JUDGMENT
N.K. Jain, J.
1. This is a Civil Misc. Appeal of husband Mani Shankar against his wife Smt. Radha Devi, regarding divorce matter under Section 28 of the Hindu Marriage Act read with Section 96, C.P.C. A petition for divorce was filed by the appellant Mani Shankar under Section 13(1) of the Hindu Marriage Act, 1955 (hereinafter referred as the ‘Act of 1955’) in the Court of District Judge, Dungarpur on the ground of adultery as well as on cruelty, which was dismissed by the learned Judge vide his order dated 3-8-88 in Civil Misc. Case
No. 49/83, Hence this appeal has been preferred against the aforesaid judgment.
2. Brief facts of the case are that Mani Shankar and Radha Devi were married according to Hindu rites and ritual in the year 1968 and they lived as husband and wife for 14 years but had no issue from the wedlock. The appellant has filed a petition under Section 13(1) of the Act of 1955 for divorce before the learned District Judge, Dungarpur on 28-9-83, alleging therein that the respondent No. 1 Smt. Radha Devi is living in adultery with respondent No. 2 Pradeep Singh which caused cruelty to the appellant and other allegations were also made. The respondent wife denied all these allegations and alleged that on the instigation of the brothers Kanhaiya Lal and Harishankar, the appellant has levelled these false charges against her with a view to perform second marriage. The respondent No. 2 has also denied these allegations in his reply but did not participate in further proceedings. The trial Court has framed as many as 3 issues. In support of his case the appellant has produced as many as 7 witnesses including the evidence of hand writing expert and also produced 12 documents. On the other hand the respondent No. 1 has also produced herself and 6 more witnesses including the handwriting expert but no documentary evidence was produced by her. The respondent No. 2 has not come in the witness box. After hearing both the parties the learned District Judge, Dungarpur dismissed the petition on the ground that the appellant has failed to prove his case beyond reasonable doubt. In this appeal none has appeared on behalf of respondents despite the service by normal as well as Regd. post, as per record.
3. I have heard Mr. M.C. Bhoot, learned counsel for the appellant and also perused the entire record.
4. Mr. Bhoot, learned counsel for the appellant has urged that the order of trial court has been passed on wrong approach as it is very difficult to get the direct evidence of adultery. The conclusion can be drawn on the preponderance of probabilities of the circumstances, that it is a case of adultery. In this
regard Mr. Bhoot has relied on AIR 1979 Raj 156, B.D. Charles v. Smt. Nora Benjamin by Special Bench of three Judges of this Court. In this case, it has been held by the Court that direct evidence of proof of adultery is very rare and adultery can be established by circumstantial evidence and circumstances must be such as would lead the guarded discretion of a reasonable and just man to a conclusion of adultery. Another case relied by Mr. Bhoot, learned counsel for the appellant is AIR 1975 SC 1534, Dr. Dastane v. Mrs. S. Dastane. A case under this Act of 1955 regarding the standard of proving in the matter of cruelty what it should be and what was held by the learned Supreme Court as under (at page 1539):
The belief regarding the existence of a fact may be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. The proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. It is wrong to import such considerations in trials of a purely civil nature.”
4-A. The situation of a court in a suit of civil nature depends on preponderance of probabilities and not situation beyond reasonable doubt. In AIR 1980 Cal 374, Dr. Saroj Kumar Sen v. Dr. Kalyan Kanta Ray is a case of Hindu Marriage Act, 1955 petition under Section 13(1) for divorce on the ground of adultery. The evidence and standard of proof has been discussed. It was held
in this Calcutta case, that divorce being a civil proceeding and standard of proof cannot be analogies of criminal law are not apt. Adultery can be proved by preponderance of probability.
5. From these case laws, the principle of law emerges is that in the proceedings of a civil nature strict standard proof of criminal law i.e. beyond reasonable doubt does not apply and civil cases will be decided on preponderance of probabilities.
6. Applying these principles to the present case, it can be well said that the court below has applied to the standard of proof of a criminal nature and not of a civil nature. In the present case, oral as well as the documentary evidence have been produced by the appellant, letters, Ext. 2, Ex. 3, Ex. 4 and Diary Exs. 10 and 11 are on record and oral evidence of P.W. 1 Manishankar, P. W. 3 Kanhaiyalal, P.W. 5 Harishankar, P. W. 7 H. L. Badhwar will certainly go to show tbat preponderance of probabilities of adultery of respondent No. 1. The respondent No. 2 has not denied the authencity of the letters written by him. The trial court while deciding issue No. 1 has not looked into the matter in the preponderance of. probabilities and wrongly decided it that the appellant has failed to prove its case beyond reasonable doubt. The respondents have not turned up in this court despite service. P. W. 1 Manishankar, P. W. 3 Kanhaiyalal and P. W. 5 Harishankar have orally admitted that the letters in question arc in the handwriting of respondent No. 2 and there is no rebuttal of this evidence except the total denial by Radha Devi respondent No. 1. Respondent No. 2 has not appeared in witness box to support or deny the allegations made by the applicant so there is no reason to disbelieve the evidence on the basis of preponderance of probabilities. It is also on record as per statement of P. W. 1 that they are living separate since 1980 and Radha Devi wife has stated that they are living Separate for the last three to four years, prior to the date of her statement recorded in 1986 and in view of the evidence on record it is clear that the parties are living separately for a considerable period there is no cohabitation or any
possibility of reunion between the parties as she remained absent in this court. In view of the above discussion, I am of the view that the appellant has proved his case and he is entitled for divorce.
7. In the result, the appeal is allowed and the judgment and decree passed by the learned District Judge, Dungarpur dated 3-8-1988 in Civil Misc. Case No. 49/83 is set aside, and decree for divorce is passed in favour of the appellant with no order as to costs.
