In civil cases, including divorce proceedings, the standard of proof is preponderance of probabilities, not beyond reasonable doubt.

N. K. JAIN, J.

( 1 ) THIS is a Civil Misc. Appeal of husband Mani Shankar against his wife Smt. Radha Devi, regarding divorce matter under S. 28 of the Hindu Marriage Act read wilt S. 96, C. P. C. A petition for divorce was filed by the appellant Mani Shankar under S. 13 (1) of the Hindu Marriage Act, 1955 (hereinafter referred as the act of 1955) in the Court of District Judge, Dungarpur on the ground of adultery as well as on cruelty, which was dismissed by the learned Judge vide his order dated 3-8-88 in Civil Misc. Case No. 49/83. Hence this appeal has been preferred against the aforesaid judgment.

( 2 ) BRIEF facts of the case are that Mani Shankar and Radha Devi were married according to Hindu rites and ritual in the year 1968 and they lived as husband and wife for 14 years but had no issue from the wedlock. The appellant has filed a petition under S. 13 (1) of the Act of 1955 for divorce before the learned District Judge, Dungarpur on 28-9-83, alleging therein that the respondent No. 1 Smt. Radha Devi is living in adultery with respondent No. 2 Pradeep Singh which caused cruelty to the appellant and other allegations were also made. The respondent wife denied all these allegations and alleged that on the instigation of the brothers Kanhaiya Lal and Harishankar, the appellant has levelled these false charges against her with a view to perform second marriage. The respondent No. 2 has also denied these allegations in his reply but did not participate in further proceedings. The trial Court has framed as many as 3 issues. In support of his case the appellant has produced as many as 7 witnesses including the evidence of hand writing expert and also produced 12 documents. On the other hand the respondent No. 1 has also produced herself and 6 more witnesses including the handwriting expert but no documentary evidence was produced by her. The respondent No. 2 has not come in the witness box. After hearing both the parties the learned District Judge, Dungarpur dismissed the petition on the ground that the appellant has failed to prove his case beyond reasonable doubt. In this appeal none has appeared on behalf of respondents despite the service by normal as well as Regd. post, as per record.

( 3 ) I have heard Mr. M. C. Bhoot, learned counsel for the appellant and also perused the entire record.

( 4 ) MR. Bhoot, learned counsel for the appellant has urged that the order of trial Court has been passed on wrong approach as it is very difficult to get the direct evidence of adultery. The conclusion can be drawn on the preponderance of probabilities of the circumstances, that it is a case of adultery. In this regard Mr. Bhoot has relied on AIR 1979 Raj 156, B. D. Charles v. Smt. Nora Benjamin by Special Bench of three Judges of this Court. In this case, it has been held by the Court that direct evidence of proof of adultery is very rare and adultery can be established by circumstantial evidence and circumstances must be such as would lead the guarded discretion of a reasonable and just man to a conclusion of adultery. Another case relied by Mr. Bhoot, learned counsel for the appellant in AIR 1975 SC 1534, Dr. Dastane v. Mrs. S. Dastane. A case under this Act of 1955 regarding the standard of proving in the matter of cruelty what it should be and what was held by the learned Supreme Court as under"the belief regarding the existence of a fact may 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 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 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 im