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Prem Masih Vs. Mst. Kumudani Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case No. 86 of 1973
Judge
Reported inAIR1974MP88; 1974MPLJ188
ActsDivorce Act, 1869 - Sections 7 and 14
AppellantPrem Masih
RespondentMst. Kumudani Bai and anr.
Cases ReferredWrisht v. Wright
Excerpt:
.....and rule which indian courts should apply to cases governed by the act and the standard of proof in divorce cases would, therefore, be such that if the judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of section 14 of the act. he then said that the statute uses the word 'satisfied'and not the words 'satisfied beyond responsible doubt' and that it was for the court itself to decide what standard of proof is required in order to be 'satisfied'.he also pointed out that the view that adultery must be proved with the same strictness as is required in a criminal case has not been accented by the high court of australia in wright v. in (1948) 77 clr 191 (supra). in view of the mandate in section 7 of the..........and rule which indian courts should apply to cases governed by the act and the standard of proof in divorce cases would, therefore, be such that if the judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of section 14 of the act.' the question relating to the standard of proof in matrimonial causes again came up for consideration before the house of lords in blyth v. blyth, 1966-1 all er 524. lord denning in this case pointed out that the observations of the house of lords in preston jones' case, 1951 ac 391 regarding the standard of proof were merely obiter. he then said that the statute uses the word 'satisfied'and not the words 'satisfied beyond responsible doubt' and that it was for the court.....
Judgment:
ORDER

1. This is a reference under Section 17 of the Indian Divorce Act made by the District Judge, Bilaspur, for confirmation of a decree nisi Passed by him under Section 16 of the Act on the ground of adultery of the wife.

2. The petitioner Prem Masih was married to Smt. Kumudanibai, the first respondent on 6th July 1964 and they lived as husband and wife at Jyotipur, Pendra Road, where they were married for about two months. The petitioner wanted the wife to shift to his village home in Chakapendra, District Durg but she refused to so there. At that time, Rajendra Kumar, the second respondent, used to visit the wife and the petitioner suspected intimacy between them. The petitioner joined military service in October 1965. When he came on leave, he found the first respondent residing with the second respondent as wife and husband. The first respondent has also given birth to two children while she was living with the second respondent. These facts have been fully established from the evidence of the petitioner and his witnesses namely. Asisdan (P.W. 2) and B. Masih (P. W. 3). The respondent did not appear to contest the proceedings and the evidence was recorded ex parte. The learned District Judge has accepted the evidence of these witnesses and we do not find any reason to take a different view. The evidence of the husband discloses that even before he joined military service the wife and the second respondent were on intimate terms. The fact of her refusal to shift to the village home of the petitioner discloses her guilty inclination and passion (for the second respondent. When thehusband returned on leave, he found the two living together at Jyotipur as husband and wife. In a petition for divorce based on adultery 'it is not necessary and it is indeed rarely possible to prove the issue by any direct evidence, for in very few cases such proof can be obtainable;' the Court may be satisfied of the fact of adultery by purely circumstantial evidence. In the instant case, the refusal of the wife to shift to the petitioner's village, her living together with the second respondent and her giving birth of two children while she was living with the second respondent are circumstances which are 'quantitatively and Qualitatively sufficient' to satisfy the conscience of the Court for holding that the commission by the wife of the matrimonial offence has been established by the petitioner.

3. Before a decree for divorce can be passed on the ground of adultery the Court, as required by Section 14 of the Act, must be 'satisfied on the evidence that the case of the petitioner has been proved.' Section 7 of the Act provides that subject to the provisions contained in the Act, the High Courts and District Courts shall, in all suits and proceedings under the Act, act and give relief on principles and rules which in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court of Divorce and Matrimonial Causes in England for the time being acts and gives relief. The Supreme Court in E. J. White v. Mrs. K. O. White, AIR 1958 SC 441 referred to the decision of the House of Lords in Preston Jones v. Preston Jones, 1951 AC 391 which lays down that the standard of proof in case of a ground for dissolution of marriage is proof beyond reasonable doubt, and that the Court is to be 'satisfied' only when the proof offered by the petitioner is of that standard. The Supreme Court then referred to Section 7 of the Act and pointed out that 'the rule laid down by the House of Lords would provide the principle and rule which Indian Courts should apply to cases governed by the Act and the standard of proof in divorce cases would, therefore, be such that if the Judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of Section 14 of the Act.' The question relating to the standard of proof in matrimonial causes again came UP for consideration before the House of Lords in Blyth v. Blyth, 1966-1 All ER 524. Lord Denning in this case pointed out that the observations of the House of Lords in Preston Jones' case, 1951 AC 391 regarding the standard of proof were merely obiter. He then said that the statute uses the word 'satisfied'and not the words 'satisfied beyond responsible doubt' and that it was for the Court itself to decide what standard of proof is required in order to be 'satisfied'. He also pointed out that the view that adultery must be proved with the same strictness as is required in a criminal case has not been accented by the High Court of Australia in Wright v. Wright, (1948) 77 CLR 191. Lord Denning then quoted the following observation of Dixon, J. with approval:

'Whilst our decision is that the civil and not the criminal standard of persuasion applies to matrimonial causes, including issues of adultery, the difference in the effect is not as great as is sometimes represented. This is because, as is pointed out in the judgments in Briginshaw v. Briginshaw, (1938) 60 CLR 336 the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue and because the presumption of innocence is to be taken into account.'

The speeches of Lord Pearce and Lord Pearson in 1966-1 All ER 524 agree with the opinion of Lord Denning.

4. The case of Blyth v. Blyth, 1966-1 All ER 524 will, therefore, show that the view expressed in Preston Jones' case, 1951 AC 391 that the standard of proof in case of a matrimonial offence in a petition for divorce is proof beyond reasonable doubt, does not now hold the field and that the correct test in that matter is that expressed by Dixon, J. in (1948) 77 CLR 191 (supra). In view of the mandate in Section 7 of the Act that the principles and rules on which the Court of Divorce and Matrimonial Causes in England for the time being acts and gives relief should be applied by the Indian Courts, we feel that now the standard of proof recommended in 1966-1 All ER 524 (supra) will have to be applied by the Indian Courts also. But the change in principle as to the standard of proof will most often not make any difference in the result, for even applying the civil standard of proof to a divorce proceeding based on adultery a high standard of proof will be needed to satisfy the Court that adultery has been committed. This is what has been stressed by Dixon, J. in the passage extracted earlier from Wrisht v. Wright, (1948) 77 CLR 191. So far as the instant case is concerned, whether the standard of proof recommended in Preston Jones' case, 1951 AC 391 or in Blyth's case, 1966-1 All ER 524 be applied the result is the same as we are satisfied that the petitioner has been successful in proving his case beyond reasonable doubt.

5. For the reasons given above, we confirm the decree for dissolution of marriage passed by the District Judge, Bilaspur. As the parties have not appeared in this Court, there will be no order as to costs.


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