Judgment 1. Appellant-Raman Kumar had filed a petition under S. 13 of the Hindu Marriage Act, 1955 for dissolution of his marriage with Baksho Thandi (respondent) by grant of decree of divorce. The marriage between the appellant and respondent-wife was solemnized on 11-4-2003 at Nawashahr as per Sikh rites. The couple lived together for about 27 days at village Apra, Tehsil Phillaur, District Jalandhar. After marriage, respondent-wife went to Canada and sent sponsorship for the appellant-husband for his immigration to Canada. Ultimately, the appellant-husband joined the company of the wife in Canada on 27-4-2004. The appellant alleges that the wife refused to cohabit while she was in India by saying that they would do so on reaching Canada. The appellant claims that wife refused to cohabit with him while in Canada as well. Allegation by the appellant further is that he was insulted on the ground that he was simply a matriculate and was made to live like a servant and look after the house and house hold works. This, according to the appellant, amounted to his mental torture/cruelty. Averment further is that in the month of July, 2004, he was thrown out of the house and accordingly returned to India on 14-7-2004. Appellant had gone back to Canada during April, 2005 but was not allowed access to the house by the wife. When after lot of persuasion, he was able to enter the house, he noticed to his shocked that the respondent-wife was wearing white sari and proclaimed that she had become widow. It is also alleged that the wife had given some false complaints to the police against the appellant-husband. Fearing fake implication, the appellant came back to India. He has, thus, filed this petition, seeking divorce by inter alia alleging that wife never allowed him to consummate the marriage and, thus, intentionally and wilfully treated the appellant with cruelty. 2. On notice being issued, the wife appeared to contest the petition. Factum of marriage is admitted in the written statement filed by the respondent-wife. She claims to have maintained healthy and intimate relationship with her husband during her stay in India and subsequently in Canada. According to the wife-respondent, the marriage was consummated. She has further stated that even in Canada, they lived together as husband and wife where they cohabited with each other as husband and wife. She claims to have maintained healthy and intimate relationship with her husband during her stay in India and subsequently in Canada. According to the wife-respondent, the marriage was consummated. She has further stated that even in Canada, they lived together as husband and wife where they cohabited with each other as husband and wife. She has, thus, denied if the appellant was treated with any mental or physical cruelty. The allegations about making the appellant to cook or to attend to the house hold work are also denied. It is rather disclosed that the appellant had come to India on the pretext of completing paper work for dividing his property and their relationship, as such, remained cordial throughout. As per the wife, she learnt about the divorce petition with a shock. She, as such, has pleaded that she was always ready and willing to live with her husband and perform her all marital duties and accordingly prayed for dismissal of the petition. 3. Having analysed the rival contention, the District Judge, Jalandhar, has rejected the claim of the appellant. While declining the petition, the Court observed that averment would not show that the wife had refused sexual intercourse. It is noticed that the pleaded case in the petition is that the respondent-wife did not allow the husband to cohabit while they were in India and Canada. Going into meaning of "cohabitation," the trial Court found that cohabitation is the act of living together in the house, boarding etc. It is further observed that this term would not necessarily mean sexual intercourse. In this regard, reliance is placed on the case of Harvinder Kaur v. Harmander Singh Choudhary, AIR 1984 Delhi 66. Reference is also made to Thomas v. Thomas (1948) 2 KB 294, wherein it is held that cohabitation does not necessarily depend on whether there is sexual intercourse between husband and wife but consists in the husband acting as husband towards wife and wife as wife towards the husband. The trial Court has also referred to the case of Mang Maung v. Ma Sein Kyi, AIR 1940 Rangoon 181 to observe that cohabitation means a dwelling or living together in conjugal relationship and not secret act of intercourse. The trial Court has also referred to the case of Mang Maung v. Ma Sein Kyi, AIR 1940 Rangoon 181 to observe that cohabitation means a dwelling or living together in conjugal relationship and not secret act of intercourse. Accordingly, it is held that there is not even an averment in the petition regarding denial of sexual relationship by the respondent-wife and hence, the allegation of mental cruelty would not stand. Similarly, the allegation of making the appellant to work as a household servant etc. are not found to have been sufficiently established and the prayer for divorce, as made, is declined. 4. Notice was issued to the respondent-wife. Mr. Mahipal has put in appearance on her behalf. 