JUDGMENT

Ramaswami, J.

1. This appeal is presented under the Letters Patent by the petitioner Ernest John White against the judgment of Mr. Justice Shearer who dismissed the application of the petitioner for dissolution of his marriage with respondent Mrs. Katheleen Olive White on account of adultery.

2. The petitioner and the respondent were married at Kharagpur on 3-2-1943 by a clergyman of the Church of England. The petitioner was aged 28 years and the respondent was 30 years old at the time of the marriage. After their marriage, of which there is no issue, they resided at Rose Villa in Samastipur. The co-respondent No. 1, Mr. Oman, lived with his mother in a house called, Sunny Nooks which was adjacent to Rose Villa and separated only by a bamboo fencing. The petitioners mother had a brother Harry DCruz who was the proprietor of the Bokhraha Indigo Factory which is situated at Dhang in Samastipur Sub-division. Harry DCruz died on 5-5-1950. But since he was in indifferent health some time before his death the petitione used to go to Dhang to assist him in the manage ment of the Zamindari property. Harry DCru. had bequeathed one-half of his estate to the pet; tioner and the other half of the estate was be queathed to a brother and a sister of the pet; tioner.

The sister of the petitioner was married to a Canadian Mr. Macdonald and after her uncles death Mrs. Macclonald returned to India presumably in order to obtain her share of the property. Mrs. Macdonald arrived in Calcutta on or about 16-10-1950 and she reached Dhang on 21-10-1950, The co-respondent No. 2, Anthony, is an Assistant Mechanical Engineer employed in the Railway. He lived in a railway colony about a quarter of a mile distant from Rose Villa which belonged to the petitioner and his wife. The case of the petitioner is that the respondent Mrs. White committed adultery with Oman during the period of eight months preceding the institution of the suit which was on 21-12-1950 at Dhang, Samastipur and Patna.

The petitioner further made the particular assertion that the respondent and co-respondent No. 1 committed adultery at the Central Hotel, Patna, from the 25th to the 28th of July, 1950 where they stayed under the assumed names of Mr. and Mrs. Charlie Chaplin. It is further alleged that the respondent committed adultery on a number of occasions with co-respondent Anthony at Samastipur between the 20th of October and 15th of November 1950, It is the case of the petitioner that on 13-11-1950 there was a dance at the Railway Institute at Samastipur. The petitioner and his sister Mrs. Macdonald attended the dance though the respondent had asked the petitioner not to go to the dance. That night the petitioner heard from two persons, Baker and Mr. OConnor, at the bar of the Railway Institute, that Oman had told them some time back that he had made a conquest of Mrs. White and produced some love letters which he alleged were written to him by Mrs. White. Mr. Young also told the petitioner at the Railway Institute that he had seen Oman and Mrs. White returning together from Patna on 28-7-1950.

The petitioner spoke to his wife on the morning after the dance and confronted her with the statements of Mr. Baker, Mr. OConnor and Mr. Young. It is stated that the respondent wrote out a document which has been described as a plaint in a defamation suit. There is controversy between the parties as to how this document was brought into existence but the contents of the document suggest that Oman was highly infatuated with Mrs. White but Mrs. White had successfully resisted his attempt.

The petitioner states that about a week later he and his sister had gone to Patna and inspected the visitors book at the Central Hotel and found an entry in the handwriting of Mr. Oman which purported to show that Mr. and Mrs. Charlie Chaplin had occupied loom No. 10 from 25th to 28th of July 1950. In the appropriate column Oman had stated that they had come from Hongkong but this had been deleted and Samastipur ad been substituted for Hongkong. After making requires the petitioner contacted Mr. Nazamudin Khan, Barrister-at-Law, and ultimately on 1-12-1950 instituted this suit.

3. The respondent Mrs. White denied the legation of adultery with Oman or Anthony. The case of the respondent is that the petitioner suffered from emotional instability and was trying to get rid of his marriage with the respondent in order to marry some other woman with whom he was in love. The respondent also alleges that the petitioner was under the influence of his sister Mrs. Macdonald who for her own purpose was interested in breaking up the marriage. The respondent said that the petitioner was a Roman Catholic before his marriage and the respondent had persuaded him to change to Protestant religion as a condition precedent to the marriage but Mrs. Macdonald after arrival in India had persuaded the petitioner to go back to the Roman Catholic religion. Oman, co-respondent No. I, and Anthony, co-respondent No. 2 also controverted the allegations of adultery made by the petitioner.

