Judgment Tarlok Singh Chauhan, J. The appellant is the wife and is aggrieved by the judgment and decree passed by the learned District Judge, Shimla, on 20.08.2011 in H.M.A.No.4-S/3 of 2007 whereby the petition filed by the respondent for grant of a decree of divorce and also to declare the marriage between the parties annulled, has been allowed. 2. The facts as are necessary for the adjudication of the appeal may be noticed. The respondent preferred a petition under Sections 12(1) (a), 13(1) (ia) and (ib) of the Hindu Marriage, Act, 1955. It was averred that respondent herein had lost his father long back, who was working with HRTC. After the death of his father, respondent had to seek employment on compassionate grounds with HRTC. The respondent had studied up to 7th standard and had been employed as helper/painter by the HRTC. Sh. Kameshwar Thakur was husband of sister of the appellant, who had been working as carpenter with HRTC. The respondent is from Sood community while appellant is Rajput by caste. The mother of the respondent was old, illiterate and rustic woman. Shri Kameshwar Thakur had been persuading the respondent and his mother for marriage with the appellant and on his persuasion respondent and his mother had consented for marriage. Dowry less marriage had been performed in ‘Butail Dharamshala’, Shimla between the appellant and respondent in accordance with Hindu rites and rituals on 29.06.2002. After marriage, the appellant had accompanied the respondent to his house and had stayed there for about a month. During this period, the appellant did not allow the respondent access to her. The appellant did not agree for marital intercourse. After some time, the appellant left for house of her parents and had stayed with her parents for about 45 days and thereafter returned to the matrimonial house. Even after visiting her parents, appellant did not agree for marital intercourse and she had not been permitting the respondent even to touch her body. The appellant had been insisting for separate accommodation. Since the marriage could not be consummated due to the conduct of the appellant, the respondent had felt intense mental and physical pain, shock and suffering. The respondent had been in depression and had been so observed by his mother. The appellant had been insisting for separate accommodation. Since the marriage could not be consummated due to the conduct of the appellant, the respondent had felt intense mental and physical pain, shock and suffering. The respondent had been in depression and had been so observed by his mother. The mother-in-law of the appellant had observed her unusual conduct and even she was not observed menstruating and when asked to go for a medical check up, the appellant had started picking up quarrel with the respondent and his mother. Respondent’s mother was owner in possession of one old house at Ghanahatti and the parents of the appellant belonged to nearby area. With a view to carry on with his marriage, the respondent was directed to take the appellant to his house at Ghanahatti and even at Ghanahatti, the appellant did not permit the respondent to establish physical contact with her. 3. As per respondent, the appellant started inviting her parents, brothers, sisters and nephews to her house as a result of which the respondent was compelled to sleep in separate room. The appellant had been suffering from mental and physical impotency and she and her family members had not disclosed such disability prior to the marriage. The appellant had treated him with cruelty. The respondent could not consummate his marriage even though he had persuaded the appellant for the purposes a number of times. Respondent had suffered agony and mental as well as physical cruelty at the instance of the appellant. It was also averred that the appellant was found in the company of her brother-in-law Sh. Kameshwar Thakur in doubtful circumstances on 12.09.2003. It so happened that the respondent had reached his house well before off-hours of his duty on 12.09.2003 and had found his premises closed from inside. When respondent knocked at the door, appellant opened the door and the respondent had found Sh. Kameshwar Thakur in the premises. Sh. Kameshwar Thakur had caused hurt to the respondent and he was compelled to sign blank papers, so that his immovable property could be transferred in favour of the appellant. The respondent was wrongfully confined and released on 13.09.2003. The appellant had left the house of her husband on 13.09.2003 and did not return even when requested to do so. The appellant had also lodged false and frivolous complaints against the respondent with a view to hide her fault. The respondent was wrongfully confined and released on 13.09.2003. The appellant had left the house of her husband on 13.09.2003 and did not return even when requested to do so. The appellant had also lodged false and frivolous complaints against the respondent with a view to hide her fault. The marriage of the parties had irretrievably broken down. As per respondent, he was entitled to dissolution of marriage on the grounds of cruelty and desertion. 