Bose. " So, this is how we stand about the contents of exhibit 1, the ticket for out-door patients at the Nil Ratan Sarkar hospital, on January 6, 1965, about which four persons are competent to give evidence : 1. Dr. C. S. Dawa or Dr. Amiyabala debi, if such a one exists, one of whom is said to have examined Rani Bala that day, 2. Abinash, 3. Abinash's wife, and 4. Rani Bala, the last three having called on the hospital on January 6, 1965. Neither dawa nor Amiyabala is examined as a witness. Abinash and Rani Bala do figure as witnesses. But none of them say that the entries exhibit 1 contains are on the basis of what they or either of them stated before the examining doctor. Did then Abinash's wife, the older of the two women - herself and rani Bala - report what exhibit 1 contains, to the doctor in charge ? She is not examined. So, we do not know what she had said, if at all. Did then Abinash's wife, the older of the two women - herself and rani Bala - report what exhibit 1 contains, to the doctor in charge ? She is not examined. So, we do not know what she had said, if at all. It is significant that the husband Ram Krishna doss not accompany his wife to the hospital; nor the most intelligent and accomplished of the lot, Jatindra mohan, Ram Krishna's sister's husband and second witness, who claims to have decided to take Rani Bala to the hospital, - how wrong such claim is has been seen : paragraphs 27 and 28 ante -, and who signs his name in english at the foot of his deposition. And if Abinash's evidence stands, all his wife knew about, the source of her knowledge having been Ram Krishna, was the illicit intimacy of Rani Bala with Ramprosad and Tarak Nath, though Ram Krishna says nothing of the kind. So, Abinash's wife could not have said anything, leading to the material entries in exhibit 1, the whole of which bears as under : "c/e - Psychological upset -following interference - last pregnancy - 6 months. M/h - 13 3-4/3 0 days. O/h - Para plus O (Abortion induced at 5 months.)? Psychosis. Advised tab. Largactil - 25 mgm. One tabl. at bedtime during 1 month re. Milk of Magnesia 4 teaspoonfuls at bedtime. Tab. Fersolate 1 tab. after food. Sd/- Illegible. " If the writer of this ticket, Dr. C. S. Dawa, as it seems to be, had come to court and said on oath : 'here is Rani bala who stated before me that she had pregnancy, interference therewith, and all that, and I recorded all she had stated' it would have been damaging evidence against Rani Bala in the shape of a telling admission against her. But there is no such evidence. Indeed, there is no shred of evidence to that end. So, such entries simpliciter cannot be reckoned against Rani Bala. Indeed, the entries, the contents, have not been proved in any manner, in spite of the ticket, exhibit 1, being admitted to the record in the circumstances stated above. 27. But there is no such evidence. Indeed, there is no shred of evidence to that end. So, such entries simpliciter cannot be reckoned against Rani Bala. Indeed, the entries, the contents, have not been proved in any manner, in spite of the ticket, exhibit 1, being admitted to the record in the circumstances stated above. 27. THAT being so, other entries in exhibit 1 cannot help matters forward for Ram Krishna, some being neutral, such as - (i) M/h, the medical abbreviation for Mensturation History, showing the spacing and duration of the monthly course, has little to do with the point at issue, or (ii) the prescription of Largactil, a tranquillising drug, Milk of Magnesia, a specific for constipation, acidity and the like. and Fersolate, an iron tonic to tone up the system, cannot prove what Ram Krishna wants to be proved. O/h, the modical abbreviation for obstetric History, no doubt records para plus O, which presumably means one pregnancy (of multipara, a woman who has given birth to a child for the second or later time, or is about to do so, just opposite to primer, para) with no result, as indicated by zero (0), with a note within brackets about abortion. But no manner of evidence being there, as to who such statement was made by, an entry as this carries ram Krishna nov/here. 28. NOW to the ticket, exhibit 1 (a) and the prescription, exhibit 2, of ram Krishna Mission Seva Pratisthan, each bearing date January 13, 1965. The way they get admitted to the record, on the evidence of Abinash, is the way in which the ticket, exhibit 1, of Nil Ratan Sarkar Hospital gets admatted. So, they remain in evidence, as exhibit 1 does, for what it is worth. And it is of little worth, as has just been seen, so long as the maker thereof is not examined or evidence aliunde, to prove how the entries came to be made, is forthcoming. Nothing like that is forthcoming. But so far as the prescription, exhibit 2, of Ramkrishna mission Seva Pratisthan, is concerned, there is a little more : the evidence of registrar Samir Mukherjee, a doctor attached thereto, and the respondent ram Krishna's witness No. 7. He proves the prescription to be in the handwriting of Dr. Subhendu Narayan bose. Nothing like that is forthcoming. But so far as the prescription, exhibit 2, of Ramkrishna mission Seva Pratisthan, is concerned, there is a little more : the evidence of registrar Samir Mukherjee, a doctor attached thereto, and the respondent ram Krishna's witness No. 7. He proves the prescription to be in the handwriting of Dr. Subhendu Narayan bose. And this is all he does, though the trial judge apparently makes a mistake in recording this out-door prescription, really exhibit 2, as exhibit 1, while he records the evidence of registrar Mukherjee. Again, this witness (Mukherjee) brings the original history-sheet, but cannot say who the entries were made by. Nor is it possible for him to say, as he affirms, whether there was any internal examination or not of Rani Debnath whose name appears in the out door prescription, exhibit 2, not exhibit 1, ss again inadvertently recorded by the judge. In this background, be considered the two documents, exhibits 1 (a) and 2. Exhibit 1 (a) is the usual printed out-door ticket dated January 13, 1965, recording the name and address of Rani debonath. That is all. So, no inference can follow from this of Rani Bala's pregnancy before marriage, abortion and all that. Nor can such inference follow from the prescription, exhibit 2, prescribing (i) injection of munomycin, a compound of penicillin and streptomycin, - a fact we take judicial notice of -, and (ii) Elixir neogadine, a well-known tonic, as even a layman knows. Thus, the second prop in support of Rani Bala's premarital pregnancy and abortion (paragraph 25) fails too. 29. BEFORE proceeding further, a bad feature in Rani Bala's evidence may be noticed. She admits having been taken to two hospitals, but adds that she was taken so, on one and the same day. That appears to be plainly untrue. The two tickets and the prescription, exhibits 1, 1 (a) and 2, belie that. The ticket of Nil Ratan Sarkar hospital, exhibit 1, is dated January 6, 1965. The ticket and the prescription of Ramkrishna Seva Pratisthan bear the same date : January 13, 1965. So, rani Bala's evidence that she was taken to two hospitals on one and the same day cannot stand. Let it not. But 'false in one thing, false in everything' is neither law nor common sense. The ticket and the prescription of Ramkrishna Seva Pratisthan bear the same date : January 13, 1965. So, rani Bala's evidence that she was taken to two hospitals on one and the same day cannot stand. Let it not. But 'false in one thing, false in everything' is neither law nor common sense. There is a very slender foundation, if at all, for conferring on the doctrine of falsus in uno, falsus in omnibus the status of anything higher than a rale of caution : (12) Nissar Ali v. State of uttar Pradesh, 1957 S. CA 312. So, such falsity in itself can do no harm to Rani bala. 30. NOW, to the third prop in support of Rani Bala's pregnancy and abortion before marriage : two confessions in writing, one over the signature of Rani Bala and another over the thumb-impression of her father, Rajani mohan. The former is exhibit 3, Rani bala's signature therein being separately marked as exhibit 3/1. Just below the signature, but outside the periphery of the mark which encloses the signature, is the English date : 13.1.65, written in Bengali. The latter, the confession over the thumb-impression of Rajani Mohan, bears no date. On these two confessions and matters relating thereto, we have before us the evidence of Abinash, jatindra Mohan, Surendra Lal Muhuri, chitta Ranjan Debnath, and Ram krishna himself, the first five witnesses on behalf of the respondent Ram krishna, on one side, and that of Rani bala and her father, Rajani Mohan, the only two witnesses on behalf of Rani bala, on the other. Let such evidences be examined. 