BHANWARI Vs. BHANWARIA

JUDGEMENT

(1.) THIS Civil Mic. appeal is preferred against the judgment and decree dated April 21,1979 of learned District Judge, Udaipur, whereby the petition for dissolution of the marriage by a decree of divorce of the appellant was dismissed.

(2.) THE main ground for the dissolution of marriage by a decree of divorce taken in the petition was that respondent No. 1 Bhanwaria was living in adultery. It is alleged that the appellant was married with respondent No. 1 according the Hindu rites in the year 1970. The appellant went to house of the respondent no. 1 for the first occasion in the year 1975, for a few days. She again visited the house of respondents three moths before the date of petition 9 -3 -76. But after a few days, the respondents turned her out from his house after giving her a beating. Respondent no. 1 has married Bhagudi and they were living as husband and wife. The date of the alleged marriage or the 'nata' was mentioned as 6 -3 -76. Respondent no. 1 in his written reply denied that the appellant had come to his house on the two occasions. She only came to his house once with her mother and stayed with him for only two days and then went away with her mother. He was ready and willing to keep the appellant with him. It was denied that he had married with Bhagudi or had contacted a nata marriage with her. It may be stated that Bhagudi was also made a party to this petition. Issue no. 1 raised in the petition was to the effect whether non -petitioner No. 1 was living in adultery with respondent No. 2. The appellant examined herself and three witnesses namely Lalu, Hiralal, and Duda to prove the nata of Bhagudi with respondent no. 1. In rebuttal, respondent no. I examined himself and Kalu. The finding of the District Judge was that the allegation of nata marriage of respondent no. 1 with respondent no. 2 on 6 -3 -76 did not amount to living in adultery. The finding was that the appellant failed to prove by cogent evidence that respondent no. 1 had entered into a nata marriage with respondent no. 2. It was further observed that it was not alleged in the petition that Bhanwaria and Bhagudi indulged in sexual intercourse and also no evidence was produced to prove this fact. Learned District Judge was, therefore, of the opinion that it was not proved that respondent no, 1 was living in the adultery with respondent no. 2.

(3.) I have considered these authorities carefully but these have to be read in view of the following observations made in Dr. N.G. Dastana v. Mrs. Dastana : [1975]3SCR967 . Neither Section 10 of the Act which enumerates the grounds on which a petition for judicial separation may be presented nor Section 23 which, governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is 'satisfied' on matters mentioned in Cla (a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word 'satisfied' on a preponderance of 'probabilities' and not 'satisfied beyond a reasonable doubt'. Section 23 does not alter the standard of proof in civil cases. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting 'matrimonial offence.' Acts of a spouse which are calculated to impair, the integrity of a marital union have a special significance. To marry or not to marryi and if so whom, may, well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this: special philosophy though it may have a bearing on the need to have the clearest proof of an allegation befogs it is accepted as a ground for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases. In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in (1966) 1 All ER 524 at p. 536 the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, 'the case, like any civil case, may be proved by a preponderance of probability'. The High Court of Australia in (1948) 77 CLR 191 at p. 210 Wright v. Wright has also taken the view that 'the civil and not the criminal standard of persuation applies to matrimonial causes, including issues of adultery.' The High Court was therefore in error in holding that the petitioner must establish the charge of cruelty 'beyond reasonable doubt.' The High Court adds that 'This must be in accordance with the law of evidence', but we are not clear as to the implication of this observation. It cannot therefore be said that standard of proof in a case under Hindu Marriage Act is that of a Criminal trial. In my opinion the case has to be decided like a civil case and the finding has to be arrived at on the preponderance of probabilities.