4. The appellant, who was the respondent below, had resisted the petition on the ground of maintainability in preliminary objections. In reply to paras on merits, the appellant admitted her marriage with the respondent on 29.06.2002 at Shimla. After marriage, the appellant had accompanied the respondent to his house and the marriage between the parties stood consummated. The appellant denied her suffering from mental and physical impotency. After staying for 1½ months with her husband, the appellant had left for the house of her parents. She had stayed there for sometime and had returned to the matrimonial house. The respondent under the influence of liquor used to treat the appellant with cruelty. The appellant tolerated the cruelty meted out to her with the hope that the conduct of her husband would improve. The respondent and her mother had not been treating her well. The appellant denied having been found in doubtful circumstances with her brother-in-law Sh. Kameshwar Thakur at Ghanahatti on 12.09.2003. The respondent had deserted the appellant and she had been compelled to stay with her parents. The appellant having been pushed against the wall by the respondent had complained against the respondent and his sister to the authorities. The respondent neglected her and refused to pay maintenance under Section 125 Cr.P.C. The appellant denied that she ever treated respondent with cruelty at any stage. The respondent had suppressed material facts and he was not entitled to annulment of his marriage on the ground of impotency of the appellant. 5. On the pleadings of the parties, the following issues were framed:- i) Whether the petitioner is entitled to decree of declaration under Section 12 of the Act, as prayed? OPP. ii) If issue No.(i) is not answered in affirmative, whether it is proved on record that the respondent has deserted the company of the husband without any reasonable cause, if so, its effect? OPP. OPP. ii) If issue No.(i) is not answered in affirmative, whether it is proved on record that the respondent has deserted the company of the husband without any reasonable cause, if so, its effect? OPP. iii) If issue No.(i) is not answered in affirmative, whether it is proved on record that the respondent/wife had treated the petitioner with cruelty, if so, its effect? OPP. iv) Whether the petition is not maintainable in the present form? OPR. v) Whether the petitioner has concealed material facts from the court, if so, its effect? OPR. vi) Relief. 6. After recording the evidence and evaluating the same, the learned Court below allowed the petition and annulled the marriage on the ground of impotency of the appellant under Section 12(1)(a) of the Hindu Marriage Act, 1955 (for short ‘the Act’) and further declared that the appellant herein had treated the respondent with cruelty and deserted him for over a period of two years prior to institution of the petition. Therefore, the marriage was dissolved under Section 13(1)(ia) and (ib) of the Act. 7. Aggrieved by the judgment and decree passed by the learned Court below, the appellant has filed the present appeal on the ground that the learned Court below has not correctly appreciated the provisions of law as well the oral and documentary evidence. It is contended by Shri Y.P. Sood, Advocate that the findings regarding impotency of the appellant are contrary to the medical evidence available on the record. It is alleged that the issue of desertion has been dealt with in a very cursory manner without referring evidence and pleadings on the record. It is further contended that the allegations of cruelty have also been dealt with by the learned Court below in a very casual manner. It is claimed that the Court below had failed to take into consideration that the respondent herein had levelled false, baseless allegations against the appellant regarding not only impotency but also her having illicit relations with her brother-in-law which amounted to character assassination. Lastly, it was claimed that the learned Court below has failed to take into consideration the undue delay in filing of the petition at the instance of the respondent herein and therefore, the order deserves to be set aside. 8. Lastly, it was claimed that the learned Court below has failed to take into consideration the undue delay in filing of the petition at the instance of the respondent herein and therefore, the order deserves to be set aside. 8. On the other hand, Shri Ashok K. Sood, Advocate, would contend that the orders passed by the learned Court below are in accordance with law and the learned Court below has, in fact, discussed the pleadings as well the oral and documentary evidence in its right perspective and after appreciating the same and applying the law, the correct findings have been recorded which call for no interference. 9. I have considered the rival submissions of the learned counsel for the parties and gone through the records of the case. It cannot be disputed that sex is one of the purposes of marriage. The institution of marriage believes in consummation of the same. Cohabitation is a corollary. After solemnization of marriage when either sides declare that marriage has not been consummated and cohabitation has not taken place, the very foundation of marriage is crumpled. The importance of active sexual life has been noticed by a Division Bench of the Delhi High Court in Mrs. Rita Nijhawan versus Shri Balkishan Nijhawan AIR 1973 Delhi 200 wherein it was observed as under:- “22. 