# NARAYAN GANESH DASTANE v. SUCHETA NARAYAN DASTANE

- **Citation:** [1975] 3 S.C.R. 967
- **Court:** Supreme Court of India
- **Decided:** 1975-03-19
- **Bench:** Y. V. Chandrachud, P. K. Goswami, N. L. Untwa1Lia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narayan-ganesh-dastane-v-sucheta-narayan-dastane-6434
- **Pages:** 26

## Headnote

8
Hindu Marriage Act.:._Sectio11 IO(l)(b) and 23(1)(a) (bl-Meaning of
cmelty-Burden of proof. in matrimonial matters-Whether beyond reasonable
doubt-Condonation of cruelty-Whether sexual intercourse amounts to condoi;ation-Whetlzer condo11atio11 is conditional-Revival of cruelty.
c
D
E
F
G
H
Code 'of Civil Procedure-Sectio11 100 and 103-Powers of Hig/z Court in
second appeu:.
Evidence Act-Section 3-Proof, meaning of.
The. :ippellant husband filed a petition for annulment of marriage on the
ground of fraud, for divorce on the ground of unsoundness of mind and for
judicial separation on the ground of cruelty. The appellant and respondent
possess high educational qualificat!ons and they were married in 1956. Two
children were born of the marriage one in 1957 and the other in 1959.
The Trial Court rejected the coatention of fr:iud and unsoundness of mind.
It, however, held the wife guilty of cruelty and on that ground passed a decree
for judicial separation. Both sides went in appeal to the District Court which •
dismissed the husband's appeal and allowed the wife's. The husband then filed
a Second Appeal in the High Court. The High Court dismissed thllt appeal.
On appeal to this Court.
HELD·. (i) Normally this Court would not have gone into evidence esP::-
cia!Iy as the High Court itself could not have gone into the
evidence
m
se~ond appeal.
s~ction JOO of the C.P.C. restricts the jurisdiction of the High
Court in second appeal to questions of law or to substantial errors or defects in
the procedure which might possibly hllve produced error or defect in the decision
of the case upon merits. The High Court came to the conclusion that both the
courts below had failed to apply the correct principles of law in determining the
issue of cruelty. Accordingly the High Court proceeded to consider evidence for
itself. Under s. 103 C:P.C. the High Court can determine any issue of fact if the
evidence on the record is sufficient but if the High Court takes upon iiself the duty ·
of determin~ng an issue of fa,:t, its powers to appreciate evidence would be subject
to the same restraining conditions to which the power of any court of facts is
ordin;irily subject. The limits of that power are not wider for the reason that the
evidence is being appreciated by the High Court ·and not by the District Court.
While appreciating evidence, inferences may and have to be drawn but courts of
facts have to remind themselves of the line that divides an inference from guess
work.
Normally this Court would have remanded the matter to the High Court
for a fresh cons!deration of the evidence but since the proceedings were pending for
13 years the Court itself went .into the evidence. [973 F-974 HJ
(ii) The burden of proof in a matrimonial petition must lie on the petitioner
because ordinarily the burden lies .on the party which affirms a fact, not on the
party which denied it.
This principle accords with commonsense, as it is
much easier to prove a positive than a negative. The petitioner must, therefore.
prove that the respondents had treated him with cruelty within the meaning of
s. JO(J)(b) of the Act.
But the High Court was wrong in holding that the
petitioner must prove his case beyond a reasonable doubt. The normal rule
which governs civil proceedings is that a tact is said tO be established if it is
proved by preponderance of probabilities. Under s. 3 of the . Evidence Act a
fact is said to be· proved when the court either believes it to exist or if
rnnsiders its existence so probable th:it a prudent man ought, in the ci~cum
stances, to act upon the supposition that it exists. The first step in this process
is to fix the p;orabilities. the second to weigh them. The impossible is weeded
968
SUPREME COURT REPORTS
[19751 3 s.c.R.
out in the first stage, the improbable in the second.
Within the wide range
of probabilities the Court has often a difficult .choice to make but it is this
choice which ultimately determines where the preponderani:e of probabiliti

## Text

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A
NARAYAN GANESH DASTANE
v.
SUCHETA NARAYAN DASTANE
March 19, 1975
967
(Y. V. CHANDRACHUD, P. K. GOSWAMI AND N. L. UNTWA1LIA, JJ.]
8
Hindu Marriage Act.:._Sectio11 IO(l)(b) and 23(1)(a) (bl-Meaning of
cmelty-Burden of proof. in matrimonial matters-Whether beyond reasonable
doubt-Condonation of cruelty-Whether sexual intercourse amounts to condoi;ation-Whetlzer condo11atio11 is conditional-Revival of cruelty.
c
D
E
F
G
H
Code 'of Civil Procedure-Sectio11 100 and 103-Powers of Hig/z Court in
second appeu:.
