P L D 1966 (W (PLP)

FAIZULLAH KHAN, J.‑This appeal by Mst. Inayat Bibi is directed against the judgment and decree of Mr. Shaft‑ur- Rehman, District Judge, Peshawar, where under her petition, claiming decree nisi for the dissolution of her marriage with her husband Harbans Lai, was dismissed.

2. The appellant originally instituted the petition on 6‑4‑1963, but later on amended her petition with leave of the Court. The appellant in the amended petition sought decree nisi for dissolution of her marriage on the following three‑fold ground:‑ "(1) The respondent offered her body to his brother‑in‑law Sadiq Masih and then compelled her cruelly to commit adultery with him. (2) The respondent at Mardan began to cohabit promiscuously with any woman whom he could get and carried on continual fornication and repeatedly adulterated the sanctity of the marriage. (3) Ultimately she was deserted by her husband." The respondent resisted the appellant's petition by denying the allegations and the following issues were settled in the suit:‑ (i) Did the respondent offer the body of the petitioner to his brother‑in‑law Sadiq Masih and then compelled her cruelly to commit adultery with him? (ii) Did the respondent while living in Mardan with the petitioner, cohabit promiscuously with any woman whom he could get and carried on continual fornication and repeatedly adulterated the sanctity of marriage? (iii) Did the respondent desert 'the petitioner and was not heard of for two years? (iv) Relief.

3. The appellant besides herself examined four witnesses in support of the petition, while the respondent besides himself examined four witnesses in defence. The learned District Judge in a well considered judgment found all the issues against the appellant as he thought that "the petitioner has not been able to make out any consistent and ‑reliable case for claiming a decree nisi and in the result dismissed her petition with costs.

4. The appellant feeling aggrieved has come up in appeal. Before I deal with the merits of the case, two points which were raised by one of us, need brief notice. The first point which calls for determination is whether the appeal should have been filed before a Special Bench, comprising of three Judges, as contemplated by section 17 of the Divorce Act or the appeal should have been treated as a first appeal and fixed before a Division Bench. The decision of this question turns on the interpretation of sections 17, 20 and 55 of the Act. Claus; (1) and (2) of section 17, which are material to the discussion, are reproduced below: "

17. Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the Judges of the High Court is three or upwards) by Court composed of three such Judges, and in case of difference the opinion of the majority shall prevail or (where the number of the Judges of the High Court is two) by s Court composed of such two Judges, and in case of difference the opinion of the Senior Judge shall prevail. Two things come out prominently from reading the language of the section reproduced above, (1) that a decree for dii5olution of marriage does not become effective unless it is confirmed by the High Court and (2) that where the number Judges of the High Court is three or upwards, the cases for confirmation of the decree for dissolution shall be heard by a Court comprising of three Judges. Section 20 reads thus:‑

"Every decree of nullity of marriage made by a District Judge shall be subject to confirmation by the High Court, and the provisions of section 17, clauses (1), (2), (3) and 4, shall mutatis mutandis apply to such decrees." It will be manifest from the language of section 20 that clauses (1) and (2) mutatis mutandis apply to decrees of nullity of marriage made by District Judge. In other words, decree of nullity to become effective requires confirmation by the High Court and in cases where the number of the Judges of tie High Court is three or upwards, a Court comprising of three judges should hear the case of confirmation. This takes me to section 55 which is in the following terms: "

55. All decrees and orders made by the Court in any suit or proceeding under this Act shall be enforced and may be appealed from in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from under the laws, rules and orders for the time being in force: Provided that there shall be no appeal from a decree of a District Judge for dissolution of marriage or of nullity of marriage: nor from the order of the High Court confirming or refusing to confirm such decree: Provided also that there shall be no appeal on the subject of costs only." It will be plain from reading section 55 shorn off the two provisos, (1) that all decrees made by the Court in a suit are appealable in the like manner as the decrees or orders of the Court made in exercise of original jurisdiction and (2) "may be appealed from under the laws, rules and order for the time being in force. "To put it differently, all decrees by the Court in a suit under the Divorce Act are appealable in the like manner as are made in the exercise of original jurisdiction according to laws applicable to such appeal at the time of such decrees. To sum up, sections 17 and 20, respectively, pertain to decrees nisi and decree of nullity granted by the District Judges, and require confirmation by the High Court, while section 55 renders all decrees passed by the Court in a suit under the Divorce Act appealable. The first proviso to section 55 makes exception to the right of appeal in regard to two matters, (1) that "there shall be no appeal from a decree of a District Judge for dissolution of marriage or of nullity of marriage. This part of the proviso in my view is superfluous, in view of the clear provisions of sections 17 and 20 of the Act which in most unequivocal terms require that decree nisi and decree of nullity passed by the District Judge "should be subject to confirmation by the High Court," and appear to have been introduced in abundant caution. The second matter with which the first proviso deals is that the "order of the High Court confirming or refusing to confirm such decree" is also not appealable. The second proviso puts a limitation on the right of appeal "on the subject of costs only". In the instant case no decree nisi or for nullity has been granted, and as such the case is not governed by sections 17 and 20, but conversely it is a case of decree under which the petition for dissolution of marriage has been dismissed and as such falls under section 55 and since the decree for dismissal has been passed by the District Judge, the forum of appeal would be determined by section 96 of the Civil Procedure Code and since the decree passed has been passed by the District Judge an appeal would be to this Court as a first appeal and under the laws, rules and orders for the time being in force the case would be heard by a Division Bench comprising of two Judges. Since the case has been fully argued before us and with a view to avoiding around inconvenience, we propose to dispose of the case, in that a Court comprising of three Judges is also a Division Bench within the meaning of clause 26 of the Letters Patent.

