JUDGMENT Chauhan, J. -- 1. This appeal under section 28(1) of the Hindu Marriage Act, 1955 has been preferred by the appellant being aggrieved by the judgment and decree dated 30.10.2003 passed by the Additional District Judge, Sohagpur, District Hoshangabad in Civil Suit No.22-A/2000, whereby the divorce petition filed by the appellant has been dismissed. 2. The facts of the case in short are that on 3.6.1998 the appellant and respondent entered into sacrament tie of wedlock according to Hindu rites and thereafter the respondent-wife was brought to matrimonial home. The time when consummation of marriage or cohabitation came, the respondent-wife turned into inaccessibility and refused to have sexual intercourse on the ground that the marriage was, in fact, solemnized against her volition and wishes by her parents. She was desirous to marry according to her own choice after completing her study. Therefore, she would not provide the appellant pleasure, love and affection of a married wife, hence it would be better to protect her chastity. No cohabitation could take place. On second turn, when again she came to the nuptial home she reiterated the same and asked him to get marriage dissolved according to law otherwise she would take recourse of negative approach by making allegations of demand of dowry against him. On the third turn also, the situation remained the same. Seeing her hostile attitude, the appellant could not have sexual relations with his wife. He maintained the honour of her chastity throughout the period when she lived together with him in the matrimonial home. The appellant made every endeavour to change her mentality but failed and she remained firm and determined to her own thought. On 21.6.1998 she went back to her parental house with her brother when the appellant had gone to Shivpuri and since then she never returned back in spite of the efforts made by the appellant and his family members. Thus, two years have been elapsed since the time when she left her matrimonial house. Thus, on the ground of cruelty and desertion appellant filed petition under section 13 of the Hindu Marriage Act, 1955 to dissolve the marriage solemnized in between them. 3. The respondent filed the written statement danying the allegations made in the petition mainly contending that she has never refused or abstained from cohabitation with the appellant-husband. Thus, on the ground of cruelty and desertion appellant filed petition under section 13 of the Hindu Marriage Act, 1955 to dissolve the marriage solemnized in between them. 3. The respondent filed the written statement danying the allegations made in the petition mainly contending that she has never refused or abstained from cohabitation with the appellant-husband. After the very time of marriage she was subjected to cruelty on the ground of insufficiency of dowry being fetched in marriage, therefore, she drove out of the house by the appellant and his family members. She lodged the report at police station Piparia where the offence under section 498A of Indian Penal Code against the appellant has been registered and the case is pending in the concerned Court. Hence, no ground of divorce is made out and the petition deserves to be dismissed. 4. On the basis of the pleadings of the parties, the issues were framed. Plaintiff-appellant adduced the evidence but defendant-respondent did not enter into witness box to adduce any evidence. After appreciation of the evidence, trial Court found that no case for divorce is made out and dismissed the petition. Being aggrieved by the impugned judgment and decree, the instant appeal has been preferred on the grounds mentioned in the memo of appeal. 5. Shri San jay Dwivedi, learned counsel for the appellant submitted that the Court below has not appreciated the evidence in proper perspective. The evidence led by appellant remained intact throughout and the respondent has not produced any evidence in rebuttal. In such situation, the allegations made in reply by her ought not to have been taken into consideration for the purpose of rebuttal of cogent and clinching evidence led by the appellant-husband. It has been proved that no cohabitation took place in between them on account of non-cooperation and hostile attitude of the respondent and this amounts to mental cruelty to him. Similarly, she has deserted appellant and has never returned to the matrimonial house in spite of efforts of appellant and his family members. She has deserted the appellant for a continuous period of more than two years without any cause. The appellant has proved the grounds of cruelty and desertion, in spite of the Court below has erroneously dismissed the petition. 6. No one appeared on behalf of the respondent-defendant in spite of the SPC issued. 7. She has deserted the appellant for a continuous period of more than two years without any cause. The appellant has proved the grounds of cruelty and desertion, in spite of the Court below has erroneously dismissed the petition. 6. No one appeared on behalf of the respondent-defendant in spite of the SPC issued. 7. The main point for consideration in this appeal is that whether the Court below has committed any illegality in dismissing the petition filed by appellant-plaintiff under section 13 of the Hindu Marriage Act, 1955. 