31. CHITTA Ranjan, the respondent ram Krishna's fourth witness, wrote these two written confessions, exhibits 3 and 3 a), in a meeting arranged by abinash in his house at 1/1 Sebak baidya Street, near Hazra Road. Chitta ranjan, the writer of two such important documents, does not remember the exact date when they were written. But, he says, they were written sometime in January 1965. Who is this chitta Ranjan ? He says he has no close realtionship with Ram Krishna, who is his distant cousin, through his Chitta Ranjan's) fahter's sister's side, as the Bengali word "pishtuto", spoken to by him, goes to show. But, he says, they were written sometime in January 1965. Who is this chitta Ranjan ? He says he has no close realtionship with Ram Krishna, who is his distant cousin, through his Chitta Ranjan's) fahter's sister's side, as the Bengali word "pishtuto", spoken to by him, goes to show. Abinash, ram Krishna's brother, and, therefore, on the same relationship with Chittaranjan, does not say just so : he and necessarily his brother Ram Krishna, being distant relations of Chitta Ranjan. He says instead : "we have a relation named Chitta ranjan Debnath at Sebak Baidya street. " -where Rajani Mohan, Rani Bala's father, was asked to come, and did come, on January 13, 1965, for taking back his daughter Rani Bala whom ram Krishna was unwilling to keep. So, the decision to send back Rani bala was taken already. Not that it was decided in the meeting at Chitta ranjan's. The meeting, if any,' the whole of the evidence completely satisfies us, was for creating evidence in the shape of two signed confessions, showing that Rani Bala's departure from her matrimonial home was voluntary, and with the approval of her father too, for Rani Bala's lapses before marriage. A pre-arranged plan looks manifest. It is equally manifest that Abinash was the sponsor of such a planned meeting, if there was any meeting at all, as alleged. He admits he called Rajani Mohan there : at chitta Ranjan's place. Jatindra Mohan and Surendra Lal Muhuri say too that abinash had asked them to attend the meeting at Chitta Ranjan's place. Such is the evidence of Chitta Ranjan too. Abinash, he says, arranged the meeting at his place. 32. A meeting as this on January 13, 1965, was preceded by Abinash, rajani Mohan and others having taken their meals at Chitta Ranjan's place, as Abinash says in chief. So, Chitta ranjan bore the brunt of the whole thing, no matter whether he is a distant or near relation of Abinash and ram Krishna, though he is all too anxious to give out that no close relation is he. And certainly it shows intimacy between Abinash and Chitta ranjan. None but the very intimate would go all out to do so much as chitta Ranjan did. Now, what happened in the meeting, if there was really such a meeting ? Abinash told Rajani Mohan: "your daughter is a girl of bad character. And certainly it shows intimacy between Abinash and Chitta ranjan. None but the very intimate would go all out to do so much as chitta Ranjan did. Now, what happened in the meeting, if there was really such a meeting ? Abinash told Rajani Mohan: "your daughter is a girl of bad character. And you concealed it from us. We shall not keep such a girl. " Rajani mohan replied : "were I to disclose all about it, I could not get her married. This is why I concealed facts from you. " Having said so, Rajani Mohan decided to take away Rani Bala with him. Such is the evidence of Abinash. Jatindra Mohan does not enter into detail Abinash does. All he says is : "when we asked Rajani Babu what should be done, Rajani Babu admitted his guilt and wanted to take back his daughter. " chitta Ranjan's evidence is likewise. Asked what should be done about the girl Rani Bala), Rajani Mohan said: "what has been done is done", and agreed to take back his daughter. But, when what should be done was already decided upon, - indeed. on January 13, 1965, Abinash "wanted Rajani Babu to come and take back his daughter, as my brother was unwilling to keep her. "-, what was the use of asking Rajani over again when he had come, if at all) what should be done ? And then what fault did Rajani admit, as Jatindra mohan says he did, at the meeting ? that is left to be answered only by surendra Lal Muhuri: "in the meeting Rajani Babu admitted the pre-nuptial pregnancy of Rani bala and agreed to take away his daughter. " 33. THE evidence of Ram Krishna, none else than the husband of Rani bala, remains. He will say no more than this: "we sent back Rani Bala to the house of her father from the house of chitta Babu at Hazra Road. Rajani babu was present there. " Not a word does he say about rajani Mohan's admission of Rani Bala's pre-nuptial pregnancy,-which is said by Surendra Lal Muhuri alone-, though Ram Krishna, the husband, was present in the meeting at Chitta ranjan's place, as he says on cross-examination. 34. Rajani babu was present there. " Not a word does he say about rajani Mohan's admission of Rani Bala's pre-nuptial pregnancy,-which is said by Surendra Lal Muhuri alone-, though Ram Krishna, the husband, was present in the meeting at Chitta ranjan's place, as he says on cross-examination. 34. SUCH then are the specimens of oral admissions attributed to Rajani mohan ; 'concealment of Rani Bala's bad character', 'agreeing to take her away', and 'her pre-nuptial pregnancy': in the meeting on January 13, 1965, at chitta Ranjan's place, some seven or eight miles away from Ram Krishna's house at Sarsuna, as Chitta Ranjan says in chief, and that too after midday meals to which Rajani, Abinash and others were treated. Going by what surendra Lal Muhuri's evidence on cross-examination bears, the meeting was held at 3 or 4 p. m. After such oral admissions, rajani Mohan was asked "to put something in writing", as Jatindra Mohan says" or "to put the facts in writing," as Abinash and Chitta Ranjan say. Surendra Lal Muhuri does not go so far. He simply says that Rajani mohan "signed" the statement recorded by Chitta Ranjan. Ram Krishna does not say this little even. Be that as it may, asked so by Abinash, Jatindra mohan and Chitta Ranjan, Rajani agreed to oblige them all. And the writing by Chitta Ranjan began. It was duly concluded too and thumb-impressed by Rajani Mohan, after it was read over to him, as Chitta Ranjan says ; but the statement, exhibit 3 a), bears no endorsement to that end. 35. COMING to the written confession, exhibit 3 a), over the thumb-impression of Rajani Mohan, it is however found that a statement as this recorded by Chitta Ranjan, a relative of Ram krishna and Abinash and the host of all, including Rajani Mohan, contains much more than what is attributed to rajani Mohan in the course of his oral admissions. For example, the statement in writing, exhibit 3 a), of Rajani mohan contains: i) "before marriage my daughter was in illicit love with two young men-one a Hindusthani and another a bengali-, a fact which I had known well enough. " ii) "in a few days' time, my first daughter Rani Bala became pregnant, but I had it aborted by some indigenous preliminary treatment' as the result of which she became fickle and almost insane." 36. " ii) "in a few days' time, my first daughter Rani Bala became pregnant, but I had it aborted by some indigenous preliminary treatment' as the result of which she became fickle and almost insane." 36. THE oral evidence of the five witnesses-Abinash, Jatindra Mohan, surendra Lal Muhuri, Chitta Ranjan and Ram Krishna-reviewed above, and they are the respondent Ram Krishna's only witnesses who count, does not show that Rajani Mohan admitted or said anything of the kind. So, how could the writer Chitta Ranjan come to know two such important facts tabulated above ? Chitta Ranjan says, he recorded the statement of Rajani. Thus, he wants to convey that Rajani was making a statement or dictating it and that he was simply recording it. But some of the chaste Bengali expressions to be found in the recorded statement, exhibit 3 a) such as "sampadan", "deshiya prathamik chikitsar dwara," "dandaniya", appear to be much too much for Rajani Mohan, the illiterate, and no more than a menial, or, if exception is taken to the use of that word in the context of today, a Class IV employee, of the "loco-shed" of the railways, on Rs. 80 a month. That apart, it hardly stands to common sense and reason that Rajani Mohan, the father of the unfortunate girl Rani Bala, will say no more than this, if that, in the course of his oral admissions, when pieced together : "i shall take away my daughter whose bad character, including pre-nuptial pregnancy, I concealed at the time of marriage, as indeed I had to," but will go a vast