Yadav, J. -- 1. This appeal under section 19 of the Family Courts Act, 1984 read with section 28 of the Hindu Marriage Act, 1955 is directed against the judgment and decree dated 21.1.2008; whereby, the Family Court Bhopal has dismissed the appellant’s suit for divorce under section 13 of Hindu Marriage Act, 1958.

2. The appellant and respondent were married on 12.5.2001. The marriage was solemnized at Bhopal. The appellant thereafter lived with her husband, the respondent at his abode at Rewa for a month and thereafter came back to Bhopal. Thereafter living at Rewa for three years with the respondent, the appellant came to Bhopal and is living there since then. Respondent husband joined her at Bhopal some time in 2005 and stayed with her till 2006, during which period he underwent medical treatment for infertility, whereafter, it is alleged he left for Delhi wherefrom he did not return.

3. In September 2006, appellant filed an application under section 13 of the Hindu Marriage Act, 1955 seeking annulment of marriage on the ground of appellant’s importency and cruelty. It was alleged that because of the respondent being impotent there was no consummation of marriage and that the respondent also meted her with cruelty by physical harassment and the demand for dowry. Respondent husband denied the allegation of importency and the cruelty and stated that in respect of infertility he underwent medical treatment.

4. Appellant and respondent led evidence in support of respective pleadings. In regard to allegation of importency Dr. Pankaj Agrawal in whose hospital the respondent underwent Bilateral Orcheopexy (Lap Assistant) for infertility was examined. In his evidence he proved the document Ex.A-11 whereby it was certified that due to illness respondent is infertile but not impotent. There is no other medical evidence to establish that respondent was impotent as alleged by appellant, in absence whereof the Family Court disbelieved the appellant’s version of respondent being impotent. Regarding allegation of cruelty the Family Court analyzing the evidence of the appellant observed that having married in the year 2001 and living for a period of one month in her husband’s house with him, she came back to her parental house and her husband lived with her till 2006 and it was in the year 2006 for the first time she lodged complaint with the police that she is being troubled for dowry by her in-laws, disbelieved the appellant, holding that the same has been cooked up with the allegation of respondent’s alleged infertility.

5. In absence of direct medical evidence impotency cannot be presumed merely because the respondent was medically treated for infertility. Impotency is defined as ‘a party’ is importent if his or her mental or physical condition makes a consummation of the marriage a practical impossibility. {Please see : Halsbary’s laws of England 3rd Edition Vol.12 p.228; Digvijay Singh v. Pratap Kumari [AIR 1970 SC 137]; Mst. Shewanti Bhaurao Dongre v. Bhaurao Daulatrao Dongre [1971 JLJ 307=AIR 1971 M.P. 168]}.

6. In the case at hand besides the respondent even father of the appellant who was examined as AW2 in paragraphs 3 and 4 of his deposition admitted about the consummation of marriage which did not result in bearing of child. In view whereof the finding arrived at by the Family Court that the appellant has failed to prove that respondent is impotent cannot be interfered with.

7. Regarding cruelty, the Family Court elaborately dwelt upon the evidence led by the appellant and her father and disbelieved the allegations observing that from 2001 till 2006 there were no complaints by them regarding dowry demand and that the appellant having left the husband’s house within one month and thereafter lived with her parents where the respondent lived with her till 2006 and there were no complaints during this period of physical harassment. These findings when tested on the evidence on record does not suffer from the vice of perversity as w