TIKAM SINGH Vs. DHAN KUNWAR

JUDGEMENT

(1.) This is an appeal from a decree of the Subordinate Judge of Agra dismissing the plaintiff's claim for a declaration that the defendant, Lachman Singh alias Mahar Singh, was not the son of one Thakur Kehri Singh, deceased. The plaintiff claimed as one of the reversionary heirs of Thakur Kehri Singh, who died on the 15 May, 1890, leaving the defendant, Thakurain Dhan Kunwar, his widow, him surviving. The defendant, Lachman Singh, who is the child of Thakurain Dhan Kunwar, was born on the 7 May, 1891, that is 357 days after the death of Thakur Kehri Singh. The plaintiff alleges that Lachman Singh is not the child of Kehri Singh, and charges that the moral conduct of Thakurain Dhan Kunwar during the life-time of her husband was doubtful, but that after his death she became immoral, and contracted improper intimacy with several persons whom we shall presently mention. The learned Subordinate Judge found that Lachman Singh was the legitimate son of Thakur Kehri Singh, and consequently dismissed the plaintiff's suit. He held upon the medical authorities and evidence that pregnancy might be protracted for the period which elapsed from the death of Kehri Singh to the birth of Lachman Singh, and that there was nothing in the evidence to lead him to suppose that Dhan Kunwar had, immediately after the death of her husband, become unchaste. The evidence of misconduct on the part of Dhan Kunwar adduced by the plaintiff he held to be unsatisfactory and unreliable. From this decree the plaintiff has appealed upon the ground that in view of the interval which elapsed between the death of Kebri Singh and the birth of Lachman Singh, Lachman Singh could not be the son of Kehri Singh, and that a finding to the contrary was against the weight of the evidence.

(2.) Thakurain Dhan Kunwar was cited by the Court for examination on the 4th January, 1896, at or about the time of settlement of issues, when she stated that except Lachman Singh she had no other issue by Kehri Singh, but that she had had miscarriages on two or three occasions. She says that there was coition for the last time between herself and her husband 8 or 10 days before his death, and that he was in a good state of health at that time; that she never had connection with any man except her husband, and that Lachman Singh was begotten by him. She did not tender herself for examination or cross-examination on the trial of the suit, notwithstanding that serious allegations of misconduct were made against her by several witnesses who were examined on behalf of the plaintiff.

(3.) The only question for our determination is whether or not Lachman Singh is the eon of Kehri Singh. The answer to this question depends upon the weight which ought to be attached to the scientific and other evidence which has been given. According to the law in England and America, there is no period defined beyond which gestation cannot be protracted, although a period of 280 days appears to be accepted as the legitimum tempus pariendi. Each case in which legitimacy is contested must be decided on its own merits, Dr. Play fair in his valuable treatise on the Science and Practice of Midwifery, at p. 188, 9 edition, sums up his conclusion upon this question as follows: "On the whole, it would hardly be safe to conclude that pregnancy can go more than three or four weeks beyond the average time. This conclusion is justified by the cases we possess in which pregnancy followed a single coitus, the longest of which was 295 days." He refers as examples of protraction of pregnancy to four instances recorded by Simpson, in which pregnancy extended respectively to 336, 332, 319 and 324 days after the cessation of the last menstrual period; but he points out that in these, as in all cases of protracted gestation, there is the possible source of error that impregnation may have occurred just before the expected advent of the next period. Making an allowance, however, for this, he points out that even then we have a number of days much above the average, and admits that such cases of protracted pregnancy may be more common than is generally supposed. In the present case Lachman Singh was admittedly born 365 days after the last coitus with her husband alleged by his mother, that is nearly three months after the legitimum tempus pariendi had elapsed. Dr. Taylor in his well known work on Medical Jurisprudence, at p. 265, Vol. 2, 4 edition, writes as follows: "In works on midwifery will be found authentic reports of cases in which gestation continued to the forty-first, forty-second, forty-third and even to the forty-fourth week. Murphy regards 301 days or forty-three weeks as the average limit of gestation (Obstet. Rep., p. 4). Lee met with a case in which he had no doubt that the pregnancy lasted 286 days, the labour did not take place until forty-one weeks after the departure of the husband of the lady for the West Indies (Med. Gaz., Vol. 31, p. 917). William Hunter met with two instances in which gestation was protracted until the forty-second week. Montgomery met with a case in which delivery did not ensue until between the forty-second and forty-fourth weeks (Med. Gaz., Vol. 19, p. 646)." And again he writes: "There is no doubt a limit to gestation, but it is not in our power to fix it, hence we find obstetric writers of repute adopting periods which have no point of agreement among themselves. Some stop short at 280 days, others like Reid fix the maximum yet known at 293 days. Murphy allows from his experience at least 324 days, and Meigs considers that gestation may be continued to twelve months or 365 days." Dr. Lyon in his work on Medical Jurisprudence for India sums up the matter thus: "On the whole, therefore, as regards the question what is the longest period which, in natural human gestation, may intervene between coitus and delivery--the form which the question under consideration assumes for forensic purposes--it may be stated that- (1) it may be regarded as proved that this may be 296 days; (2) most authorities agree in considering that the interval may be as long as 44 weeks or 308 days: indeed in the Gardner Peerage case several eminent obstetricians gave it as their opinion that the interval might extend to, at any rate, 311 days; (3) some authorities consider that the interval may extend to the forty- sixth week--315 to 322 days.