JUDGMENT Chandrasekhara Iyer, J. 1. By a petition filed before the Attingal Subordinate Court the appellant sought to get his marriage with the respondent dissolved. The provisions that he invoked in the petition were sections 10 (a) and (f) of the Hindu Marriage Act (shortly stated the Act). Section 10 provides only for judicial separation and not divorce. The parties had married in June, I960. In August, I960 appellant had gone back to Singapore where he was employed. He met with an accident there on 2nd April 1968 which is said to have resulted in serious head injuries to him. He was in a hospital there till 6th July 1969. On 7th July 1969 he returned to India by plane. He got himself examined in the Medical College Hospital, Trivandrum. Afterwards on 15th July 1969 he was admitted to the Ayurveda Hospital at Trivandrum where he remained as an in-patient till 13th November 1969. After discharge from the hospital he was residing with his sister in Neeramonkara. 2. The contentions that the appellant raised in his application were that since he left for Singapore in 1966 there had been no conjugal union between himself and the respondent; but when in July 1969 he returned to India he found the respondent pregnant and she gave birth to a male child on 31st January 1970. The respondent, therefore, according to the appellant, is guilty of adultery. He further alleged that the respondent had deserted the appellant for a period of more than two years. 3. In her objections the respondent refuted these allegations. She stated that after the return of the appellant in 1969 July, they lived together for six or seven days and had sexual union during the period. When the appellant was admitted into the Ayurveda College Hospital, the respondent was hot allowed to remain in the hospital by the appellant's brother-in-law. The respondent also alleged that the appellant was instigated to file the petition by his sisters and their husbands. The respondent totally denied the allegations of adultery and desertion made against her. 4. In view of the provisions invoked in the applications, the learned Subordinate Judge treated the same as one for judicial separation and proceeded to dispose of the same on that basis. The respondent totally denied the allegations of adultery and desertion made against her. 4. In view of the provisions invoked in the applications, the learned Subordinate Judge treated the same as one for judicial separation and proceeded to dispose of the same on that basis. The court, after a careful examination of the evidence held that the appellant had failed to prove that he had been deserted by the respondent. In regard to the charge of adultery made, the Subordinate Judge said that though there is strong suspicion in respect of the same, the evidence in the case is not sufficient to prove beyond reasonable doubt that the respondent is guilty of adultery. 5. The main ground of attack against the decision of the Sub Judge made by Mr. E. Subramoni, learned counsel for the appellant was that in the light of the undisputed fact that the respondent gave birth to a child within 209 days of the arrival of the appellant in India after nearly two years absence and as also there is no evidence in the case that the child was given any particular medical care and attention and still it survived, the court could only have come to the conclusion that the child was a fully grown normal child al the time of delivery and, therefore the appellant was not the father of the child. Therefore it is urged that the court should have held that the respondent is guilty of adultery. The learned counsel pointed out that there is no evidence to show that the respondent had given birth to the child prior to the normal period of gestation. The evidence of the respondent herself is that she gave birth to the child in her own house and not in any hospital and without attendance by any doctor. She had also stated that the child had fever on the 7th day of birth. The fact that the child still survived, Mr. Subramoni contended could only be indicative that the child was a normal born one and that the respondent's case that the child was not fully grown at the time of delivery cannot be believed at all. 6. In Taylor's Principles and Practice of Medical Jurispudence, 11th Edn. (edited by Sir Sydney Smith) Vol. Subramoni contended could only be indicative that the child was a normal born one and that the respondent's case that the child was not fully grown at the time of delivery cannot be believed at all. 6. In Taylor's Principles and Practice of Medical Jurispudence, 11th Edn. (edited by Sir Sydney Smith) Vol. II, page 32 it is stated; "Children born at the 7th month of gestation are almost always capable of survival, although they are more delicate, and in general require greater care and attention than more mature children. It was the opinion of William Hunter, that few children born before seven calendar months (or 210 days) are capable of