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2.Mr.R.Selvakumar, learned counsel appearing for the appellant husband, assailing the impugned order, refusing to grant divorce, pleaded that after solemnisation of marriage between the appellant and the respondent on 18.10.1999 as per the Christian rites and customs, they were blessed with a male child namely, M.Infent Bosco. Due to difference of opinion arose between themselves, without even adjusting the family problems which are frivolous in nature, the respondent wife filed a petition in FC IDOP. No.1 of 2014 seeking divorce under Section 10(1)(ix) and (x) of the Indian Divorce Amendment Act citing two grounds namely, desertion that had occurred in the year 2011 and cruelty, said to have caused to her by the husband appellant herein. However, the Family Court, Dharmapuri, finding no merits whatsoever, rejected the petition filed by the respondent wife for grant of divorce vide order dated 22.06.2015. After dismissal of the FC IDOP No.1 of 2014 filed by the respondent wife, she did not come back to the matrimonial home to lead a family life. Thereafter, though both of them filed petitions seeking restitution of conjugal rights, they have not come forward to prosecute their cases, as a result, both the petitions were dismissed for non prosecution. Since there was no compromise or re-union from the side of the respondent wife, the husband appellant has filed FC IDOP No.1 of 2016 under Section 10(1)(x) of Indian Divorce Act 1869 for https://www.mhc.tn.gov.in/judis/ dissolution of marriage before the Family Court, Dharmapuri and the respondent wife filed a counter affidavit, surprisingly, taking a stand that she agreed for divorce subject to condition that her jewellery and articles, lying at the hands of the appellant, have to be returned.

3.Learned counsel appearing for the appellant further submitted that when the respondent wife has approached the Family Court, Dharmapuri even in the year 2014, after giving birth to a male child on 16.10.2007, the appellant husband, by way of filing a written statement, contested the petition for grant of divorce. After dismissal, finding no response whatsoever from the respondent wife for re-union, the appellant husband has filed the FC IDOP No.1 of 2016 seeking divorce, in which, respondent wife has filed a counter affidavit stating that she was agreeable for divorce only on payment of Rs.20,00,000/- towards permanent alimony and also on return of 15 sovereigns of gold jewels belonging to her, Rs.1,00,000/- given towards marriage expenses and Rs.47,000/- given for purchase of bike. When there was no proof for giving such amount and jewellery, the question of return could not arise. Moreover, when the respondent wife has been living separately from the year 2011 that could be seen from the petition filed by the respondent in the FC IDOP No.1 of 2014 and also seen from the counter filed by the respondent wife in the FC IDOP No.1 of https://www.mhc.tn.gov.in/judis/ 2016 before the Family Court, Dharmapuri, it goes without saying that they were not living together for more than a decade. But the Family Court overlooking the above facts, has dismissed the petition filed by the appellant.

7.As rightly canvassed by the learned counsel for the appellant, even in the year 2014, the respondent wife had moved a petition in FC IDOP No.1 of 2014 for grant of divorce under Section 10(1)(ix) and

(x) of the Indian Divorce Amendment Act before the Family Court, Dharmapuri. Secondly, before filing of the FC IDOP. No.1 of 2014 by the respondent wife, both the parties have independently moved applications seeking restitution of conjugal rights, but, for the reasons best known to them, they did not prosecute the matter and they are not willing to go for re-union. Thirdly, even after the dismissal of the FC IDOP No.1 of 2014 on 22.06.2015, they have not come forward to lead a fresh matrimonial life. Therefore, the husband appellant herein has moved before the Family Court, Dharmapuri in FC IDOP No.1 of 2016 seeking dissolution of marriage.

8.Learned counsel for the appellant substantiated his argument that after birth of their son on 16.10.2007, they were not living together and that the respondent wife is working as a Secondary Grade Assistant in R.C.Fathima Primary School, Kethanahalli, https://www.mhc.tn.gov.in/judis/ Dharmapuri District and drawing a net salary of Rs.51,834/-. Therefore, the conduct of the respondent clearly shows that she has deserted the matrimonial home even in the year 2011. The reason being that we are able to see from the records that both of them filed petitions seeking restitution of conjugal rights in FC IDOP Nos.3 and 4 of 2012 that goes without saying that when they were living separately, they approached the Court independently seeking restitution of conjugal rights. Subsequent to the dismissal of the FC IDOP No.1 of 2014, the appellant husband has filed FC IDOP No.1 of 2016, which clearly shows that they are not living together. Therefore, the learned counsel for the appellant argued that due to desertion, the appellant has been put to face mental cruelty, but, this has been overlooked by the Family Court, Dharmapuri.