deal more when it comes to recording his statement, saying amongst other things : "in illicit union with two young men, a Hindusthani and a Bengali, she conceived, to my knowledge, and I had caused a miscarriage by resorting to some indigenous method, for which she went almost mad. "we shall go a step further : will such a one sent for by abinash to take away his daughter, with whom Ram Krishna is unwilling to live, and thus presented with a fait accompli, go to the length of obliging his enemies, who have combined to blast the life of his beloved child, by subscribing to any statement, far less a statement of this sort, by which he condemns himself, and his daughter all the more ? Not in the least probable again, impossible it may not be though. Indeed, improbability to a degree lurks behind the fact that the two young men, one a Hindusthani and another a Bengali, with whom Rani bala was said to have been in illicit union before marriage, are not named yet in this undated confession recorded on January 13, 1965. Why ? If what abinash, the organizer of this majliss at Chitta Ranjan's on January 13, 1965, says is true, he had come to know of these two names on or about January 6 previous, when Rani Bala was taken to Nil Ratan Sarkar Hospital for examination, in ored to find out what she was like before marriage. And still these two names do not come out in this written confession of January 13, 1965, as well as in the pleading filed in court only five days later, namely, on january 18, 1965. A consideration as this only strengthens our belief that these two names, Ramprosad Hela and tarek Nath Banerjea, appear to be an invention made for the first time from the witness-box by Abinash on March 21, 1966, when he was giving evidence in court. See paragraphs 20 and 21, as also paragraphs 30-32 supra. 37. THERE is yet another consideration which lends assurance to the great improbability of Rajani Mohan having stated all that is attributed to him in the statement recorded by chitta Ranjan - a statement which concludes : "now in accordance with the wishes of my daughter and of each one of my relations and countrymen, and in their very presence, I am taking away my daughter, of my free will and knowledge, after I have received back all the ornaments I gave to her ). And I do say before this gathering in the meeting, never shall I bring any action against them, nor shall I claim ever maintenance for my daughter. Should I do so, I shall be punishable "dandaniya") in accordance with law. " Does it not sound overmuch, coming as it does from a father who, in spite of the meal he has been treated to earlier, stands humiliated and disgraced in such meeting ? By refusal to lend his thumb-impression to a document as this, he cannot have anything worse in store for him. And still he subscribes to it. " Does it not sound overmuch, coming as it does from a father who, in spite of the meal he has been treated to earlier, stands humiliated and disgraced in such meeting ? By refusal to lend his thumb-impression to a document as this, he cannot have anything worse in store for him. And still he subscribes to it. More, the language, we have just translated, is a language, which, we feel sure, Rajani Mohan, as we size him to be, upon evidence, cannot be the author of. On top of that, the earlier point remains. When it comes to oral admission, Rajani mohan says so little. But when it comes to such oral admission, Rajani mohan says so little. But when it comes to such oral admissions being put in writing, at the request of people assembled in the meeting under Abinash's instructions, Rajani Mohan says so much, even binding himself not to go to law, nor to sue for Rani Bala's maintenance, as if such undertaking has any legal validity, and, what is more acknowledging that he has received back all the ornaments he gave to Rani Bala. 38. LET a clean look be taken of this apparently unclean document. Once that is done, on the assumption that there was a meeting as alleged, in which Rajani Mohon participated, it looks very much that Abinash, Jatindra mohan, Chitta Ranjan, and all, so many strong, succeed in getting a statement as this from Rajani Mohan, in the minority of one in that meeting, leaving, rani Bala out of account, so that it may be made good use of in Ram krishna's litigation for a decree of nullity to be launched, and in fact launched, only five days later. January 13, 1965, is the date of such undated statement, and January 18, 1965, is the date of presentation by Ram Krishna of his petition for a decree of nullity. That the statement is being made good use of is indeed apparent. But it is said : 'the thumb-impression of Rajani Mohan is there. January 13, 1965, is the date of such undated statement, and January 18, 1965, is the date of presentation by Ram Krishna of his petition for a decree of nullity. That the statement is being made good use of is indeed apparent. But it is said : 'the thumb-impression of Rajani Mohan is there. And how can he run away from it ?' certainly this may be said; the more so, as in the course of his evidence he denies the thumb-impression on the statement, exihibit 3 a), to be his, but, during the further carriage of the litigaion, when a prayer is made and allowed for having the thumb-impression examined by an expert, Rani Bala, respondent in the court, below, files a petition stating that Rajani Mohan, her father, admits the thumb-impression to be his, not however the statement over such thumb-impression. Result : the trial judge recalls his earlier order allowing the prayer for examination of the thumb-impression by an expert : vide orders numbering 38 dated April 19, 1966, and 39 dated april 22, 1966, in the order-sheets, read with the verified petition dated April 22, 1966, by Rani Bala. 39. THE matter, however, is such that it needs looking into a little below the surface. Too much cannot be made of the admission just noticed Rani Bala attributes to her father Rajani Mohan. It is an admission of the father through the daughter, a party to the litigation, and the principal and only party at that arrayed against her husband. So, it is not valueless as it would have been, had the communication been made by one who is not a party and not related to the person, whose admission is being so communicated, as rani Bala is. Even then, such secondhand admission must be considered as a whole. Once that is done, two things clearly emerge. First: the thumb-impression on exhibit 3 a) is his : Rajani Mohan's. Second : what is above the thumb-impression, namely, the statement proper, is not admitted. 40. NOW, have a look at the statement, exhibit 3 a), and the thumb-impression at the foot thereof. The gap between the point where the writing proper ends and the point where the upper end of the thumb-impression reaches is considerable, even though the Bengali word. 'iti' meaning end)comes in between the two, after a most generous spacing. That only heightens the suspicion. The gap between the point where the writing proper ends and the point where the upper end of the thumb-impression reaches is considerable, even though the Bengali word. 'iti' meaning end)comes in between the two, after a most generous spacing. That only heightens the suspicion. That does not lessen it. Thus, there appears to be considerable force in what Rajani Mohan asks the court to believe : that his thumb-impression does not signify the truth of what goes above, that it is not in token of the statement over the thumbimpression Add to this the evidence of rajani Mohan that he had never been to the house of Chitta Ranjan. Add also the consistent suggestion put to all the witnesses on behalf of the respondent ram Krishna about the meeting of january 13, 1965, that no such Meeting was held ever. No doubt, each denies the suggestion so put; and a suggestion simpliciter is not proof. But, upon the whole, - such as the highly unsatisfactory evidence of the respondent Ram krishna's witnesses on the meeting of january 13, 1965, as noticed above, the inherent improbability of Rajani mohan saying anything, nothing to say of his saying so much in a Statement supposed to have been dictated my him- his capability to have dictated so appears to be open to the gravest doubt - after having said so little in the course of his oral admission, - a suggestion as this has the merit of a great probability. The only difficulty to such conclusion is : how Rajani mohan's thumb-impression is there on the statement, exhibit 3 a), remains unexplained. As it so often happens, there is a tendency to back up a good case by false or exaggerated evidence. Such appears to have been the case here too. After having denied the thumb-impression as his in the course of his evidence on April 11, 1966, Rajani mohan admitted it to be his through his daughter and her verified application of April 22 following. Let this falsity be condemned. But it does explain neither the highly suspicious circumstances, as revealed by the unsatisfactory evidence of the respondent ram Krishna's witnesses, no less by the spcing of the thumb-impression, nor the inherent improbability of rajani Mohan having made any statement at all, far less such a one as exhibit 3 a) reveals. Let this falsity be condemned. But it does explain neither the highly suspicious circumstances, as revealed by the unsatisfactory evidence of the respondent ram Krishna's witnesses, no less by the spcing of the thumb-impression, nor the inherent improbability of rajani Mohan having made any statement at all, far less such a one as exhibit 3 a) reveals. It is Ram Krishna's case, not Rajani Mohan's. And the onus is upon Ram Krishna to prove his case. This onus remains undischarged by the poor specimen of evidence he has led-evidence which is as unreliable as interested. 