Evidence Act-Section 3-Proof, meaning of.
The. :ippellant husband filed a petition for annulment of marriage on the
ground of fraud, for divorce on the ground of unsoundness of mind and for
judicial separation on the ground of cruelty. The appellant and respondent
possess high educational qualificat!ons and they were married in 1956. Two
children were born of the marriage one in 1957 and the other in 1959.
The Trial Court rejected the coatention of fr:iud and unsoundness of mind.
It, however, held the wife guilty of cruelty and on that ground passed a decree
for judicial separation. Both sides went in appeal to the District Court which •
dismissed the husband's appeal and allowed the wife's. The husband then filed
a Second Appeal in the High Court. The High Court dismissed thllt appeal.
On appeal to this Court.
HELD·. (i) Normally this Court would not have gone into evidence esP::-
cia!Iy as the High Court itself could not have gone into the
evidence
m
se~ond appeal.
s~ction JOO of the C.P.C. restricts the jurisdiction of the High
Court in second appeal to questions of law or to substantial errors or defects in
the procedure which might possibly hllve produced error or defect in the decision
of the case upon merits. The High Court came to the conclusion that both the
courts below had failed to apply the correct principles of law in determining the
issue of cruelty. Accordingly the High Court proceeded to consider evidence for
itself. Under s. 103 C:P.C. the High Court can determine any issue of fact if the
evidence on the record is sufficient but if the High Court takes upon iiself the duty ·
of determin~ng an issue of fa,:t, its powers to appreciate evidence would be subject
to the same restraining conditions to which the power of any court of facts is
ordin;irily subject. The limits of that power are not wider for the reason that the
evidence is being appreciated by the High Court ·and not by the District Court.
While appreciating evidence, inferences may and have to be drawn but courts of
facts have to remind themselves of the line that divides an inference from guess
work.
Normally this Court would have remanded the matter to the High Court
for a fresh cons!deration of the evidence but since the proceedings were pending for
13 years the Court itself went .into the evidence. [973 F-974 HJ
(ii) The burden of proof in a matrimonial petition must lie on the petitioner
because ordinarily the burden lies .on the party which affirms a fact, not on the
party which denied it.
This principle accords with commonsense, as it is
much easier to prove a positive than a negative. The petitioner must, therefore.
prove that the respondents had treated him with cruelty within the meaning of
s. JO(J)(b) of the Act.
But the High Court was wrong in holding that the
petitioner must prove his case beyond a reasonable doubt. The normal rule
which governs civil proceedings is that a tact is said tO be established if it is
proved by preponderance of probabilities. Under s. 3 of the . Evidence Act a
fact is said to be· proved when the court either believes it to exist or if
rnnsiders its existence so probable th:it a prudent man ought, in the ci~cum
stances, to act upon the supposition that it exists. The first step in this process
is to fix the p;orabilities. the second to weigh them. The impossible is weeded
968
SUPREME COURT REPORTS
[19751 3 s.c.R.
out in the first stage, the improbable in the second.
Within the wide range
of probabilities the Court has often a difficult .choice to make but it is this
choice which ultimately determines where the preponderani:e of probabilities
lies. Important issues like the status of parties demand closer scrutiny than
those like the loan on a promissory note. Proof beyond reasonable doubt is
proof by a higher standard which generally governs criminal trials or trials
involving enquiries into issues of quasi-criminal nature. It is wrong to import
such considerations in trials of a purely civil nature. Neither s .. 10 nor s. 23
of the Hindu Marriage Act requi.res that the petitioner must prove his case
beyond reasonable doubt.
S. 23 confers on the court the po_wer to pass a decree
if it is satisfied on the matters mentioned in Clauses (a) to {e) of that Section.
Considering that proceedings under the Act are essentially of a civil hature
the word 'satisfied' must mean satisfied on a preponderance of probabilities and
not satisfied beyond a reasonable doubt. The society has a stake in the
institut'on of marriage and, therefore, the erring spouse is treated not as a mere
defaulter but as an offender. But this social philosophy, though it may have a
bear'.ng on the need to have the clearest proof of an allegation before it is
acc~,itPd as a ground for. the dissolution of marriage,
it has no bearing on
the &tandard of proof in matrimonial cases. In England, a view was at one
time taken that a petitioner in a matrimonial petition must establish his or
her case beyond a reasonable doubt but the House of Lords in Blyth v.
