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3. Repudiating the averments in the Original Petition, the respondent has filed a counter affidavit before the Family Court contending inter alia that the parents of the appellant did not present her 18 sovereigns of gold ornaments and house hold articles worth Rs.15,000/- at the time of marriage, as contended by the appellant. It was further stated that at the time when the appellant left the matrimonial home during the last week of August 1996, she had taken with her all the belongings including the gold ornaments. According to the respondent, it is not correct to state that the respondent was admitted in the hospital on 01.06.1996 without the knowledge of the appellant. On the other hand, the respondent got admitted in the hospital with the knowledge of the appellant as the respondent had pain in his private part at the time of having sexual intercourse with the appellant. Therefore, after discussion with the appellant, the respondent got admitted in the hospital and during the course of such hospitalisation, the respondent underwent a minor surgery called as circumcision by which the overgrown upper skin in his private part was removed by a surgical procedure. Even during the course of hospitalisation of the respondent, the parents of the appellant also met the respondent in the hospital. Therefore, it cannot be gainsaid that the respondent was admitted in the hospital and taken treatment for his sexual inability. Further, soon after the marriage and after the discharge from the hospital, both the appellant and the respondent had sexual intercourse on several occasion. However, due to the ill-advise given by the parents of the appellant, the appellant left the matrimonial company of the respondent during the last week of August 1996. The respondent never demanded any dowry either in the form of cash or in kind, as alleged by the appellant. The respondent is earning substantially through his employment and therefore the question of demanding dowry and on refusal, the respondent harassed the appellant is without any basis. It was further stated that as the notice dated 07.06.1997 was sent by the appellant with false and untenable averments, he did not send any reply thereof. Above all, it was specifically stated that the respondent is not impotent, as alleged by the appellant and he is ready to subject himself to medical examination to prove his potency, if directed by the Court. The marriage was consummated and the desertion of the appellant from the matrimonial company of the respondent is voluntary and without any just or sufficient cause. The respondent is ready and willing to live with the appellant and therefore he prayed for dismissal of the Original Petition.

6. The learned Senior counsel for the appellant would further contend that narrating the ordeal the appellant had confronted in the matrimonial home, she had sent a legal notice on 07.06.1997 inter alia contended that the marriage itself is a nullity by reason of the inability of the respondent to perform sexual intercourse with her. Even though the notice dated 07.06.1997 was received, the respondent has not chosen to send any reply. However, before the Family Court, a defence was taken by the respondent as if he was admitted in the hospital with the knowledge and consent of the appellant due to pain in his private part and he had underwent a minor surgery called circumcision for removal of overgrown upper skin in his private part. If it is so, the respondent would have produced medical records to prove the nature of treatment taken by him during the course of his hospitalisation from 01.06.1996 till his discharge on 05.06.1996, however, no such records has been produced by the respondent. This would only show that the respondent did not take treatment in the hospital and underwent a circumcision surgery, as alleged, rather, he had taken treatment for his inability to perform sexual intercourse, as pleaded by the appellant in the Original Petition. In any event, when a defence was taken by the respondent with respect to the nature of treatment taken by him and when it was not proved by any documentary evidence, the Family Court ought to have taken an adverse inference against the respondent.

12. Countering the submissions of the learned Senior counsel for the appellant, the learned counsel for the respondent would contend that the marriage between the appellant and the respondent was solemnised on 27.05.1996. After the marriage, the respondent had sexual intercourse with the appellant and at that time, he felt pain in his private parts. Therefore, with the knowledge of the appellant, he got himself admitted in the hospital and underwent a minor surgical procedure called Circumcision. The respondent did not take any treatment for his sexual inability as alleged by the appellant. The respondent did not suppress his ailment to the appellant as alleged by her and in fact her parents met the respondent in the hospital while he was taking treatment. Further, after discharge from the hospital, the respondent had sexual intercourse with the appellant and therefore, according to the learned counsel for the respondent, it cannot be said that the marriage was not consummated. In such circumstances, according to the learned counsel for the respondent, the desertion of the appellant from the matrimonial home is without any just and sufficient cause.

18. The respondent repudiated the averments contained in the Original Petition filed by the appellant by filing a counter affidavit. According to the respondent, he was admitted in the hospital for five days with the knowledge and consent of the appellant, for, he suffered acute pain in his private part owing to overgrown skin in his private part. For such ailment, he underwent a surgical procedure called Circumcision to remove such overgrown skin and it has nothing to do with his ability or inability to perform sexual intercourse with the appellant. According to the respondent, soon after the marriage and after discharge from the hospital, he had sexual intercourse with the appellant and the averment that the marriage was not consummated is an utter false. It was also contended by the respondent that even during the pendency of the Original Petition, he subjected himself to medical examination and the Doctors who examined him had given a clean chit with respect to his ability to perform sexual intercourse. On the other hand, inspite of a direction issued by the Family Court, the appellant did not subject herself to medical examination to prove that she remains a virgin even after her marriage with the respondent. While so, the foundation on which the Original Petition has been filed by the respondent had fallen to ground. The Family Court, taking note of the above facts, has rightly refused to grant a decree of divorce.