JUDGMENT : A.M. Shaffique, J. 1. This appeal has been filed by the respondent in O.P. No. 59/2009 on the file of the Family Court, Kalpetta. The Family Court allowed the petition filed by the respondent herein for divorce u/s. 27(1)(b) and (d) of the Special Marriage Act, 1954. 2. The short facts that has arisen in the matter are as under and the parties are referred to as shown in the Original Petition:- The parties got married in the year 1980 and they have a child who has become a major now. For quite a long time, they were residing in Germany and they had come back and started residing in Waynad in the year 1997. The case of the petitioner is that she had come to know that the respondent maintained a peculiar life style and got strange ideas about married life and according to him, sex is only for procreation and not for pleasure. According to her, she was denied sex for a long number of years and that apart, he does not want to move out. She also contends that he continued to reside in Sulthanbathery which clearly amounts to desertion. 3. The appellant denied the aforesaid allegations. According to him, he could not have sex with her after quite some time since he had acute diabetes on account of which he was unable to perform sex. At the time of filing the petition, he was aged 58 and she was 51. He also contended that in the year 2006, she deserted him by staying at Mysore and it is not a case where he has deserted her. 4. Before the Family Court, petitioner/respondent herein was examined as RW-1. 5. The Family Court found that the case set up by the petitioner has been proved as the respondent virtually admits that he is unable to have sex which amounts to mental cruelty and therefore granted divorce as sought for. There is no finding regarding desertion against the appellant. 6. The short question to be considered is whether the Family Court was justified in granting divorce in a similar situation. The evidence of RW1 read with the certificate which he had produced as Ext.B1 clearly proves the medical condition of the appellant. Ext.B1 is the certificate issued by Dr. Ferdinent Danam, B.H.M.S. The certificate reads as under:- “I hereby certify that Sri. The evidence of RW1 read with the certificate which he had produced as Ext.B1 clearly proves the medical condition of the appellant. Ext.B1 is the certificate issued by Dr. Ferdinent Danam, B.H.M.S. The certificate reads as under:- “I hereby certify that Sri. Dieter Gross Kopf, aged 58 yrs. residing at Grace Villa, Narikundu P.O. Wayanad, Kerala is suffering from severe diabetes since last 10 years and his blood sugar level frequently reaches above 500 mg/-. So he has often kidney problems and stiff knees and feet. His sexual ability is extremely limited and is suffering from impotency due to diabetes.” 7. In the certificate, it is clearly stated that on account of various ailments, the appellant’s sexual ability is extremely limited and he is suffering from impotency due to diabetes. When this fact is known, no divorce could be granted on the ground of mental cruelty. Mental cruelty can occur only if an able body person fails to perform sex though he is able to have the marital relationship and cohabitation. That is not the instance here. Here, there is evidence to prove that he is suffering from an ailment which ultimately has caused impotency. Therefore, we are of the view that no case of mental cruelty had been made out as stated by the Family Court. The Family Court had taken a different view purely based on the factual circumstances and current situation. If a person gets infected with a disease and loses his capability of sexual act, it does not amount to cruelty. That apart, it is relevant to note that the couple was aged 58 and 51 at the time of filing the petition. Under such circumstances, we are of the view that the appeal ought to be allowed. 8. Accordingly, the appeal is allowed. The judgment in O.P. No. 59/2009 on the file of Family Court, Kalpetta is set aside and O.P. No. 59/2009 stands dismissed. No costs.