JUDGMENT

P.B.BALAJI,J.

The unsuccessful husband, whose petition for restitution of conjugal rights was dismissed and his wife's petition, seeking divorce on the ground of cruelty being allowed, is the appellant before us.

2. The pleadings of the respective parties in both these petitions, in brief, are as follows:

The appellant and the respondent were married on 25.03.2012 at

Srivilliputhur. The respondent lived with the appellant at his house, when on 15.04.2012, a lady came there and stated that she was the first wife of the appellant and picked up a quarrel with the respondent and left. The respondent confronted the appellant about this and in response, the respondent was beaten up by the appellant and his parents and drove her out of the matrimonial home. The appellant also threatened the respondent with fear of death, if she refused to live with him. The respondent also lodged a complaint before the All Women Police Station, on 05.08.2012 and thereafter, the appellant returned all the belongings of the respondent and there was also a panchayat held on 05.08.2012, where a decision was taken, to dissolve the marriage. However, the appellant did not take steps to dissolve the marriage through the Court of law and therefore, the respondent filed a petition seeking to declare the marriage as null and void. Thereafter, the respondent chose to withdraw the said petition and came forward to file the present H.M.O.P. seeking divorce on the ground of cruelty.

3. The appellant resisted the said petition on the ground that he never treated the respondent cruelly and the appellant did not beat or drive out the respondent on her enquiring about the visit of the lady, soon after the marriage. It was the respondent, who returned to her parental home voluntarily and after some days, she brought elders to the appellant's house for negotiating a settlement. The appellant never threatened his wife or threatened her with fear of death. The allegations of panchayat held on 05.08.2012 is also denied. Further the appellant has stated that he is ready and willing to live with the respondent.

4. The allegations and averments in the petition for divorce and the counter filed to the same are the same averments and allegations in the petition in seeking restitution of conjugal rights and the counter filed to it.

5. Before the Family Court both the H.M.O.P.Nos.99 of 2015

and 46 of 2016 were jointly tried and the wife examined herself as P.W.1 and one Angusamy - Panchayathar was examined as P.W.2 and 2 documents were marked as Ex.P1 and Ex.P2, on the side of the wife. On the side of the husband, he examined himself as R.W.1 and his father was examined as R.W.2 and no documents were marked.

6. The Family Court, after appreciating the oral and documentary evidence produced before it, allowed the divorce petition filed by the wife and dismissed the restitution of conjugal rights petition filed by the husband.

7. Aggrieved by the grant of decree of dissolution of marriage, the appellant had preferred the Civil Miscellaneous Appeal.

8. However, interestingly, the appellant has not chosen to challenge the dismissal order of restitution of conjugal rights in H.M.O.P.No.46 of 2016. The grounds of challenge to the said decree of divorce are that the Family Court failed to see that the respondent did not establish the allegations set out in the divorce petition; once earlier petition seeking decree that the marriage was null and void was dismissed, the 2nd application seeking divorce was not maintainable, when the allegations in both the petitions were the same; the Family court has failed to see that the respondent had not established any acts of cruelty warranting a decree for dissolution of marriage; the Family court failed to consider that the respondent voluntarily left the matrimonial home within 3 days after the marriage and on these grounds, the appellant / husband seeks to set aside the decree granting dissolution of marriage.

9. We have heard Mr.S.Muniyandi, lear