5. Mr. Amar Vivek, Advocate, appearing for the appellant would submit that wife does not seem to be interested/keen in continuing this marital relationship and it is but appropriate that the marriage is brought to an end by allowing this appeal. In this regard, he would heavily rely upon the conduct of the respondent-wife wherein she after filing reply did not appear to contest the divorce petition. It is seen that after denying the allegations made in the petition through reply, the wife did not participate in the proceedings subsequently and remained absent throughout. She also did not lead any evidence in support of her stand before the Court. The case accordingly has been decided on the basis of evidence led by the appellant alone. The learned counsel otherwise could not make any submission regarding the finding returned by the trial Court explaining the meaning of word "cohabitation" etc. but he would say that this marriage would not work and as such technicalities should not be allowed to stand in the way of the parties to have their separate course in the lives. He would further say that the overall behaviour of the wife would lead to a mental cruelty towards the appellant- husband in any case, even if it is assumed that cohabitation may not mean a sexual relationship as held. According to the counsel, the aspect of denial of sexual relationship was one part of overall behaviour of the wife. He would further say that the overall behaviour of the wife would lead to a mental cruelty towards the appellant- husband in any case, even if it is assumed that cohabitation may not mean a sexual relationship as held. According to the counsel, the aspect of denial of sexual relationship was one part of overall behaviour of the wife. He would refer to the observations made in the case of Praveen Mehta v. Inderjit Mehta, 2002 (2) HLR 513 : (AIR 2002 SC 2582) to say that cruelty is a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. As is observed by the Hon ble Supreme Court in this case, mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other and unlike a case of physical cruelty, it is difficult to establish the fact of mental cruelty by any direct evidence. This accordingly is to be drawn as a matter of inference from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. It is accordingly observed by the Hon ble Supreme Court that in case of mental cruelty, it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. 6. The trial Court has dislodged the appellant pursuit to obtain divorce mainly by interpreting the meaning of word "cohabitation," which was found to mean living together etc. and not sexual intercourse. This finding is recorded by referring to a judgment referred to above. The words "cohabitation" and "consortium" were considered in detail by the High Court of Delhi in Harvinder Kaurs case (supra). In this case reference was also made to the judgments of Evans v. Evans, 1948 (1) KB 175 and Thomass case (supra). and not sexual intercourse. This finding is recorded by referring to a judgment referred to above. The words "cohabitation" and "consortium" were considered in detail by the High Court of Delhi in Harvinder Kaurs case (supra). In this case reference was also made to the judgments of Evans v. Evans, 1948 (1) KB 175 and Thomass case (supra). These two English cases mainly arose out of maintenance order, which was made in favour of wife, who has obtained the maintenance order against her husband under the summary jurisdiction (the Married Women Act, 1895), as amended on the ground of desertion and cruelty but continued thereafter to reside under her husbands roof in a house in which he also resides. In this context, the words "residence" and "cohabitation" came up for consideration before the Court. The Act made a provision for ceasing the order of maintenance on resumption of cohabitation. In this context, it is held :- "Cohabitation implies a state of affairs very different from that of mere residence. It must mean that wife is acting as a wife and has kept her status and position as a wife. I am not using the word "status" in the very technical sense, what is meant by cohabitation is that the wife has kept her position as a wife; is rendering wifely services to him and is acknowledged by the husband to be his wife. Of course the parties can cohabit, without there being sexual intercourse between them; although as a rule there is such intercourse if the parties are competent or of an age when sexual intercourse is likely to take place, but there may be cohabitation without sexual intercourse. Husband and wife cohabit by living together as husband and wife, the husband behaving as a husband and the wife behaving as a wife, doing housewifely duties." 7. This aspect again came up for consideration in the case of Thomas (supra) where while referring to Evans case (supra), Lord Goddard, C.J. reiterated as under :- "Cohabitation does not necessarily depend upon whether there is sexual intercourse between husband and wife. This aspect again came up for consideration in the case of Thomas (supra) where while referring to Evans case (supra), Lord Goddard, C.J. reiterated as under :- "Cohabitation does not necessarily depend upon whether there is sexual intercourse between husband and wife. "Cohabitation" means living together as husband and wife; and, as I endeavoured to point out in Evans v. Evans (2), cohabitation consists in the husband acting as a husband towards the wife and the wife acting was a wife towards the husband, the wife rendering housewifely duties to the husband and the husband