SABHAHTT, J. ( 1 ) THESE two appeals arise out of a common judgment and order dt. 3-3-1979, passed by the Civil Judge, gadag in M. C. No. 15 of 1977 and M. C. No, 14 of 1976 on his file, allowing the petition of the wife for restitution of conjugal rights and dismissing the petition of the husband for dissolution of the marriage.- ( 2 ) M. C. No. 15 of 1977 was filed by the husband against his wife and another under S, 15 of the Hindu marriage Act, seeking for a decree for divorce against the wife. M. C. No. 14 of 1976 was filed by the wife against her husband for restitution conjugal rights. Both the petitions were heard together and common evidence was recorded. ( 3 ) IT is not in dispute that the parties were married according to hindu rites in December 1973 in the house of the bride in Betageri. Soon after marriage, the husband brought the wife to his house and on that very first night, according to the husband, he discovered that his wife was suffering from a contagious disease namely, leucoderma. On coming to know this, the husband refused to consummate the marriage. He took her and left her back in her parents' house. He further averred that he was married to the lady by her parents without disclosing that she was suffering from leucoderma and thus fraud was practised on him. He further averred that he came to know that his wife was leading a life of adultery with respondent-2 in the petition. On these two grounds he sought divorce from his wife. ( 4 ) THE wife had earlier instituted M. C. No. 14 of 1976 seeking for restitution of conjugal rights by her husband. She averred that her husband had deserted her without any reasonable excuse. In spite of assurances made by him, he did not take her to his place and he was not cohabiting with her except for some months after marriage. Hence she sought for restitution of conjugal rights. She resisted the petition for divorce denying the grounds made out in the petition of her husband. The trial court heard these two petitions together and raised the following points as arising for consideration from the pleadings in m. C. No. 15 of 1977 and in M. C. 14 of 1976. Hence she sought for restitution of conjugal rights. She resisted the petition for divorce denying the grounds made out in the petition of her husband. The trial court heard these two petitions together and raised the following points as arising for consideration from the pleadings in m. C. No. 15 of 1977 and in M. C. 14 of 1976. * * * * ( 5 ) DURING hearing the husband examined himself and two other witnesses on his behalf. As against that, the wife has examined herself and examined three other witnesses on her behalf. Exs. D-1 and D-2 were got marked by the wife. The trial court appreciating fhe evidence on record held that the husband failed to establish that his wife was leading a life of adultery with respon- dent-2 or others. The trial court further held that the husband failed to establish that fraud was practised on him in persuading him to marry respondent-1, petitioner in the petition. In that view, the trial court dismissed the petition of the husband for divorce. The trial court allowed the petition of the wife for restitution of conjugal rights holding that the husband had deserted his wife without any reasonable excuse. Aggrieved by the said judgment and orders, the husband has instituted MFA no. 52 of 1980 against the Judgment and order passed in M. C. No. 15/77 and MFA No. 72 of 1980 is instituted by him against the common judgment and order passed in M. C. No. 14 of 1976. ( 6 ) THE learned advocate appearing for the appellant-husband strenuously urged before us that the trial court was not justified in coming to the conclusion that fraud was not practised on the husband in persuading him to marry the present respon- dent-1 the wife. He further submitted that the evidence on record was sufficient to hold that the wife was leading a life of adultery. In that view, he submitted that the petition of the husband for divorce should have been decreed. He further submitted that the trial court was not justified in decreeing the petition of of the wife for restitution of conjugal rights on the facts of the case. Tnere was sufficient reason for the husband to withdraw from the company of his wife. He further submitted that the trial court was not justified in decreeing the petition of of the wife for restitution of conjugal rights on the facts of the case. Tnere was sufficient reason for the husband to withdraw from the company of his wife. As against that the learned counsel appearing for the wife in this Court argued supporting the judgment and orders of the trial court. The points therefore that arise for our consideration in these appeals are :- (1) Whether the ground of fraud made out in the petition by the husband is a good ground for divorce? (2) Whether the trial court was justified in holding that the husband failed to establish that his wife was leading a life of adultery ? (3) Whether the trial court was justified in holding that the husband withdrew from the company of the wife without any reasonable ground? and (4) Whether the Judgment and orders of the Court below required interference ? ( 7 ) IT may at once be noted that grounds for divorce contained in S. 13 of the Hindu Marriage Act, 1956 even after amendment in 1976, does not include fraud as a