The failure to comply with the essential obligation of satisfying the sexual urge of a spouse amounts to cruelty, and refusal to live with the spouse constitutes desertion under the Hindu Marriage Act.

( 1 ) THE appellant was the petitioner before the trial Court-

( 2 ) THIS is an appeal by the unsuccessful husband who wanted to escape from the sacred bonds of marriage on the grounds which, unfortunately for the appellant, are held to be attributable to him and not to the respondent. The trial Court has dismissed the petition in pursuance of the findings recorded by it that the appellant has failed to establish that non-consummation of the marriage was due to the impotency of the respondent, further nor was it due to any repulsive and non-cooperative conduct on the part of the respondent to effectuate the sexual intercourse, by the decree dated 25th September 1972 passed in m. C. No. 7 of 1972. Before the trial court as well as before us, it was not disputed that there was no consumermation of the marriage and it was also conceded in the trial Court that the character of the respondent was not at all assailed in the proceedings. Before us also, nothing was said about the character of the respondent. The trial Court, on appreciation of the evidence has found that the non-consummation of the marriage was not due to any impotency or repulsive and non-cooperative conduct on the part of the respondent. It has also been found by the trial court that the appellant could not effectuate sexual intercourse even though he tried one or two times during the period prior to the filing of the petition. The appellant has also admitted in his evidence that in spite ot there being several opportunities for him to. have sexual intercourse with the respondent, he did not try to do so.

( 3 ) FORTUNATELY for the respondent, during the pendency of this appeal, the hindu Marriage Act, 1955 (hereinafter referred to as the Act) came to be amended by Act No. 68 of 1976 known as the Marriage Laws (Amendment) Act, 1976 (hereinafter referred to es Act No. 68 of 1976) which came into force on the 27th may, 1970 enabling her to seek relief of divorce even as a respondent in the proceeding under the Act. Act no. 68 of 1976 has introduced several amendments to the Act Clause (a) of sub-section (1) of S. 12 of the Act, has been substituted by a new clause. Clause (a) as it stood prior to Act No. 68 of 1976 at the time of filing of the petition in question, was as follows "that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding: or" the new Clause (a) of S. 12 (1) of the act, as substituted by Act No 68 of 1976, reads as follows:" (A) that the marriage has not been consummated owing to the importance of the respondent. "s. 13 o the Act, also came to be amended by Act No. 68 of 1976. For clause (1) in sub-section (1) of S. 13 of the Act, the following clauses came to be substituted:" (I) has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has. after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or"further an Explanation also came to be inser ed to Section 13, which, is as follows:"explanation. IN this sub-section the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wisii of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations, and cognate expressions shall be construed accordingly. "act No 68 of 1976 has inserted a new s. 23a providing relief for respondent in divorce and other proceedings. S. 39 of Act No. 68 of 1976, makes the previsions of the said Act applicable to the pending proceedings. The said Section reads as follows:" (1) All petitions and proceedings in causes and matters matrimonial which are pending in any Court at the commencement of the Marria