5. The other point which needs determination is whether the District Judge, Peshawar, had jurisdiction to entertain the petition. The term "District Court" has been defined in section 3(3) of the Divorce Act, thus :‑ "(3) `District Court' means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together." It will be plain from reading the language of section 3 (3) that the petitioning spouse has the choice of selecting his or her forum either as (1) the district where the parties has last resided together or (2) the district within the local limits of which, both the husband and the wife, though living separately "reside" at the date of the presentation of the petition. The present case is clearly governed by the first contingency, in that on the very showing of the petitioner herself they were married at Mardan and last resided together there. See Thela Agnes Kershaw v. Archibald Cyril Kershaw (A I R 1930 Lah. 916).

6. This takes me to the merits of the case. We were very carefully and elaborately taken through the evidence and after hearing Mr. E. A. Thakurdass at some length, I do not find any merit whatsoever in the appeal, in that the petitioner has signally failed to prove any of the three grounds on which she sought decree for dissolution of the marriage. The standard of proof for matrimonial offences is as stringent as in criminal cases, that is the case must be proved "beyond reasonable doubt" and not the one required in a civil suit, i.e. "preponderance of probability". The language of section 14, in particular the words "satisfied on the evidence" and further the word "proved" make it abundantly plain that the proof in matrimonial offences must be at par with the one required in criminal offences, i.e. beyond reasonable doubt, for if it were not so the words "satisfied" and the "proved" would not have been used in section

14. I need not labour the point at length, suffice it to say that there is abundant authority in support of this view. I may profitably extract the following passage from the judgment of Lord Mac. Dormott in Preston Jones v. Preston Jones ((1951) A C 391 at p. 417(E)). "The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bound shall not be set aside lightly or without strict enquiry. The terms of the status recognise 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. I should, perhaps, add that I do not base my conclusion 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. Moncreife (l 874) 30 L T 648 (F) that the two jurisdictions are other than distinct. The true reasons 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 issue with each is concerned." The above passage was quoted with approval in Earnist John White v. Mrs. Kathleen Olive White (Nes Meade) and others (A I R 1958 S C 441). At page 444 J. L. Kapur, J., speaking for the Supreme Court summed up the discussion thus: "The two jurisdictions, i.e., matrimonial and criminal are distinct jurisdictions but terms of section 14 make it plain that when the Court is to be satisfied on the evidence in respect of matrimonial offences the guilt must be proved beyond reasonable doubt and it is on that principle that the Court in India would act and the reason for adopting this standard of proof is the grave consequence which follows a finding of guilt in matrimonial causes."

7. On the first issue regarding the allegations that the respondent prompted and connived at the adultery by Sadiq, who was married to the sister of the respondent, the material evidence is that of the appellant herself, and her evidence on this issue does not in the least ring true. Firstly, because it is hard to bring one self to believe that the husband should stoop so low as to offer his wife' for adultery to the husband of his sister, more so when the sister was alive and all of them were living in one kotha. Secondly, as pointed out by the learned District Judge, the appellant was not worthy of credit, in that she had been contradicting herself on material points. For instance, in her statement dated 1‑10‑63, she stated that she lived in Chillian wala, the native village of her husband, for three months. The appellant when examined after amendment of the petition stated "I cannot tell whether I lived in Chillianwala for a month or for three ‑months." In the first statement she stated, "he brought me back to Mardan and deserted me." After amendment of the petition she stated "respondent Harbans Lal started living and working in Mardan". Lastly but not the leastly, in her statement dated 1‑10‑63 she stated that "sexual intercourse was committed on her twice or thrice by Sadiq," while in the amended petition she had merely averred that "only an unsuccessful attempt" of adultery was made on her.

8. On the second issue relating to the respondent indulging in adultery with any woman who would permit him to do so, the evidence led by the appellant is too vague and inconclusive, and has been rightly disbelieved by the learned trial Court. The appellant in cross‑examination was constrained to admit "Harbans used to live in Mill quarters. I never lived with him in the quarters. I cannot name any woman with whom the respondent used to maintain illicit relations. I never saw woman with the respondent because I never went to his place." The statements of 'other witnesses examined by the appellant on this point are equally vague to sustain a finding that the respondent was in the habit of committing adultery. On the issue of desertion too no reliable evidence has been led.

9. For all the foregoing reasons, I find no substance in the appeal and dismiss the same with costs. BASHIR‑UD‑DIN AHMAD, J.‑I agree generally with the judgment proposed to be delivered by my brother, Faizullah Khan J., though I still hold the view that Division Bench was competent to deal with the matter and further that there should have been a .finding by the District Judge on the question of jurisdiction but as both the objections have adequately been dealt with in the concluding lines of para. 4 of the judgment by Faizullah Khan, J., I do not consider it necessary to add anything further in this behalf. SHAKIRULLAH JAN, J.‑I agree with the judgment proposed to be delivered by my brother Faizullah Khan, J. S. Q. Appeal dismissed.