41. IN sum, upon the whole of the evidence, either of the two conclusions of facts is possible. One, Rajani Mohan did attend the meeting of January 13, 1965, at Chitta Ranjan's and thumb-impress the statement which is exhibit 3 a ). Or, two, he was not present in the meeting at all, and the statement which is exhibit 3 a) "is drafted to fit into the" thumb-impression of Rajani mohan; not that the thumb-impression "was put there to authenticate the document", to use, with a little adaptation, the language used by Lord Atkin in 13) Sarala Sundari Dassya v. Dinabandhu Roy Brajaraj Saha Firm), 1943) LR 71 IA 1, about the last will of and testator, in which there was a gap of at least two and a half inches between the end of the writing and the beginning of the signature : a gap which was not filled in at all. 42. UPON the whole of the evidence we prefer the second conclusion to the first. 42. UPON the whole of the evidence we prefer the second conclusion to the first. So we do, because of the following rasons, to go over them agaiin, at one place : i) the highly unsatisfactory evidence of the respondent Ram Krishna's witnesses on such a meeting of january 13, 1965, all such witnesses belonging to the camp of Abinash, the organizer of the meeting; ii) the inherent improbability of Rajani Mohan attending such meeting, when he was asked to attend it, with an intimation by Abinash in advance that he was to take back Rani bala whom her husband would not keep; iii) the greater improbability still of Rajani Mohan letting down Ms beloved daughter in the manner it is said he does in presence of so many persons all hostile to him and his daughter; iv) the great discrepancy between what Rajani Mohan says orally and what he gets reduced to writing; v) the impossibility or nearimpossibility of an illiterate like Rajani mohan dictating the statement, which is exhibit 3 a), to Chitta Ranjan; vi) the names of the two young men, a Hindusthani and a Bengali, with whom Rani Bala is said to have been in illicit union, do not come out yet, though Abinash got to know the names a week earlier, such names coming out for first time at the trial; certainly Rajani Mohan, who is in a divulging mood, then, will not keep the two names back; nor will so many arrayed against him allow such crucial names to be kept back; vii) on the very appearance of the document, exhibit 3 a), it looks plain that there is a gap of at least two inches and a little more between the bottom of Rajani Mohan's thumb-impression and the bottom of the writing above, the gap between the last line of the writing above and the top of the thumb-impression being at least just a little less than two inches; and the manner in which this gap is filled in by the Bengali word "iti" end), with so generous a spacing, only adds to the suspicion and leads to the inference that Chitta Ranjan, the writer of the statement, as he says, could not complete it in a manner so as to fit in with the thumb-impression already there; viii) what is seen in such a document is not only a confession or admission on the part of Rajani Mohan, but also an undertaking by him not to go to law, and that too only five days ahead of the raising of the matrimonial action by Ram Krishna - which comes to saying : "i shall go to law against you, but you or your daughter shall not. " Appearances are, therefore, so much in favour of such a document having been created for the purpose of this litigation. These are matters we have dealt with in paragraphs 46-56 supra). Say, Rajani Mohan was present in the meeting of January 13, 1965. Even then, these very matters are apt to produce disbelief in the mind of a prudent man that Rajani Mohan, the illiterate, put his thumb-impression with a view to authenticating the body of the document. So whichever way the statement, exhibit, 3 a), be considered, it is impossible to see in it an admission by rajani Mohan of his daughter's bad character, pregnancy before marriage, and all that. 43. THE written confession of Rani bala, exhibit 3, remains to be considered. What weighs against Rajani mohan's statement, exhibit 3 a), weighs against Rani Bala's confession too mutatis mutandis. That apart, other infirmities are discernible too. Her confession, put to writing, was not preceded by any oral admission, in the course of conversations, as it was in the case of her father. Abinash will go so far as to say : "the respondent Rani Bala) also made this statement Ex. 3) in writing. " Rani Bala knows how to write, as her very signature goes to show. One who can sign so can write too the twenty linos which are over her signature. But those twenty lines are in the handwriting of Chitta Ranjan again. So, abinash is not right. Rani Bala made no statement in writing. Had she made any, it would have been a very strong piece of evidence against her, unless otherwise rebutted. At best, she made an oral statement, which was reduced to writing by Chitta Ranjan. 44. WHAT the next witness, Jatindra mohan, the husband of Abinash's and ram Krishna's sister, says is that Rani bala signed one document, as Rajani mohan signed the other. Not that she made any statement. The witness who follows, Surendra Lal Muhuri, speaks of a statement recorded by Chitta Ranjan and signed by Rani Bala. But Chitta ranjan, the writer, goes a little more : he and others assembled there asked rani Bala to put the facts in writing. Thereafter, she made a statement, and he recorded it. Not that she made any statement. The witness who follows, Surendra Lal Muhuri, speaks of a statement recorded by Chitta Ranjan and signed by Rani Bala. But Chitta ranjan, the writer, goes a little more : he and others assembled there asked rani Bala to put the facts in writing. Thereafter, she made a statement, and he recorded it. More, before Rani Bala was called upon to sign such recorded statement, it was read over to her, though we miss any endorsement to that end in the statement itself. Ram krishna, as usual, is silent about all this, though present in the meeting. This is all the evidence on the respondent Ram Krishna's side about the confession Rani Bala is sought to be fastened with. Now to the confession, the points in which are - 1. "ever since my marriage, the sting of my conscience burns me and fills me with a great disquiet, in that I stated falsehood and suppressed truth and thereby deceived my husband and his family." 2. "before marriage, I was in love with two young men of the locality, as the result of which I became pregnant." 3. "my parents, who had known this, hit out a plan and administered an indigenous drug to me, in consultation with others; and that caused miscarriage some three months before marriage." 4. "but my head went off as the result of this an my health went down too." 5. "now I consider I should not live with my husband. I have indeed no place to hide my shame. Before the doctor too I was put to so much shame." 