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 sexual activity in marriage has an extremely favourable influence on a woman’s mind and body. 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 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 recognized that nothing is more fatal to marriage than disappointments in sexual intercourse. 23. The appellant is only in mid thirties. To force the appellant to this life of frustrating and unsatisfied sexual life which would inevitably damage her health both mental and physical is nothing but cruelty…….” 10. The aforesaid observations in Nijhawan’s case (supra) were quoted with approval by the Hon’ble Supreme Court in Vinita Saxena versus Pankaj Pandit (2006) 3 SCC 778 . 11. It is to be borne in mind that a normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. The importance of sex in a married life was emphasized by the Hon’ble Supreme Court in the celebrated judgment of Dastane versus Dastane AIR 1975 SC 1534 wherein it was observed that “sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment”. 12. Coming back to the facts of the case, it will be seen that the respondent in support of his claim had examined eight witnesses. PW-1Radhika was an official of the State Women Commission and had produced on record Ex.PW1/A, Ex.PW1/B and Ex.PW1/C. Ex.PW1/A was the summon issued on the complaint lodged by the mother of the respondent while Ex.PW1/B is the complaint and Ex.PW1/C is the intimation letter. 13. PW-2 Ghanshyam is the Criminal Ahlmad from the Court of learned Additional District and Sessions Judge, Shimla, who has tendered in evidence copy Ex.PW2/A which is the statement of Smt. Shanti Devi (mother of the respondent) from Case File No.47-4 of 2005. PW-3 Raj Kumar is a friend of the respondent and had attended the marriage of the parties and has stated that after her marriage the appellant had started to reside with her parents. PW-3 Raj Kumar is a friend of the respondent and had attended the marriage of the parties and has stated that after her marriage the appellant had started to reside with her parents. However, thereafter he claims that the respondent had started complaining to him regarding appellant not allowing bodily access so as to consummate the marriage and on account of that the respondent had been undergoing a lot of mental tension and agony. 14. PW-4 Rekha is the neighbour, who had landed property near the house of the respondent at Ghanahatti and claimed to have noticed that the appellant and respondent were not staying together and had been constantly fighting with each other. Specific reference has been made to certain incidents which took place on 12th and 13th of September, 2003, on which date it is claimed that the brother-in-law of the appellant had given beatings to the respondent. The respondent had requested PW-4 to send for his mother and in the meanwhile brother-in-law of the appellant also left. 15. PW-5 Harbhajan Singh is stated to be the neighbour of the respondent at Krishna Nagar, Shimla, who claims that after the marriage of the parties, he had noticed that the appellant had resided with her husband for 1 ½ months and thereafter the appellant had not been staying with the respondent. PW-6 Amar Singh is also a neighbour of the respondent at Krishna Nagar, who claims that he had noticed the respondent to be in depression and further claimed that the respondent had even complained to him regarding this fact and further told to him that they have no marital intercourse. Afterwards the parties had started residing in their house at Ghanahatti and even there the parties had not been carrying well. 16. The respondent, on the other hand, appeared as PW-7 and supported his claim as raised by him in the petition by filing a detailed affidavit. To the similar effect is the statement of the sister of the respondent, Smt. Kamlesh Thakur, who appeared as PW-8. The respondent has proved on record the complaint Ex.PW7/C lodged by the respondent’s mother with the local Gram Panchayat. To the similar effect is the statement of the sister of the respondent, Smt. Kamlesh Thakur, who appeared as PW-8. The respondent has proved on record the complaint Ex.PW7/C lodged by the respondent’s mother with the local Gram Panchayat. Ex.PW7/D is a reference of the State Commission for Women addressed to Smt. Shanti Devi, the mother of the respondent, while Ex.PW7/E is the copy of the order dated 17.06.2005 passed by the S.D.M. Ex.PW7/F is the copy of the statement of the appellant recorded by learned JMIC (1), Shimla. Ex. PX-1 is the copy of the complaint dated 06.06.2003 instituted by the appellant at Police Station, Shimla (East). Ex.PX-2 is the copy of another complaint instituted by the appellant at Police Station, Shimla (East). The appellant had charged the respondent with cruelty. Ex.PX is the statement dated 06.06.2002 recorded by learned JMIC (2) in the proceedings under Section 125 Cr.P.C. The appellant had stated that the respondent had neglected and refused to maintain her. 17. As against the evidence of the respondent, the appellant examined three witnesses including herself. She appeared as RW-1 and stated that she had cleared +2 examination while the petitioner was under Middle. She did not deny the fact of her marriage. The appellant contended that the respondent had neglected and refused to maintain her. She further stated that the marriage of the parties stood consummated. It was claimed that the respondent had been treating the appellant with cruelty and had turned her out of his house. The appellant was not prepared for dissolution of marriage. 