S.N. Deedwania, J.
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 heard the learned Counsel for the parties and perused the record of the case carefully.4. It is argued by the learned Counsel for the appellant that the learned District Judge was in error in coming to a conclusion that on 6-3-76 Bhanwaria respondent no. 1 had not performed a nata marriage with respondent no. 2 Bhagudi. The evidence led on behalf of the appellant was disbelieved solely on the ground that the witnesses were interested. PW 1 Bhanwari stated that Bhanwaria had entered into a nata with Bhagwati. She was informed by Lalu 5 or 10 days after the nata about it. Naturally, this witness has no personal knowledge about the alleged nata. However, PW 2 Lalu has categorically stated in his statement that he was present in the nata ceremony and thereafter he bad also seen that Bhagudi was pregnant. It appears that this witness is interested being a relation of the appellant but in my opinion, only on this score his statement can not be discarded. The only other infirmity noticed in his statement is that, contrary to the statement of Bhanwari, this witness said that he informed the appellant and her father about nata immediately. Heeralal stated that Bhagudi and Bhanwaria were living as husband and wife. He also stated that the nata was performed in his presence. The witness was examined on 19-8-78 and he has further stated that about 20 or 25 days before this date, Bhagudi gave birth to a daughter. PW 4 Duda also stated that Bhanwari and Bhanwaria were living as husband and wife. Bhagudi has delivered a daughter, I have gone through the statements of these witnesses carefully, and could find no cogent reason to disbelieve them except they were relations of the appellant. In such matters, normally it is difficult to get the evidence of disinterested persons. The case has to be decided on the probabilities. Bhanwaria has naturally denied nata with Bhagudi and produced one witness. It is is easy to procure such a negative witness. In my opinion, the best evidence, which could be produced by respondent was Bhagudi herself. She was respondent no. 2 in the case and yet she did not dare to enter the witness box. Any close relations of Bhagudi was also not produced to deny the nata. It is therefore proved that Bhanwaria entered into a nata marriage with Bhagudi. It is vehemently argued by learned Counsel for the respondents that the fact of adultery has to be proved like that in a criminal case i.e. it has to be proved beyond reasonable doubt. He relied upon the following authorities in this regard--(1) Chhaganlal v. Smt. Sokkha Devi aud Anr. AIR 1975 Raj. 6 (2) Thimmappa Dasappa v. Thimmappa Kom Thimmappu : 3SCR967 .
4. 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 : 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.
5. It is then argued by learned Counsel for the non-petitioners that the nata is alleged to have been performed on 6-3-76 and the petition for divorce was filed on 9-3-76 and in these facts, it could not be said that Bhanwaria was living in adultery with Bhagudi. An isolated set of adulterous sexual intercourse would not mean that one is living in adultery. He referred to Manganlal Dudhaiabha Patel v. Bai Debi : AIR1971Guj33 wherein it was held:
Living in adultery' means following an almost continuous course of adulterous conduct and not to a single lapse from virtue. One and two lapses of virtue would no doubt be acts of adultery but are insufficient to show 'living in adultery'. A course of adelterous conduct even some period with repetition of acts of adultery with one or more persons must be proved. With the use of continuous present tense for attracting the operation of phrase 'is living in adultery' it would not be enough to prove that a spouse was living in adultery for some time in the past, and one has to show that the spouse was living an adulterous life, so related in proximity of time to the filing of a petition that one can reasonably infer that a petitioner has a fair ground to believe that at the time of filing a petition the spouse was living in adultery.
I have carefully gone through this authority. In my opinion it does not apply to the facts of this case. No doubt, the allegation in the petition is not that Bhanwaria was living in adultery with Bhagudi. The allegation was only to the effect that Bhanwaria has entered into a nata marriage with Bhagudi. The point for determination, is, what is the effect of this allegation and the proof led in support of it. The evidence is that Bhagudi is living with Bhanwaria and 'nata' was performed. In my opinion, if, the fact of nata is proved, then the only necessary inference is that Bhanwaria was living in adultery with Bhagudi. It was not a case of casual adulterous sexual intercourse. The nata marriage in the eye of law was void and Bhanwaria would not have entered into this nata marriage but for to live as a husband with Bhagudi. Such a living would amount to nothing else but living in adultery. The direct evidence of sexual intercourse can rarely be procured and the inference has be drawn from attending circumstances and the conduct of the parties. In the ease before me, there is unimpeachable evidence that Bhanwaria entered into a nata marriage with Bhagudi This by itself would lead to the inference that he started to live in adultery with Bhagudi and his intention was to continue this matrimonial offence. The inference is further corroborated by the evidence that Bhanwaria and Bhagudi were living as husband and wife. Not only that there is evidence on record of the case that Bhagudi has become pregnant and has delivered a child. I am, therefore, of the view that learned District Judge was in error in observing that the allegation that Bhanwaria had entered into nata marriage with Bhagudi, would not amount to an allegation of adultery. These observations are absolutely misconceived. There is conclusive inference by the fact of this nata marriage between two adults of opposite sexs that they intend to live as husband and wife and indulge in sexual intercourse. This was nothing but living in adultery because such a nata marriage is void. Under Section 5 clause (1) of the Hindu. Marriage Act, a marriage may be solemnized between any two Hindus if neither party has a spouse living at the time of marriage. Under sec. 11 of the Act, such a marriage solemnized after commencement of the Act is null and void. It therefore, can not be said that nata marriage of the respondents was valid and legal. Their living together as husband and wife would mean that respondent no: 1 has been living in adultery.
6. I therefore accept this appeal and dissolve the marriage of appellant Bhanwari and respondent no. 1 Bhanwaria by a decree of divorce.