6. "it is my father's wish too I go back to him. Of my free will, I am going away to his place, with all my ornaments and the like. No claim have I upon my husband; nor any promise 'angikar'). " 45. EVEN without more, it looks like a document 'made to order', for the purpose of the litigation filed five days later, the gap between Rani Bala's signature and the point where the writing in the body ends being not as large as in the other statement of Rajani median, but not inconspicuous either. And there is more. " 45. EVEN without more, it looks like a document 'made to order', for the purpose of the litigation filed five days later, the gap between Rani Bala's signature and the point where the writing in the body ends being not as large as in the other statement of Rajani median, but not inconspicuous either. And there is more. Rani Bala does admit her signature, separately marked as exhibit 3 1), but says she had signed so on a blank paper, in her matrimonial home, at the instance of Abinash and Jatindra Mohan, to whom, however, nothing like this is put It will, therefore, not be proper to draw any inference adverse to them without their having an opportunity to explain such an allegation. So, we do not go that way. The way we go is the great improbability of Rani Bala, a girl of twenty years of age, making such a statement, of her own, in presence of so many people, to which assurance is lent by, amongst others, i) the unsatisfactory and partisan evidence of the witnesses of her adversary, ii) the holding of a meeting, as alleged, with Rajani Mohan and Rani bala as participants, being open to the gravest doubts, upon such evidence, iii) the names of two pre-marital lovers of Rani Bala, known a week earlier, if what Abinash says is true which it is not), being still not mentioned, iv) the impossibility or near-impossibility of Rani Bala, who longs to be with her husband, committing 'suicide', so to say, in this manner, v) the truth of the internal evidence furnished by the statement abont rani Bala's insanity being open to doubt, as the issue on that not being pressed at the trial goes to show, vi) so also that about Rani Bala put to shame before the doctor, though there is no evidence coming from the respondent Ram Krishna's side that she made any statement to any doctor, rani Bala saying, on cross-examination : "i said nothing to the doctor at the hospital,", vii) The statement, intended to serve as a written memorial of Rani bala's gallivanting before marriage ending with a written undertaking not to have any claim on her husband, and. therefore, looking very much a document created for the purposes of Ram krishna's litigation for a decree of nullity raised only five days later, viii) such statement being written by Chitta Ranjan instead of by rani Bala who, we are satisfied from her signature, is capable of writing the substance of what appears over her signature, though not in the same language. 46. WE are, therefore, wholly unable to see in such a tainted document, as exhibit 3 is, any admission on the part of Rani Bala of her pregnancy before marriage, abortion, and all that. And we find so as a fact. The fourth prop in support of such pregnancy followed by abortion, before marriage, remains : the letters, exhibits 4 and 4 a), said to have been written by Rani Bala to her husband ram Krishna, after her voluntary exile from the matrimonial home paragraph 25. It is hardly necessary to go through these letters word for word. Suffice it to note some of the telling points in each : 47. THE undated letter, exhibit 4, sent through Rani Bala's brother Khokan. 1. "you have married me with a brahmin as witness. You can forgive me if you only so wish." 2. "let this hapless woman be forgiven and let her have shelter at your feet." 3. "my knowledge was just like the knowledge of an animal. Hence i could not understand before, as i do now, what a precious possession a husband is like. At the time I came away, I could not take the dust off your feet, I cannot come over to you flying like a bird with wings. Would I could" 4. "i say in all humility, do forgive me my faults and do come once. If you do not, I am agreeable to sacrifice my life - the life of a sinner - by whatever means I can. But then you will have to share the responsibility of killing a woman - a poor woman -whose dead body will greet you in front of your shop." 5. "i know this : my life, the life of a sinner, goes to waste without my husband. If I have done wrong, no matter how great, you have power enough to forgive me. The treasure you have given me i have stored in my heart and with my heart. " 48. "i know this : my life, the life of a sinner, goes to waste without my husband. If I have done wrong, no matter how great, you have power enough to forgive me. The treasure you have given me i have stored in my heart and with my heart. " 48. APPARENTLY this letter is not replied to. Apparently Ram Krishna does not come even once to look Rani bala up after she has come away, if it is safe and possible which it is not : paragraphs 74 and 75) to go by such letters. Hence another letter, exhibit 4 a), undated too, but come inside of an envelope, exhibit 4 b), as Ram krishna says. This envelope bears two postal marks, one of Belleghata Post office, within the jurisdiction of which rani Bala and Rajani Mohan live, and another of Barisha Post Office, within the jurisdiction of which namely, at sarsuna) Ram Krishna lives. The date appearing at the seal of Belleghata post Office is indistinct. The date appearing at the other is distinct: March 31, 1965, - some two months and eighteen days after January 13, 1965. And a letter as this has a generous dose of acerbity. Now to the more important of its contents : 1. "darling, I have been here for so many days. And you do not come even once ! Why, what wrong have I done to you ? May I know that ?" 2. "sent Khokan too and a letter as well through him. Have i not the right to be favoured with a single letter from you ? if you had this in mind, why did you marry me ? As Rama banished Sita to forest without any fault on on her part and out of fear what evil, people would talk about, you have banished me just so. Know not if that will give you peace in life. You will also burn and burn as I am burning. " 3. "when your 'bowdi' sister-in-law : Abanish's wife) is yours, will God tolerate this : the life of a girl being blasted ? i worry not for the sorrows in store for me. Can you not forgive me even if I am guilty of a hundred faults ?" 4. "should you receive me as your wife, you will be disgraced. Hence you have abandoned me. i worry not for the sorrows in store for me. Can you not forgive me even if I am guilty of a hundred faults ?" 4. "should you receive me as your wife, you will be disgraced. Hence you have abandoned me. But when you put on the apparels my father gave you, you have no sense of shame in that. " 5. "for my life you and you alone are responsible. Today you have ruined me. Know not how many girls you have ruined in this manner. You are a man. What understanding can you have of the sorrow in a woman's heart Let the tears rainning down my eyes turn into so many poisonous fangs and bite you. The tears that roll down the eyes of my father and mother will not make you happy ever. " 6. "want to desert me ? Do. There is no harm in that. But do come once. So I implore a hundred times and more. Let me hear you utter from your own mouth that you shall not take me. For my part, I too shall pay homage to your feet for the last time. Then, I dree my weird. What sorrow cam there be in that ?" 7. "you said : 'i used to choose my partners of the other sex. ' but I have made a choice of one, and once for all. Even if such a one deserts me, I shall worship only that one in the throne of my heart. And whether the worshipped one comes or leaves depends on his wishes. " 8. "the women choose their partners but once, not twice; that is for you men. Because nothing is beyond them. " 9. "how could you make me leave from another house with one shari on ? Does not this poor woman come to your mind once ? Do not the things given by my father remind you of me ? I know not. Are yam made of stone ?" 10. "if your 'bowdi' has no objection, reply to my letter. I do not want to spread thorns on the road to your happiness. But such happiness of yours will not last long. Because no oppressor of a woman has been happy ever. " 11. "my only fault is, I have spoken the truth before you. Think of yourself. To err is human. I do not want to spread thorns on the road to your happiness. But such happiness of yours will not last long. Because no oppressor of a woman has been happy ever. " 11. "my only fault is, I have spoken the truth before you. Think of yourself. To err is human. But is that beyond forgiveness ?" 12. "if your 'dada' Abinash) and 'bowdi' Abinash's wife) do not allow you to come, do you not owe a duty to me ?" 13. "even if I have committed a hundred faults in your eyes, have spoken the truth. Consider, was not Kunti guilty too ? But, for that, Pandoo did not desert her. More, Kunti has name and fame the world over as a chaste woman. " 49. CERTAINLY, the contents of the two letters at places go to indicate some sort of an inelegance on the part of Rani Bala before marriage. In particular, reference to Kunti appears to be a pointer, even though the context, as set out in the Mahabharata, see for example, Astadash Parva, by Mahatma kaliprasanna Sinha, at page 44), as to how she as Pritha became the mother of a son later known as Kama is completely otherwise and must be ruled out as an impracticable proposition today. At the same time, a note of innocence is discernible at various other places as well, reference to banishment of Sita by Rama being one such example. From these two letters, full of imbalance, contradictions, and poetic exaggerations, it becomes impossible to infer, in safety, Rani Bala's pregnancy before marriage followed by abortion. 