In a civil suit, the burden of proof lies on the party to establish the charge, but the standard of proof to be applied is the preponderance of probabilities.

N. K. DAS, J.

( 1 ) DEFENDANT No. 1 is the appellant against a confirming decision. The case of the plaintiff is that she and defendant No. 1 are husband and wife and their marriage took place in 1958 according to Hindu rites. After she gave birth to a child, defendant No. 1 drove her out of his house. Subsequently, without dissolution of her marriage with defendant No, 1, the latter married defendant no. 2 on 8-2-66 and started living with her. So, she has prayed for a declaration that the marriage of defendant No. 1 with defendant No. 2 is null and void. Defendant No. 2 did not contest, nor appeared in Court. Defendant No. 1 in his written statement contends that he has no connection with defendant No. 2 and the allegation of second marriage is not true. According to him, plaintiff left his residence to her parents' house in 1964 against his will and did not return in spite of several requests and when plaintiff came to know that defendant No. 1 was intending to file a case for judicial separation, she has filed this suit on false allegations.

( 2 ) BOTH the Courts below have concurrently found that plaintiff is the married wife of defendant. No. 1. Defendant No. 1 married defendant No. 2 and the said marriage is null and void. Marriage of defendant No. 1 with plaintiff is not now disputed.

( 3 ) TWO points have been canvassed on behalf of the appellant (defendant No. 1 ). Firstly, the suit was not maintainable in the Court of the Munsif and it should have been filed in the Court of the District Judge, or the Subordinate judge, as provided in the Hindu Marriage Act; and secondly, the onus of proof of the second marriage being on the plaintiff, she has failed to discharge the onus, inasmuch as she has not established the ingredients required under law for proof of marriage of defendant No. 1 with defendant No. 2.

( 4 ) AS regards the first point, the contention of the appellant is that Section 11 of the Hindu Marriage Act, 1955 envisages that a marriage can be declared to be null and void on a petition to be presented if there is contravention of any of the provisions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. Section 5 (i) provides that a marriage of a person can be performed according to law if neither party has a spouse living at the time of the marriage. Reference was made also to Section 19 of the Act which provides that every petition under the Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction either the marriage was solemnised or the respondent, at the time of the presentation of the petition, resides, or the parties to the marriage last resided etc. 'district Court' has been defined in Section 3 (b) which means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the state Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt within this Act. It is not disputed that petitions under the Hindu Marriage Act are to be filed either in the district court or in the Court of the Subordinate Judge, as notified by the State Government of Orissa. Appellant contends that the suit being for a declaration that the marriage of defendant No. 1 with defendant No. 2 is null and void, the petition should have been filed in the Court of the District Judge, or the Subordinate Judge. This contention has no force. Section 11 of the Act clearly states that any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5. So also in case of divorce, as provided in Section 13 of the Act, a petition is to be presented by either the