8. Appellant-plaintiff Raman Kumar (AW1) has deposed that the marriage was solemnized on 3.6.1998 according to Hindu rites. Thereafter respondent came to her matrimonial house. At that time she told him that this marriage has been performed against her wishes and she refused to have sexual intercourse with the appellant, therefore, he did not cohabit with her. Her behaviour was not good which caused mental agony to him. 9. This witness has further deposed that respondent has gone to her parental house on 26.6.1998 since then she never returned. Thereafter when he went there to bring her back to her matrimonial house she threatened her to implicate him in the dowry case. She lodged FIR (Ex.P-1) against the appellant under section 498A of IPC. She has also filed an application (Ex.P-2) under section 125 of the Code of Criminal Procedure in the Court at Chhindwara. 10. This witness has been subjected to piercing cross-examination wherein he has stated that the respondent-defendant remained with him for a period of 13 days but no cohabitation took place during this period of her stay at the matrimonial house. This witness has further stated that he told this fact to his friends Rakesh and Naresh that the respondent-defendant refused him to have sexual intercourse with her. Naresh Singh Rajput (A W2) has also supported this fact. 11. Thus, the evidence of Raman Kumar (AW1) finds support from the evidence of Naresh Singh Rajpur (AW2). Nothing has been brought in the cross-examination to discredit their testimony. 12. Respondent-defendant Bhavna has not appeared in witness box to rebut the evidence on her behalf, therefore, the evidence led by appellant is unrebutted and the allegations made by respondent-defendant. 13. Cruelty is a ground of divorce under section 13(1)(a) of the Hindu Marriage Act. We will consider whether this ground has been proved or not. 14. 12. Respondent-defendant Bhavna has not appeared in witness box to rebut the evidence on her behalf, therefore, the evidence led by appellant is unrebutted and the allegations made by respondent-defendant. 13. Cruelty is a ground of divorce under section 13(1)(a) of the Hindu Marriage Act. We will consider whether this ground has been proved or not. 14. In Dastane v. Dastane [ AIR 1975 SC 1534 ], the Supreme Court has observed thus: "that where an allegation of cruelty is made, the inquiry in any case covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. It was also pointed out that it was not necessary, as under the English law, that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. What was required was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent." 15. In Shobha Rani v. Madhukar Reddi [ AIR 1988 SC 121 ], the Supreme Court examined the sub-section 13(1)(ia) of the Act and stated the proper approach to cases of cruelty and reiterated the legal position abiding after the Amending Act of 1976. In this case (demand of dowry by parents of husband with the support of the husband), it was held that the demand of dowry was prohibited by law and that the totality of the facts and circumstances of the case justified the inference of cruelty. It was also observed that there could be cases where the conduct complained of itself may be 'bad enough and per se unlawful or illegal'. It was also observed that there could be cases where the conduct complained of itself may be 'bad enough and per se unlawful or illegal'. It was also observed that there could be cases where the conduct complained of itself may be 'bad enough and per se unlawful or illegal'. It was also observed that there could be cases where the conduct complained of itself may be 'bad enough and per se unlawful or illegal'. Then the impact or the injurious effect on the other spouse need not be inquired into or considered. In such cases, cruelty will be established, if the conduct itself is proved or admitted. 16. In Rita Nijhawan v. Balkishan Nijhawan [AIR 1973 Delhi 200 at p.209], a Division Bench of Delhi High Court had examined the similar issues and arrived at following conclusions: "Thus, the law is well settled that if either of the parties to a marriage being a healthy physical capacity refuses to have sexual intercourse the same would amount to cruelty entitling the other party to a decree. In our opinion it would not make any difference in law whether denial of sexual intercourse is the result of sexual weakness of the respondent disabling him from having a sexual union with the appellant, or it is because of any willful refusal by the respondent, this is because in either case the result is the same namely frustration and misery to the appellant due to denial of normal sexual life and hence 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 disappointment in sexual intercourse." 17. In Smt. Shakuntala Kumari v. Om Prakash Ghai [AIR 1981 Delhi 53], it has been held thus : "A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. It must be recognised that nothing is more fatal to marriage than disappointment in sexual intercourse." 17. In Smt. Shakuntala Kumari v. Om Prakash Ghai [AIR 1981 Delhi 53], it has been held thus : "A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible "due to ill-health on the part of one of the spouses, it mayor may not amount to cruelty depending on the circumstances of the case. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it would amount to mental cruelty, especially when the parties are young and newly married." 