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2000 DIGILAW 281 (CAL)

Subodh Chandra Saha v. Ajanta Saha

2000-06-12

Amit Talukdar, Tarun Chatterjee

body2000
Judgment T. Chatterjee, J. The aforesaid two appeals have been preferred by the husband/appellant against a common judgment passed in Matrimonial Suit No. 25 of 1993 and Matrimonial Suit No. 40 of 1993. The Matrimonial Suit No. 40 of 1993 was filed by the wife/ respondent Smt. Ajanta Saha for divorce inter alia, on the grounds of cruelty and desertion on the part of the husband/appellant whereas the Matrimonial Suit No. 25 of 1993 was filed by the husband/appellant for restitution of conjugal rights. The aforesaid two suits were filed before the 6th Court of the Additional District Judge at Alipore. The suit filed by the wife being Matrimonial Suit No. 40 of 1993 was decreed and the Matrimonial Suit No. 25 of 1993 filed by the husband/appellant was dismissed. .Feeling aggrieved by the aforesaid common judgment passed in the aforesaid two suits, the husband has filed these two appeals in this Court. 2. Let us first take up the appeal filed by the husband/appellant against the judgment and decree passed by the Trial Court granting a decree for divorce against him only on the ground of cruelty. The brief fact of the case made out by the wife/respondent in her plaint for divorce is narrated in a nutshell in the following manner:- 3. On 13th January, 1986 the wife Smt. Anjana Saha was married to the husband/appellant at Rabindra Pally, Sushi I Joyti Avenue, Kestopore, Calcutta-59 according to Hindu Rites and Customs. After their marriage they started living at 102, Maniktala Main Road, Calcutta-54 and their marriage was duly consummated. 4 or 5 days after the marriage the mother and other relations of the husband/appellant left the house and the husband started misbehaving with the wife. She had been assaulted physically and was also abused. She reported about this physical and mental torture to her mother-in-law when she visited the native place of the husband. After a month's stay at Moynaguri, district Jalpaiguri the native place of her husband, they returned to Calcutta. Even after their return the husband again started assaulting and abusing the wife as before. She was also denied food by the husband/appellant. The respondent had also failed to cohabit with the wife regularly. After such continuous torture since marriage, the wife was forced to go out of her matrimonial home on 22nd May, 1991. Since thereafter, the husband took no steps for their reunion. She was also denied food by the husband/appellant. The respondent had also failed to cohabit with the wife regularly. After such continuous torture since marriage, the wife was forced to go out of her matrimonial home on 22nd May, 1991. Since thereafter, the husband took no steps for their reunion. They had sexual union at long intervals. The wife had also given a long list of articles alleged to have been given during their marriage and she also prayed for return of the same. This suit as noted here earlier was filed by the respondent on 14th August, 1992. The appellant/husband had failed to enter appearance in this suit and the suit was decreed exparte on 24.11.93, that is, about one and half years after the filing of the suit. However, the exparte decree was subsequently set aside and the husband/appellant thereafter filed a written statement denying all the allegations made against him in the plaint. The husband/ appellant in his turn thereafter filed the suit under section 9 of the Hindu Marriage Act praying for restitution of conjugal rights. 4. In view of our stand taken in the other appeal, which has been filed by the husband against the decree for divorce, it would not be necessary for us to state the facts relating to the application for restitution of conjugal rights filed by the husband against the wife. 5. Parties adduced evidence in support of their cases made out in the aforesaid two matrimonial suits. Both the suits were tried together and the following issues were framed. 1. Are the suits maintainable in its present form? 2. Is the husband guilty of cruelty against his wife? 3. Is the husband guilty of desertion of his wife? 4. Is the husband entitled to the decree for restitution of conjugal rights? 5. Is the wife entitled to the decree for divorce? 