living to manhood, but with advances in methods of neonatal resuscitation and maintenance this dictum has gradually receded into history. It remains, nevertheless, that the less mature the infants the less likely is it to survive, and the critical period of maturation appears to be somewhere between the 5th and 6th month. In the absence of any skilled care Hunter's dictum on the unlikelihood of survival when born before the 7th calendar month remains as true as it was." 7. In this case, after hearing counsel on both sides, we had felt that the evidence of a well qualified medical practitioner on this aspect is necessary for arriving at a proper decision and as per the agreed suggestion made by counsel on both sides, we examined Dr. Santha Madhavan, M.D., D.G.O., Civil Surgeon at the District Hospital, Ernakulam. She, said, in her evidence, that she is in agreement with the earlier quoted observations appearing in Taylor's book and in her experience there is no case of survival of a child born before 210 days. To a question by court whether she can rule out a case of child born before 210 days surviving outside a hospital or a nursing home, she said it will be difficult even in a hospital for the child to survive. She added that special care such as daily feed of the child under advice, keeping the body warm by proper covering, the need For giving oxygen, etc., are necessary for rearing up a premature baby. However, she added, in all cases oxygen may not be necessary. The weight of the child she said is a factor in considering the power of resistence and chances of survival. However, she added, in all cases oxygen may not be necessary. The weight of the child she said is a factor in considering the power of resistence and chances of survival. To another question by the respondent's counsel she also said that except perhaps in the case of oxygen the other cases can be given at home and that she does not know whether in Ayurveda there is a special treatment for such children. 8. In the light of this evidence can we conclude that the child is not the petitioner's child. In this connection we may also quote the following passage occurring in Taylor's Medical Jurisprudence, Vol. II at page 33: "Barker met with a case in which a female child was born at the 158th day of gestation or 22 weeks and 4 days after intercourse. The size and weight of the child corresponded with the period at which it was born; it weighed 1 pound, and measured 11 inches in length. It had only rudimentary nails, and very little hair on the back of the head; the eyelids were closed, and remained closed until the 2nd day; the nails were hardly visible; the skin was shrivelled. The child did not suck properly until after the lapse of a month, and did not walk until it was 19 months old. When born it was wrapped up in a box, and placed before the fire. Three and a half years afterwards this child was in a thriving state and healthy, but small, weighing 29½ pounds. In a case reported by Outrepont, there was the strongest reason to believe that gestation could not have exceeded 27 weeks. The child (a male) weighed when born, 1½ pounds, and was 13½ inches in length. The skin was covered with down and much wrinkled, the limbs were small; the nails appeared like white folds of skin, and the testicles had not descended. It breathed as soon as it was born, and by great care its life was preserved. It is singular that its development was very slow until it had reached a period which would have corresponded to the 42nd week of gestation. Outrepont saw the child when it had attained the age of 11 years, and it then appeared to be the size of a boy of 8 years. It is singular that its development was very slow until it had reached a period which would have corresponded to the 42nd week of gestation. Outrepont saw the child when it had attained the age of 11 years, and it then appeared to be the size of a boy of 8 years. The only remarkable point about the case is the length of lime which the child lived." 9. The learned author at the same page also states that it is established that children born at the 7th, and occasionally even between the 5th and 6th month may be reared and then recites the details of a case known as the Kinghorn case which are as follows: "In 1832 an investigation (fama clamosa) took place before one of the Presbyteries of Scotland, in reference to certain reports which had been circulated to the prejudice of a minister of the district. His marriage took place on March 3rd 1835, and his wife gave birth to a female child on August 24th followingi.e. 174 days, or nearly six calendar months after the marriageand the child continued to live until March 20th 1836. When horn It was very weak, and, according to the evidence of the accoucheur, and others who saw it, was decidedly immature. The birth of a living child, however, together with the fact of its surviving for so long a period, led to the report that there must have been intercourse between the parties previous to marriage; it was contended that the period was too short for the child to have been begotten in wedlock. Hamilton and Thatcher considered the complaint made against the minister groundless. The ease went through several appeal.