JUDGMENT Bhawani Singh, J.—This appeal arises out of the judgment of District Judge, Kangra, in H. M. A. No. 79 of 1983 decided on 27-3-1985 thereby dismissing the petition of the appellant under section 13 of the Hindu Marriage Act, 1955 for the dissolution of the marriage by a decree of divorce or in the alternative under section 10 of the Hindu Marriage Act for the grant of judicial separation. The appellant has a grievance against this judgment, therefore, he assails it by way of this appeal. 2. The facts, in brief, are that the marriage was solemnised between the parties on 1-3-1978 at Village Tikeri Dukhi in Tehsil Palampur according to Hindu rites. The appellant complained that there was no cohabitation with the respondent and when the respondent came to his house in October, 1978, the respondent was pregnant from some person other than the appellant. On October 20, 1978, the respondent complained stomach-ache and the mother of the appellant took her to Civil Hospital, Nurpur, where the doctor told the mother of the appellant, after medical examination of the respondent, that she was pregnant. The respondent was X-rayed on 27-1-1979 when this fact was again confirmed. After that, the respondent was sent back to the house of her parents* In October, 1980, the father of the respondent sent her to his house but that time also the respondent was found pregnant from some other person than the appellant with the result that the respondent was sent to the house of her parents. Thus, it is alleged that the respondent was living in adultery with respondent No. 2 (Prabhat Chand) and this fact finds mention in letter dated 13-11-1980. This conduct on the part of the respondent amounted to legal cruelty with which the appellant has been treated by the respondent. It has also been stated that the act of the respondent was neither connived at nor condoned by the appellant. 3. The respondent has disputed the allegations made by the appellant and it has been stated that the present petition was not maintainable since a similar petition stood dismissed for default on 11-7-1983 and that the present petition was being filed after a lapse of five \ears from the knowledge of the alleged pregnancy. 3. The respondent has disputed the allegations made by the appellant and it has been stated that the present petition was not maintainable since a similar petition stood dismissed for default on 11-7-1983 and that the present petition was being filed after a lapse of five \ears from the knowledge of the alleged pregnancy. The factum of pregnancy from a person other than the appellant has also been denied although it has been admitted that the respondent suffered from stomach-ache and was taken to Civil Hospital, Nurpur, where she was medically examined. The facts regarding non-cohabitation, X-ray report showing pregnancy and the allegation of pregnancy in October, 1980 and living in adultery with Prabhat Chand Katoch (respondent No. 2) have been denied. Finally, it has been stated that the appellant had condoned the acts complained of, though the same were not admitted still and in any case, the petition was being filed in June 1983, after a belated stage which showed that the acts complained of had been condoned, 4. In the replication, the appellant has reasserted the averments already given in the main petition. Besides, contentions of the respondent in the reply have been assailed. 5. On the pleadings of the parties, the learned District Judge framed the following issues: "1. Whether respondent No, I is Jiving in adultery as alleged ? O. P. P. 2. Whether the petition is barred in view of the objection alleged by the respondent ? O. P. R. 3. Relief." 6. The learned District Judge came to the conclusion that the respondent was not living in adultery and the petition was not maintainable and thus rejected the case of the appellant. This is how the matter has come in this Court. 7. Shri S. S. Kanwar, learned Counsel appearing for the appellant, has very strenuously contended that the findings of the trial Court are thoroughly erroneous being completely divorced from the evidence on the record and the legal principles applicable while deciding such like cases. R o ferring to the facts of this case, it is contended that although the respondent was brought back to the house of the appellant but she was not, at all, acceptable to him and thus sent back to stay at the house of her parents. It is complained that the relations between the parties have reached a stage of no return. It is complained that the relations between the parties have reached a stage of no return. The relations of the respondent lodged a report against the appellant in police station, Nurpur, on 27-10-1980 alleging that the appellant was demanding dowry from the respondent. Besides, a case under section 125 of the Code of Criminal Procedure was filed and the appellant has already been directed to pay maintenance to the respondent at the rate of Rs. 150 per month. Referring to the evidence on record, it has also been submitted that letters Ex. PA and Ex. PC, written by the respondent to her mother, clearly evidence and prove the allegations of illicit relations the respondent had with respondent No. 2 who, as a matter of fact, is a person other than the cousin of the respondent who has appeared and filed return in this case. 8. The appellant (PW 1) states that the respondent complained stomach-ache when she joined him in October, 1978 and that they had married in March, 1978. She was taken to hospital at Nurpur where she was examined by Dr. Dutta, who found her pregnant. X-ray report also disclosed the same thing. He had no sexual relations with the respondent after the marriage. She had joined him for the first time in October, 1978 after the marriage and she was pregnant. He sent her to the house of her parents. He had seen her writing letter Ex, PA to her mother. He found the same lying on the attachicase. In October, 1980, he found his wife again pregnant. That time also, she was not pregnant from him. She was having relations with the respondent (Prabhat Chand) as was clear from the letter. 