Ellyth has held that the grounds of divorce or the bars to .the divorce may be
proved b'y a preponderance of probability. The High Court of Austr?-1ia has
also taken a similar view. (97 5 A-976 Bl
A
B
c
(iii) On the quest!on of condonation of cruelty, a specific provision of a ·
specific enactment has to be interpreted, namely s.
lO{l)(b). The enquiry,
D
therefore,' has to be whether the conduct charged as ·cruelty is of such a character
as to cause in the mind of the petitioner a reasonable apprehension that it will
be harmful or injurious for him to live with the respondent. It is not necessary,
as under the English Law, that the cruelty must be of such a character as to
cause danger to life; limb or health or as to ~ive rise to a reasonable apprehension
of such a danger. It is risky to rely on English decisions in this field although
awarenes5 of foreign decisions can be a useful guide irr interpreting our laws.
The apprehension of the petitioner that it will be harmful or injurious to live
E
with the other party has to be reasonable.
It is, howe.ver, wrong _to import
the concept of a reasonable man as known to the law of negligence for judging
matrimonial relations. The question is not whether the conduct would be cruel
to a reasonable person or a person d average or normal sensibilities but
whether it would have that effect on the aggrieved spouse. That which may be
cruel to one person may be .aughed off by another and what may not be cruel
to an individual under one set of circumstances may be extreme cruelty under
another set of circumstances. The Court has to deal not with an ideal husband
and an ideal wife but with the particular man and woman before it. The
F
only rider is that of s. 23 (1) (a) of the Act that the relief prayed for can be
decreed only if the petitioner is not taking advantage of his own wrong.
.
[977 D-G; 978 C-F; 979 A]
(iv) Acts like the tearing of the Mangal Sutra, locking out the husband when
he is due to arrive from the office, rubbing of chilly powder on the tongue of
an infant child, beating a child mercilessly while in high fever and switching
on . the light at night and sitting by the bedside of the husband merely to
nag him are acts- which tend to destroy the legitimate ends and objects of
matrimony. The •:onduct of wife amounts to cruelty within the meaning of
s. 10(1) (b) of the Act.
The threat that she would 'put an end to her own life
or that she will set the house on fire, the threat that she will make the
husband lose his job and have the matter published in newspapers and the
persistent abuses and in~mlts hurled at the husband and his parents are all of
so grave an order as to imperil the appellant's sense of personal safety, mental
. happiness, job satisfaction and reputation. [985 B-E]
(v) In any proceeding under the Ac\, whether defended or not, the relief
prayed for can be decreed only if the petitioner has not condoned the cruelty.
The wife did not take up the plea of condonation in her written statement.
The Trial Court did not frame any issue of condonation,. The District Court
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N, G. DASTANE v. SUC{l_ETA (Chandrachud, /.)
969
did not address itself on the question of condonation since it did not find the
condu:t of the wife to be cruel. The High Court held that the conduct of
the wife was not cruel and in any case it was condoned. S. 23 (1 )(b) casts
obligation on the court to consider the question of condonation. Condonation
means forgiveness of the matrimonial offence and restoration of spouses to the
same position as he or she occupied before the matrimonial offence was committed. Cruelty generally· does not consist of a single isolated act. It eonsists
in most, ca5Cs of a series of 11cts spread over a period of t@.e. Law does not
require that· at the first appearanci;: of a cruel act, the other spouse must leave
the matrimonial home lest the continued coha.rbitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the
benign purpose of marriage laws. The evidence on condonation consists in th1s
case in , the fact that spouse led a normal sexual life despite the various acts
of cruelty. This is not a case where the spouse after separation indulge in
stray acts of sexual intercourse in which case the necessary intent to forgive and
restore ·may be said to be lacking. Such stray acts may bear more than one
explanation but if during cohabitation the spouses uninlluenced by the conduct
of the offending spouse, lead a life of intimacy which characterised normal
matrimonial relationship, the intent to forgive and restore the offending spouse
to the original status may reasonably be inferred. There is then no scope for
imagining that the conception of the child could b~ the result of a single act
of sexual intercourse and tha.t such an act could be a stark animal act unac~ompanied by the nobler graces of marital life. Sex plays an imJ>?rtant role
in married life and cannot be separated from other factors which lend to
matrimony a sense of fruition a.nd fulfilment. Therefore, evidence showing that
the spouse led a normal sexual life even after serious acts of cruelty by one
s.ir<>use is proof that the other spouse •:ondoned that cruelty. Intercourse in
circumstances as obtained here _would raise a strong inference of condonation.
That inference stands uncontradicted, 'the husb11nd not 'having explained the
circumstances in which he came to lead and live a normal sexual life.