6. To what other relief, if any, are the parties entitled? Since the Issue No.1 was not pressed by either of the parties, the suits filed by the parties against each other were found to be maintainable in law. No argument was so advanced by the learned counsel for the parties before us also on the question of maintainability of the suits. Accordingly, there is no need to deal with this issue any further. No argument was so advanced by the learned counsel for the parties before us also on the question of maintainability of the suits. Accordingly, there is no need to deal with this issue any further. So far as the issue No.3 that is the ground for divorce regarding desertion is concerned, we are of the view that the said ground regarding desertion alleged to have been made out by the wife/respondent was rightly rejected by the trial court as the said ground was not available to the wife in view of the admitted fact that she filed the matrimonial suit on 14th August, 1992 whereas the date of desertion as alleged by the wife herself had started on 22nd May, 1991. Section 13 of the Hindu Marriage Act says that any marriage solemnised whether before or after the commencement of the Act may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that other party has deserted the petitioner for a continuous period of not less than 2 years immediately proceeding the presentation of the petitioner. From the aforesaid section, it is clear that no suit could be decreed on the ground of desertion if the same was filed within two years from the date of presentation of the petition for divorce. In this case admittedly, the• matrimonial suit was filed on 14th August, 1992. According to the wife herself in her petition for divorce, the date of desertion was alleged to have started on 27th May, 1991. That being the position, there is no need to upset the finding of the Trial Court for grant of divorce on the ground of desertion. Before us, Mr. Dasgupta, appearing for the wife also could not advance any argument against the finding of the Trial Court by which the Trial Court rejected the ground regarding desertion. Therefore, we need not deal with this issue any further. Now let us take into consideration the vital issue raised by the wife in her suit, that is to say whether the wife/respondent was entitled to a decree for divorce on the ground of cruelty. Therefore, we need not deal with this issue any further. Now let us take into consideration the vital issue raised by the wife in her suit, that is to say whether the wife/respondent was entitled to a decree for divorce on the ground of cruelty. The Trial Court after taking into consideration all the materials on record and the argument advanced by the learned counsel for the parties before it found that the wife/respondent was entitled to a decree for divorce on the ground of cruelty. 6. On behalf of the husband/appellant on the question whether the Trial Court was justified in passing a decree for divorce on the ground of cruelty Mr. Roychowdhury submitted that on the facts alleged and the evidence adduced by the wife, the Trial Court was not justified in decreeing the suit for divorce of the wife/respondent on the ground of cruelty. This submission of Mr. Roychowdhury was hotly contested by Mr. Sudhis Dasgupta, appearing on behalf of the wife/respondent. After hearing the learned counsel for the parties and after considering the admitted fact that the parties have been living separately for about ten years, we are of the view that it would not be proper for us to upset the finding of the trial court on the question of cruelty. As noted herein earlier, the marriage between the parties was solemnised on 13th January, 1986. It is also an admitted fact that the wife had left the matrimonial home on 22nd May, 1991. It is also not in dispute that the wife filed the suit for divorce on the ground of cruelty and desertion a year or so after leaving the matrimonial home. The application for restitution of conjugal rights was filed at least six months after the suit for divorce was filed by the wife. Before we proceed further we may keep it on record that in order to effect reconciliation between the parties we had tried our best to settle the matter by requesting the wife to go back to her matrimonial home as the husband was ready and willing to take her back. Before we proceed further we may keep it on record that in order to effect reconciliation between the parties we had tried our best to settle the matter by requesting the wife to go back to her matrimonial home as the husband was ready and willing to take her back. Although the husband was willing to take her back to her matrimonial home, the wife had expressly made it clear before us that she would not be able to live with her husband any further and if the court forces her to go back she had to commit suicide. We also keep it on record that in spite of our best effort, we were unable to persuade the wife to stay with the husband/appellant although the husband/appellant agreed to take her back in the matrimonial home. Mr. Roychowdhury appearing on behalf of the husband/appellant submitted that the wife was not entitled to a decree for divorce on the ground of cruelty if such ground could not be proved by her even though there was irretrievable break down of the marriage. In support of this contention, Mr. Roychowdhury relied on some of the decisions of the High Court viz. the