-, and was not finally decided until May, 1839, when the libel was found not proven, and the minister was absolved from censure." 10. It might also be noted here that the appellant has not attempted to adduce any evidence to substantiate his contention that the child was born fully mature. The burden is certainly on the appellant to establish that the child is born out of wedlock and, therefore, the respondent is guilty of adultery. 11. It might also be noted here that the appellant has not attempted to adduce any evidence to substantiate his contention that the child was born fully mature. The burden is certainly on the appellant to establish that the child is born out of wedlock and, therefore, the respondent is guilty of adultery. 11. Apart from the presumption arising under section 112 of the Evidence Act, it would be in the highest degree unjust to impute illegitimacy to offspring, or want of chastity to parents merely from the fact of a 7 months child being born living and surviving its birth. 12. It will De instructive in this connection to refer to the facts and decision of an English case (Clark v. Clark 1939 All, E.R. 59 The head-note of the case reads: "In a petition by a husband for divorce on the ground of the Wife's adulters, there was no evidence of misconduct on the part of the wife, and the only evidence of adulter was the fact of the birth of a child the period of gestation of which, assuming the husband to be the father, could not have exceeded 174 days. The child lived, and at the date of the hearing was about 3 years old. The medical evidence was to the effect that a child of so short a period of foetal life would not survive for more than a day or two. At the same time, the medical witnesses agreed that only rarely could the date of conception be fixed, and that the period of gestation generally spoken of were notional periods:- Held: (i) the husband had not discharged the burden of proof in respect of the adultery, and it was sufficiently proved that the child was conceived in wedlock. (ii) where the date of conception can be fixed and the actual period of gestation is ascertained this ascertained period is comparable to the longer notional period, and for this reason what is in fact a six-month child may be comparable to what is called a seven-months child." 13. Therefore, the learned Subordinate Judge had rightly concluded that however strong the suspicion be in the case, the appellant had failed to prove adultery on the part of the respondent beyond reasonable doubt. 14. Therefore, the learned Subordinate Judge had rightly concluded that however strong the suspicion be in the case, the appellant had failed to prove adultery on the part of the respondent beyond reasonable doubt. 14. The learned counsel for the appellant, however, contended that the case will have to be decided on the preponderance of probabilities and that in the light of the porvisions of the Act it will not be right to invoke the principle that English courts had earlier applied and accepted by the Supreme Court in cases under the Indian Divorce Act (A.I.R. 1957 S.C. 176) namely that matrimonial offences have to be proved beyond all reasonable doubt. He pointed out that in England itself this principle has now been discarded and referred us to the decision of the House of Lords in Blyth v. Blyth 1966 (1) All E.R. 526. There Lord Denning with whom Lord Pearce and Lord Pearson concurred said at pages 535 to 537: "Seeing that the ground of the petition is adulter before pronouncing a decree of divorce, the court has to be 'satisfied on the evidence that (a) the case for the petition has been proved; and (b) the petitioner has not in any manner been accessory to, or connived, at or condoned, the adultery.' What is the meaning of the word satisfied' in section 4 of the Act of 1950? Willmer and Harman, L. JJ. have held that it means 'satisfied beyond reasonable doubt' and that, on the finding of the commissioner, the evidence in the present case did not come up to that standard. I can well understand how, sitting in the court of appeal, the lords justices took that view. Some years ago in 1950 in Prestone-Jones v. Prestone-Jones [1951 (1) All E.R. 124] Lord Macdermott expressed the view that, in respect of a ground for dissolution the word 'satisfied was not capable of connoting 'something less than proof beyond reasonable doubt. Proof beyond reasonable doubt was required, land Simons expressed his concurrence. And in Hornal v. New Berger Products [1956 (3) All E.R. 970] Hodson, L. J. said that the House of Lords had held that the words of the Act of 1925 produce the-same result as the rule in criminal cases'. In the present case the lords justices took the next