18. RW-2 Kanta and RW-3 Ram Rattan are the other witnesses examined by the appellant, who have stated that after the marriage, the appellant had been staying with the respondent and the appellant had complained with respect to cruelty being meted out to her. This is the entire evidence led by the parties. 19. Now, the first and foremost question which is required to be considered is as to whether the appellant was impotent or was suffering from impotency. 20. The word “impotency” has not been defined in the Hindu Marriage Act, 1955. This is the entire evidence led by the parties. 19. Now, the first and foremost question which is required to be considered is as to whether the appellant was impotent or was suffering from impotency. 20. The word “impotency” has not been defined in the Hindu Marriage Act, 1955. But, it is a ground to avoid marriage if it is established that at the time of marriage either of spouses was incapable of effecting the consummation either due to structured defect in the organs of the generation rendering complete sexual intercourse impracticable or due to some other cause. The burden of proving impotency of the opposite side would lie on the person making such allegations in order to obtain a decree of nullity of marriage on the ground of impotency as enumerated under Section 12(1)(a) of the Act. The respondent was required to establish that the appellant was impotent at the time of marriage and continued to be so until the institution of the proceedings. However, it must be noted that when impotency is alleged as a ground to declare the marriage between the parties as nullity, it is then the evidence has to be adduced by the person making such allegations, particularly, in the form of expert medical testimony. 21. Impotency is ordinarily understood to mean an incapacity, physical or mental, which admits of neither copulation nor procreation. However, the capacity to copulate and the capacity to procreate are two different capacities and resultant incapacities are also different. It can, therefore, be said that impotency means an incapacity, physical or mental on the part of either spouse to copulate which incapacity is permanent and incurable. 22. In Jayaraj Antony v. Mary Seeniammal, AIR 1967 Mad 242 the Full Bench held impotency as incapacity of consummate marriage, which may be physical or psychological. 23. In Digvijay Singh versus Pratap Kumari, AIR 1970 SC 137 : (1969) 2 SCC 279 the Hon’ble Supreme Court held:- “A party is impotent if his mental or physical condition makes consummation of marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings.” 24. Similarly, a Full Bench of the Delhi High Court in Manjula and S.Desmukh versus Suresh Deshmukh AIR 1979 Delhi 93 while deciding matrimonial reference has discussed ‘impotency’ as under:- “19. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings.” 24. Similarly, a Full Bench of the Delhi High Court in Manjula and S.Desmukh versus Suresh Deshmukh AIR 1979 Delhi 93 while deciding matrimonial reference has discussed ‘impotency’ as under:- “19. Impotence is inability to consummate the marriage and to be a ground for nullity, such inability must exist at the time of marriage and continue to exist at the time of the institution of the suit. For this purpose sexual intercourse has been defined as ordinary and complete intercourse, not partial and imperfect intercourse. If so imperfect as scarcely to be natural, it is no intercourse at all, but recent cases suggest that modern surgery has introduced the need of further scrutiny. Though it has been held that full penetration without ejaculation on at least one occasion amounts to consummation, but more recently another judge decided that penetration for a short time without any ejaculation, did not amount to consummation. See R.v.R. (otherwise F) (1952) 1 All. E.R. 1194 and W (orse K) v. W; (1967) 1 W.L.R. 1554 see Latey on Divorce (1973) 15th ed. P. 225. 20. Impotency means incapacity to consummate she marriage and not merely incapacity for procreation. The test is consummation and capacity to consummate.” 25. A Division Bench of Andhra Pradesh High Court in Smt.Suvarna versus G.M. Achary impotency of spouse, in particular case, vis-à-vis, the other spouse is sufficient. Total impotency need not be proved. 