decisions reported in AIR 1989 Calcutta 120 (Harendra Nath Burman vs. Suprabha Burman and Anr.), AIR 1989 Calcutta 327 (Brojo Kishore Ghosh vs. Smt. Krishna Ghosh) and AIR 1995 Bombay 246 (Rajan Vasant Rovankar vs. Sova Rajan Rovankar). In all the aforesaid decisions of the High Courts of India, it has been clearly held that since irretrievable break down of the marriage has not yet been made a ground for divorce either in the Hindu Marriage Act or in the Special Marriage Act, no marriage can be annuled on such ground. In the case Harendra Nath vs. Suprabha, AIR 1989 Calcutta 120, A.M. Bhattacharjee (as His Lordship then was) observed as follows:- "We must, therefore, conclude as we cannot but mere break down of the marriage, however, irretrievable, is not by itself and without more, any ground for dissolution of the marriage as yet under our matrimonial law." 7. The same view was expressed in the case of Brajo Krishore Ghosh vs. Smt. Krishna Ghosh, AIR 1989 Calcutta 327. The same view was expressed in the case of Brajo Krishore Ghosh vs. Smt. Krishna Ghosh, AIR 1989 Calcutta 327. In this decision, however, A.M. Bhattacharjee, J, at para 21 made the following observations: "It may be that, the allegations of the wife-respondent being as they are, even though those allegations are not found to have been proved, the marriage, to borrow from the Supreme Court decision in Saraj vs. Sudarshan, AIR 1984 SC 1562 at p. 1566, has broken down for whatever be the reasons and the parties can no longer live together as husband and wife and that 'if such is the situation, it is better to close the chapter.' It is true that the felt necessities of our changing society require that there should be no insistence on the maintenance of a marriage which has broken down and a marriage in which the parties can not live together should be dissolved. The introduction of section 13B in the Hindu Marriage Act by the Amendment Act of 1976 providing for divorce by mutual consent appears to be in response to such felt necessities. But unless breakdown of marriage is made in law a ground of dissolution of marriage, a breakdown of marriage in fact, however, serious, cannot be ground for granting divorce. It appears that even in Kautilya's Artha Sastra, such a ground for dissolution of marriage was permissible 'Paraspara Dwesat Moksha'. But our modern Legislature has not, as yet, been able to come up to that end, therefore, unless the parties mutually agree under section 13B, or any of the grounds as specified in section 13 is made out, a marriage, even though utterly broken down in fact, cannot be broken in law through Court. It may be that it would be sheer cruelty to maintain and not to dissolve a marriage which has' irretrievably broken down and to keep the parties tied in matrimony. But under section 13(1)(ia) what empowers a Court to dissolve a marriage is not cruelty imposed by the continuance of the marriage, but the petitioner-spouse treating the other spouse with cruelty." (Emphasis added) 8. But under section 13(1)(ia) what empowers a Court to dissolve a marriage is not cruelty imposed by the continuance of the marriage, but the petitioner-spouse treating the other spouse with cruelty." (Emphasis added) 8. The Bombay High Court decision reported in AIR 1995 Bombay 246 (supra) expressed the same view but in addition to such view has also expressed that irretrievable break down of marriage was an additional factor to be borne in mind while considering the question of granting a decree for divorce. This additional factor as expressed by the Bombay High Court, we feel, was on the basis of the recent decision of the Supreme Court in the case of Bhagat vs. Bhagat, 1994 (1) SCC 337 . In para 21 of the aforesaid decision the Supreme Court observed as follows:- "Irretrievable break down of the marriage is not a ground by itself .But while scrutinising the evidence on record to determine whether the ground alleged is made out and in determining the relief to be granted the said circumstances can certainly be borne in mind." (Emphasis added) 9. From the principles laid down in the aforesaid decision of the Supreme Court and also in the decisions of the High Courts of India particularly Calcutta and Bombay irrestiable conclusion is that no marriage can be annuled only on the ground of irretrievable break down of marriage although in determining the relief to be granted the said circumstance (irretrievable break down of marriage) can certainly be borne in mind. Keeping this principle in mind, we are now to consider whether the marriage between the parties has irretrievably broken down. As noted herein earlier, the marriage between the parties was solemnised on 13th of January, 1986 and the wife left the matrimonial home on 22nd May, 1991 and the matrimonial suit was filed by the wife on 14th of August, 1992. In the month of March, 1993, the husband filed