9. Dr. A. R. Dutta (PW 2) is the Medical Officer in Civil Hospital, Nurpur. He states that he had examined the respondent on 28-12-1978 and issued O. P. D. slip Ex. PW 3/A. According to his provisional diagnosis, the respondent was pregnant as per her history, i. e., stoppage of menstruation. He had examined her only externally, which does not give definite opinion about pregnancy. If she was pregnant, the pregnancy was less than three months as uterus was not palpable on external examination. 10. PW 3/A. According to his provisional diagnosis, the respondent was pregnant as per her history, i. e., stoppage of menstruation. He had examined her only externally, which does not give definite opinion about pregnancy. If she was pregnant, the pregnancy was less than three months as uterus was not palpable on external examination. 10. In answer to this evidence, the respondent, as RW 2, states that her in-laws used to beat her after the marriage for dowry and used to ask her to bring more dowry and for the last two years she was living with hey parents. Prabhat Chand was her cousin. She had no relations with any person nor gave birth to any child. She was not pregnant at any time. In cross-examination, she admits that on the next day of the marriage, she came to the house of her parents where she remained for 4/5 months. She denies that when she went back after 4/5 months, she was pregnant; She admits that she had stomach-ache when she went to the house of her in-laws and she was taken to Nurpur Hospital but she was not examined by the doctor nor the doctor stated that she was pregnant. She did not remember that in January, 1979 her X-ray was taken and it disclosed pregnancy. She admits that Ex. PA was written by her but asserts that the same was got written by the appellant. She denies having written letter dated 30-3-1979 although admits having written letter Ex. PB The same was also got written by the appellant. She also denies that when she went to the house of the appellant for the last time, she was pregnant. She denies her illicit relations with Prabhat Chand and that she had never husband and wife relations with the appellant. 11. Bidhi Chand (RW 3) is the maternal uncle of the respondent. He has supported the case of the respondent. 12. At this stage, it is relevant to quote the material part of section 13 of the Hindu Marriage Act, 1955 and the same reads as under: "13. 11. Bidhi Chand (RW 3) is the maternal uncle of the respondent. He has supported the case of the respondent. 12. At this stage, it is relevant to quote the material part of section 13 of the Hindu Marriage Act, 1955 and the same reads as under: "13. Divorce.—(I) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— (1) has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse ; or XX XX XX XX XX XX XX XX XX XX " 13. Perusal of the evidence, as discussed above, discloses that the version of the appellant is quite convincing and clearly establishes the factum of his allegations against the respondent. It appears from the evidence that the respondent had virtually remained away from the company of the appellant There are only a few visits but there is no evidence of cohabitation ; rather it appears clear that the relations between the parties had gone that bad that there was no question of cohabitation. 14. Shri Harish Behal submits that the factum of adultery has to be established beyond doubt. Reference to the decision of this Court reported in AIR 1989 HP 29, Smt Parvati v Shiv Ram and another, has been made. It is clear from the reading of this judgment that the learned Judge took this course in view of the particular facts and circumstances of the case in hand. It has been observed that the case suffered for lack of specific and detailed pleadings to enable the spouse to effectively repudiate the serious charge of adultery which was going to effect the reputation. However, the learned Judge has observed that an inference of adultery can be drawn from circumstantial evidence and that it was not necessary that it should be established by direct evidence because normally it is difficult to have such evidence m these matters but the proof must be of the standard which could lead to only one inference that there was adulterous relationship between the allegedly offending spouse and her paramour. At this stage, it is necessary to refer to the decision of the Supreme Court reported in AIR 1975 SC 1534, Dr. At this stage, it is necessary to refer to the decision of the Supreme Court reported in AIR 1975 SC 1534, Dr. N. G. Dastane v. Mrs. S Dastane, wherein Chandrachud, J. (as he then was), speaking for the Court, said in paras 24, 25, 26, 27 and 28 as under : "24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be found on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191 at p. 210 ; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. In proportion as the offence is grave, so ought the proof to be clear. Blyth v. Blyth, 1966-1 All ER 524 at p. 536." But whether the issue is one of cruelty or of a loan on a pro-note, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged. 25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused, It is wrong to import such considerations in trials of purely civil nature. 