26. Modi’s Textbook on Medical Jurisprudence and Toxicology, Twenty-first Edition, deals with impotency in the following terms:- “Impotence is defined as physical incapacity of accomplishing the sexual act, while sterility means inability for procreation of children. Impotence in males is the persistent inability to develop or maintain a penile creation sufficient to conclude coitus to orgasm and ejaculation. It should be remembered that the term impotence or sexual incapacity in forensic medicine connotes physical incapacity to accomplish the sex act. Impotence has been described in Halsbury’s Laws of England to be such a state of mental or physical condition which makes consummation of the marriage a practical impossibility. An impotent individual need not necessarily be sterile, nor a sterile individual impotent, though both conditions may sometimes be combined in the same individual.” 27. Impotence has been described in Halsbury’s Laws of England to be such a state of mental or physical condition which makes consummation of the marriage a practical impossibility. An impotent individual need not necessarily be sterile, nor a sterile individual impotent, though both conditions may sometimes be combined in the same individual.” 27. There is yet another aspect of impotency which is termed as relative impotency which prescribes that a person suffering from no handicap whatsoever still feels inhibited or incompetent vis-à-vis the particular sexual partner. 28. Therefore, while dealing with a case of impotency the paramount consideration is not only physical incapacity which the Courts are guided but another important fact which is often ignored that the non consummation of marriage could be due to several other circumstances which drives to a situation whereby both the spouses though physically and mentally potent in the normal sense find it impossible to achieve a satisfactory sexual relationship. 29. The respondent has stated that the appellant had been suffering from mental and physical impotency because they had tried to consummate the marriage but without any success. The appellant, on the other hand, had refuted the charges of impotency. 30. On 19.11.2007, the respondent herein preferred an application under Section 151 CPC whereby he had asked for medical examination of the appellant on the ground that this would establish that she was impotent and there had been non consummation of marriage. The appellant had resisted her medical examination and had stated that she had not been suffering from mental or physical impotency and that the marriage between the parties had been consummated. 31. This application was, however, allowed and the appellant was ordered to be examined by a Medical Board. Even the respondent was directed to go in for medical examination. The Medical Officer had reported the respondent to be fit for cohabitation and it was found that he was not suffering from any mental or physical disability rendering marital intercourse impracticable. 32. The appellant had appeared before the Medical Board on 16.01.2008. As on that day she claimed that she was undergoing menstrual cycle, she was directed to appear before the Medical Board on 22.01.2008 at 2.00 p.m. The appellant did not turn up even on 22.01.2008 and was then directed to appear before Dr. Rita Mittal on 23.01.2008. Dr. 32. The appellant had appeared before the Medical Board on 16.01.2008. As on that day she claimed that she was undergoing menstrual cycle, she was directed to appear before the Medical Board on 22.01.2008 at 2.00 p.m. The appellant did not turn up even on 22.01.2008 and was then directed to appear before Dr. Rita Mittal on 23.01.2008. Dr. Rita Mittal in her statement as AW-1 has stated as follows:- “……As per history given by her she was married five years back and during the said period she had not conceived any child. She had also disclosed that there was no history of dyspareunia (painful coitus). She has also disclosed that there was no history of difficult coitus. It was also disclosed by her that she started her menstrual period at the age of 15 years, her menstrual cycle was regular lasting for 4 to 5 days with intervals of 30 days. Her last menstrual period was 13.01.2008. After obtaining the said history we proceeded to medically examine Smt. Manju Thakur. On her medical examination we found that she was phenotypically (by appearance) female. She was average built. We noticed no abnormality on her physical examination. Secondary sex character Her breast was well developed. Axillary and pubic hair were normally present. Her external genitalia was well developed. Her hymen was found ruptured carunculae hymenalis also present. There was a tag of mucosa at hymen (which was resectable). Only one finger could be introduced (speculum) could not be introduced. On per vaginal examination we observed that uterus was retroverted, normal size, firm, mobile and fornices were clear…….” 