the suit for restitution of conjugal rights under section 9 of the Hindu Marriage Act. Attempts were made for reconciliation by the trial Court but no result was achieved. As noted herein earlier, we also persuaded the wife to go back to her matrimonial home, when we were hearing the appeal. After a long deliveration we found that there was no chance of reconciliation between the parties. That being the position and in view of the submission of Mr. As noted herein earlier, we also persuaded the wife to go back to her matrimonial home, when we were hearing the appeal. After a long deliveration we found that there was no chance of reconciliation between the parties. That being the position and in view of the submission of Mr. Roychowdhury that even if there was irretrievably break down of marriage, no decree could be passed on such a ground we have no other alternative but to hold that the marriage has irretrievably broken down. Keeping this in our mind, let us now consider whether the decree for divorce on the ground of cruelty as granted by the Trial Court was justified or not on the material on record and also in the background of the facts stated earlier. In our view, the judgment of the Trial Court need not be interfered with as we find that in view of long separation of parties and in view of unwillingness of the wife to carryon with the husband and after considering the difference of age between the parties, and also the evidence and other documents available on the record, we are of the view that no fruitful purpose would be achieved by any of the parties by forcing one party to live with the other. In any view of the matter the facts and circumstances of this case and the material on record also do inspire us to hold that there was cruelty on the part of the husband towards his wife and the husband after the solemnisation of the marriage treated the wife with cruelty for which decree for divorce should be passed by the Court of law. 10. Before we take up the material on record and the judgment under appeal for our consideration, we may recapitulate at this stage that the changes in law brought about by the Hindu Marriage Laws (Amendment) Act, 1976 must be kept in mind. Prior to the said amendment Act, cruelty was not made a ground for claiming divorce under the Hindu Marriage Act but section 10(1)(b) of the Act recognised a decree for judicial separation on the ground of cruelty. Prior to the said amendment Act, cruelty was not made a ground for claiming divorce under the Hindu Marriage Act but section 10(1)(b) of the Act recognised a decree for judicial separation on the ground of cruelty. Section 10(1)(b) of the said Act before its amendment contemplated a decree for judicial separation on the ground that the other party has treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. By the Hindu Marriage Laws (Amendment) Act, 1976 cruelty has been made a ground for divorce and in recognition of the changes and the attitude of the society the words "as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful and injurious for the petitioner to live with the other" were omitted. In the amended section which is now in force is to the effect that any marriage solemnised whether before or after the commencement of the Act may on a petition presented by either the husband or the wife be dissolved by a decree of divorce on the ground that the party has, after the solemnisation of the marriage treated the petitioner with cruelty. Therefore, it must be kept in mind that the cruelty mentioned in clause 13(1)(ia) is a ground now for divorce as well as for judicial separation in view of section 13(A) of the Act. It is now well settled by the preponderance of decisions of the Supreme Court as well as of the High Courts of India that there are two types of cruelty one is physical cruelty and the other is mental cruelty. So far as the physical cruelty is concerned, there is no difficulty for the Court to came to a conclusion on this ground. The difficulty arises in a case where parties pleaded mental cruelty. So far as the present case is concerned, we are concerned with the mental cruelty although some allegations were made by the wife about physical torture on her by the husband. Considering the pleadings and the evidence on record, we are unable to hold that there was any physical cruelty in this case by the husband on the wife. So far as the present case is concerned, we are concerned with the mental cruelty although some allegations were made by the wife about physical torture on her by the husband. Considering the pleadings and the evidence on record, we are unable to hold that there was any physical cruelty in this case by the husband on the wife. Let us, therefore, consider whether the Trial Court was justified in decreeing the suit for divorce on the ground of mental cruelty or not. 11. In paragraph 12 of the petition