COMMON JUDGMENT

RMT.TEEKAA RAMAN,J.

The unsuccessful husband is the appellant herein.

2. For the sake of convenience, the parties are referred to according to their litigative status before the trial Court as husband and wife.

3. The husband filed H.M.O.P.No.106 of 2019 before the Family

Court, Sivagangai for dissolution of marriage on the ground of cruelty, desertion and adultery and the wife filed H.M.O.P.No.232 of 2019 for restitution of conjugal rights. Joint trial was conducted and the evidence was recorded in H.M.O.P.No.106 of 2019.

4. Considering the oral and documentary evidence, the Family Court

Judge, Sivagangai allowed the petition filed by the wife for restitution of conjugal rights, however, dismissed the petition filed by the husband for the relief of divorce and hence, these appeals were filed.

5. C.M.A(MD)No.527 of 2021 has been filed by the husband challenging the findings of the Family Court regarding the cruelty, desertion and adultery. The learned counsel for the appellant / husband would draw our attention to the specific plea raised in the divorce petition that on 29.12.2014 wife was found in the company of one Ganesan, who is working as BT teacher where their children are studying and thereafter attempted to consume poison and she was retrieved and therefore, both are living separately since 2014 and she was continuing in chat with the said Ganesan and hence, the appellant / husband was affected by mental cruelty and it amounts to cruelty and besides she committed adultery.

6(a). The learned counsel for the respondent / wife based upon the counter statement filed before the Family Court would contend that two children namely Sivasabaris (Date of Birth 13.07.2007) and Gowthamsharma (Date of Birth 31.05.2009). The children are with the mother and because of the transfer effected by the husband at Padamathur and they are living separately only from 2014 and hence pre-condition for

“desertion” namely “separation for two years” is not complied.

6(b) Three incidents were referred to, in the petition viz., (i) in the marriage function, name of the brother of the husband and sister-in-law were not printed in the marriage invitation; (ii) secondly, for 'ear piercing ceremony' for the appellant's elder brother's children, the respondent name was not printed in the invitation and hence, the appellant and the respondent were went to Tiruchendur and hence, not attending the ear piercing ceremony; and (iii) thirdly, there was a dispute between the father of the husband/apellant and his younger brother in connection with attending the funeral of the Salugai in which the appellant / husband could not participated, however the wife and her family members have participated in the funeral [since the wife is related to the husband even before the marriage (Aunt's daughter)] and all the three incidents have been blown out of proposition and hence, the Family Court Judge dismissed the divorce petition.

7. After hearing the both sides and perused the records.

8. We find that the marriage between the parties was solemnized on

06.09.2006. The first son was born on 13.07.2007 and the second son was born on 31.05.2009.

9. It is alleged that on 29.12.2014 the appellant / husband saw the wife in the compromising position with one Ganesan, who is working as BT Teacher in the St.Joseph School, thereafter, it is further alleged that the wife attempted to commit suicide. Thereafter, as she failed to mend her ways and was in the habit of keeping in touch and chat with the said Ganesan and further the wife withdrew from the matrimonial home without reasonable cause and hence, the husband filed the present HMOP.

10. The learned counsel for the appellant/husband further contended that the wife has filed a petition for restitution of conjugal rights and she has not stated any justifiable reasons for living separately and the grounds with regard to the desertion, it is alleged that the date of desertion in the year 2014 and HMOP was filed in the year 2019 an