26. Neither section 10 of the Act which enumerates the grounds on which a petition for judicial separation may be presented nor section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is "satisfied" on matters mentioned in clauses (a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word "satisfied" must mean "satisfied on a preponderance of probabilities" and not "satisfied beyond a reasonable doubt". Section 23 does not alter the standard of proof in civil cases. 27. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondents conduct in such cases as constituting a "matrimonial offence." Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom, may well be private affair but the freedom to break a matrimonial tie is not. The society has to stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. To marry or not to marry and if so whom, may well be private affair but the freedom to break a matrimonial tie is not. The society has to stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases. 28. In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in (1966) 1 All ER 524 at p. 536 the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, "the case, like any civil case, may be proved by a preponderance of probability." The High Court of Australia in (1948) 77 CLR 191 at p. 210, Wright v, Wright, has also taken the view that "the civil and not the criminal standard of persuasion applies to matrimonial causes, including issues of adultery." The High Court was therefore in error in holding that the petitioner must establish the charge of cruelty "beyond reasonable doubt." The High Court adds that "This must be in accordance with the law of evidence", but we are not clear as to the implications of this observation." 15. This judgment was followed by the High Court of Calcutta in AIR 1980 Calcutta 374, Dr. Saroj Kumar Sen v. Dr Kalyan Kanta Ray and another. 16. Perusal of the statement of Dr. A. R. Dutta (PW 2) and Exhibits PA and PC, admittedly written by the respondent, clearly bring the case within the mischief of section 13 (1) (i). 17. Sri Harish Behal further submitted that the delay in filing the petition amounted to condonation of the allegations of adultery asserted by the appellant. The evidence discussed above does not lead to such an inference or conclusion ; rather it indicates that the appellant had never condoned such a conduct of the respondent as appears from the evidence on the record and more particularly Ex. PA and Ex. The evidence discussed above does not lead to such an inference or conclusion ; rather it indicates that the appellant had never condoned such a conduct of the respondent as appears from the evidence on the record and more particularly Ex. PA and Ex. PB which have to be believed and there is no reason to accept the version of the respondent that the same were got written by the appellant. 18. In case Dr. N. G. Dastane v. Mrs. S. Dastane (supra), the Supreme Court said in paras 55 and 56 as under: "55. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration : The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy, Sixth Ex. p, 75. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws. 56. The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondents acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal*sexual life with the respondent, even after a ceries of acts of cruelty on her part/ 19. Keeping in view these principles and this case, it is quite clear that the appellant had not condoned the conduct of the respondent at any stage and lapse of time did not in any way annihilate or at least minimise the rigour of the complaint of the appellant. 20. Lastly, it has been contended that the initial petition of the appellant was dismissed in default and, therefore, new petition could not have been filed in this regard. The remedy, it is urged, was to set-aside the order of dismissal or file an appeal against the same. I am not impressed by this submission of Shri Behal. 20. Lastly, it has been contended that the initial petition of the appellant was dismissed in default and, therefore, new petition could not have been filed in this regard. The remedy, it is urged, was to set-aside the order of dismissal or file an appeal against the same. I am not impressed by this submission of Shri Behal. Although the appellant has stated that the petition was neither dismissed nor restored, however, even if it is admitted that the petition was so dismissed, as asserted by Shri Behal, in that case there is no bar against filing of a fresh petition in the circumstance of this case. Moreover, the so called earlier petition was dismissed in default for non-appearance and he did not decide the controversy between the parties on merits. 21. In view of the above discussion, the result is that there is merit in this appeal and the same is accordingly allowed and the judgment under appeal is set-aside and the marriage between the parties is hereby dissolved. Parties are left to bear their own costs. Appeal allowed.