for divorce filed under section 13 of the Hindu Marriage Act, the wife had categorically alleged that the husband did not have any cohabitation with the wife inspite of insistence by her which was done usually between a husband and wife. In paragraph 13 of the said petition, the wife had categorically alleged that she wanted to become a mother but the husband did not want to have any child and he did not have sexual intercourse normally but at a long interval although that too against his wishes. Against the above allegations made in the petition for divorce, the husband in his written statement filed in the suit for divorce only denied the statements made in the said petition for divorce. In evidence the wife categorically stated that there was practically no physical relationship in between herself and her husband and that her husband was not physically competent to have sexual intercourse with her. She also stated in her deposition that she was not willing to stay with her husband as his wife in view of the fact that she was not in physical and mental peace. It is true that she admitted in her deposition that sometimes she and the husband used to have physical relationship and on some occasions they had sexual intercourse amongst themselves. The husband as D.W. 1 in his evidence stated "not a fact that I had no sexual intercourse with my wife." He also deposed to the effect "I was treated by Dr. Sudhir Bal. May be it was in the years 1985 and 1986. Not a fact that I visited the chamber of Dr. Bal as a psychiatric patient. It is not possible for me to file prescriptions issued by Dr. Bal. Pathological investigation was done in Dr. S. Chakraborty Memorial Centre for Medical Research and Treatment. Sudhir Bal. May be it was in the years 1985 and 1986. Not a fact that I visited the chamber of Dr. Bal as a psychiatric patient. It is not possible for me to file prescriptions issued by Dr. Bal. Pathological investigation was done in Dr. S. Chakraborty Memorial Centre for Medical Research and Treatment. I cannot say at this moment as to whether I have a copy of this report with me or not. I have undergone pathological test for myself on other occasions and those reports are with me. I can file those reports. In all these instances, my blood test was held." From this deposition of the husband, it is clear that before the marriage or even after the marriage, the husband had undergone pathological test and admitted that those reports were with him. Unfortunately, these reports which are materials for the purpose of showing whether the husband was competent to have normal sexual intercourse with the wife, were not filed by the husband. Therefore, an adverse inference must be drawn against him for non production of these reports. In the cross examination, the husband could not come out with any name of any person at whose instigation the wife had refused to stay with him as alleged in the plaint. From his deposition, it also appears that several original prescriptions issued by doctors in favour of the husband were exhibited an Exhibit 2 series after objection. These medical prescriptions with an advice for pathological tests were issued by the doctors to the husband. From this admission of the husband, therefore, it is clear that before and after the marriage the husband was treated by doctors who advised him to undergo pathological test. The husband in cross examination denied the fact regarding impotency. But after saying pathological tests were undergone by husband unfortunately, the said reports were deliberately withheld by him. The husband in his deposition however said to the effect "there was sexual intercourse with the wife." However, he could not deny that they had normal sexual intercourse during the marital life which was about 5-6 years. A friend of the husband/appellant Sri Akhil Baral as D.W. 2 deposed. In cross examination this witness stated "once Ajanta Devi informed me that as they had no issue, so trouble was going on in between her and her husband. A friend of the husband/appellant Sri Akhil Baral as D.W. 2 deposed. In cross examination this witness stated "once Ajanta Devi informed me that as they had no issue, so trouble was going on in between her and her husband. As there was no issue of the couple, so I suggested Subodhbabu and his wife to consult a doctor." From this deposition, it also appears that some trouble started between the couple for not having an issue although the couple lived together for about 4-5 years. It does not appear from the record that either the wife was incompetent to bear a child or the husband because of his inefficiency in the matter of sexual intercourse could not give a child to the wife. From the evidence of the husband as well as from the wife, it is clear to us that there was normal sexual intercourse between the couple within the period of 5 years when the wife left the