NARAYAN GANESH DASTANE versus SUCHETA NARAYAN DASTANE

Citation: [1975] 3 S.C.R. 967 · Decided: 19-03-1975 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Dismissed

Cited by 7 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
NARAYAN GANESH DASTANE 
v. 
SUCHETA NARAYAN DASTANE 
March 19, 1975 
967 
(Y. V. CHANDRACHUD, P. K. GOSWAMI AND N. L. UNTWA1LIA, JJ.] 
8 
Hindu Marriage Act.:._Sectio11 IO(l)(b) and 23(1)(a) (bl-Meaning of 
cmelty-Burden of proof. in matrimonial matters-Whether beyond reasonable 
doubt-Condonation of cruelty-Whether sexual intercourse amounts to condo-
i;ation-Whetlzer condo11atio11 is conditional-Revival of cruelty. 
c 
D 
E 
F 
G 
H 
Code 'of Civil Procedure-Sectio11 100 and 103-Powers of Hig/z Court in 
second appeu:. 
Evidence Act-Section 3-Proof, meaning of. 
The. :ippellant husband filed a petition for annulment of marriage on the 
ground of fraud, for divorce on the ground of unsoundness of mind and for 
judicial separation on the ground of cruelty. The appellant and respondent 
possess high educational qualificat!ons and they were married in 1956. Two 
children were born of the marriage one in 1957 and the other in 1959. 
The Trial Court rejected the coatention of fr:iud and unsoundness of mind. 
It, however, held the wife guilty of cruelty and on that ground passed a decree 
for judicial separation. Both sides went in appeal to the District Court which • 
dismissed the husband's appeal and allowed the wife's. The husband then filed 
a Second Appeal in the High Court. The High Court dismissed thllt appeal. 
On appeal to this Court. 
HELD·. (i) Normally this Court would not have gone into evidence esP::-
cia!Iy as the High Court itself could not have gone into the 
evidence 
m 
se~ond appeal. 
s~ction JOO of the C.P.C. restricts the jurisdiction of the High 
Court in second appeal to questions of law or to substantial errors or defects in 
the procedure which might possibly hllve produced error or defect in the decision 
of the case upon merits. The High Court came to the conclusion that both the 
courts below had failed to apply the correct principles of law in determining the 
issue of cruelty. Accordingly the High Court proceeded to consider evidence for 
itself. Under s. 103 C:P.C. the High Court can determine any issue of fact if the 
evidence on the record is sufficient but if the High Court takes upon iiself the duty · 
of determin~ng an issue of fa,:t, its powers to appreciate evidence would be subject 
to the same restraining conditions to which the power of any court of facts is 
ordin;irily subject. The limits of that power are not wider for the reason that the 
evidence is being appreciated by the High Court ·and not by the District Court. 
While appreciating evidence, inferences may and have to be drawn but courts of 
facts have to remind themselves of the line that divides an inference from guess 
work. 
Normally this Court would have remanded the matter to the High Court 
for a fresh cons!deration of the evidence but since the proceedings were pending for 
13 years the Court itself went .into the evidence. [973 F-974 HJ 
(ii) The burden of proof in a matrimonial petition must lie on the petitioner 
because ordinarily the burden lies .on the party which affirms a fact, not on the 
party which denied it. 
This principle accords with commonsense, as it is 
much easier to prove a positive than a negative. The petitioner must, therefore. 
prove that the respondents had treated him with cruelty within the meaning of 
s. JO(J)(b) of the Act. 
But the High Court was wrong in holding that the 
petitioner must prove his case beyond a reasonable doubt. The normal rule 
which governs civil proceedings is that a tact is said tO be established if it is 
proved by preponderance of probabilities. Under s. 3 of the . Evidence Act a 
fact is said to be· proved when the court either believes it to exist or if 
rnnsiders its existence so probable th:it a prudent man ought, in the ci~cum­
stances, to act upon the supposition that it exists. The first step in this process 
is to fix the p;orabilities. the second to weigh them. The impossible is weeded 
968 
SUPREME COURT REPORTS 
[19751 3 s.c.R. 
out in the first stage, the improbable in the second. 
Within the wide range 
of probabilities the Court has often a difficult .choice to make but it is this 
choice which ultimately determines where the preponderani:e of probabilities 
lies. Important issues like the status of parties demand closer scrutiny than 
those like the loan on a promissory note. Proof beyond reasonable doubt is 
proof by a higher standard which generally governs criminal trials or trials 
involving enquiries into issues of quasi-criminal nature.

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