The standard of proof required in matrimonial offences is the same as that required in criminal offences, i.e., beyond reasonable doubt.

( 1 ) THIS has come up before us exercising jurisdiction over matrimonial causes under Section 17 of the Indian Divorce Act (Act IV of 1869), hereinafter referred to as the Act, for confirmation of a decree nisi passed by the learned Additional District Judge, 24 Parganas, dissolving the marriage.

( 2 ) IT was a wife's petition under Section 10 of the Act. The grounds were adultery with the other aggravated circumstance, viz. , cruelty. The petitioner has two minor children, born out of the wedlock living with her. The learned Judge passed the decree mentioned above and also directed custody of the children to the petitioner. The husband (respondent) was further directed to pay a monthly sum of Rs. 250/- to the wife (petitioner) as alimonv pending the suit.

( 3 ) I have reviewed the entire evidence. All pertinent facts are brought out to prevent the blinding of our eyes. The parties profess Christian religion. They were legally married. They were of Indian domicile at the date of the presentation of the petition They last resided within the jurisdiction of the Court below. There is no collusion between the parties. The petitioner has not been in any manner consistently accessory to or conniving at the adultery. There is no proof of connubial intercourse after the adultery, which would be a prima facie evidence of condonation. The petitioner has not slumbered in sufficient comfort and there is no unreasonable delay in presenting the petition. It is not a motion on behalf of the guilty party being adulterous herself. Neither the petitioner is guilty of cruelty to the respondent or of separating herself from him or oi any wilful neglect or misconduct towards him. The husband on the other hand is held to be cruel. The said cruelty is such, as without adultery it would have entitled the wile a divorce from bed and board (a mensa et toro ). The notice was properly served. Statutory six months have elapsed from August 1, 1961, the date of signing of the decree by the learned Judge but the records were only sent up by him to this Court on an application being moved by the petitioner specially for that purpose and not earlier. I regret to record that the said state of affairs is not very much creditable to the Court concerned.

( 4 ) THE guilt of adultery in the present case is held to be proved, but circumstantially. There is a letter of the husband to the wife in the present case (Ext.

4) admitting the adultery but this letter stands in isolated glory. There is no other letter. There is no other item of the conduct of-the husband which is admitted and which is consistent with the contents of the said letter. Hence we would have to consider whether the proof by circumstantial evidence would be sufficient in such cases.

( 5 ) IT is not necessary that there should be direct evidence of adultery; as it is not easily available, rather direct proof is very rare. It has been pointed out in a number of cases that rarely the parties are surprised in a direct act of adultery (Rayden on Divorce, 7th Edn. pp. 135, 136 ). But circumstantial evidence must be sufficiently strong and conclusive. Association coupled with opportunity, illicit affection, undue familiarity, guilty attachment are some of the instances which create an inference upon which the Court can act. There is an old legal maxim in Scotland which runs as follows : "solus cum sole in suspecto loco non presumitur dicere pater noster", which being translated means that when a man and a woman are found together under suspicious circumstances, it cannot be presumed that they are saying their prayers. It would also be difficult to ascribe the theory of "platonic love" in such circumstances hut then again the circumstances must be such as would lead "the guarded discretion of a reasonable and just man to the conclusion" or "fair inference as a necessary conclusion". (See the observations of Sir William Scott, determined in the Consistory Court of London, in the classic c