matrimonial home. Before we go into this question in detail, we may also refer to an observation of the Supreme Court in the Case of V. Bhagat vs. D. Bhagat, reported in 1994 (1) SCC 337 . In para 16 it has observed as follows : "Mental cruelty in section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations regard must also be had to the context in which they were made." (Emphasis supplied) 12. Keeping this principle in mind, we are now to consider whether mental cruelty was inflicted on the wife and for that it was not possible for her to continue the married life with the husband/appellant. From the evidence as discussed, it is now an admitted position that the husband could not perform the normal sexual intercourse with the wife/appellant. Whether such conduct of the husband amounts to cruelty or not? In the case of Nijhawan vs. Nijwahan, reported in AIR 1973 Delhi 200, a Division Bench of the Delhi High Court has observed in para 22 at page 209 as follows :- "In the present case the marriage took place in 1954. Barring the pregnancy in 1958 which according to the appellant was the result of part improvement, right from the day of marriage till 1964, there has never been any normal sexual life, and the respondent has failed to give sexual satisfaction. The marriage has really been reduced to a shadow and a shell and the appellant has been suffering misery and frustration. In these days it would be unthinkable proposition to suggest that the wife is not an active participant in the sexual life and, therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and, therefore, cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman's mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman's brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse." 13. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman's brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse." 13. We have no hesitation in our mind to accept the observations of the Division Bench of the Delhi High Court for the purpose of holding that normal sexual intercourse was an extreme necessity for the purpose of continuity of a married life of the parties. Again in the case of Dr. Srikant Rangcharya vs. Smt. Amarendra, AIR 1980 Karnataka 9. Similarly it has been held that legal cruelty is not causing physical acts of injury by one spouse to another. There may be cruelty without an intention to injury. Failure to comply with one of the essential obligations of the marital life would also amount to subjecting the wife to cruelty. It is one of the essential and principal obligation on the part of the husband to satisfy the sexual urge of his wife which is a natural instinct. Marriage life without a sexual life will be a curse to the wife. This failure to inability to or to refusal factuate the sexual intercourse by the husband without any reason on the part of the wife would amount to subjecting the wife to cruelty. Therefore, on the aforesaid two decisions of the Division Bench of the Delhi High Court as well as Karnataka High Court with which we are in full agreement, there is no doubt in our mind to hold that because of inability of the husband to have normal sexual intercourse with wife amounted to mental cruelty inflicted on her by the husband. In order to prove that the husband had the capacity of having normal sexual intercourse a doctor was examined by him as D.W. 2. It is true that in his deposition he has stated that the husband was not incompetent and he was sexually competent, we have carefully considered the evidence of the doctor. On a careful consideration, we are unable to accept the statement of this doctor. First, this doctor was not a specialised doctor in the field of sexology. Apart from that, he only deposed that he was not impotent. On a careful consideration, we are unable to accept the statement of this doctor. First, this doctor was not a specialised doctor in the field of sexology. Apart from that, he only deposed that he was not impotent. But from his evidence, it cannot be said that the husband had the ability to perform normal sexual intercourse with the wife. From the statement of the wife in the pleading and a bare denial by the husband and in view of the statement made by the wife in her deposition and the statement by the husband in his deposition, we have already held that there was no normal sexual intercourse between the parties during the stay of the wife with the husband for about 4-5 years after their marriage. From the deposition of D.W. 4 Dr. Sudhir Bal who was a professor of psychiatric treatment and thereafter was a private practitioner on the date of giving the deposition, it appears to us that he had treated him between 1985 and 1987. He only opined that the husband was not suffering from any mental infertility and his mental condition was normal. However, in cross examination, he stated that it was not possible to give any opinion about any other subject other than psychiatric. This doctor also deposed that as, a private practitioner he did not mention the exact diagnosis of the patient in the prescription. 