The appellant, Dr. Narayan Ganesh Dastane, passed his M.Sc. in 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 Australia University and returned to India in April, 1955. He worked for about 3 years as an Agricultural Research Officer and in October, 1958 he left Poona to take charge of a new post as an Assistant professor of Agronomy in the post graduate school, Pusa Institute, Delhi. At present he is said to be working on a foreign assignment. his father was a solicitor-cum-lawyer 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 of Ministry of the Government of India and she came to Delhi to the rest of the family.. She passed her B.Sc. from the Delhi University in 1954 and spent a year in Japan 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 a 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 for her mental affectation. The letters state that after a course of treatment at the Yeravada Mental Hospital, she was cured: “you find her as she is today.” The respondent’s father asked to the appellant’s father to discuss the matter if necessary, with the doctors of Mental Hospital. The letter was written avowedly in order that the appellant and his people “should not be in the dark about an important episode” in the life of the respondent, which “fortunately, had ended happily”.
Dr. Desmukh confirmed what was stated in the letters and being content with the assurance, the appellant and his father made no enquiries with the Yervada Mental hospita. The marriage was performed at Poona on May 13, 1956. The appellant was then 27 and the the respondent was the 21 years of age.
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 till 1958. During this period a girl named Shubha was born to them on March, 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 months in October, 1958 and 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 Djakarta, Indonesia.
In January, 1961 the respondent went to Poona to attend the marriage of appellant’s brother, a doctor by profession, who has been given in adoption in Lohokare family. A fortnight after the marriage the appellant got the respondent examined by Dr. Seth a Psychiatrist in charge of Yervada Hospital. Dr. Seth wanted adequate data to make diagnosis and suggested that he would like to have a few sittings with the respondent. For reasons good or bad, the respondent was averse to submit herself to that kind of scrutiny. There was no consultation thereafter with Dr. Seth. According to the Appellant, she had promised to see Mr. Seth but she denies the fact that she had made that kind of promise. She believed that the appellant was building up a case that she was of unsound mind and she was being lured to walk into the trap. February, 1961 was the last that they lived together. But on the day of Parting she was three months in the family way. The third child named Pratibha was born when they were in marital crisis.
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 relatives. 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 appellant once again wrote to the Police renewing his request for protection.
On March 23, 1961 the respondent wrote to the appellant complaining against his `conduct 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 Agriculture, saying that the appellant had \deserted–her, that he had treated her with extreme cruelty and asking that the Government should make separate provision for her maintenance. n March 25, her statement was recorded maintenance. an Assistant Superintendent of Pace, in which she alleged desertion and ill-treatment by the appellant. Further statements were recorded by the Police and the Food Ministry also followed up respondent’s letter of May 19 but ultimately nothing came out of these complaints and cross-complaints.
As stated earlier, the third daughter, Pratibha, was born on August 19, 1961. On November 3, 1961 the appellant wrote to respondent’s father complaining 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 separation from the respondent. The proceedings out of which this appeal arises were instituted on February 19, 1962.
The parties are Hindus but the Court does not propose, as is commonly done and as has been 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 the Court refer to the appellant as a “Hindu husband” as if that species unfailingly projects the image of tyrant husbands. The Court proposes 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 these two belong. All circumstances which constitute the occasion or setting for the conduct complained of have relevance but the Court think that no assumption can be made that respondent is the oppressed and appellant the oppressor. The evidence in any case ought to bear a secular examination.
Whether the Burden of Proof of Cruelty lies on the petitioner or not?
The appellant asked for annulment of his marriage by a decree of nullity under Section 12(1)(c) of ‘The Hindu Marriage Act’, 25 of 1955 on the ground that his consent to the marriage 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 not 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 that the respondent had t her. 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 the marriage, the respondent was treated for sunstroke and the 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 ground 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. The Court is 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 questions must be treated as final and cannot be re-opened.
In this appeal by special leave, against the judgment rendered by the High Court in Second appeal, The Court would not have normally permitted the parties to take us through the evidence in the case. Sitting in Second Appeal, it was not open to the High Court itself to re-appreciate 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. tit he High Court came to the conclusion that both the courts below had “failed apply the correct principles of law in determining the issue of cruelty.” Accordingly, the High 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 treated him with cruelty A careful consideration 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 of evidence and weigh them one against the other, as if for the first time. Disconcertingly, this normal process is beset with practical difficulties.
In 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 addressed 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 with 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.”
The Court finds 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 necessary 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 as 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 situation 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 the 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 was thus erroneous and its findings are vitiated as was held. The Supreme Court would have normally remanded the matter to the High Court for a fresh consideration of the evidence but this proceeding had been pending for 13 years and the Supreme Court thought that rather than delay the decision any further, the Supreme Court should undertake for ourselves the task which the High Court thought it should undertake under Section 103 of the Code. That made it necessary to consider the evidence m the case.
But before doing so, it is necessary to clear the ground of certain misconceptions, especially as they would appear to have influenced 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, ordinarily, the burden 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 easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10(1)(b) of the Act. 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 to judge whether the burden has been discharged?
The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a tact 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 circumstance. 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 tact situation will act on the supposition that the tact 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 of 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 the second. Within the wide range cut probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: “the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue” 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. But whether the issue is one of cruelty or of a loan on a pro-note, the test to apply is whether on a preponderance of probabilities the relevant fact 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 rues 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, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt to the accused. It is wrong to import such considerations in trials of a purely civil nature. The burden must lie on the petitioner to establish his case. The burden lies on party who affirms it not vice versa.
 Wright v. Wright, (1948) 77 CLR 191 (210)
 Blyth v. Blyth. 1966 1 All ER 524 (536).