JUDGMENT : Shaffique, J. This appeal is filed by the respondent in OP No. 123/2007 of the Family Court Kalpetta. The Original petition was filed by the respondent herein seeking for divorce and the Family Court granted divorce under Section 10(1)(ix) of the Divorce Act. 2. The parties are described as shown in OP No.123/2007. The petitioner married the respondent on 3/9/1990 as per Christian customary rites and ceremonies and two children were born in that wedlock. The contention of the petitioner was that respondent did not show any love and affection towards him and she started ill treating him. She used to go to her house frequently and on enquiry it was known that she has some illicit connection with the driver of her house. When the petitioner questioned her, she threatened that she will live as she likes and the petitioner has no right to interfere. In the year 1997, petitioner met with a motor accident and sustained serious injuries and was laid up. On 01/02/2002, respondent went out of the house for purchasing medicine and thereafter she did not come back. Though the petitioner preferred a complaint to the police and there was an attempt on the side of the police to settle the matter, she did not return. Hence, alleging that she has deserted the petitioner since 01/02/2002, the Original Petition is filed. 3. The respondent filed counter affidavit denying the aforesaid allegations. According to her, the petitioner was physically and mentally ill-treating her after consuming alcohol and used to assault her demanding more dowry. It is further alleged that the petitioner filed OP No. 5/2002 before District Court, Wayanad claiming divorce on the very same allegations which was dismissed on 18/8/2004. She further contended that her gold ornaments were misappropriated by the petitioner and she was ill treated demanding more money. She denied the allegations made against her and contended that the children are illegally detained by the petitioner. 4. Before the Family Court, petitioner was examined as PW1 and he relied upon Ext.A1. Respondent did not adduce any oral evidence but she relied upon Exts.B1 and B2. After considering the material placed on record, the Family Court found that a case of desertion has been made out and accordingly granted a decree of divorce. 5. 4. Before the Family Court, petitioner was examined as PW1 and he relied upon Ext.A1. Respondent did not adduce any oral evidence but she relied upon Exts.B1 and B2. After considering the material placed on record, the Family Court found that a case of desertion has been made out and accordingly granted a decree of divorce. 5. While impugning the aforesaid order, learned counsel for the appellant/respondent contended that a case of desertion had not been made out especially on account of the fact that the present petition is barred by principle of res judicata. The petitioner had filed an earlier original petition seeking for divorce, which was dismissed on 18/8/2004 and in respect of the very same reason, another original petition is not maintainable. Further, it is contended that the respondent had kept away from the company of the petitioner on account of his ill-treatment and therefore, there was no justification for the Family Court to have granted a decree of divorce. 6. On the other hand, learned counsel appearing for the respondent/petitioner supported the view taken by the Family Court. It is contended that the earlier original petition was filed on the ground of desertion and came to be dismissed since the period of desertion was not complete. When the present original petition is filed, the period for desertion was already over and therefore, the judgment in OP No. 5/2002 cannot be res judicata as far as the present claim is concerned. Further, it is contended that after going from the matrimonial home, she never came back though attempts were made by the petitioner to compromise the situation by filing a complaint before the police. Despite the interference of the police, she did not come back and therefore it clearly amounts to desertion as contemplated under the Divorce Act. 7. After hearing the learned counsel on either side and having perused the records, the only question to be considered is whether the Family Court was justified in granting a decree for divorce on the ground of desertion. The first question to be considered is whether the judgment in OP No. 5/2002 will preclude the petitioner from filing the present original petition on the ground of res judicata. Ext.B2 is the order in OP No. 5/2002 which was decided on 18/8/2004. The original petition was filed alleging that respondent left the house on 01/02/2002. The first question to be considered is whether the judgment in OP No. 5/2002 will preclude the petitioner from filing the present original petition on the ground of res judicata. Ext.B2 is the order in OP No. 5/2002 which was decided on 18/8/2004. The original petition was filed alleging that respondent left the house on 01/02/2002. It was also alleged that the respondent had illicit connections with the 2nd respondent in the said case, Sri. K. Kunjeeppa, who was a driver in the house of the respondent. Therefore, application for divorce was filed on the ground of desertion and adultery. The Family Court after considering the evidence observed that there is no evidence to prove the allegation of adultery. Further it was observed that even assuming that the respondent had lived in adultery, from the pleadings and evidence it could be seen that the petitioner had condoned the conduct of his wife. With regard to desertion, the finding is that the alleged desertion was on 1/02/2002 and the petition was filed on 17/2/2002 before the expiry of two years as contemplated under Section 10(1)(ix) of the Divorce Act. There was an allegation of cruelty, which was also answered against the petitioner. Therefore, as far as the allegation of adultery and cruelty are concerned, the said issue had become final. But, with regard to desertion, the statutory period of two years had not expired at the time of filing the petition and the dismissal of the original petition was only on the ground that two year period had not expired. If the fact that the respondent had deserted the petitioner on 1/02/2002 is correct, nothing prevents the petitioner from filing a second application after the expiry of the period prescribed under the statue. In the case on hand, the present original petition has been filed only on 5/10/2007, much after the expiry of the period prescribed for a decree for desertion. Hence, we do not think that the original petition can be dismissed on the ground of res judicata. 8. Now coming to the question whether there was actual desertion or not, it is virtually admitted that after the respondent had left the matrimonial home on 1/02/2002, she had not come back. Of course, in the meantime, OP No. 5/2002 was filed alleging adultery, cruelty and desertion and the same was dismissed by judgment dated 18/8/2004. 8. Now coming to the question whether there was actual desertion or not, it is virtually admitted that after the respondent had left the matrimonial home on 1/02/2002, she had not come back. Of course, in the meantime, OP No. 5/2002 was filed alleging adultery, cruelty and desertion and the same was dismissed by judgment dated 18/8/2004. It is after about 3 years from the said date that the present original petition is filed. Once the divorce petition had been dismissed, it was very much open for the respondent to have a reunion but, it seems that no attempt had been made by either side in that regard. With regard to desertion, the only evidence in the case is that of PW1. In the affidavit in chief, he had stated that the respondent left the matrimonial home on 1/02/2002 for purchasing medicine and thereafter she did not come back. Therefore, it is evident that she had voluntarily left the matrimonial home. The petitioner preferred a complaint before the Vythiri police on 17/2/2002. All the parties were summoned to the police station including the driver and all were warned that a similar incident should not happen. He further submits that, even thereafter, she did not come to the matrimonial home nor did she reside with him. In cross examination, the main questions asked were regarding the earlier original petition. He also said that he is ready and willing to condone all her previous deeds. He denied the fact that he had behaved in a cruel manner to the respondent and used to assault her after consuming alcohol. There is nothing much in the cross examination to disbelieve the witness. He had clearly stated that, after 01/02/2002, she had not come back to the matrimonial home. Further, the evidence of PW1 has not been controverted in any manner and the respondent did not enter the box to prove her allegation of cruelty against the petitioner. If she had a case that she was remaining away from the matrimonial home, on account of sufficient reasons, the same ought to have been proved by her by giving evidence. No such evidence had been adduced in the case. 9. In the result, we do not find any infirmity in the decision taken by the Family Court after proper appreciation of the evidence. No such evidence had been adduced in the case. 9. In the result, we do not find any infirmity in the decision taken by the Family Court after proper appreciation of the evidence. On an analysis of the evidence, a different view is not possible, nor is there any perversity in the findings of the Family Court. Hence, there being no merit in the contentions urged on behalf of the appellant, matrimonial appeal is dismissed. Parties shall bear their own costs.