JUDGMENT
Balakrishnan, J.
1. The husband in a matrimonial proceeding is the appellant. He filed a petition under Section 13 of the Hindu Marriage Act for divorce on the grounds of adultery and cruelty. Respondent-wife denied the allegations. The court below found that the appellant had not satisfactorily proved
the grounds alleged in the petition and therefore the petition for divorce was dismissed. The appellant challenges this order.
2. Appellant is in Indian Military Service. The respondent is a U.P. School teacher. The marriage between the appellant and respondent Thankamma was solemnised in 1970. Thereafter they had been residing as husband and wife at Pulpatta in Ernad Taluk. Two children were born in the wedlock. Dispute between the husband and wife arose some time in 1976. The appellant-husband started suspecting the fidelity of his wife. He accused her of having illicit relationship with one Abdul Rahiman. Appellant also alleged cruelty. We would say that the respondent-wife falsely stated that he had sexual connection with her sister. He also alleged that on 24-7-1978 the respondent clandestinely administered sleeping pills to him and that she also caused bodily injury to him. On these allegations the appellant moved for divorce under Section 13(1)(i) and (ia) of Hindu Marriage Act. The respondent characterised the appellant as a man of desparate character and alleged that he always liked to keep company with drunkards. Respondent also alleged that he had failed to maintain the two children. The lower court came to the conclusion that the appellant has not proved beyond reasonable doubt the allegations regarding cruelty and adultery.
3. Shri P.K. Moosa, the learned counsel for the appellant, seriously assailed the finding of the learned Sub Judge. It is true that the court below has committed error in not noticing the latest provision of law. The appellant alleged that the respondent had voluntary sexual intercourse with one Abdul Rahiman. The learned Subordinate Judge while discussing the issue regarding adultery held that in order to invoke Section 13(1)(i) of the Act the appellant should have proved that the respondent was living in adultery and a single act of adultery cannot be considered as living in adultery. The court below was of the view that there should have been a continuous course of adulterous life to get a decree of divorce under Section 13(1)(i) of the Hindu Marriage Act. Probably the learned
Sub Judge might have had in mind the Sub-section 13(l)(ia) of the Hindu Marriage Act, (as amended by) (Act 44 of 1964). This was amended by the Marriage Laws (Amendment) Act 1976, Act 68 of 1976. The following changes were made in Section 13. In Section 13(l)(i) the words “is living in adultery” were substituted by the words “has after the solemnization of the marriage had sexual intercourse with any person other than his or her spouse”. Unfortunately the amendment was not noticed by the learned Sub Judge, nor it was pointed out to him by the counsel on either side.
4. Prior to the amendment the expression “is living in adultery” was subject to several decisions. It was held that a single or isolated act of adultery was not sufficient to have divorce under Section 13 of the Act, though it is a ground for judicial separation. However, after the amendment in 1976, the appellant need only prove that the respondent had voluntary sexual intercourse with any person other than the spouse. It need not be proved that the respondent has been living in adultery.
5. Even though the court below has erred on a vital point, we do not think that it has seriously prejudiced the appellant. The evidence in this case shows that the appellant could not prove even an isolated act of adultery by the respondent. According to the appellant one neighbour Abdul Rahiman is alleged to be the paramour of the respondent. Appellant has deposed that on 20-7-1978 he saw his wife having sexual relationship with Abdul Rahiman. The case of the appellant is that she stealthily went out of the house in the midnight and reached the room of Abdul Rahiman and she had extra marital connection with him. Appellant also deposed that he actually saw his wife in a compromising position with her paramour Abdul Rahiman. The evidence adduced by the appellant looks highly artificial and we are of the view that the court below has rightly rejected the appellant’s contentions. PW 2 also was examined to prove the affair of the respondent with Abdul Rahiman. PW 2 was on inimical terms with the respondent. It was specifically suggested to him that he had attempted to outrage the modesty of the respondent. The
suggestion appears to be true, since some reference is seen made to PW 2 in one of the letters produced and marked on the side of the appellant. From the qvidence on record it is difficult to hold than the respondent had gone astray from the path of rectitude and had extra marital relationships.
