M.Y. Eqbal, J.

1. This appeal under Clause 10 of the Letters Patent is directed against the judgment dated 17.4.1997 passed in First Appeal No. 2 of 1992 (R), whereby the learned Single Judge dismissed the appeal and affirmed the decree dated 24.9.1991 passed by 3rd Additional District Judge, Jarashedpur in Matrimonial Suit No. 37 of 1989.

2. The plaintiff-appellant had filed Matrimonial Suit No. 37 of 1989 against his wife, respondent for a dissolution of marriage by a decree of divorce on the grounds of desertion and cruelty.

3. Plaintiffs case inter alia was that he was married with the respondent according to the Hindu custom on 29.4.1980 in village Onda in the district of Bankura, West Bengal. After the solemnisation of marriage the respondent came with the appellant to his house at Jamshedpur and according to the Bengali custom "Full Sajjya" was held on 1.5.1980. It was alleged by the plaintiff that respondent on that very night started quarrel with him and on the next day the plaintiff-appellant was asked by his wife to leave her room because two of her relatives were to stay with her and plaintiff was forced to sleep outside the room. After the appellant (plaintiff) left for Onda for celebration of Astamangala, there also it was alleged that he was humiliated and cordial marriage was not consummated. However, on 5.11.1980 the respondent left the matrimonial house of the plaintiff alongwith with her brother and taken away all her ornament and other items. Plaintiffs further case was that he sent several letters to the respondent requesting her to return to Jamshedpur and to lead conjugal life but she refused to come to Jamshedpur. Thus it has been alleged by the plaintiff that his wife deserted her from November, 1980 without any valid cause and due to cruelty and rude behaviour and attitude of the wife, the marriage could not be consummated.

4. Defendant-respondent contested the suit by filing written statement and denied each and every allegation made by the plaintiff. The defendant has also denied that due to her attitude there was no proper co-habitation and the marriage was not consummated, rather the respondent after marriage found that the appellant was impotent and suffering from some mental disorder because of his impotency. It was alleged that the mother and the elder brother of the appellant know about this disease but they suppressed all these facts and got him married with this defendant. It was further held that her behaviour with the plaintiff husband and the family members was very cordial and normal and she never refused to have any conjugal relationship. It was further stated that she was always given assurance by the plaintiff/appellant that she will be taken back to Jamshedpur.

5. The trial Court after considering the evidences both oral and documentary came to the conclusion that the plaintiff-appellant failed to prove desertion and cruelty and accordingly suit was dismissed. The appellant then preferred First Appeal No. 2 of 1992 (R). The learned Single Judge dismissed the appeal and affirmed the judgment of the trial Court. Regarding ill treatment on the first night the learned Single Judge held that it was quite possible that due to paucity of space two of the relatives might have stayed in the room of the plaintiffs wife and therefore this itself cannot be said to be cruelty. Learned Single Judge further held that the appellant has not made out a case in his petition for divorce on the ground that his wife made such uncharitable remark about his impotency. The appellant is not entitled to take advantage of the defence as advanced by his wife.

6. We have heard Mr. B.B. Sinha, learned counsel appearing for the appellant and Mr. A. Sen, learned counsel appearing for the respondent.

7. Before the case was taken for hearing, we also tried for conciliation but that failed. It appears that the learned Single Judge also tried for reconciliation but that also became futile.

8. Admittedly, the marriage wa