ground for divorce under S. 13. In fact, S. 12 of the said Act states that if consent is obtained practising fraud, then the spouse, on whom such fraud was practised, is entitled to avoid the marriage. S. 12 (l) (c) states-"that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under s. 5 as it stood immediately before the commencement of the child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or to any material fact or circumstances concerning the respondent". ( 8 ) THE husband has alleged that he gave consent to the marriage without knowing that respondent-1 in the petition was suffering from leucoderma which according to him was a highly contagious disease. He further averred in the evidence that immediately on coming to know about the disease, he refused to cohabit with his wife and sent her back to her parents' house. Thus it is obvious that obtaining consent for the marriage by practising fraud would be a good ground under S. 12 (l) (c) of the Act for avoiding the marriage. He further averred in the evidence that immediately on coming to know about the disease, he refused to cohabit with his wife and sent her back to her parents' house. Thus it is obvious that obtaining consent for the marriage by practising fraud would be a good ground under S. 12 (l) (c) of the Act for avoiding the marriage. It is not a ground for divorce. Divorce comes in only when there is a valid marriage and when a suit is instituted for divorce, it goes without saying that the husband who instituted the petition agrees that the marriage is valid. In other words, he has waived his right to avoid the marriage under S. 12 (1) (c) of the Act. It may also be noted that S. 23 (l) (d) of the Act reads :"23 (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (bb ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) there has not been any unnecessary or improper delay in instituting the proceeding. . . . . . . . in such a case, but not otherwise, the court shall decree such relief accordingly". That makes it clear that if there is unnecessary and improper delay, the court shall not decree the petition and grant the relief. If really the husband came to know about fraud on the very night of the marriage, it was expected of him to institute proceedings without any unnecessary and improper delay. That makes it clear that if there is unnecessary and improper delay, the court shall not decree the petition and grant the relief. If really the husband came to know about fraud on the very night of the marriage, it was expected of him to institute proceedings without any unnecessary and improper delay. The present petition was filed only on 8-9-1977, whereas the marriage was in December 1973 when admittedly the husband came to know about the fraud. It is obvious that he should have instituted proceedings without unnecessary delay. Hence the petition for avoiding the marriage would be barred without more, and as pointed out above, he has instituted a suit for divorce now. It is obvious that he has waived the ground for avoiding the marriage. ( 9 ) ADVERTING next to the ground of divorce on the ground of unchastity, the learned counsel for the appellant rightly invited our attention to a decision of the Supreme court in Dastane v. Dastane (1) wherein it is made clear that the degree of proof that is necessary in a matrimonial proceeding is as in a civil proceeding on preponderance of evidence and not beyond reasonable doubt as in a criminal case, It is further well settled by the very decision that when the allegation made by one spouse against the other is of a grave nature, the degree of probability which is required to be brought on record would be higher. When an allegation of adulttery is made, the probability expected is of a higher degree. It is true that adultery cannot normally be proved by direct evidence but it has to be established by circumstantial evidence. We were taken through the evidence on record, especially of pws. 2 and 3. The trial Court has rejecled their evidence as artificial in nature. * * * * we are satisfied that the evidence on record is not sufficient to prove the allegation of adultery made against the wife. Hence, that ground, in our considered view, has been rightly rejected by the trial Court. MFA. No. 52 of 1980 is liable to be dismissed and we dismiss the same without costs. ( 10 ) ADVERTING to the other appeal namely, MFA No. 72 of 1980, it is obvious that the husband, without reasonable excuse, has neglected his wife. He has not been discharging the marital obligations towards his wife. MFA. No. 52 of 1980 is liable to be dismissed and we dismiss the same without costs. ( 10 ) ADVERTING to the other appeal namely, MFA No. 72 of 1980, it is obvious that the husband, without reasonable excuse, has neglected his wife. He has not been discharging the marital obligations towards his wife. In these circumstances the wife issued a notice as per Ext. D-1 and thereafter instituted the proceeding in MC No. 14/76, and in our considered view, the trial court has rightly decreed the petition. We have no reason to interfere. ( 11 ) IN the result, MFA No. 72 of 1980 is also liable to be dismissed and we dismiss the same. On the peculiar facts of this case and taking into consideration the close relationship of the parties, we make no order as to costs of these appeals. --- *** --- .