33. In her cross-examination, Dr. Rita Mittal had explained that impotency was of two types (i) physical (ii) psychogenic and claimed that psychogenic impotency could not be judged merely by physical examination as the same required a detailed study of the patient after obtaining history. It was also claimed that vaginismus means sudden involuntary contraction of the vaginal muscles. However, she had stated that at the time of physical examination of the appellant, she had not found such features in her but could not rule out that such state of affairs could possibly appear at the time of sexual activity. It was also explained that if vaginismus occurs during the course of sexual activity, it becomes quite painful to the female as a result of which she avoids sexual intercourse. It was also explained that if vaginismus occurs during the course of sexual activity, it becomes quite painful to the female as a result of which she avoids sexual intercourse. She admitted that there could be many other causes for the rupture of hymen other than the sexual intercourse. The witness admitted that she could not say with certainty as to whether rupture of the hymen in the case of the appellant was due to coitus or otherwise. 34. What appears from the statement of the Medical Officer is that that the appellant had congenital deformity as the opening of her vagina was too small to allow healthy and complete sexual intercourse and that may be the reason that she had avoided consummation of marriage. On the other hand, as noticed above, the respondent had been found medically fit for cohabitation. 35. It has come on record that the appellant had been given sufficient time and an environ to consummate the marriage at Shimla and then at Ghanahatti, but, one pretext or the other, the appellant appears to have avoided consummation. 36. Notably, it is the respondent, who had preferred the application for referring the appellant for medical examination thereby running the risk of facing similar counter allegations. That is what precisely happened in this case because in the reply filed to this application, the appellant after resisting the claim of the respondent to undergo medical examination made the following averments:- “However, if this Ld. Court comes to the conclusion that medical examination is essential to determine the merit of petition U/S 12 and 13 of the Hindu Marriage Act, the respondent would abide by the directions of this Court for any examination provided the applicant/petitioner satisfies the Ld. Court of his being medically fit at the first instance.” It is on the basis of such reply that both the parties were directed to undergo a medical examination. 37. One fact which clearly emerges from the reply filed by the appellant is that the marriage at least till the date of filing of the reply on 05.12.2007 had not been consummated or else the appellant would not have made such averments and asked for the medical examination of the respondent. Therefore, in this background, the respondent is right in contending that he has not been provided physical access by the appellant and the marriage has not been consummated. 38. Therefore, in this background, the respondent is right in contending that he has not been provided physical access by the appellant and the marriage has not been consummated. 38. It further appears from the record that there has been resistance on the part of the appellant to ward off the attempt of the respondent to have sexual intercourse which can be attributed to be due to the impotency of the wife. The refusal on the part of the wife can give rise to an inference of impotency which may be caused due to variety of reasons like nervousness, hysteria or even invincible repugnancy to the act of consummation resulting in the paralysis of the will. It may also happen that the wife may only be impotent qua the husband and it is not necessary then to establish that the wife is impotent genetically or physically because it is enough that she is impotent qua her husband. Though the burden of proving the plea of impotency is on the person, who alleges the same, but then in so far the present case is concerned, there is evidence that the appellant was not responsive in the matter of sexual relationship for a fairly long period. One must, therefore, assume want or desire and intention on the part of the unresponsive spouse to consummate the marriage. This will go a long way in proving the fact of impotency on the part of the wife. In fact, even persistent refusal to consummate the marriage would lead to an inference of incapacity to have sexual intercourse. Frigidity on the part of spouse to the physical act as in this case is also a form of impotency. 39. Admittedly, the appellant had left the house of the respondent on 13.09.2003 and, therefore, keeping in view the contents of the reply dated 05.12.2007 (supra), it can safely be concluded that till and so long the appellant resided in the house of the respondent, the marriage has not been consummated. 40. Insofar, desertion is concerned, it has come on the record that the appellant had left the house of the respondent on 13.09.2003 and had not returned thereafter. 40. Insofar, desertion is concerned, it has come on the record that the appellant had left the house of the respondent on 13.09.2003 and had not returned thereafter. On 17.05.2008 this case had been listed before the Lok Adalat where a specific statement was made by the appellant to the effect that she was not ready to join the company of the respondent and was ready to go for mutual divorce in case respondent makes payment of `5,00,000/- lump sum on account of maintenance. This clearly proves that the appellant never wanted to reside with the respondent and had deserted him for over a period of two years without any reasonable or plausible cause. 