Kan Singh, J.:— This is a wife's appeal under sec. 28 of the Hindu Marriage Act, 1955, hereinafter to be referred as the “Act”, directed against the judgment and decree of the learned Additional District Judge, Dholpur dated 30-8-69 dissolving the marriage between the spouses by divorce on the ground of adultery.
2. Shri Radhay Shyam and Smt. Pushpa Devi were married in July, 1961 according to the Hindu rites, A female child who was 3 years old on the date of the petition under sec. 13(1) of the Act was born of the union. On 19-11-66, the husband Radheyshyam made the petition in the court of the District Judge, Bharatpur. It was alleged therein that for the last 2-½ years Smt. Pushpa Devi had left the husband and had developed adulterous relationship with respondent No. 2 Hukam Singh. They were helped in this by the mother of the wife. The wife was a teacher in a school and was living at Dholpur. It was further averred in the petition that he husband tried his best to persuade the wife to live with him, but in vain. The wife contested the petition. She denied that she had any adulterous relationship with Hukam Singh. She stated that Hukam Singh was her maternal uncle (‘Mama’), as her mother used to the ‘Rakhi’ on his hand. The learned District Judge framed he following issues:
“(1) Whether Mst. Pushpa Devi respondent is living in adultery?
(2) Whether it is in the welfare of the minor, Kumari Ranjana, daughter of the petitioner, that she should remain in the custody of her father?
(3) Whether Hukam Singh is entitled to special costs?
(4) To what relief is the petitioner entitled?”
Thereafter the case was transferred by the learned District Judge to the court of the additional District Judge at Dholpur.
3. Both the parties led their evidence. The husband examined in all 4 witneses. P.W I was Radhey Shyam, the husband himself. He admitted that at the time of the Marriage Hukam Singh had worked like any other member of the family and his wife Smt. Pushpa was calling him ‘Mama’. He had further admitted that he ad no persona) knowledge about the illicit relationship between Smt. Pushpa and Hukam Singh. P.W 2 Babulal stated that whenever he had occasion to visit the house of Smt. Pushpa he found Hukam Singh there, but he could not say what kind of relations they had. P.W 3 was Bhagwan Swaroop. He stated that Hukam Singh was living with Smt. Pushpa. He further stated that on one occasion he had seen both of them singing film songs which were indecent or obscene. However, he could not say what the songs were. He further stated that the two were holding the hands of each other. P.W 4 was Rambharoselal. He had seen Hukam Singh mostly living with Smt. Pushpa. On one occasion he had seen the two sitting on a cot in the verandah. He too admitted that Hukam Singh used to say that Smt. Pushpa was his ‘Bhanji’ (niece). In rebuttal Smt. Pushpa examined herself and produced 3 other witnesses.
4. The learned District Judge came to the conclusion that though there was no direct evidence of adultery yet the same has been proved by the circumstances brought on record. The essentials of the judgment of the learned Additional District Judge are contained in the following passage:—
5. In the result, the learned Additional District Judge, Dholpur granted a decree of divorce in favour of the husband and against the wife.
6. In challenging the judgment and decree of the court below learned counsel for the appellant his raised a two fold contention. In the first place, it was argued by him that the learned. Additional District Judge had no jurisdiction to try the application under sec. 13 of the Act. He maintained that the learned District Judge was a persona deignata in dealing with applications under the Act and consequently the application in the present case could not have been transferred by the District Judge, Bharatpur to the Additional District Judge at Dholpur. The other contention is that the husband has failed to prove that the wife was living in adultery. Learned counsel points out that the evidence adduced by the petitioning husband falls short of the requisite in establishing the charge of adultery against the wife. Such a matrimonial offence, according to learned counsel, has to be proved beyond all mannner of doubt.
7. Learned counsel for the respondent has tried to support the judgment of Additional District Judge.
8. Sec. 19 of the Act provides that every petition under this Act shall be presented to the District Court within local limits of whose ordinary original civil jurisdiction the marriage was solemnised or the husband and wife reside or least resided together.