logical step. And in Hornal v. New Berger Products [1956 (3) All E.R. 970] Hodson, L. J. said that the House of Lords had held that the words of the Act of 1925 produce the-same result as the rule in criminal cases'. In the present case the lords justices took the next logical step. They said that the word 'satisfied must mean the same throughout section 4 (2) of the Act of 1950. If it meant that the petitioner must prove adultery beyond reasonable doubt, as also it meant that he must prove beyond reasonable doubt that he had not condoned the adultery. The logic of the lords justices is impeccable. The error lies in what Lord Macdermott said in 1950. It was said obiter and without argument. I cannot think that he would have said it if he had been taken, as Your Lordships have been through the other sections of the Act where the word 'satisfied' is used. It then becomes plain that the word 'satisfied' deals only with the incidence of proof, not with the standard of proof. It shows on whom the burden lies to satisfy the court, and not the degree of proof which he must attain. The best example of this is in regard to connivance. The court has to be 'satisfied' that the petitioner has not in any manner connived at the adultery. That clearly puts the burden on him to prove a negativeto prove that he was not guilty of connivanceto prove that he was innocent of it. Can anyone seriously suggest that he has to prove his innocence beyond reasonable doubt? Surely it is sufficient if the scales tip the balance in his favour. There are occasions, even in the criminal courts, where the burden of proof lies on the accused man to prove his innocence or to prove a negative. He is never bound to prove it beyond reasonable doubt. It is sufficient if the balance of probability is in his favour see Sodemanv. Regem (1936 (2) All E. R. 1138] a decision of the Privy Council, and Rex v. Carr-briant [1943 (2) All E.R. 1561] so also with connivance. The petitioner discharges the burden on him by showing that on balance of probability he did not connive. It is sufficient if the balance of probability is in his favour see Sodemanv. Regem (1936 (2) All E. R. 1138] a decision of the Privy Council, and Rex v. Carr-briant [1943 (2) All E.R. 1561] so also with connivance. The petitioner discharges the burden on him by showing that on balance of probability he did not connive. He only fails to discharge this burden if the tribunal finds the evidence, pro and con, so evenly balanced that it can come to no definite conclusion, see Churchman v. Churchman [1964 (2) All E.R. 190] per Du Parc, Q. L. J. I hold, therefore, that in this statute the word 'satisfied' does not mean 'satisfied beyond reasonable doubt'. the legislature is quite capable of putting in the words 'beyond reasonable doubt' if it meant it. it did not do so. It simply said on whom the burden of proof rested, leaving it to the court itself to decide what standard of proof was required in order to be 'satisfied This brings me to the standard of proof required by the court itself. In 1948 it was held by the court of appeal [1948 (1) All E.R. 373] that adultery 'must be proved with the same strictness as is required in a criminal case. That means that it must be proved beyond all reasonable doubt to the satisfaction of the tribunal of fact', see Ginesi v. Ginesi. But in the same year, 1948, the High Court of Australia refused to follow that case and held that adultery required proof of the standard required in a civil case [sec Wright v. Wright1948 (77) C.L.R. 191], Dixon, J., said: Whilst our decision is that die civil and not the criminal standard of persuasion applies to matrimonial causes, including issues of adultery, the difference in the effect is not as great as is sometimes represented. This is because, as is pointed out in the judgments inBriginshaw v. Briginshaw [1938 (60) C.L.R, 336] the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue and because the presumption of innocence is to be taken into account. After that decision, I ventured to suggest that the court of appeal should reconsider Ginesiv. After that decision, I ventured to suggest that the court of appeal should reconsider Ginesiv. Ginesi, see Gower v. Gower [1950 (1) All E.R..304] and in any case it should not be extended to cruelty, see Davis v. Davis [1950 (1) All E.R. 40]. Sitting in this house I feel at liberty to say that I prefer Wright v. Wright to Ginesi v. Ginesi. This house held in Mar daunt v. Moncrieffe [1874 (80) All E.R. Rep. 288] that the analogies and precedents of criminal law have no authority in the divorce court, a civil tribunal. It is wrong, therefore, to apply the analogy of criminal law. We should not say that adultery must be proved with the same strictness as is required in a criminal case. We should say simply that it must be proved to the satisfaction of the court. So far as the standard of proof is concerned, I would follow the words of Dixon, J., which I have quoted and which I elaborated in Bater v. Bater [1950 (2) All E.R. 458] with the approval of the court of appeal in Hormal v. Newberger [1956 (3) All E.R. 970]. In short it come to this; so far as the grounds for divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject-matter. In the proportion as the offence is grave, so ought the proof to be clear. So far as the bars to divorce are concerned like connivance or condonation, the petitioner need only show that on balance of probability he did not connive or condone or as the case may be.