50. THERE is a far graver matter yet. Upon the whole of the evidence, we are completely satisfied that Rani bala cannot be regarded as the writer of these two letters. On Ram Krishna's evidence that he knows the handwriting of Rani Bala, these two letters get admitted to the record. Certainly the opinion evidence of a non-expert is too good to prove handwriting under section 47 of the Evidence Act 1 of 1872. But when could Ram Krishna, not much of a literate either, get to know the handwriting of Rani Bala? According to his evidence, one version comes to this : that he did not live with Rani bala as husband and wife even for a single day. But when could Ram Krishna, not much of a literate either, get to know the handwriting of Rani Bala? According to his evidence, one version comes to this : that he did not live with Rani bala as husband and wife even for a single day. In that case, he had no opportunity to see her write or to receive any letter from her. Nor does he say he had. Another version comes to this : that he lived with Rani Bala as husband and wife from December 13, 1964, to January 5, 1965 - a period of twenty-two days or thereabouts : paragraphs 22 and 23. He had no opportunity to see Rani Bala write or to receive any letter from her, during these twenty-two days either. Nor does he say he had. It is therefore impossible for such a one to say that these two letters are in the handwriting of Rani bala - a handwriting which he had no occasion to see, nothing to say the competence of such a one, a pedlar as a greengrocer, who can somehow sign his name, to assist the court with opinion evidence of a non-expert on handwriting within the meaning of section 47 of the Evidence Act 1 of 1872). This is not all. Ram Krishna is not consistent. In chief, he says : "i know her Rani Bala's) handwriting. " on cross-examination, he maintains : "both the letters exhibits 4 and 4/a, wrongly recorded by the trial judge as exhibits 3 and 3/a) are in the handwriting of Rani Bala's brother Khokan. " If that is that, it is so much the worse for him. When did he and could he see Khokan write during the brief spell of his married life with Khokan's sister Rani Bala ? He does not say he did or could. And then why should rani Bala be vicariously liable for what Khokan writes, unless authorized by her to write so ? Her evidence is she ne'ther wrote any letter to Ram krishna nor sent any through Khokan. We accept such evidence. And that the letters are not in the handwriting of rani Bala can admit of no doubt whatever. The hand that wrote the admitted signature of Rani Bala, exhibit 3 1, cannot be the hand that wrote these two letters. One need not be an expert to say so. That is apparent. We accept such evidence. And that the letters are not in the handwriting of rani Bala can admit of no doubt whatever. The hand that wrote the admitted signature of Rani Bala, exhibit 3 1, cannot be the hand that wrote these two letters. One need not be an expert to say so. That is apparent. 51. THUS, it is equally impossible to find Rani Bala's pre-marital pregnancy and all that on the basis of the two letters, exhibits 4 and 4 a), which are not Rani Bala's and which cannot be Rani Bala's. 52. THIS concludes our review of the whole of the evidence on the factual aspect of the question the judgment opens with. And we find as a fact that Rani Bala's loss of virginity before marriage remains unproved, even though no effort has been spared on behalf of Ramkrishna to prove it by all manners of evidence,. the most of which appear to be so questionable and the rest of which so futile. The learned trial judge has not taken the trouble to see through the evidence. Indeed, he has proceeded much too mechanically. Result : he has come to an opposite conclusion which, in our judgment, does not appear to be right. On this consideration alone the judgment under appeal deserves to be upset and the appeal upheld. There is still another reason why the appeal must end so. The reason is : concealed unchastity of a spouse, before marriage, is not, and cannot be, fraud within the meaning of section 12, subsection 1, clause c), of the Hindu Marriage Act 25 of 1955, so, even if Rani Bala's loss of virginity before marriage, be assumed, though we repeat, it is impossible to assume so, upon evidence, Ram Krishna cannot get the decree of nullity he prays the court for. This is the legal aspect of the question the judgment opens with. 53. THE problem resolves itself into two parts. One, did Ram Krishna consent to the solemnization of his marriage with Rani Bala on December 12, 1964 ? Two, if so, was such consent obtained by fraud ? 54. THAT Ram Krishna consented to the solemnization of his marriage with this very girl Rani Bala on december 12, 1964, is writ large upon the evidence we have had put before us. Two, if so, was such consent obtained by fraud ? 54. THAT Ram Krishna consented to the solemnization of his marriage with this very girl Rani Bala on december 12, 1964, is writ large upon the evidence we have had put before us. His brother Abinash and his brother-in-law Jatindra Mohan carried on the negotiations for marriage on his behalf. Whereas Abinash says he had talks with Rani Bala's father, Rajani mohan, as also with her mother, both of whom assured him "that the character of the girl was very good" as if any parents would say at such a stage that the character of their daughter is very bad), Jatindra Mohan speaks of two visits at Rajani Mohan's before the date of the marriage: December 12, 1964, - once, one and half or two months before marriage, that is to say, on or about October 12, 1964, or october 28, 1964, and again a month ahead of the marriage, that is to say, on or about November 12, 1964. During the first such visit, both Rajani Mohan and his wife, Rani Bala's parents, assured them that "the character of the girl was without any flaw" and that they "could easily agree t6 the marriage". During the second visit, Rani Bala's parents assured them over again "about the character of the girl. " And on december 12, 1964, Ram Krishna came to the bride's place, as usual, and married rani Bala under the Hindu rites. As jatindra Mohan clinches the matter, on cross-examination : "the marriage was performed with our consent given to the father of the girl earlier," Since they were negotiating, on behalf of Ram Krishna and for Ram krishna's marriage with Rani Bala, which was in fact celebrated in accordance with Hindu rites, their eansent is Ram Krishna's consent too. Indeed, ram Krishna's actual, real consent to the marriage with Rani Bala is very much there. Not that he was dragged against his will to the bride's place to marry the girl he, in fact and at law, married. That is not his case either: a case resting on force. Not that he consented to marry, say, Pari Bala and was somehow seduced to marry Rani Bala. But he consented to marry Rani Bala and did marry Rani Bala. We find so, as a fact, upon the whole of the evidence. That is not his case either: a case resting on force. Not that he consented to marry, say, Pari Bala and was somehow seduced to marry Rani Bala. But he consented to marry Rani Bala and did marry Rani Bala. We find so, as a fact, upon the whole of the evidence. Now, to the second part of the problem: Does any fraud go to Ham krishna's consent ? Ram Krishna would have us hold, it does. The stance he takes is : 'concealed unchastity of rani Bala, before marriage, is fraud which goes to such consent on his part. If Rani Bala's parents had not certified her to be a girl of good character before his brother and brother-in-law, but had told them the truth instead of her loss of virginity before marriage, he would not have married her. Herein lies fraud by which his consent to the marriage was obtained. ' 55. A stance as this is very good if fraud contemplated by section 12, subsection 1, clause c) of the Hindu marriage Act 25 of 1955 is fraud as defined in section 17 of the Contract Act 9 of 1872. By virtue of that definition, suggestio falsi, that is, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true, is fraud. On the assumption we are proceeding, here is then the suggestion of Rani Bala's chastity before marriage, a fact which is not true), by her parents who do not believe it to be true. Here is, therefore, fraud. Again, by virtue of that definition, suppressio veri, that is, active concealment of rani Bala's unchastity, before marriage, by her parents who had knowledge of such unchastity, is fraud. 