[985 G-987 BJ
(vi) But condonation of a matrimonial offen·:e is not to be likened to a
Presidential pardon which once granted wipes out the guilt beyond the possibility,
of revival.
Condonation is always subject to the imolied condition that the
offending spouse, will not com.mit a further matrimonial offence either of the
same variety as the one condoned or of any other variety. No matrimonial
offence is erased by condonation. It is obscured but not obliterated. Condoned
cruelty can, therefore, be revived. For revival of condonation it is not necessary
that the conduct should be 'enough by itself to found a degree for judicial
separation. The wife in not ailowing the husband access to the childre11 cannot
be said to have revived the earlier cruelty since· the children were of tender
age and the c;mly person who could escort them had left or had to leave the
matrimonial home for good. The subsequent conduct of the wife has to be
!ISSessed in the context in which the husband behaved. The husband persistently
accused the wife of insanity and refused to maintain her. In that context, the
alleg!!tions made by the wife in· her letter to the Government cannot revive the
original cause of action though it is true t.hat more serious ·the original offence
the less ·grave need be' the subsequent act to. constitute revival.
.
[987 C; 988 C-D, G-H; 991 E-H]
Held, dismissing the appeal,
That the .wife was guilty of cruelty but the husband condoned it and the
subseq~nf conduct of the wife was not such as to amount to revival of the
original cause of action. [992 B-C]
CML APPELLATE ]UJUSDICTION : Civil Appeal No. · 2224 of
1970.
From the judgment and order dated the 19th February, 1969 of
the Bombay High C':>urt in Second Appeal No. 480 of 1'68 ..
V. M. Tarkunde, S. Bhandare, P. H. Parekh ain.d Manju laitely,
for the appellant.
Vl. S. Desai, S. B. Wad alnd Jaya/Jhree Wad, for the respondents.
970
SUPREME COURT REPORTS • ' [19751 3 s.c.R.
The Judgment of the Court was delivered by
CHANDRACHUD, J .-This is a matrimonial dispute arising out of a
petition filed by the appellant for annulment of his marriage with the
respondent or alternatively for divorce or for judicial separation. The
annulment was sought on the ground of fraud, divorce on the ground of ·
unsoundness of mind and judkial separation on the ground of cruelty .. ·
The spouses possess high academic qualifications and each one claims
a measure of social r-espectability and cultural sophistry.
The evidern:e
shows some traces of these.
But of this there need be no doubt : the
voluminous record which they have collectively built up in the case contains a fair' reflection of their rancour and acrimony.
·
A
B
The appellant, Dr. Narayan Ganesh Dastane, passed his M.Sc.
in
C
Agriculture from the Poona University. He was sent by the Government of India to Australia in the Colombo Plan Scheme.
He obtained
his Doctorate in Irrigation Research from an Australian Univer~ity and
returned to India in April, 1955.
He worked for about 3 years as an
Agricultural Re·search Officer and in October, 1958 he left. Podaa to
take charge of a new post as an Assistant Professor of Agronomy in the
Post-Graduate School, Pusa Institute, Delhi.· At present be is said fo
D
be working on a foreign assignment. His father was a solicitor-cum
lawyer practising in Poona.
The respondent, Sucheta, comes from Nagpur but she spent her formative years mostly in Delhi.
Her father was transferred to Delhi in
1949 as an Under Secretary in the Commerce Ministry of the Government uf India and she came to Delhi along with the rest of the family. . E
She passed her B.Sc. from the Delhi University in 1954 and spent a year
in fapan where her father was attached to the Indian Embassy. After
the rift in her marital relations, she obtained a Master's Degree in Social
Work.
She has done field work in Marriage Conciliation and Juvenile
Delinquency .. She is at present working in the Commerce and Industry
Ministry, Delhi.
In April, 1956 her parents arranged her marriage with the appellant
But before finalising the proposal, her father-B. R. Abhyankar--
wrote two letters to the appellant's father saying in the first of these that
the respondent "had a little misfortune before going to Japan in · that
she had a bad attack of sunstroke which affected her mental condition
for sometime''.
In the second letter which followed at an interval of
two days, "cerebral malaria" was mentioned as an additional reason of
the mental affectation.
The letters stated that after a course of treatment at· t'he Yeravada Mental Hospital, she was cured : "you find h~:r
as she is today''.
The respondent's father asked her appellant's father
to discuss the matter, if necessary, with the doctors of the Mental Hospital or with one Dr. 'P. L. Deshmukh, a relative of the respondent's
mother.
The letter was written avowdcly in order that the appellant
and his people "should not be in the dark about an important episode"
in the life of the rnspondent, which "'fortunately, _had ended happily''.