4. Mr. Justice Shearer held that the evidence led by the petitioner as regards the stay of Oman and Mrs. White at the Central Hotel from the 25th to "28th of July 1950 was insufficient to prove the charge of adultery against Mrs. White or Oman, Mr. Justice Shearer wholly disbelieved the evidence given by the petitioner with respect to the adultery alleged to have been committed between Mrs. White and Anthony between the 20th of October and 15th of November 1950. Mr. Justice Shearer also disbelieved the evidence of adultery said to have been committed at Dhang between the respondent and Oman in June or July 1950. The learned Judge was of opinion that the evidence led by the petitioner on these aspects of the case was wholly false and suborned evidence. In the result Mr. Justice Shearer dismissed the application of the petitioner for dissolution of his marriage with the respondent Mr. White.

5.The only issue arising in this appeal is whether the respondent Mrs. White committed adultery with either co-respondent No. 1, Oman, corespondent No. 2, Anthony, on the alleged dates.

(His Lordship discussed the evidence and then proceeded:)

6. In the course of his argument Mr. Moitra said that Mr. Justice Shearer was wrong in saying that the charge of adultery must be proved with the same strictness as a criminal charge. Counsel submitted that the onus which lay upon a petitioner of proving the charge of adultery was, not different from the onus which lay upon a plaintiff in a civil suit and Mr. Justice Shearer had applied a wrong standard. In support of this proposition counsel referred to -- Cower v. Cower 1950 1 All ER 804 (A). Counsel referred to the judgment of Lord Justice Denning in that case and argued that the criminal standard of proof was not appropriate on a charge of adultery. Counsel also relied upon the Australian case -- Wright v. Wright 77 CWLR 191 (B). I am unable to accept the argument of Mr. Moitra as correct. The question whether the standard of proof in a divorce suit is the same as that in a criminal case has been the subject of much debate in English Courts.

The matter however has been set at rest by the latest decision of the House of Lords in -- Preston-Jones v. Preston-Jones 1951 AC 391 (C). Mr. Moitra has relied upon 1950 1 All ER 804 (A), but the authority of that case is weak in view of the subsequent decision of the House of Lords in 1951 AC 391 (CJ. In that case it was held that the word "satisfied" in Section 4, Matrimonial Causes Act, must be construed as meaning proof beyond reasonable doubt. In the course of his speech Lord MacDermott said-

"I am unable to subscribe to the view which, though not propounded here, has had its adherents, namely, that on its true construction the word "satisfied" is capable of connoting something less than proof beyond reasonable doubt." Lord MacDermott continued--

"The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict inquiry. The terms of the statute recognize this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the Court might be "satisfied", in respect of a ground for dissolution, with something less than proof beyond reasonable doubt. J should, perhaps, add that I do not base my conclusions as to the appropriate standard of proof on any analogy drawn from the criminal law. I do not think it is possible to say, at any rate since the decision of this House in --- Mordaunt v. Mon-creiffe (1874) 2 S&D 374 (D), that the two jurisdictions are other than distinct. The true reason, as it seems to me, why both accept the same general standard -- proof beyond reasonable doubt -- lies not in any analogy, but in the gravity and public importance of the issues with which each is concerned."

It is clear that the analogy of criminal law was not the basis of the decision. The basis of the decision was not that adultery is a quasi-criminal offence. The ratio of the case is on the contrary put on the ground of public policy, namely, the peculiar duty of the Court of protecting the sanctity of the marriage relationship. That is the position so far as English law is concerned and I see no reason to think that the law in India is different. In this connection I refer to Section 14, Indian Divorce Act, which is phrased in similar language as Section 4 of the English Matrimonial Causes Act. I think that the principle laid down by the English Courts should also be applied in construing the Indian statute.

7. I shall however assume that I am wrong in taking this view. I shall also assume that Mr. Justice Shearer was wrong in holding that the onus of proof of adultery was as strict as in a criminal Court. Even if I should apply the ordinary standard of proof in a civil case, I do not think that the position of the petitioner in this case would be in any way different. The standard of proof in a civil suit is preponderance of probabilities and the standard of proof in a criminal case is proof beyond reasonable doubt. Even if I should apply the standard of proof in a civil suit, I am of opinion that the petitioners case must Fail, for the evidence adduced by the petitioner does not come to that standard. I have particularly examined (in the earlier part of this judgment) the evidence with reference to the charge of adultery between Oman and Mrs. White at the Central Hotel, Patna, from the 25th to the 28th of July 1950, and even applying the standard of proof that lies upon a plaintiff in an ordinary civil suit I think the petitioner has failed to prove his case.

8. For these reasons I hold that the judgment of Mr. Justice Shearer is right and that this appeal must be dismissed with costs.

Das, J.

9. I agree, and have nothing to add.