14. From the evidence of D.W. 4 it can only be concluded that he was not a psychiatric patient although he had undergone treatment under the said doctor on the said subject and had taken medicine for the same. In any view of the matter, the evidence of this doctor could not satisfactorily prove that the husband had the ability to perform normal sexual intercourse with the wife/respondent. From this deposition of the doctor, it would be clear that the husband was in fact, suffering from psychiatric problem. Mr. Roychowdhury, appearing for the husband submitted before us that the wife had only alleged that the husband was partially impotent and was not very regular in sexual union as was expected from newly married husband. Therefore, without proving this fact by adducing evidence, it cannot be held by the court that the husband had failed to perform normal sexual intercourse with the wife. Therefore, without proving this fact by adducing evidence, it cannot be held by the court that the husband had failed to perform normal sexual intercourse with the wife. This plea was categorically taken by the wife in the suit for divorce filed by her. We should not forget that in answer to this statement made by the wife in her pleading, there was only evasive denial on the part of the husband in his written statement as noted herein earlier. Therefore, taking this evasive denial of the fact alleged by the wife in the petition for divorce, we also find from the record that the wife had deposed to this effect that the wife had not denied that the marriage was not consummated on her allegations in the petition for divorce as well as in her deposition that the husband used to resort sexual intercourse with her after long intervals. It is an admitted position that the wife had not conceived during the long stay of 4-5 years with the husband. There was no allegation on the part of the husband against the wife that she was incapable to bear a child nor the wife was suffering from any sort of infertility. It may be recalled at this juncture that the husband/appellant also in his deposition had not denied the fact that he had normal sexual union with his wife. He only said that he had sexual intercourse with his wife. From the above discussion and on consideration of principles laid down in the aforesaid two decisions of the High Courts of India with which we are in full agreement, there is no doubt in our mind that, the husband not having had normal sexual intercourse during the stay of the wife in the matrimonial home for about 5 years and admittedly the wife was not conceived during her stay in the matrimonial home for about 5 years, the marriage was liable to be annulled on the ground of mental cruelty. 15. There is yet another aspect of this matter. 15. There is yet another aspect of this matter. As noted herein earlier, the wife had categorically stated in her pleading and also in her deposition that trouble started with the husband for not having a child even after their marriage for 4-5 years and in view of our discussions made herein above that the husband had failed to perform normal sexual intercourse with the wife, the conduct of the husband inconsistently depriving the wife of normal sexual intercourse and the opportunity of becoming a mother became intolerable as it seriously affected her health, constituted cruelty. In order to justify our conclusion as made herein above, reliance can be placed to a decision in the case of P(D) vs. P(J), 1965 (2) All England Law Reports 456. In the fact situation of that decision, it was held that the wife could not control her psychological inhibition, did not in law negative the fact that her conduct inconsistently depriving the husband of normal sexual intercourse and the opportunity of becoming a father was unendurable and as it seriously affected his health, constituted cruelty. 16. For the reasons aforesaid, we are of the firm view that failure to or inability to or refusal to allow normal sexual• intercourse by the husband without any reason on the part of the wife and also depriving the wife of having normal sexual intercourse and the opportunity of becoming a mother would amount to constituting cruelty on the wife. Therefore, we justify the judgment of the Trial Court which is under challenge in this appeal. 