Dr. Deshmukh confirmed what was stated in the letters and being
content with his assurance, the appellant and his father made no enquiF
G
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N. G. DASTANE v. SUCHETA (Chandradhud, J.)
971
A
ries with the Yeravada Mental Hospital.
The marriage was performed
at Poona on May 13, 1956.
The appellant was then 27 and the respondent 21 years of age.
B
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They lived at Arbhavi in District Belgaum from June to October,
1956.
On November 1, 1956 the appellant was transferred to Poona
where the two lived together tilll958.
During this period a girl named
Shubha was born to them on March 11, 1957.
The respondent delivered in Delhi where 'her parents lived· and returned to Poona in June,
1957 after an absence, normal on such occasions, of about 5 inonths.
In October, 1958 the appellant took a job in the Pusa Institute of Delhi.
On March 21, 1959 the second daughter, Vibha, was born.
The respondent delivered at Poona where the appellant's parents lived and
returned to Delhi in August, 1959. Her parents were living
at this
time in Djakarta, Indonesia.
•
In January, 1961, the respondent went to Poona to attend the marriage of the appellant's brother, a doctor by profession, who has been
givcn'an adoption in the Lohokare family.
A fortnight after the marriage, on February 27, 1961 the appellant who had also gone to Poonu
for the marriage got the respondent examined by Dr. Seth, a Psychiatrist
in charge of the Yeravada Mental Hospital.
Dr. Seth probably wanted
adequate Llata to make his diagnosis and suggested that he would like
lo have a few sittings excl~ivcly with the respondent.
For reaso;1s
good or bad, the respondent was averse to submit herself to any such
scrutiny.
Either she herself or both she and the appellant decided that
she should stay for some time with a relative of hers, Mrs. Gokhalc.
On the evening of the 27th, she packed her tit-bits and the appellaI't
reached her to Mrs. Gokhalc's house.
There was
no consultation
thereafter with Dr. Seth.
According to the appellant, she had promised
to s~e Dr. Seth but she denies that she made any such promise .. She
believed that the appellant was building up a case that she was of unsound mind and she W!\S being lured to walk into that trap.
Fcbraa,>
27, 1961 was the last that they lived together.
But on the d«; of pailing she was three months in t'he family way.
The third ch .. le, agai1~ ;1
gir~ named Pratibha was born on August 19, 1961 when hi!:
p8rc•1cs
were in the midst of a marital crisis.
Things had by the,n come to an impossible pass.
And close relatives instead of offering wise counsel were fanni•ag the fire of discord
that was devouring the mariage. A gentleman called Gadre . whose
letter-head shows an "M.A. (Phil.) M.A. (Eco.) LL.B.", is a maternal
uncle of the responde·nt.
On March 2, 1961 he had written to the
appellant's father a pseudonymous letter now proved to be his, full of
malice and sadism.
He wrote :
"I on my part consider myself to be the father of'Brahmadev'.
. ......... This· is only the beginning.
From the
. spark of your foolish and half-baked egoism, a big conflagration of family quarrels will break out and all will peri~h therein;
This image of the mental agony suffered by all your kith
and kin gives me extreme happiness. . . . . . You worthless
-person, who cherishes a desire to spit on my face, now behold that all the world is going to spit on your old· cheeks.
972
SUPREME COURT REPORTS
U975l 3 s.c.R.
So why should I loose the opportunity of giving you a few
severe slaps on your cheeks and of fisting your ear. It is my
earnest desire that the father-in-law should beat your son with
foot-ware in a public place."
·
On March 11, 1961 the appellant returned to Delhi all alone. Two
days later the respondent followed him but she went straight to her
parents' house in Delhi. On the 15th, the appellant wrote a letter to
the police asking for protection as he feared danger to his life from the
respondent's parents and relative.s.
On the 19th, the respondent saw
the appellant but that only gave to the parties one more chance to give
vent to mutual dislike and distrust. After a brief meeting, she left the
broken home for good. On the 20th, the appellan_t once again wrote
to the police renewing his request for protection.
On March 23, 1961 the respondent wrote to the appellant complaining against his c:onduct and asking for money for the maintenance.
of herself and the daughters.
On May 19, 1961 the respondent wrote
a letter to the Secretary, Ministry of Food and Agricultur.e, saying that
the appella:nt had deserted her, that he had treated her with extreme
cruelty and asking that the Government should make separate provision
for ber . .maintenance. On March 25, her statement ·':Vas recorded by an
Assistant Superintendent of Police, in which she alleged desertion and
ill-treatment by the appellant. Further statvnents were recorded by the
police and the Food Ministry also followed up respol,1dent's letter of
,May 19 but ultimately nothing came out of these complaints and crosscomplaints-.
