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14. In her written statement, the respondent-wife apart from challenging the claim of entitlement of either a decree for annulment of the marriage or decree for dissolution of the marriage, also made claim for (1) maintenance for herself; (2) the return of her stridhan property which according to her was being consistently refused to be handed over to her by the husband and the in-laws and (3) provision for adequate residence for her by the petitioner-husband.

15. On these pleadings Family Court framed issues. The first issue was whether the petitioner-husband proved that the marriage had not come to be consummated owing to the relative impotency of the respondent-wife i.e. on account of her coldness, frigidity or aversion for sexual intercourse with the husband. The second material issue was whether the petitioner proved that the respondent-wife had, since the solemnisation of the marriage treated him with cruelty. Both these issues were, upon consideration of the evidences adduced, answer in the negative and the petition came to be dismissed.

17. We have heard learned Counsel Shri Khandeparkar for the petitioner on the plea of entitlement to decree of annulment of the marriage, on the ground that the wife, since the date of marriage, was cold, frigid and therefore relatively impotent towards him; that has resulted in the non-consummation of marriage in spite of his efforts in that behalf. The evidence in this behalf would of course have to be found primarily confined to the versions of the respective petitioner-husband and respondent-wife though it will also be found that the testimony of the petitioner's parents as also the respondent's father and other witnesses does make a significant impact in the totality of the assessment of the evidence on this issue.

19. The first question which therefore arises is whether the coldness and frigidity on the part of the respondent-wife of which the petitioner-husband could be a matter to be determined and concluded solely on his own word when the respondent-wife's evidence is entirely to the contrary.

20. When it is suggested that the respondent-wife was cold and frigid, an inquiry which we made from the learned Counsel was whether in the circumstances any effort had been made for getting the wife herself medically examined to determine the fact of her coldness and frigidity; nothing has been suggested in this behalf and nothing has been brought out also in the evidence which came to be recorded at the trial. We are informed that no effort was made in this behalf to obtain medical opinion as to the mental frame of the respondent-wife, about her aversion to sex and the resultant non-consummation of the marriage. Whether or not, the respondent-wife has been, as alleged, cold and frigid, is according to us a matter to be considered from the time of their association after the betrothal. It is not in dispute that after the marriage was settled in February 1986, the petitioner and the respondent had been having meetings and used to be together several times. The petitioner has himself produced and relied upon the article published in the 'Savvy' issue of April 1991 in which some photographs of the association between the petitioner and the respondent-wife appeared indicating their togetherness and intimacy. Upon these it would be reasonable to infer the responsive attitude and eagerness of the respondent-wife for the ultimate-the consummation upon being married. We refer to this in the context of the respondent-wife's assertion that it was she who took the lead in encouraging the petitioner-husband to have sexual intercourse with her. Therefore in the absence of any other evidence, it would be defficult for us to accept the cold and frigid condition of her mind, apathetic to sexual intercourse and therefore resulting, at her instance, in the non-consummation of the marriage. That the petitioner-husband himself declined to have sexual intercourse with her is what is insisted upon by the respondent-wife, as can be seen from her deposition. Relevant therefore is the evidence in regard to any representation made by either of the parties to their relatives or close ones in this behalf. The mother of the petitioner, Smt. Bhanumati (PW-1) has stated that her son, the petitioner and the respondent-wife used to sleep together in the bed-room. If the disinclination on the part of the respondent-wife, her aversion to sex was the cause of non-consummation of the marriage, we would expect this fact to be voiced by the petitioner with someone at some point of time after the marriage. However, Bhanumati admits, contrary to the assertion of the petitioner-husband, that her son the petitioner had never complained to her that the respondent was refusing to have sex with him. Similarly, the father Jawaharlal Kakaria, when examined on this point, has stated in his very examination-in-chief that it was the respondent-wife who had opened out her mind to complain to him that the marriage had not till then come to be consummated at all. Of course, he hastened to say that he did not know at whose instance the marriage was not consummated. That even as saving grace, does in our opinion, provide no support to the petitioner-husband's that the non-consummation was the result of the respondent-wife's relative impotency. On the other hand, the assertion on the part of the respondent-wife that it was the petitioner-husband who was staying away from having sexual intercourse with her; finds considerable support from the zerox copies of the letters which she had written to her father, to her mother and sister-in-law. She deposed that she had later on personally also spoken to the father about the refusal on the part of the husband to have sexual intercourse with her and the father Sukhraj Bafna has corroborated her on this part. In her letter dated 30th May 1987 she informs her father that all that happens when see speaks to the husband about sexual intercourse is a retaliatory threat that if. she was to speak on the qusstion of sex, he would see that her life is destroyed. In a letter dt. 23.8.87 she informs her father that the husband plainly tells her that he has not approved of her and that he has married her only as a matter of anaffront to her. She mentions the fact of having met Dr. Gita lyar and informing her that the husband had no sexual intercourse with her.

22. The argument advanced is that if there was thus no doubt about the petitioner's manhood and the marriage yet remained unconsummated, then it can only be attributable to the respondent's frigidity, her aversion to sex. As we have noted the respondent's grievance is not about want of potency in her huband but his refusal to have sex with her. It is not inconceivable, though Shri Khandeparkar so argues, that the petitioner is able to perform the sexual act he yet desists from it for his own reasons; that he defies the urge inspite of the privacy and opportunity. We would therefore appropriately refer to the evidence of the respondent-wife's father that she had said to him that the petitioner had not been keeping physical relations with her and that this was for the reason that her property had been transferred to his name. Bansilal Kothari is a person of common acquaintance to both the parties. It was suggested to him that the respondent-wife's father had told him that the petitioner was an impotent person. However, what Bansilal asserts is a different communication to him by the respondent Sandhya's father that Sandhya had told him that the petitioner-husband was not having physical relations with her In the absence of any other evidence, the bare words of the petitioner-husband that the wife was cold or frigid towards him or displayed a total aversion for sexual intercourse or that this aversion resulted in the marriage remaining unconsummated, cannot therefore be accepted. The relative impotency of the wife as a cause for non-consummation of the marriage and the non-consummation as a ground for annulment of the marriage cannot therefore be found available to the petitioner-husband. The learned Judge of the Trial Court was right, in our opinion, in holding that the petitioner was not entitled to a decree for annulment.