BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 16.10.2023 Delivered on: 08.11.2023 CORAM:

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN AND THE HONOURABLE MR.JUSTICE P.B.BALAJI C.M.A.(MD).No.1201 of 2022 J.Janakiram ... Appellant / Petitioner Vs.

M.Sathyabama ... Respondent / Respondent Prayer:- Appeal filed under Section 19 of Family Courts Act, 1955, read with Section 104 of the Code of Civil Procedure, against the judgment and decree, dated 03.09.2022, made in H.M.O.P.No.82 of 2020, on the file of the Family Court, Srivilliputtur.

For Appellant : Mr.J.Thomas Rajadurai For Respondent : Mr.M.Sankar

JUDGMENT

P.B.BALAJI,J.

The unsuccessful husband before the Family Court in H.M.O.P.No.82 of 2020, aggrieved by the dismissal of his petition for division, is the appellant before us.

2. The brief facts of the case are as under:

The husband filed H.M.O.P.No.82 of 2020, seeking dissolution of his marriage with the respondent on the grounds of cruelty and desertion. The appellant and the respondent were married on 25.10.2009 and on an earlier occasion, H.M.O.P.No.214 of 2014 was filed by the husband, seeking dissolution of marriage, on the ground that the respondent - wife had alleged that the appellant - husband had an illicit affair with Ramani. However, the said H.M.O.P was withdrawn, in order to save the matrimonial life. However, again the respondent came up with a new allegation that the appellant was having an illicit affair with one Amaladevi and that the respondent has also repeatedly given several complaints to the higher officials of the appellant, without any basis, whatsoever. All these acts of the wife had given mental agony to husband. Further, insofar as desertion, the appellant alleges that the wife has left the matrimonial home and has been living with her mother for over 5 years, without any justifiable cause and therefore, the appellant sought for dissolution of marriage on both the grounds of cruelty as well as desertion.

3. The respondent / wife resisted the said application. It is the case of the respondent that as she was working as a teacher, it was convenient to attend her work if she stayed with her mother and only under such circumstances, that too, with the consent of her husband, the respondent was staying with her mother. The respondent chose to reiterate the allegation with regard to the illicit affairs of the appellant and the respondent sought for dismissal of the petition for divorce.

4. Before the Family Court, on the side of the appellant, the appellant examined himself as P.W.1 and his mother – Vijayakumari examined as P.W.2 and one Kalavathy examined as P.W.3 and 2 documents were marked as Ex.P1 to Ex.P2. On the side of the respondent, wife examined herself as R.W.1 and 3 documents were marked as Ex.R1 to Ex.R3, in which, Ex.R1 and Ex.R3 were photographs showing the appellant being with Amaladevi. Ex.P2 and Ex.R2 are photographs taken with the appellant and the respondent being together.

5. On appreciating the oral and documentary evidence adduced before it, the Family Court finding that the appellant had not proved his allegation of cruelty meted out by his wife and also desertion, dismissed the petition seeking dissolution of marriage.

6. Aggrieved by the same, the husband has preferred the present Civil Miscellaneous Appeal on the grounds that the Family Court failed to see that repeated allegations of illicit affairs levelled against the appellant would amount to mental cruelty; the Family Court has not considered that the photographs exhibited (Ex.R3) by the respondent showing the appellant to be with an another lady were not admissible in evidence as Section 65(B) of the Indian Evidence Act, 1872, was a bar; the Family Court failed to see that despite a similar allegation of the appellant having an illicit affair earlier which compelled the appellant to approach the Family Court in H.M.O.P.No.214 of 2014 for divorce, the same was withdrawn by the appellant in order to save the matrimonial tie