As stated earlier, the third daughter, Pratibha, was born on August
19, 196!. On November 3, 1961 the appellant wrote to respondent's
falber compllJining of respondent's conduct and expressing regret that
not even a proper invitation was issued to him when the naming ceremony of the child was performed.
On December 15, 1961 the appellant wrote to respondent's father stating that he had decided to go to the
court for seeking sq:w-ation from the respondent. The proceedings
out of which this· appeal arises were instituted on February 19, 196Z.
The parties are Hindus but we do not propose, as is commonly done
and as has . \)cen done in this case, to describe the respondent as a
"Hindu wife" in contrast to non-Hindu wives as if women professing
this or that particular religion are exclusively privileged in the matter of
good sense, loyalty and conjugal kindness. Nor .shall we refer to the
appellant as a "Hindu husband" as if that species unfailipgly projects
the. image of tyrant husbands.
We propose to consider the evidence
on its merits, remembering of course the peculiar habits, ideas, susceptibilities and expectations of persons belonging to the strata of society
to which thes.-, two belong.
All circumstances which CODStitute the
occasion err settiq for. the conduct complained of have releVance but
we think that no wumpti.On.
·
can be made that. respondeM is the oppressed and appellant the QPl)l'essor. The evidence m any case ought to
bear a secular examination.
·
The appe'llal\t iasked f0r annulment of his marriage by a decree of
nullity under section 12(1) (c) of 'The Hindu Marirage Act', 2S of
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N. G. DAST.ANE v. SUCHETA (Chandrachud, !.)
973
1955, ("The Act") on the ground that his consent to the marria11:e was
obtained by fraud.
Alternatively, he asked.for divorce under section
13 ( 1) (iii) on the ground that the respondent was incurably · of unsound mind for a continuous period of ~ot less than three years immediately preceding the presentation of the petition. Alternatively, the
appellant asked for judicial separation under section 10 (1) (b) on the
ground <hat the respondent had treated him with such cruelty as to
cause a reasonable apprehension in his mind that it would be harmful
or injurious for him to live with her.
The appellant alleged that prior to tlie marriage, the nispondent was
treated in the Yeravada Mental Hospital for Schizophrenia but her
father fraudulently represented that she was treated for sun-stroke and
cerebral malaria. The trial court rejected this contention. It also
rejected the· contention that the respondent was of unsound mind.
It,
however, held that the respondent was guilty of cruelty and on that
grouni it passed a decree for judicial separation.
Both sides went in appeal to the District Court which dismissed the
appellant's appeal and allowed the respondent's.._ with the result that the
petition filed by the appellant stood wholly dismissed.
The appellant then filed Second Appeal No. 480 of 1968 in the
Bombay High Court. A learned single Judge of that court dismissed
that appeal by a judgment dated February 24, 1969. This Court
granted to the appellant special leave to appeal, limited to the question
of judicial separation on the ground of cruelty.
We are thus not concerned with the question whether the appellant's
consent to the marriage was obtained by fraud or whether the respondent had been of unsound mind for the requisite period preceding the
presentation of the petition. The decision of the High Court on those
questio',1s must be treated as final and can not be reopened.
·
In this appeal by special leave, against the judgment rend~red by
the High Court in Second Appeal, we would not have normally per-:
mitted the parties to take us through the evidence in the case. Sitting
in Se~ond Appeal, it was not open to the High Court itself to reappreciate evidence. Section 100 of the Code of Civil Procedure restricts
the jurisdiction of the High Court in Second appeal to questions of law
or to substantial errors or defects in the procedure which may possibly
have prOduced error or defect in the decision of the case upon the
merits. But the High Court came to the conclusion that both the courts
below had "failed to apply the correct principles of law in determining
the issue of cruelty". Accordingly, the Hi~h Court proceeded to consider the evidence for itself and came to the conclusion independently
that the appellant had failed·to establish that the respondent had treathint with cruelty. A careful consideratio.n of the evidence by the High
Court ought to be enough assurance that the finding of fact Is correct
and it is not customary for this Court in appeals under Article 136 of
the Constitution to go into minute details rl evidence and weieb them
one a1minst the other, as if for the firqt time. Disconcertingly, this
normal process is beset with practical difficultfes.
974
SUPREME J:OURT REPORTS
ll 97 SJ 3 s.c.R.
ln judging of the conduct of the respondent, the High Court assumed
that the words of abuse or insult used by the respondent
"could not have been address~d in vacuum.
