1. [His Lordship after stating the facts, proceeded.]
2. Mr. M. A. Rang contended that a Court should not come to a positive finding regarding unchastity on the basis of a confession or on admission alone. A charge of unchastity is as serious as a charge of adultery, says Mr. Rane, and it is well-established that the Courts will not act on the basis of a confession or on admission unless it is corroborated by independent evidence. Support is sought to be derived from Over v. Over (1924) 27 Bom. L.R. 251, for this proposition. A careful reading of this decision will show that the caution of insisting upon corroboration is to be exercised in order to rule out collusion between the parties. In the present case which is one under Section 25(3) of the Hindu Marriage Act, 1955, the question of collusion does not arise. A wife will not collude with her husband by confessing about unchastity for getting rescinded an order of maintenance which is in her favour.
3. Mr. Rane then sought the assistance of a judgment of the Supreme Court in White v. White : 1SCR1410 for contending that the Courts must be satisfied beyond reasonable doubt as to the commission of matrimonial offences. That case was under the Divorce Act. But even in cases under the Hindu Marriage Act, it had been held by the Supreme Court in Mahendra Manilal v. Sushila : 7SCR267 that what the Court has to see in these proceedings is whether the petitioner has proved beyond reasonable doubt that the respondent was pregnant by some one else at the time of marriage. Earlier in the judgment the following passage is to be found (p. 685).
The High Court is certainly right in stating that the petitioner had, in order to succeed, to prove beyond reasonable doubt that the respondent was pregnant by someone else at the time of marriage. It is, however, not correct in law in holding that the Court, in these proceedings, could in no circumstances base its decision on an admission of the parties.
4. The above passage is extracted from the majority judgment of Raghubar Dayal J. and Rajagopala Ayyangar J. The requirement of proof beyond reasonable doubt was also endorsed by Mudhokar J. though he differed from his colleagues on other grounds. The majority judgment, however, proceeded to lay down the law in the following terms after a review of the legal provisions and the authorities on the subject (p. 687) :
We are of opinion that in proceedings under the Act the Court can arrive at the satisfaction contemplated by Section 25 on the basis of legal evidence in accordance with the provisions of the Evidence Act and that it is quite competent for the Court to arrive at the necessary satisfaction even on the basis of the admissions of the parties alone.
It is ultimately a question of satisfaction of the Court under Section 23 of the Act. This question has again been dealt with by the Supreme Court in Dastane v. Dastane : 3SCR967 . That was the case of a husband petitioning for judicial separation on the ground of cruelty by the wife. Pointing out that the normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities and that proof beyond reasonable doubt which is proof by higher standard governs criminal trial, Chandrachud J. speaking for a bench of three judges, said as follows (p. 336) :
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 reasonable doubt. Section 23 confers on the court the power to pass a decree if it is 'satisfied' on matters mentioned in Clauses (a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word 'satisfied' must mean '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.
This is the latest pronouncement of the Supreme Court on the question of proof under Section 23 of the Hindu Marriage Act, 1955. If there is a conflict between two decisions of the Supreme Court viz., Mahendra Manilal v. Sushila and Dastane v. Dastane, (supra) the latter decision is binding upon this Court, as has been held by this Court in Ramkrishna v. Small C. Court (1962) 65 Bom. L.R. 420. It is, therefore, not possible to accept the contention of Mr. Rane that the charge of unchastity must be proved beyond reasonable doubt.
[The rest of the judgment is not material to this report.]