The burden of proof in matrimonial proceedings is based on preponderance of probabilities, not beyond reasonable doubt. The interpretation of the amended provisions of S.13 clarified that a single act of adultery is sufficient for divorce under S.13(1)(ia) without the need to prove 'living in adultery.'

1. The husband in a matrimonial proceeding is the appellant. He filed a petition under S.13 of the Hindu Marriage Act for divorce on the grounds of adultery and cruelty. Respondent-wife denied the allegations. The court below found that the appellant had not satisfactorily proved the grounds alleged in the petition and therefore the petition for divorce was dismissed. The appellant challenges this order.

2. Appellant is in Indian Military service. The respondent is a U. P. School teacher. The marriage between the appellant and respondent Thankamma was solemnised in 1970. Thereafter they bad been residing as husband and wife at Pulpatta in Ernad Taluk. Two children were born in the wedlock. Dispute between the husband and wife arose some time in 1976. The appellant-husband started suspecting the fidelity of his wife. Ha accused her of having illicit relationship with one Abdul Rahiman. Appellant also alleged cruelty. He would say that the respondent-wife falsely stated that he bad sexual connection with her sister He also alleged that on 24-7-1978 the respondent clandestinely administered sleeping pills to him and that she also caused bodily injury to him. On these allegations the appellant moved for divorce under S.13(1)(i) and (ia) of Hindu Marriage Act. The respondent characterised the appellant as a man of desperate character and alleged that be always liked to keep company with drunkards. Respondent also alleged that he had failed to maintain the two children. The lower court came to the conclusion that the appellant has not proved beyond reasonable doubt the allegation regarding cruelty and adultery.

3. Shri P. K. Moosa. the learned counsel for the appellant. seriously assailed the finding of the learned Sub Judge. It is true that the court below has committed error in not noticing the latest provision of law. The appellant alleged that the respondent had voluntary sexual intercourse with one Abdul Rahiman. The learned Subordinate Judge while discussing the issue regarding adultery held that in order to invoke S.13(1)(i) of the Act the appellant should have proved that the respondent was living in adultery and a single act of adultery cannot be considered as living in adultery. The court below was of the view that there should have been a continuous course of adulterous life to get a decree of divorce under S.13(1)(i) of the Hindu Marriage Act. Probably the learned Sub Judge might have bad in mind the sub-s. 13(l)(ia) of the Hindu Marriage Act. 1964 (Act 46 of 1964). This was amended by the Marriage Law (Amendment) Act. 1976. Act 68 of 1976. The following changes were made in S.13. In S.13(1)(i) the words "is living in adultery" were substituted by the words "has after the solemnization of the marriage had sexual inter-course with any person other than his or her spouse". Unfortunately the amendment was not noticed by the learned Sub Judge. nor it was pointed out to him by the counsel on either side.

4. Prior to the amendment the expression "is living in adultery" was subject to several decisions. It was held that a single or isolated act of adultery was not sufficient to have divorce under S.13 of the Act. though it is a ground for judicial separation. However. after the amendment in 1976. the appellant need only prove that the respondent had voluntary sexual intercourse with any person other than the spouse. It need not be proved that the respondent has been living in adultery.

5. Even though the court below has erred on a vital point. we do not think that it has seriously prejudiced the appellant. The evidence in this case shows that the appellant could not prove even an isolated act of adultery by the respondent. According to the appellant one neighbour Abdul Rahiman is alleged to be the paramour of the respondent. Appellant has deposed that on 20-7-1978 he saw his wife having sexual relationship with Abdul Rahiman. The case of the appellant is that she stealthily went out of the house in the midnight and reac