17. There is another aspect of this matter. The wife alleged that she was driven out from the matrimonial home from 22nd May, 1991 whereas the husband stated that on 23rd May, 1991 she left his place voluntarily. From the material on record and the evidence adduced by the parties, it appears to us that the husband had ever tried to bring back the wife in the matrimonial home or had paid a single furthing for her maintenance during her stay before filing a suit for divorce. The record shows that the suit for divorce which was filed by the wife so filed after about a year of her leaving the matrimonial home. There is nothing on record to show that the husband/appellant had paid any amount during the absence of the wife in the matrimonial home. The record shows that the suit for divorce which was filed by the wife so filed after about a year of her leaving the matrimonial home. There is nothing on record to show that the husband/appellant had paid any amount during the absence of the wife in the matrimonial home. On the other hand, the record shows after the suit was filed by the wife for divorce the husband did not contest. The suit was decreed exparte. Subsequently on an application under Order 9 Rule 13 of the Code, the exparte decree was set aside. Only thereafter on an application filed by the wife for grant of maintenance, during the pendency of the suit, the husband paid the wife the maintenance which was awarded in her favour by the Trial Court. From the conduct of the husband, it appears to us that in order to delay the disposal of the suit for divorce filed by the wife and to defer payment of alimony, he had to resort to various delaytory tactics. In the case of Dastane vs. Dastane, AIR 1975 SC 1534 , it has been categorically held by the Supreme Court that it was not necessary to prove, like a criminal case, to the hilt that it was injurious for the wife to stay with the husband. For the purpose of concluding that there was mental cruelty inflicted on the wife, the Supreme Court in the aforesaid decision laid down the principle that a Court only must be satisfied on preponderance of probability and not only satisfaction beyond reasonable doubt. Therefore, from this decision of the Supreme Court, it is clear that the Court has been conferred with power to pass a decree on the ground of cruelty after being satisfied on the preponderance of probability in the case. Therefore as discussed on this issue already, we have no hesitation in our mind that the wife was entitled to a decree for divorce on the ground of mental cruelty. 18. Before we part with this judgment, we may reiterate that in the continuance of marriage, difference of age became a vital factor. At the time of marriage, the wife was only 20 years in age whereas the husband was 37. 18. Before we part with this judgment, we may reiterate that in the continuance of marriage, difference of age became a vital factor. At the time of marriage, the wife was only 20 years in age whereas the husband was 37. Taking into consideration the age difference between the parties, the allegation made by the wife against her husband who got married at his advanced age with an young girl that the husband had failed to perform normal sexual intercourse, cannot be thrown out. Mr. Roychowdhury, appearing for the appellant however, submitted that age difference between two parties cannot be a factor to be considered for granting a divorce, cited a Division Bench decision of the Madhya Pradesh High Court in the case of Gindan vs. Barelal, AIR 1976 Madhya Pradesh 83. We have carefully perused this decision. In that decision, the Division Bench dealt with the provisions of sections 5, 11, 12 and 18 of the Hindu Marriage Act, 1955 and held that marriage in contravention of age mentioned in section 5 (i-a) was neither void ab initio nor even voidable. Are we concerned with this proposition in our case? In this case, there is no doubt that there was no contravention of sections 5, 11, 12 of the Hindu Marriage Act. Our consideration in this case is whether age difference between the parties would be an additional factor for coming to a conclusion that mental cruelty was inflicted by one party to the other on the ground that the husband being in advanced age could not perform normal sexual intercourse with the wife who was an young girl of 20 years at the material point of time. 19. For the reasons aforesaid, we are in agreement with the Trial Court that in the facts and circumstances of this case the marriage must be annuled. 20. Accordingly, there is no ground to interfere with the judgment under appeal. 21. In view of the decision made in the appeal being F.A. 180 of 1998 in which the judgment and decree for divorce is now being affirmed by us, the merits of the appeal being No. F.A. 179/98 need not be gone into as question of restitution of conjugal rights under section 9 of the Hindu Marriage Act would not arise if a decree for divorce is granted. 22. 22. No other point was raised by the learned counsel for the parties and accordingly, the appeals are dismissed. 23. There will be no order as to costs. Let the Lower Court Records if they are lying in this Court be sent down to the Trial Court at an early date. Amit Talukdar, J.: I agree. Appeals are dismissed.