The standard of proof required in matrimonial cases is the criminal standard of proof, which requires the prosecution to prove its case beyond a reasonable doubt.

( 1 ) THIS is an appeal by the wife Leelabati Pakhira against whom her husband Kashinath Pakhira, now the respondent before us, has obtained a decree of divorce in the court of the District Judge, Howrah, under Section 13 of the Hindu Marriage Act, 15 of 1955.

( 2 ) THE decree under appeal is rested on a specific ground: that the appellant, the wife, has been living in adultery with one Lakshmi Kanta, who however, does not figure as a co-respondent to the husband's petition for divorce filed in the court below on September 28, 1964.

( 3 ) AFTER having heard Mrs. Nag, the learned Advocate appearing for the appellant and Mr. Ganguly, the learned Advocate appearing for the respondent, and after having considered the whole of the evidence on our own, we are satisfied that the reasons which weigh with the learned trial Judge do not appear to be sufficient to bring home the charge of adultery as made against the appellant.

( 4 ) MARRIED in 1954, the two spouses had the gift of a son Satyendra Chandra Pakhira in or about 1956. But soon they fell out, so much so, that the wife Leelabati had to go to the length of taking proceedings for maintenance under Section 488 of the Code of Criminal Procedure. Fortunately, that culminated on August 7, 1959, in a compromise, the arresting features of which are - (1) The husband Kashinath will not live any more with a woman Jamunabala whom he commits to remove from his house. (2) That done, the wife Leelabati will live with Kashinath as a loving and dutiful wife does. (3) Should Kashinath not do what he commits himself to, Leelabati will get a maintenance of Rs. 45/- a month for herself and the son.

( 5 ) AN important admission as this, the learned trial Judge passes by, on the ground that the aforesaid solenama has not been acted upon. That, in our judgment, is not the right way to look at the matter. Acted upon or not, the admission remains and stares the husband Kashinath in the face. And the husband faces it by saying on cross-examination : 'i do not know Jamunabala. " a most unconvincing way of explaining one's own admission concerning a woman with whom he admits by the clearest implication to have been living and with whom, he assures the Magistrate and his wife Leelabati, he will live no more. Was then the Jamunabala of the solenama dated August 7, 1959, a figment of his imagination? Such evidence must be reckoned against the husband Kashinath, if only to show what he is like.

( 6 ) THERE were proceedings again for maintenance under Section 488 of the Code of Criminal Procedure and that too at the instance of the wife Leelabati on December 28, 1960. The proceedings culminated too in a compromise, ext. 1. By virtue thereof, the husband took charge of his son Satyen and bound himself to pay Leelabati a maintenance of Rs. 20 a month right from December 1960. But it was agreed to that she would live separately in her husband's home.

( 7 ) NOW the trouble began over again. In or about April 1964, Leelabati was delivered of a female child. Kashinath says: he is not the father of this child. Leelabati says: he is. Kashinath says: Lakshmi Kanta Pakhira is the father of the female child. Leelabati says: nothing of the kind. Separation and maintenance of Rs. 20/- are no doubt there. But, even after that, they, husband and wife, had access to each other. And the female child is the result.

( 8 ) THE learned trial Judge rejects the wife's untrammeled by the common-sense view - and so natural a view at that - that the relation of husband and wife is such that one is appoint to attract the other normally, no matter what feuds they have gone through in the past; the more so, when they live in the same house, as, indeed, they do. On top of that, a serious matter is at issue here: legitimacy of the female child a child who is born during the continuance of a valid marriage between Leelabati and Kashinath. So, under Section 112 of the Evidence Act, 1 of 1872, here is a conclusiv