NARAYAN Vs. SHOBHA AND ANOTHER

JUDGEMENT

(1.) This is an unfortunate dispute between husband and wife where the husband claims divorce on the ground that the wife had committed adultery with Respondent No. 2. The wife- Respondent No. 1-denied the charge of adultery. The husband examined himself and examined one witness and the wife examined herself. The alleged paramour Respondent No. 2 is exparte. After considering the evidence on record the trial Court disbelieved the husband's version that the wife had committed adultery and so the trial Court dismissed the petition. Petitioner has taken an appeal to this Court.

(2.) Shri R.R. Jethlia, appearing for the Petitioner, invited my attention to paras 7 to 10 of his petition. In these paragraphs the Petitioner has made a reference to the alleged immoral conduct of Respondent No. 1 with Respondent No. 2. There he has mentioned that when he happened to open the purse of his wife he happened to come across a chit and he was trying to read it but his wife resisted and snatched it and tore it out, and further threw the pieces outside the wall. It is further his averment that he collected those pieces and arranged then) and he could read that the chit suggested that there were illict relations between his wife and Respondent No. 2. Then Shri R. R. Jethlia invited my attention to paragraphs 7 to 10 of the written statement. In these four paragraphs Respondent No. 1 denied the contents of paras 7, 8, 9 and 10, of the petition, respectively. According to Shri Jethlia, this is a vague or evasive denial and therefore, under Order 8 Rr. 3, 4 and 5 of the Code of Civil Procedure it should be deemed that Respondent No. 1 has admitted these allegations. As against this Shri P.S. Kathar, appearing for Respondent No. 1, placed reliance upon a decision of this Court in Mrs. Sushila Mahendra Nanavati Vs. Mahendra Manilal Nanavati (A.I.R 1960 Bombay 117) . He placed particular reliance upon Head Note (b), and it runs as follows :

(3.) This then takes me to the main question of the proof of adultery. Shri R. R. Jethlia placed reliance upon a decision of the Supreme Court wherein it is observed by the Supreme Court that in such cases the matter should be decided on a preponderance of probabilities. That is a decision in Dr. N.C. Dastane Vs. Mrs. S. Dastane (AIR 1975 Supreme Court 1534) . The Supreme Court observed as follows:-