6. The learned counsel for the appellant seriously urged before us that the court below committed serious error in the matter of appreciation of evidence. The court below was of the view that the appellant should have proved all the allegations beyond reasonable doubt. This according to the appellant’s counsel, is prima facie incorrect. The matrimonial proceedings are in the nature of a civil dispute and therefore, the petitioner need not prove the allegations beyond reasonable doubt and the appreciation of the evidence need only be on the basis of preponderance of probability, in matrimonial proceedings the test in criminal proceedings need not be applied, and it is not necessary to prove the allegations beyond all reasonable doubt the reason being that criminal trial involves the liberty of the subject which may not be taken away on mere preponderance of probabilities. It is wrong to import such consideration into trials of civil nature. Section 23 of the Hindu Marriage Act states that the court has to pass decree in any proceedings under this Act whether defended or not if the court is satisfied with any of the grounds of relief existed. The word “satisfied” in Section 2. of the Act must mean satisfied on preponderance of probabilities and not satisfaction beyond reasonable doubt, which requires a proof of higher standard as in criminal or quasi-criminal trials. This view has been accepted by the Supreme Court in Dastane v. Dastane AIR 1975 SC 1534. While discussing the burden of proof under Section 10(i)(b) and Section 23 of the Hindu Marriage Act, 1975 the Court held :
“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 t he second.
Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trial 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.”
7. The court below under some misconception of law held that the appellant should have proved beyond reasonable doubt the allegations regarding cruelty and adultery. Despite this finding, we are of the view that no serious prejudice has been caused to the appellant. Even if the yardstick of preponderance of probability is applied in appreciating the evidence in this case, we do not think that the appellant has proved his case. The appellant alleged that the respondent had treated him with cruelty. The case of the appellant that he was administered with sleeping pills is not satisfactorily proved. Appellant himself was not sure whether he had been given sleeping pills. According to the appellant, he woke up on a particular day only very late in the morning and that too when his wife sprinkled water on his face. Therefore he assumed that the respondent might have administered sleeping pills to him. The suggestion of the appellant would be that the respondent administered sleeping pills to him to facilitate her nocturnal adventure. The appellant has no case that sleeping pills were given to him with the intention to kill him. Any way, apart from the interested testimony of the appellant, there is nothing on record to show that respondent treated the appellant with cruelty.
8. Yet another contention of the appellant is that respondent accused him of having illicit connection with her sister. The words cruelty has not been defined in the Act. There cannot be any hard and fast rule in interpreting
this word. It must be judged on the facts of each case having regard to surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and the court must consider the social status, environment and physical conditions and custom and manners of the parties. In a case of matrimonial proceedings the whole matrimonial relationship has to be taken into account. It is true that making false allegations about the character of the husband and his family members so as to injure the reputation of the husband amounts to cruelty.
9. In the instant case the allegation seems to have some basis. Some of the letters alleged to be written by the respondent have been produced in this case. In many of such letters the allegations against the appellant are seen made One letter purported to have been written by the father of the respondent also is seen produced. Therein also this sort of allegation has been made against the appellant. From the correspondence it appears that these allegations had been made since long time. Considering the relationship between the parties, we do not think that these allegations can be termed as cruelty meted out to the appellant. The appellant also has alleged that the respondent had caused bodily injury to him. For that also there is absolutely no acceptable evidence.
10. Serious attempt was made to patch up the difference between the appellant and respondent. An arbitrator was appointed, but of no avail. The appellant is even now in the Military service. The respondent is looking after the affairs of the children. We do not think that even now the relationship between the appellant and respondent is so embittered that the marital tie is snaped forever. Better counsel may prevail on both of them and an amicable settlement can be made.
11. The appellant failed to establish any of the grounds given in Section 13 of the Hindu Marriage Act for divorce. His application has been rightly rejected by the court below and we see no reason to interfere with the same.
12. The court below has directed that the custody of the children be with the respondent mother. The appellant is in
Military service and he may not get sufficient
time to look after the welfare of the children.
The court below has considered all the
relevant circumstances in granting custody
of the children to the mother. We confirm
that direction.
The appeal is of no merit and the same is dismissed, however, without costs.