56. BUT the two statutes are not pari materia. The Hindu Marriage Act deals with marriages. The Contract act deals with contracts and commerce. A marriage is neither: not a contract nor commerce. Under the ancient Hindu Law it is a sacrament. The Hindu Marriage Act has no doubt made an inroad into the close preserve of that ancient law. But the concept of a sacrament still goes strong. Therefore, the definition of fraud which governs a contract cannot be made to apply lock, stock, and barrel to a marriage which is a sacrament. The Hindu Marriage Act has no doubt made an inroad into the close preserve of that ancient law. But the concept of a sacrament still goes strong. Therefore, the definition of fraud which governs a contract cannot be made to apply lock, stock, and barrel to a marriage which is a sacrament. To the ultra-modern, or even to the modern, the concept of a sacrament may sound as something of an esoteric refinement. But, sacrament or no sacrament, a marriage can never be regarded "as a mere contract. " Nor can it be invested "with all the qualities and conditions of ordinary civil contracts. " For example, the parties who enter into a contract can at their will dissolve it, but the parties who contract a marriage cannot, barring, of course, divorce by mutual consent as provided for by section 28 of the Special marriage Act 43 of 1954 : a special feature in a special Act which does not bulk large here. Such being the outlook, it will not be right to lift bodily the definition of fraud from the Contract Act and to draft it to fit into the Hindu marriage Act; the more so, when the essentials of marriage, now sought to be run away from by a spouse, remain unsullied. Here is a marriage between ram Krishna and Rani Bala, at the time of which – i) neither has a spouse living; ii) neither is an idiot or a lunatic, the attempt to prove rani Bala a lunatic having been given up; iii) Ram Krishna is twenty-seven and Rani Bala is twenty years of age; iv) they are not within the degrees of prohibited relationship; and v) they are not sapindas of each other either. Thus, all the conditions of a valid hindu marriage, as laid down in section 5 of the Act, are well met. Again, the marriage is solemnized in accordance with the customary rites and ceremonies of both the parties. That indeed is beyond question, none saying to the contrary. So, section 7 of the act has received effect too. 57. TO overturn such a marriage, valid and complete in all essentials, the plea of fraud is being resorted to. The application of the definition of fraud in the Contract Act, word for word, is ruled out, and for good reasons too. So, section 7 of the act has received effect too. 57. TO overturn such a marriage, valid and complete in all essentials, the plea of fraud is being resorted to. The application of the definition of fraud in the Contract Act, word for word, is ruled out, and for good reasons too. A civil contract is, but a marriage is rust, a mere contract. And a Hindu marriage is a sacrament, with a contract nowhere near. To say so however is not to say that no part of the definition applies. To quote with a little adaptation from 'the written judgment" delivered by the late President, sir F. H. Jeune, in 14) Moss v. Moss, 1897) P 263 : "fraud, spoken of as a ground for avoiding a marriage, does not include such fraud as induces a consent, but is limited to such fraud as procures the appearance without the reality of consent. The simplest instance of such fraud is personation. " As pointed out already paragraph 80), Ram Krishna consented to marry rani Bala. And Rani Bala he did marry. So the reality of his consent not the appearance without such reality, is very much there. Had it been otherwise, had he consented to marry pari Bala, but was induced to marry rani Bala, it would have been fraud by false personation, it would have been the procuring of the appearance without the reality of his consent, and it would have been an act fitted to deceive him, within the meaning of the definition of fraud pro tanto in section 17 of the Contract Act. But that is not the case here. The case here is fraud in concealing loss of Rani Bala's virginity before marriage. The case here is fraud, inducing Ram Krishna's consent, by such active concealment, no less by active suggestion of her good character, so untrue and believed to be untrue by the makers of the suggestion. But fraud as a ground for avoiding a marriage does not include such fraud as induces a consent. To quote the late president, Sir F. H. Jeune, again : "but when there is consent no fraud inducing that consent is material. " just so here. There is Ram Krishna's consent to his marriage with Rani bala. Therefore, no fraud inducing that consent is material. To quote the late president, Sir F. H. Jeune, again : "but when there is consent no fraud inducing that consent is material. " just so here. There is Ram Krishna's consent to his marriage with Rani bala. Therefore, no fraud inducing that consent is material. And the test to be governed by, in a case under section 12, subsection 1, clause c), of the hindu Marriage Act 1955, rested on fraud, is : 'do apply the definition of fraud in the Contract Act 1872, but limit it to that periphery : such as, where fraud is such "as procures the appearance without the reality of consent," keeping outside the periphery "such fraud as induces a consent," 58. TO put it in another way, the way in which Tolstoy puts it in The law and Practice of Divorce, 6th edition, at page 112, with a little adaptation again, to fit the facts on hand : "the test in all cases is whether there is real consent, not only to marry, but also to marry the particular person. But provided such consent exists, it is immaterial whether it is induced by a fraudulent misrepresentation; so that where a woman, not a chaste virgin, but a person deflowered, marries without disclosing that to her husband to be, such a marriage cannot be avoided on the ground that he would not have consented to marry had he known the true facts. " This is but a compendium of the law on the point based on well known english authorities. And how nice it fits Ram Krishna whose real consent, not only to marry, but also to marry rani Bala, is very much there. More, such consent existing, it is immaterial whether or no it is induced by suppressio veri or suggestio falsi or both about the loss of Rani Bala's virginity before marriage. What Ram Krishna pleads with a view to avoiding the marriage really comes to this : "it has been an error on my part. Had I known the truth, I would not have married Rani bala. "And while on the topic of error, what Ayliffe says in Parergon Juris canonici, one cannot simply go without. What Ram Krishna pleads with a view to avoiding the marriage really comes to this : "it has been an error on my part. Had I known the truth, I would not have married Rani bala. "And while on the topic of error, what Ayliffe says in Parergon Juris canonici, one cannot simply go without. To quote therefrom part of what the late President, Sir F. H. Jeune, quotes in 14) Moss v. Moss supra) : "and tho' there is nothing more contrary to consent than error, yet every error does not exclude consent. Wherefore I shall here consider what kind of error it is, according to the canon law, that hinders or impeaches a matrimonial consent and renders it null and void ab initio. " Ayliffe then refers to four species of such error: "the first is stiled error personae, as when I have thoughts of marrying ursula; yet by the mistake of the person I have marry'd Isabella. For an error of this kind is not only an impediment to a marriage contract, but it even dissolves the contract itself, through a defect of consent in the person contracting. A second species is stiled an error of condition; as when I think to marry a free woman, and through a mistake I have contracted wedlock with a bondwoman and so vice versa**; "this kind of bondage or servitude being no more, the second species of error has little interest save historical. The third species of error is what we call error fortunae; and is when i think to marry a rich wife and in truth have contracted matrimony with a poor one. But this error does not, even by the canon law, dissolve a marriage contract made simply and without any condition subsisting". Interrupting the quotation from ayliffe in his Parergon, at page 361, as quoted in 14) Moss v. Moss, supra), it is as well we remind ourselves of what "a judge of the