18. In Smt. Maya v. Brij Nath [AIR 1982 Delhi 240], while dealing with the concept of cruelty in the Hindu Marriage Act, the Court observed as under : ""Cruelty has not been defined in the Act. But it is now well settled that the conduct should be grave and weighty so as to make cohabitation virtually unendurable. It must be more serious than the ordinary wear and tear of marriage. The cumulative conduct taking into consideration the circumstances and the background of the parties has to be examined to reach a conclusion whether the act amounts to cruelty. The petitioner in a divorce petition has to prove that he was treated with cruelty. The burden of proving the cruelty lies on him." 19. The Hon'ble Supreme Court in the case of V. Bhagat v. Mrs. D. Bhagat [AIR 1994 SC 7 10], has defined mental cruelty in the following manner: "Mental cruelty in S.13(1)(ia) 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 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. In other words, mental cruelty must be of such a nature that the parties 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. 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." 20. If we revert to the fact of the present case, it is abundantly clear that general conduct and behaviour of the respondent-wife has been far from being normal. She has not permitted the respondent to have normal sexual relationship. . 21. In Mahini Chawla v. Subhash Chander Chawla [AIR 2009 P & H 33], it has been held that: "This goes a long way to prove that there was no sexual activity between the appellant and the respondent which would amount to mental as well as physical cruelty to the respondent. It has further come on record that the appellant after her return from Delhi to village Anwal, had remained with the respondent for one night only on each occasion in August and October, 2001 and on those days also, there was no sexual relationship between them. Therefore, the cruelty on the part of the appellant-wife stands proved which alone is a good ground for the grant of decree of divorce." 22. In the light of the aforesaid pronouncements and the evidence adduced in the case, it is manifestly clear that respondent refused from the very beginning to have sexual intercourse by the appellant with her. This amounts to mental cruelty, therefore, the appellant has proved the ground of cruelty. On the basis of which he is entitled for decree of divorce. 23. This amounts to mental cruelty, therefore, the appellant has proved the ground of cruelty. On the basis of which he is entitled for decree of divorce. 23. The appellant has also led the evidence that respondent has deserted her without any cause for a continuous period of more than two years. Thus he also sought the decree of divorce on the ground of desertion. Desertion has not been defined in any statute. However, the essential ingredients of desertion are (i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end (animus deserendi). 24. In Bipin Chander v. Prabhawati [AIR 1975 SC 176], the Supreme Court, after posing the question 'What is desertion?', observed that the legal position had been admirably summarized in Halsbury's Laws of England, 3rd Edn. Vol. 12, paras 453-54. The quote is attributed to two paras in Halsbury's but four paras are given here: "In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion." 25. In Rohini Kumari v. Narendra Singh [ AIR 1972 SC 459 ], it has been held by the Court that: "desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is total repudiation of the obligation of the marriage." 26. In Rohini Kumari v. Narendra Singh [ AIR 1972 SC 459 ], it has been held by the Court that: "desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is total repudiation of the obligation of the marriage." 26. In Nirmala v. Vasdev Pardsam [ 1978 RLR 97 ], it has been held that : "If wife leaves matrimonial home for her parents' house and does not return and join her husband for more than two years, without any reasonable excuse, then she is guilty of desertion. Earlier desertion if condoned by resumption of cohabitation gets only obscured and is not obliterated altogether and may be considered towards wife's previous conduct." 27. Thus, in the light of the aforesaid pronouncements and the evidence adduced in this case, it is manifestly clear that the respondent had gone to her parental house on 26.6.1998 and never returned to her matrimonial house. She has given the threatening to involve him in the false case of dowry. She has also lodged the report under section 498A of IPC and also filed an application under section 125 of CrPC. These things indicate that the marriage between the parties has been irretrievably broken down completely and practically there is no chance of revival, making them possible to live together in future. Therefore, on the ground of desertion also the appellant is entitled to get the decree of divorce. 28. On foregoing discussion, we find that the findings of the Court below are erroneous which deserves to be set aside. 29. Consequently, the appeal succeeds and is allowed. The judgment and decree passed by the Court below is hereby set aside. The petition filed under section 13(1)(a) and 13(1)(b) of the Hindu Marriage Act, 1955 is hereby allowed. Accordingly, the marriage solemnized in between the parties on 3.6.1998 is hereby dissolved by the decree of divorce. Counsel's fee is quantified as per schedule. Decree be drawn up accordingly.