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2. First I propose to deal with the appeal bearing Mat.App.41/2008 wherein the challenge has been made by the appellant to the decree of divorce passed by the learned trial court as the fate of other appeal filed by the appellant bearing FAO No.233/2003 would depend on the outcome of the decision in Mat.App.41/2008.

3. Brief facts of the case relevant for deciding the present appeals are that the appellant husband had invited matrimonial alliance through a newspaper advertisement seeking a working wife in response to which the bio data of the respondent wife was received and consequently the marriage between the parties was solemnized on 28.5.2001 in accordance with Hindu rites and ceremonies. The respondent wife besides citing other instances of neglect by the appellant claimed that the marriage between the parties was not consummated which caused her mental cruelty on account of which she filed a petition for divorce under Section 13(1)(ia) of the HMA. The grievance raised by the appellant husband on the other hand is that the respondent wife duped him by falsely projecting herself to be a working woman and due to which after marriage he refused to have any relationship with her till the time she produced the requisite certificates. Vide judgment and decree dated 23.1.2008 , the learned trial court passed a decree of divorce thereby dissolving the marriage between the parties and feeling aggrieved with the same, the appellant has preferred the present appeal.

5. Counsel for the respondent, on the other hand, supported the decree of divorce passed by the learned trial court. Counsel argued that the respondent-wife was treated by the appellant-husband with cruelty both physically and mentally, as he failed to discharge his matrimonial obligations to consummate the marriage. Counsel for the respondent contended that in fact the appellant had humiliated and insulted the respondent by repeatedly refusing to have sex with her on false and flimsy grounds. Counsel further argued that the appellant-husband in fact has admitted in his pleadings that he had retracted his relationship with the respondent till she produced the requisite certificates of her educational qualification and of employment. Counsel also argued that the stand of the appellant stating that the marriage was consummated in the very first hour after arrival of the „Doli‟ cannot be accepted, as the brother of the respondent had accompanied the doli and was present in the matrimonial home throughout after arrival of the doli. Counsel for the respondent also argued that the appellant deliberately did not produce the report of his medical examination which led the learned trial court to observe that the appellant withheld the first available evidence from the court by not disclosing the result of his medical examination. Counsel also submitted that the appellant himself admitted in his evidence that he came to know about the respondent leaving her job a week prior to the marriage. The contention of counsel for the respondent was that after having known the said fact of non-employment of the respondent-wife, the appellant had proceeded ahead with the marriage, but then immediately after the marriage made it a big issue, to break the matrimony on the alleged ground of non-supply of educational certificates by the respondent. Counsel further submitted that the respondent did not make any misrepresentation in her bio-data as on the relevant date she was in employment with Infotech Institute and she had also appeared for her final year examination of MCA from IGNOU which she later qualified and the said MCA certificate was duly proved on record by the respondent as Ex.PW-R2. Counsel for the respondent thus submitted that the conduct of appellant-husband towards the respondent wife was utterly cruel; both physically and mentally, as he denied a normal sexual life to his wife without any justifiable reasons.

10. The learned trial court, after evaluating the pleadings of the parties and the evidence adduced by them in support of their respective stands, concluded that the respondent-wife was able to prove that the appellant did not consummate the marriage purposely and did not behave like a newly married man. The learned trial court also held that though the appellant-husband took a stand that the marriage was consummated, but this fact could not be proved on record by him because no specific suggestion was given by him to the respondent in this regard and secondly it was admitted by him by way of pleadings and evidence that he had taken a decision to refuse to have any kind of relationship with his wife on the ground that she should first prove her bio-data and show her certificates so that he can make efforts to generate some employment for her to supplement his income. Taking note of such attitude and conduct of the appellant, the learned trial court found that it was clear that the appellant was not interested in establishing marital relations with the respondent and he was more interested to have earnings of his wife. The trial court also observed that such a conduct and behaviour of the appellant-husband has no justification and instead of building the relationship with his wife, he demolished the same without any sufficient reasons. The trial court also did not find any valid justification given by the appellant in taking the stand that there was no opportunity for him at Shimla to have sexual relationship with his wife as the children of brother and sister of the respondent were staying in the same room and thus such a plea taken by the appellant would have no meaning in view of his admission taking a categorical stand of not to have any physical relation with his wife till she does not show her educational and employment certificates.

Hence, it would be evident from above that willful denial of sexual intercourse constitutes mental cruelty.

15. Adverting to the facts of the present case in the background of abovestated legal principles, it would be seen that the parties had stayed together only for a very short period after their marriage from 26.5.2001 till 29.6.2001/1.7.2001 although the appellant took a stand that the marriage was consummated on the very first day on the arrival of the doli and through this stand he sought to demolish the version of the respondent pleading non- consummation of marriage between the parties. The version of the appellant that the marriage was consummated on the very first day, even if believed to be correct would not come to his rescue and be a viable justification for his future conduct when he admittedly did not make any effort to have physical relationship with the respondent despite having various opportunities and on the contrary avoided the respondent wife. The parties had gone to Shimla together and that was the opportune time when both the parties could come close to each other by establishing a bond by physical relationship. It is thus a clear cut case of deliberate avoidance by the appellant to maintain distance from his wife by not establishing any kind of physical relationship. The appellant in his written statement and in the evidence has not denied the fact that he had refused to establish any physical relationship with the respondent till she produces the requisite certificates of her employment and of her educational qualification. Thus, the conduct of the appellant is certainly atrocious and cruel towards the respondent as to put such an unreasonable condition, i.e., first production of the requisite certificates of qualification and then to establish a physical relationship.