greatest possible eminence, no less a person than Lord stowell", the terms in which Earl of selborne, L. C., refers to him in 15) G. The Husband) v. M. The Wife), 1885) 10 AC 171, says on a matter as this in 16) Ewing v. Wheatley, 1814)2 Hag. Con. Con. 175 183): "it is perfectly established that no disparity of fortune or mistake as to the qualities of the person will impeach the vinculum of marriage". To Ayliffe again on the four species of error, three of which have been covered : "the last species is stiled an error of quality-viz., when a person is mistaken in respect of the other's quality, with whom he or she contracts. As when a man marries berta, believing her to be a chaste virgin. . . . . . . . . . . . . and afterwards finds her to be a person deflower'd. But according to the common opinion of the doctors this does not render the marriage invalid; because matrimony celebrated under such kind of error, in point of consent, is deem'd to be simply voluntary as to the nature and substance of it, though in respect of accidents 'tis not voluntary". Ram Krishna's error falls under the fourth species. He marries Rani Bala, believing her to be a chaste virgin, on the basis of representations made by her parents, but afterwards finds her to be a person deflowered, if what Ram krishna alleges is true, which, of course, it is not. Such a find by Ram Krishna, even if true, does not enable him to void the marriage, valid and complete in all essentials, his error falling under the fourth species, as it does. 59. WHAT is however said on behalf of the respondent Ram Krishna comes to this: 'why go to English authorities and canon law? Interpret section 12, sub-section 1, clause c), of the Hindu marriage Act 1955 on its own and find that consent induced by a fraudulent misrepresentation as here) is fraud this provision contemplates'. A contention as this merits far more than one answer, and each such answer appears to be so telling, in our judgment. 60. FIRST, it is a mistake to think that the Hindu Marriage Act is sui generis, the only one of its kind. "i will quote only one authority, but that a high one". The authority is the Supreme court decision in 17) Mahendra Monilal nanavati v. Sushila Mahendra nanavati, AIR 1965 SC 364 : a case under section 12, sub-section 1, clause d), of the Hindu Marriage Act 1955. "i will quote only one authority, but that a high one". The authority is the Supreme court decision in 17) Mahendra Monilal nanavati v. Sushila Mahendra nanavati, AIR 1965 SC 364 : a case under section 12, sub-section 1, clause d), of the Hindu Marriage Act 1955. It is just the Indian Preston Jones, case the other way round : 18) Preston-Jones v. Preston Jones, 1951) AC 391. The other way round, because in the Preston-Jones case, supra) the birth of the child is too late: 360 days after the last intercourse with the husband, and in the 17)Mahendra case, the birth of the child is too early: 171 days after the marriage. And in a case as this under the Hindu marriage Act 1955, Mudholkar, J., in his minority judgment says: "the law of divorce in India is, broadly speaking modelled on the law of England".-this having not been dissented to in the majority judgment of Raghubar Dayal, j., for himself and Rajagopala ayyangar, J. So, there appears to be nothing wrong in governing ourselves by the principles on which the English authorities rest. Second: our canon law or the common opinion of our doctors does not appear to be any the different. Here is the policy of yore formulated by sukracharya for his disciple, King Vali, telling him in anger to flee his promise to the Incarnation of God in the form of a dwarf Vamanavatar) for land covering only three spaces of His,-a promise which, if kept, is sure to spell disaster for the king and his kingdom: strishu Narma Vivahecha vittyarthey Pranasankatey. Go Brahmanarthey Hingsayang nanritang Syajjugupsitang. Shrimadbhagavatam: volume 8: chapter 19: sloka 35.)Rendered into English, not very literally though, and in the context of the theme, it reads: with women to be won, for your profession, in jokes and when in fear of life, in praise, for marriage, of groom and bride, for Brahmins and cows, when with violence seized, all lies, so bad otherwise, are never to be blamed. So far as marriage goes,-and with that only we are concerned-, this is practical common sense too, Vastavadharma practical religion), as it is called, rendered all the more practical in the context of today, when Gouridan at the age of nine is no more, and when our boys and girls, advanced in years, get married. So far as marriage goes,-and with that only we are concerned-, this is practical common sense too, Vastavadharma practical religion), as it is called, rendered all the more practical in the context of today, when Gouridan at the age of nine is no more, and when our boys and girls, advanced in years, get married. To rake up the past, in the circumstances, is "to open the door to lax and easy declarations of matrimonial nullity" and thereby to usher "a grave public mischief", the words within quotations being the words of Lord selborne, L. C., in 19) Cuno The Wife)v. Cuno The Husband), 1873) LR 2 hl Sc.) 300, a case by the wife for a decree of unllity by reason of the impotence of the husband, with whom she had cohabited for a little less than seven years, and in the context of an abortive appeal on behalf of the wife for their Lordships' feelings of compassion to prevail over the principles which ought to govern them in dealing with this class of cases. The text in a matrimonial cause of this type is not what a boy or a girl is before marriage. The test is what a boy or a girl is at and after marriage. With a little lapse here and there before marriage, a boy may yet be an ideal husband and a girl may yet be an ideal wife, after marriage. Why then so much noise over so little ? 61. THIRD: 20) Anath Nath De v. Sm. Lajjabati Devi, AIR 1959 Calcutta 778, a decision of S. Datta, J., cited on behalf of the appellant Rani Bala, it being a case of concealed tuberculosis of the wife before marriage, holds inter alia: a. Consent at the time of solemnization of marriage, no fraud within the meaning of section of subsection 1, clause c), of the Act. B. Fraud at the negotiation stage inducing consent, no fraud within the meaning of section 12, subsection 1, clause c). And a pleading averring only this and no more does not disclose any cause of action even. It is a rehash of the principle noticed above : when there is consent, no fraud inducing that consent is material-just the fourth species of error paragraph 87). 62. FOURTH : there is still another authority of our courts, apart from english authorities. And a pleading averring only this and no more does not disclose any cause of action even. It is a rehash of the principle noticed above : when there is consent, no fraud inducing that consent is material-just the fourth species of error paragraph 87). 62. FOURTH : there is still another authority of our courts, apart from english authorities. That is the decision of P. C. Pandit J. in 21) Harbhajan sing v. Smt. Brij Balab Kaur, AIR 1964 Punjab 359. cited on behalf of the appellant again. There also, as here, the petitioning husband alleges that his consent to the solemnization of marriage was obtained on the assurance of the respondent's father that the respondent was a virgin and that her character was unblemished. But soon after marriage the husband discovered that the wife had given birth to a child before marriage. On the basis of these facts assumed to be correct, the learned Judge holds that such misrepresentation does not come within the meaning of fraud in section 12, subsection 1, clause c), of the Act and that a petition containing these allegations, and no more, discloses no cause of action. We hold as much and no such assumption too. But, assumption apart, we have thought it fit to enter into the merits of Ram Krishna's allegations against Rani Bala, since the chastity of a young married woman before marriage is involued. We have therefore, felt that she should not leave the court with her success on the point of law only. Upon the finding we have come to, on facts, she leaves this painful litigation with a pronouncement from this court that the charge of unchastity before marriage, brought against her, is baseless. In the result, the appeal succeeds. Be it allowed. The judgment and decree of the court below be set aside. And the respondent Ram krishna Debnath's petition for a decree of nullity do stand dismissed. The said respondent do pay to the appellant rani Bala Debnath costs here and below,-costs which we assess, upon all we see, in a lump at Rs. 2,00, in addition to costs, if any, paid already.