cherishing and supporting his wife as a husband should. Of course, sexual intercourse usually take place between parties of moderate age if they are cohabiting, and if there is sexual intercourse it is very strong evidence - in fact it may be conclusive evidence - that they are cohabiting; but it does not follow that because they do not have sexual intercourse they are not cohabiting. "Cohabiting," as I have said, means the husband and wife living together as husband and wife." 8. Accordingly, word "cohabitation" has been defined in Harinder Kaurs case (supra) not necessarily depending upon sexual intercourse between husband and wife and manner of living together as husband and wife. In addition, the Court in this case also endeavour to explain the meaning of word "consortium" as under :- "13. "Consortium" means "companionship, love, affection, comfort, mutual services, sexual intercourse. All these belong to the married state. Taken together they make up consortium." Consortium has been defined as "a partnership or association; but in the matrimonial sense it implies much more than these rather cold words suggest. It involves a sharing of two lives, a sharing of joys and sorrows of each party, of their successes and disappointments. In its fullest sense it implies a companionship between each of them, entertainment of mutual friends, sexual intercourse - all those elements which, when combined, justify the old common law dictum that a man and his wife are one person" (Crabtree v. Crabtree (No. 2), (1964) Australian LR 820, per Selby, J. at p. 821)." 9. Having given meaning to "cohabitation" and "consortium," the Court, in Harinder Kaurs case (supra), held that from the definition of these two words, it appears that sexual intercourse is one of the elements that goes to make up the marriage but it is not the summum bonum. Having given meaning to "cohabitation" and "consortium," the Court, in Harinder Kaurs case (supra), held that from the definition of these two words, it appears that sexual intercourse is one of the elements that goes to make up the marriage but it is not the summum bonum. In Maung Maungs case (supra), it was said that cohabitation mean dwelling or living together. It was further observed that Assistant District Judge had used the expression "secret and clandestine cohabitation," which was found to be in a wrong sense as this is contradiction in a term." This appears to have been explained in that sense only and was apparently emphasised to show that by using the words "secret and clandestine cohabitation," the term "cohabitation" has been misapplied. From the above, it can be noticed that "Cohabitation" may mean living together in a matrimonial home in amity. Though cohabitation means living together as husband and wife and necessarily does not depend upon sexual intercourse between the husband and the wife but it may not be possible to say that cohabitation would mean only living together and would exclude sexual relationship. 10. It can be seen that relationship between the appellant and his wife were not normal. They have stayed together for a very short duration. The allegation is that wife has not allowed the appellant to have a normal sexual relationship. The appellant may not have been wise enough to make clear averment in this regard. It would appear that he obviously meant to convey that he was denied normal sexual relationship by his wife when he averred that he was not permitted to cohabit marriage. The allegation is that wife has not allowed the appellant to have a normal sexual relationship with her. This aspect perhaps would have come out clearly if the wife had further participated to support her stand and had faced cross-examination. The appellant is done (sic) by the word "cohabit" instead of clearly saying that he was not allowed to consummate marriage. This may not require any elaborate or further discussion in factual background of this case. The wife is still not interested in contesting the appeal. The appellant is done (sic) by the word "cohabit" instead of clearly saying that he was not allowed to consummate marriage. This may not require any elaborate or further discussion in factual background of this case. The wife is still not interested in contesting the appeal. Learned counsel appearing for the wife, on receipt of instructions from the attorney of respondent-wife, would say that even respondent-wife is not keen to continue with this relationship and accordingly had not participated to contest this divorce petition before the trial Court after filing reply. There is, thus, no use to pend this appeal and make the parties to live with this broken relationship awaiting the outcome of the appeal. The plea of the appellant that the respondent-wife did not allow him to cohabit marriage, cannot be read to assign a meaning that plea of denial of sexual relationship is not made. The overall behaviour of the wife which has been established by the unrebutted evidence of the appellant would go to show mental cruelty on her part towards the husband. Since the wife has not come forward to contest the appeal and also did not seriously contest the divorce petition, the plea of the appellant is not negatived from the evidence and material on record. 11. The appeal is allowed. The judgment dated 19-7-2007 is set aside and the divorce petition filed by the appellant is allowed. Decree sheet be prepared accordingly.