Every abuse,
insult, remark or retort must have been probably in exchange
for remarks and rebukes from the husband ............ a
court is bound to consider the probabilities and infer, as
I
have done, that they must have been in the context of the
abuses, insults, rebukes and remarks made by the· husband
and without evidence on the record wjth respect to the conduct of the husband in response to which the wife behaved in
a particular way on each occasion, it is difficult, if not impossible to draw inferences against the wife."
We find this approach difficult to accept.
Under section 103 of
the Code of Civil Procedure, the High Court may, if the evidence on the
record is sufficient, determine any issue of fact nece~~a.ry for the disposal of the appeal which has not been determined by the lower appellate court or which has been wrongly determined by such court by reason of any illegality, omission, error or defect such as is referred to in
sub-section (1) of section 100.
But, if the High Court takes upon
itself the duty to determine an issue of fact its power to appreciate evidence would be subject to the same restraining conditions to which the
power of any court of facts is ordinarily subject.
The limits of that
power are not wider for the reason that the evidence is being appreciated by the High Court and not by the District Court. While appreciating
evidence, inferences may and have to be drawn but courts of facts have
to remind themselves of the line that divides an inference from guesswork. If it is proved, as the High Court thought it was, that the respondent had uttered: words of abuse and insult, the High Court was
entitled to infer that she had acted in retaliation, provided of course
there was evidence, direct or circumstantial, to justify such an inference.
But the High Court itself felt that there was no ·evidence on the record
with regard to the conduct of the husband in response to which the wife
could be said to have behaved in the particular manner.
The High
Court reacted to this siuation by saying that since there was no evidence
regarding the conduct of. the husband, ''it is difficult, if not impossible,
to draw inferences against the wife". If there was no evidence that flle
husband had provoked the wife's utterances, no inference could be
drawn against the husband.
There was no question of drawing any
inferences against the wife because, according to the High Court, it was
established on the evidence that she had uttered the particular words of
abuse and insult.
The _approach of the High Court is thus erroneous and its fiadings
are vitiated.
We would have normally remanded the matter lo the
High Court for a fresh consideration of the evidence but this proceeding
has been pending for 13 years and we thought that rather than delay
the decision any further, we should undertake for ourselves the task
which the High Court thought it should undertake under section 103 of
the Code.
That makes it necessary to consider th~ evidence in the
case.
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975
But before doing so, it is necessary to clear the ground 'of certain
misconceptions, especially as they would appear to have intluenced·the
judgment of the High Court. . First, as to the nature of.burden of proof
which rests on a petitioner in a matrimonial petition under the Act.
Doubtless, the burden must lie on the petitioner to establish his or her
case for, C?rdinarily, the .bujden lies on the party which affirms a fact,
not on the'party which denies it.
This principle accords with commonsense 'as it is so much earier to prove a positive than a negative. The
petitioner must therefore prove that the responoent . has treated him
with cruelty within the meaning of section 10(1) (b) .of the A.ct.
But
does the law require, as the High Court has held, that· the petitioner
must prove his case beyond a reasonable doubt?
In . other ',words,
though the burden lies on the petitioner to establish the charge of
cruelty, what is the standard of proof to be applied in order l0 judge
whether the burden has been discharged ?
.
The normal rule which governs civil proceedings is that a fact can
be said to be estabilshed if it is proved by a preponderance of probabilities.
This is for the reason that under the Evidence Act, section 3, a
fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the· supposition that
it exists.
The belief regarding the existence of a fact may thus 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
tinds 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, tbe improbable at the second.
Within the wide range of probabilities the court has often a difficult choice to make but it is this choice
which ultimately determines where the preponderance of probabilities
Jie3.
Important issues like those which affect the status of parties
demand a closer scmtiny than those like the !Dan on a promissory note :
"the nature and gravity of an issue necessarily cietermines the manner
of attaining reasonable satisfaction of the truth of the issue" ( l) ; or as
said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof
to be clear" (2).
But whether the issue is one of cruelty or of a loan on
a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the
standard of proof to apply for finding whether the burden of proof is
discharged.
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. If the probabilities are so nicely balanced that a reasonable,
(I) Per Dixon, J. in Wright v. Wright {1948) 77 C.L.R. 191 at p. 210.
(2) Blyth-;. Blyth, [1966] 1 A.E.R. 524 at 536.
976
· SUPREME COURT REPORTS .
1197 51 3 s.c.R.
not a vascillating, mind cannot find where the . preponderance:: lies, . a · A
. doubt arises regarding the existence of the fact to be proved and .the ·
benefit of such reasonable doubt goes to. the accused. ' It is wrong to
import such considerations in' trials of a purely civil nature.
.
·.
~ .
.
.
