ORDER Vijender Jain, J.
1. Aggrieved by the order of the Additional District Judge dismissing the petition of the appellant under Section 13(1)(ia) of the Hindu Marriage Act for dissolution of his marriage against his wife, Smt. Vikita Mittal, the appellant has preferred the present appeal.
2. Before I deal with the impugned judgment of the Additional District Judge it is relevant to place on record that the marriage was shortlived between the parties. The marriage was solemnised on 12.10.1994 at Delhi and thereafter the parties lived together till 5.6.1995, i.e. barely for eight months. Ms. Gita Mittal, learned counsel for the appellant has contended that the petition for divorce was filed by the petitioner inspite of numerous notices issued to the respondent, respondent chose to remain absent from the proceedings. However, with the intervention of some friends and relatives, the articles of dowry were returned to the respondent and in token thereof, the respective fathers of the parties signed the document, which is at page 50 of the paper-book. There was a joint bank account at Jamshedpur as the appellant was working at Jamshedpur in the names of both the parties. A sum of Rs. 25,000/- was also handed over to the respondent as per the receipt at page 64 of the paper-book from the said joint Bank Account in full and final settlement. It seems that after taking these articles, petition under Section 13-B(2) of the Hindu Marriage Act for mutual consent was drafted and along with the same, an application under Order 6 Rule 17 CPC was filed incorporating the following paragraph:
"That during the pendency of the above mentioned petition, the parties have agreed to have the marriage dissolved by a decree of divorce by mutual consent as the marriage between the parties has broken down irretrievably. In view of the above circumstances, it will be in the interest of justice and expedient if the petitioner is permitted by this Hon'ble Court to amend the petition to be read as petition under Section 13-B(1) of the Hindu Marriage Act, as per the amended petition being filed hereto and the same be taken on record by this Hon'ble Court."
3. Paragraph 6 of the petition under Section was drafted which was signed by the respondent as petitioner No. 2 and in the said petition, paragraph 6 reads as follows :
"That the petitioners have also sorted out all their disputes and differences and have, thus, no claim pending against each other including the claim of dowry, Istridhan, jewellery, gifts, maintenance, past, present or future. Petitioner No. 2 (respondent before me) has received all her articles and has been handed the jewellery as per Annexure 1 to the present petition, at the time of filing the present petition before this Hon'ble Court. After the return of the jewellery, as mentioned in the Annexure I to the present petition, there shall be no claim whatsoever left between the parties against each other and neither would the parties be making any sort of claim against each other thereafter."
4. This petition was signed on 11.7.1997. Affidavit of the appellant as well as the respondent which are at pages 59 and 60 of the paper-book dated 11.7.1997 have been perused by me. At page 61 is Annexure 1, which is the list of ornaments/jewelery returned to the respondent and bears the signature of respondent no. 2. Both the parties presented the petition in the Court and the court fixed the matter for 15.7.1997 for consideration of the application. For the reasons best known to the respondent, she did not appear on 15.7.1997 in the Court. Appellant made a statement that he did not want to press his application under Order 6 Rule 17 CPC and the matter may be proceeded in the main petition. The Court fixed 11.8.1997 for ex parte evidence as respondent had already been proceeded ex parte. Evidence of the appellant was recorded, the respondent chose not to participated further in the proceeding before the trial court.
5. It is in this background that Ms. Mittal has contended that the finding of the Additional District Judge are not in consonance with the law laid down by the Supreme Court as well as by this Court. The Additional District Judge merely opined in the impugned judgment that such behaviour as was alleged by the appellant could not be expected from an educated lady and in the absence of any documentary evidence, the evidence brought forward by the appellant was out rightly rejected.
6. Let me take some of the specific allegations made by the appellant. The appellant had deposed in his statement that when the appellant and the respondent lived at Jamshedpur where the appellant joined duty. Immediately after train left Delhi respondent changed into a short skirt and made it a point to walk in the compartment and on the platform in the said cloths. In a journey from Delhi to Jamshedpur what could have been the evidence which could have been brought by the appellant in support of this aforesaid allegation? The respondent has chosen not to participate in the proceedings. The testimony of appellant cannot be discarded merely because no evidence was brought before the trial court. By no stretch of imagination it can be said that the behaviour of the respondent in walking in train and at platform in short skirt was proper. It was a conduct not becoming of a wife to parade herself in railway compartment and platform. It is further deposed by the appellant in the evidence that the respondent would refuse to entertain appellant's friend at Jamshedpur and did not cook food, tea etc. for themselves whenever they visited them. It has been further deposed that on 2.6.1995 when the mother and sister of the appellant visited Jamshedpur, the respondent refused to prepare any meal and her behaviour towards them was very rude and finally she left her matrimonial home on 6.6.1995. Apart from the fact that the appellant had deposed that respondent has become totally insensitive towards the need of the petitioner and refused sexual relationship with him this act of the respondent amounted to cruelty and did not require any corroboration. The trial court ought to have considered the preponderance of probabilities in view of the conduct of the respondent in taking back all the items of jewellery, signing a petition for divorce by mutual consent and then consciously not appearing in the trial court having known that she has been proceeded ex parte and the matter has been fixed for ex parte evidence. Merely because the respondent was educated, the assumption of the trial court that she could not have behaved in the manner in which the appellant has deposed was based on merely surmises and conjectures. On this ground, I set aside the order of the trial court and pass a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act with costs.
7. Appeal is allowed.