JUDGMENT

R.SUBRAMANIAN, J.

AND N.SATHISH KUMAR, J.

The wife who suffered a decree for divorce in HMOP.No.

323 of 2014 on the file of the Family Court, Dindigul, is on appeal.

2. The marriage took place on 24.01.2011 at Dindigul.

Claiming that the wife left the matrimonial home even as early as on 03.02.2011 and did not return despite repeated requests by the husband and that she had committed acts of mental cruelty, by ignoring him and his parents and sharing their private life with her sisters, the husband sought for divorce. He originally filed an original petition before the Sub Court, Namakkal, in HMOP.No.51 of 2013. Pending the above petition, the wife launched the proceedings in HMOP.No.94 of 2013 on the file of the Sub Court, Dindigul, under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights. It appears that both the petitions were transferred to the Family Court, Dindigul, and re-numbered as HMOP.No.117 of 2014 (HMOP.No.94 of 2013) filed by the wife, under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights and HMOP.No.323 of 2014 (HMOP.No.51 of 2013) filed by the husband seeking divorce, under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

3. A joint trial was ordered upon request of both the parties.

At trial, however, the wife withdrew her petition in HMOP.No.117 of 2014 on 06.05.2014, by filing a memo. Though the said memo reads that the husband has withdrawn the original petition filed by him, it appears that the husband did not withdraw the original petition. However, the original petition filed by the wife was dismissed as withdrawn. Thereafter, the husband was examined as PW1 in his HMOP and Exs.P1 to P3 were marked. Though the husband who deposed as PW1, was cross-examined by the counsel for the wife, the wife did not choose to let in any further evidence. It appears that an endorsement was made by the counsel for the wife before the Family Court that she has no evidence. The Family Court, considering the evidence let in, granted divorce. It also observed that apart from committing mental cruelty, the wife has deserted the husband without any sufficient cause.

4. We have heard Mr.PT.S.Narendra Vasan, learned counsel appearing for the appellant and Mr.M.Jeyaprakash, learned counsel appearing for the respondent.

5. Mr.PT.S.Narendra Vasan, learned counsel for the appellant would vehemently contend that though there was a compromise between the parties and they had, in fact, agreed to resume the matrimonial life, based on which, the wife withdrew her HMOP, according to him, the husband had went back on his promise and prosecuted the original petition filed by him behind the back of the appellant. He would also point out that the allegations made in the petition as well as the evidence of PW1 do not form a ground for grant of divorce, particularly under Section 13(1)(ia) of the Hindu Marriage Act, 1955. He would also point out that without any pleading or without desertion being made as a ground for divorce, the learned Family Court Judge has chosen to grant divorce on the ground of desertion also.

6. Contending contra, Mr.M.Jeyaprakash, learned counsel appearing for the respondent/husband would submit that there was no agreement to withdraw the original petitions. Withdrawal of the petition filed by her under Section 9 of the Hindu Marriage Act, 1955, seeking restitution, was an unilateral act of the wife. The fact that the counsel for the wife had chosen to cross examine PW1 and to endorse that the wife has no evidence to offer in the original petition filed by the husband, would demonstrate that there was no agreement between the parties for withdrawing both the original petitions. The learned counsel would also point out the cross examination on the side of the wife, to contend that there was no cross examination on the vital evidence regarding cruelty as well as desertion. He would also contend that even though the divorce was sought for on the ground o