� 15. In spite of the above decision we find the court of appeal in England observing in Bastable v. Bastable (1968) 1 W.L.R. 1684 that pending further guidance from the House of Lords, a high standard of proof was required to be satisfied about the commission of the offence of adultery. As noted by Bijayesh Mukherji, J., in Sachindranath Chatterjee v. Nilima Chatterjee A.I.R. 1970 Cal. 38 the court of appeal ruled out the standard furnished by a mere balance of probability, 1966 (1) All E. R. 524 notwithstanding. 16. As far as we are concerned, we are bound by the dicisions of the Supreme Court. As noted by Bijayesh Mukherji, J., in Sachindranath Chatterjee v. Nilima Chatterjee A.I.R. 1970 Cal. 38 the court of appeal ruled out the standard furnished by a mere balance of probability, 1966 (1) All E. R. 524 notwithstanding. 16. As far as we are concerned, we are bound by the dicisions of the Supreme Court. The relevant Supreme Court decisions are: (1) Bipinchandra Jaisingbai Shah v. prabhavati (A.I.R.1957 S.C. 176) under the Bombay Hindu Divorce Act 22 of 1947; (2) Earnist John White v. Kathleem Diive White (A.I.R.1958 S.C. 441) under the Indian Divorce Act 4 of 1869; (3) Lachman Utamchand v. Meena (A.I.R. 1964 S.C. 40) under the Hindu Marriage Act; and (4) Mahendra v. Sushila (A.I.R. 1965 S.C 364) under the Hindu Marriage Act. 17. In all these cases the Supreme Court has taken the view that the standard of proof in a matrimonial cause in India is proof beyond reasonable doubt. 18. We do not think that on this question we can make a difference on the words used in the statutes concerned, "satisfied on the evidence" as used in the Indian Divorce Act and in the English Act cannot denote a different meaning from the word 'satisfied' used in the Hindu Marriage Act. In a case under the latter Act, A.I.R. 1965 S.C. 364= (1964) 7 S.C.R. 267 , Raghubar Dayal, J., speaking for himself and Rajagopala Ayyangar, J., says at two places at pages 275 and 276 of Supreme Court Reports: "The High Court is certainly right in stating that the petitioner had, in order to succeed, to prove beyond reasonable doubt that the respondent was pregnant by some one else at the time of marriage." (p. 275) It follows that what the court has to see in these proceeding is whether the petitioner has proved beyond reasonable doubt that the respondent was pregnant by some one else at the time of marriage. The petitioner has to establish such facts and circumstances which would lead the court either to believe that the respondent was pregnant at the time of marriage by some one else or to hold that a prudent man would, on those facts and circumstances, be completely satisfied that it was so." (p. 276) 19. We are in complete agreement with what Bijayesh Mukherji, J., speaking for a Bench, said in A.I.R. 1970 Cal. We are in complete agreement with what Bijayesh Mukherji, J., speaking for a Bench, said in A.I.R. 1970 Cal. 38 at p. 53 after an exhaustive review of all the relevant English and Indian case law on the matter: "To sum up, the law, in India, on the standard of proof, in a matrimonial cause, is proof beyond reasonable doubt, though, in England, the law after 1966 A.C. 643, is otherwise: satisfaction of the court by a preponderance of probability in matters relating to condonation, connivance and the like. Whether Their Lordships of the Supreme Court, when referred to 1966 A.C. 643 on an appropriate occasion, will approve the majority view there, that 'satisfied' a neutral word, does not mean 'satisfied beyond reasonable doubt' or the minority view there, that that adverbial qualification 'beyond reasonable doubt' is implicit in the word 'satisfied', quite in keeping with Their Lordships' present view, we cannot say. All we can say is that we must go by the law as it now stands on the foot of existing pronouncements by the Supreme Court, that law being: 'prove you must a matrimonial offence beyond reasonable doubt'." 20. Following the Supreme Court cases this Court has also, in the following decisions, held that in matrimonial causes the burden is heavy on the petitioner to prove the matrimonial offence beyond reasonable doubt:- Veeraraghavan v. Parvathy (1973 K.L.J. 762) and Narayanan Ezhuthazan v. Parukutty (1973 K.L.T. 80). 21. In the light of the above discussion, we affirm the decision of the learned Subordinate Judge and dismiss this appeal. There will be no order as to costs in the circumstances of the case.