9. It is plain that the District Court hears the petitions under this Act as a Court and act as a persona designate. The term “District Court” is defined by S. 3(b) of the Act to mean 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 with in this Act. Therefore, in an area where there is a city civil Court and in any other area it would mean the principal civil Court of original jurisdiction. Besides this it is open to the State Government, by notification in the official Gazette, to empower any civil Court to have jurisdiction in respect of matters dealt with in this Act.
10. The Court of the District Judge at Bharatpur being the principal civil Court of the District rightly entertained the petition.
11. The next question is whether the District Judge could have assigned this case to the Additional District Judge, Dholpur who is an Additional Judge in the Court of the District Judge for the district. According to sec. 10 of the Rajasthan Civil Courts Ordinance, 1960, if the business before any District Judge so requires for its speedy disposal, the State Government may, on the recommendation of the High Court, sanction the appointment of such number of Additional Judges for the Court or Courts of such District Judge or Judge or District Judges as may be necessary. Sub-sec. (3) of that section lays down that any Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him and in the discharge of those functions he shall exercise the same powers as the District Judge. Sub-sec. (3) thus empowers the District Judge to assign any of his functions to any Additional Judge and the latter shall then exercise the same powers as the District Judge This sub-section, therefore, empowers the District Judge to transfer a case under the Act to the Additional District Judge and the latter would be exercising the same powers as the District Judge. There is, therefore, no substance in the first contention of the learned counsel.
12. As regards the question whether the adultery on the part of the wife has been established the learned Additional District Judge is, no doubt, right in saying that it is not necessary to prove the fact of adultery by direct evidence. It would be unreasonable to expect direct evidence and such evidence, if produced, would be normally suspect and is likely to be discarded. Normally the matrimonial offence of adultery is expected to be established by circumstantial evidence, but in that event the circumstances must be such as lead to the necessary conclusion that adultery was committed by the spouse concerned. It would not be possible to lay down as a rule of the thumb as to what circumstances would be sufficient to establish adultery, because circumstances may be diversified by the situation and character of the parties, by the state of general manners and by many other incidental circumstances, apparently slight and delicate in themselves, but they may have important bearing on the particular case. The only general rule upon the subject is that the circumstances must be such as would lead to a guarded judgment of a reasonable and just man to the conclusion. Proof beyond reasonable doubt means such proof as to preclude every reasonable hypothesis except that which it tends to support. It need not reach certainly, but roust carry a high degree of probability. The Court would not as a general rule infer adultery from evidence of opportunity alone, but would require some more satisfactory proof (vide Mulla's H Law 13th Edn., PP 671-672).
13. P.W 1 Radhey Shyam, the husband and P.W 2 Babulal do not speak of any adultery on the part of the wife with Hukamsingh P.W 3 Bhagwansaroop had seen the wife singing a duet, as it were with Hukamsingh. P.W 4 Rambharose Lal had seen them sitting on a cot in the verandah when the witness was on the way near the house. Both these witnesses namely, and P.W 2 Bhagwan Swaroop and P.W 4 Rambharose Lal are giving these incidents of the year 1962-1963. Now, if one looks to the petition itself which was made on 19-11-65 the husband admits in para 2 thereof that his wife had lived with him after the marriage, but for the last 2-½ years she had left him and was carrying on with Hukam Singh. This means that upto the month of May, 1964 or so, there was no problem between the spouses. The adulterous relationship, if at all, started thereafter. If that were so, it is not understandable how P.W 3 Bhagwan Swaroop and P.W 4 Rambharose Lal could see the incidents in the year 1962-1963. In other words, there is no evidence of any incident like the one deposed by the two witnesses of any time after May, 1964 since the wife had left the husband. It is further note worthy that all the four witnesses are of village Badi where the husband resided. Not a single witness of Dholpur had been examined. In such a case, therefore, I am unable to hold that the evidence led by the husband successfully makes out a case of the wife living in adultery with another. The finding of the learned Additional District Judge is, therefore, erroneous.
14. The result is that I allow this appeal, set aside the judgment and decree of the learned Additional District Judge, Dholpur and dismiss the petition under section 13 of the Act. The parties are left to bear their own costs of the appeal.