·Neither •ectio~ 10 ofthe Act which enuil\erates the grounds .'~n
which a petition for judicialseparation may be Presented nor section 23
which governs the jurisdiction of the court to ·pass a decree in any proB
ceeding 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 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 prepd.:iderance of probabilities'.' and not '.'rntisfied beyond a reasonable doubt''. Section 23 does not alter the standard of · proof in
C
civil cases.
·
·
·
. The ntlsconception regarding the standard, ~f proof in matrimonial
cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting a "matrimonial offence", Acts of a
spouse which are calculated to impair the integrity of a marital union
have a social significance. To marry or not to marry 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 there-.
fore the erring spouse is treated· not as a mere defaulter but as an.
offender. But this social philosophy; though it may have a bearing on
· the need to have the clearest proof of an allegation before it is accepted
as a ground fpr the dissolution of a marriage, has no bearing on the
standard of proof in matrimonial cases.
·
.
' .
.
· .
In En~and, a view was at one time taken that the petitioner in a
m:itrhnorual petition must establish his case beyond a reasonable doubt
but in Blyth v. Blyth(1), the House of Lords held by a majority that so
far as the grounds of divorce or the bars to divorce like connivance ·or
condonatlcin are concerned, "the case, Jike any civil case, may be proved
by a preponderance of probability". The High Court of Austraila in
Wright v. Wright('), has also taken the view that "the civil and not the
criminal standard of persuasion applies to matrimonial causes, includ- ·
ing issue~ of adultery" •. The Hiizh Court was therefore in error in hold~
ing that the petitioner must establish the charge of cruelty "beydnd reasonable doubt''. The High Court adds that "This must be in accor·
. dance with the law of evidence"; but we are not clear as to the implications of this observation.
· Then, as regards the meaninji of "Cruelty''. The High Court on
this question begins with the decision in Moonshee Bazloor Rubeem v.
Shamsoonnissa Begum(8), where the Privy Council observed : '
·
"The ·Mohomedan law, on a
question of
what is legal
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cruelty between Man and Wife, would probably not differ
materially from our own of which one of the most recent exH
posit!on is the fo)J.owing :~ 'There must be actual violence
(I.) [196(;1 A. E.R. S24 at S36.
,
(2) 1948, 77 C.L.R. 191at210.
(3) II Moore's Indian Appeals SSI.
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977
of such a character as to endanger personal health or safely;
or there Must be a .reasonable apprehension 01 it'."
Ti1~ High Court then refers to the decisions of some of the Indian
Courts to illustrate ''The march of the Indian Courts with the Englishs
Courts" arid cites the following passage from D. Tolstoy's ''The Law
and Practice of Divorce and Matrimonial Causes" (Sixth Ed., p: 61):
"Cruelty which is a ground for dissolution· of marriage
may be defined as willul and unjustifiable .:onduct of such a
character as to cause danger to life, limb or health, bodily or
mental, or as to give rise to a reasonable apprehension of such
a danger."
·
The High Court concludes that "Having regard to ·these prmctples and
the entire evide.,1ce in the.case, in my judgment, I find that none of tbe.
acts complained of against the respondent can (:le considered to be so
sufficiently grave and weighty as to b~ described as cruel according to·
the matrimonial law."
An awareness of foreign decisions could be a useful asset in interpreting our own laws.
But it has to be remembered that we have to
interpret in this case a specific provision of a specific enactment, namely,
section 10(1) (b) of the Act.
What constitutes cruelty must depend
upon the terms of this statute which provides :
.
. .
"10(1) Either party to a marriage, whether solemnized
before or after the commencement of this Act, may present a
petition to the district court praying for a decree for judicial
separation on the ground that the other party...:..
·
(b) has treated the petitioner with such cruelty as · to
cause a reasonable apprehension in the mind of the petitioner
that it will be harmful or injurious for the petitioner to live
with the other party;"
1 he inquiry therefore has to be whether the conduct charged as cruelty
is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it wil! be harmful or injurious .for him to live
with the respondent. · Jt is not necessary, as under the English law,
that the cruelty must be of such a character as to cause "danger" to life,
limb or health or as to give rise to a reasonable apprehension of such a
danger.
Clearly, danger to life, limb or health or a ·reasonable apprehcn>ion of jl is a higher requirement than a reasonable · apprehension
that it is harmful or injurious for one spouse to Jive with the other.
· The risk of relying on English decisions in this field may be shown
by the Icarn~d Judge's reference to a passage from Tolstoy (p. 63) in
which the karned author, citing Horton v. Horton( I), says :
·
"Spouses take each other for better or worse, and it is not
enough to show that they find life_ together impossible, even
if there results injury to health."
~~
(I) (1940] P. 187.
16-564 Sup.