41. Shri Y.P. Sood, learned counsel for the appellant, would then contend that the findings recorded by the learned Court below with respect to cruelty are perverse and, therefore, deserve to be set aside. This submission of the learned counsel for the appellant cannot be accepted. It cannot be disputed that willful denial of sexual relationship by a spouse would amount to cruelty. What is cruelty has been succinctly explained by the Hon’ble Supreme Court in Vinita Saxena’s case (supra) wherein it was held as under:- “Legal proposition on the aspect of cruelty 31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case. 32. The word "cruelty" has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. 33. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance. Judged by the standard of modern civilisation in the background of the cultural heritage and traditions of our society, a young and well-educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony are irrelevant. This view was taken by the Kerala High Court in Rajani v. Subramonian ( AIR 1990 Ker 1 : (1990) 1 DMC 561). 34. In (1993) 2 Hindu LR 637 (sic), the Court had gone to the further extent of observing as follows: "Sometime even a gesture, the angry look, a sugarcoated joke, an ironic overlook may be more cruel than actual beating." 35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered. 36. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered. 36. The legal concept of cruelty which is not defined by the statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relation must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complaints, accusations or taunts. It may be mental such as indifference and frigidity towards the wife, denial of a company to her, hatred and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant's side, ought this appellant to be called on to endure the conduct? From the respondent's side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure. 37. As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. 38. 38. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. 39. The modern view of cruelty of one spouse to another in the eye of the law has been summarised as follows in (1977) 42 DRJ 270 (sic) Halsbury's Laws of England, Vol. 12, 3rd Edn., pp. 270-71: "The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations or taunts. Before coming to a conclusion, the judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from that point of view. In determining what constitutes cruelty regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status." 40. This Court in N.G. Dastane (Dr.) v. S. Dastane (1975) 2 SCC 326 : AIR 1975 SC 1534 observed as under: (SCC p. 338, para 32) "The Court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures."” 42. In Samar Ghosh versus Jaya Ghosh (2007) 4 SCC 511 , the Hon’ble Supreme Court gave a treatise on the subject of cruelty after examining the amplitude of cruelty in different countries and after taking into consideration their judicial trends, the Court also laid down broad parameters which may be relevant in dealing with the case of mental cruelty and the illustrative instances that may constitute mental cruelty which are as under:- “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 43. In A versus B 1996 AIHC 1727, a learned Single Judge of the Kerala High Court held that “refusal on the part of a spouse to indulge in normal sexual intercourse amounts to cruelty”. 44. In Prem Prakash versus Smt. Sarla AIR 1989 Madhya Pradesh 326, the Full Bench of the Madhya Pradesh High Court held that “sex plays important role in a matrimonial life and cannot be separated from other factors leading to a successful married life. Therefore, conduct of the husband or wife which renders the continuous of cohabitation and performance of conjugal duties impossible, amounts to such cruelty”. 45. Therefore, conduct of the husband or wife which renders the continuous of cohabitation and performance of conjugal duties impossible, amounts to such cruelty”. 45. In Shakuntla Kumari versus Om Prakash Ghai AIR 1981 Delhi 53, it was held that “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 may or 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 cruelty, especially when the parties are young and newly married”. 46. Coming to the facts of the case, it has been duly proved on record that the appellant was not responding to the advances of the respondent whereby the respondent had felt intense physical and mental pain, shock and suffering. In fact, the very denial of sex by the appellant amounts to mental cruelty in terms of Section 13(1) (i-a) of the Act. This was so held by the Hon’ble Supreme Court in Shobha Rani versus Madhukar Reddi (1988) 1 SCC 105 reiterated in Sanat Kumar Agarwal versus Nandini Agarwal AIR 1990 SC 594 . 47. Therefore, for all the reasons discussed above, I find no merit in the appeal and the same is dismissed, leaving the parties to bear their own costs.