Chauhan, J. -- 1. This appeal under section 28(1) of the Hindu Marriage Act, 1955 has been preferred by the appellant being aggrieved by the judgment and decree dated 30.10.2003 passed by the Additional District Judge, Sohagpur, District Hoshangabad in Civil Suit No.22-A/2000, whereby the divorce petition filed by the appellant has been dismissed.

2. The facts of the case in short are that on 3.6.1998 the appellant and respondent entered into sacrament tie of wedlock according to Hindu rites and thereafter the respondent-wife was brought to matrimonial home. The time when consummation of marriage or cohabitation came, the respondent-wife turned into inaccessibility and refused to have sexual intercourse on the ground that the marriage was, in fact, solemnized against her volition and wishes by her parents. She was desirous to marry according to her own choice after completing her study. Therefore, she would not provide the appellant pleasure, love and affection of a married wife, hence it would be better to protect her chastity. No cohabitation could take place. On second turn, when again she came to the nuptial home she reiterated the same and asked him to get marriage dissolved according to law otherwise she would take recourse of negative approach by making allegations of demand of dowry against him. On the third turn also, the situation remained the same. Seeing her hostile attitude, the appellant could not have sexual relations with his wife. He maintained the honour of her chastity throughout the period when she lived together with him in the matrimonial home. The appellant made every endeavour to change her mentality but failed and she remained firm and determined to her own thought. On 21.6.1998 she went back to her parental house with her brother when the appellant had gone to Shivpuri and since then she never returned back in spite of the efforts made by the appellant and his family members. Thus, two years have been elapsed since the time when she left her matrimonial house. Thus, on the ground of cruelty and desertion appellant filed petition under section 13 of the Hindu Marriage Act, 1955 to dissolve the marriage solemnized in between them.

3. The respondent filed the written statement danying the allegations made in the petition mainly contending that she has never refused or abstained from cohabitation with the appellant-husband. After the very time of marriage she was subjected to cruelty on the ground of insufficiency of dowry being fetched in marriage, therefore, she drove out of the house by the appellant and his family members. She lodged the report at police station Piparia where the offence under section 498A of Indian Penal Code against the appellant has been registered and the case is pending in the concerned Court. Hence, no ground of divorce is made out and the petition deserves to be dismissed.

4. On the basis of the pleadings of the parties, the issues were framed. Plaintiff-appellant adduced the evidence but defendant-respondent did not enter into witness box to adduce any evidence. After appreciation of the evidence, trial Court found that no case for divorce is made out and dismissed the petition. Being aggrieved by the impugned judgment and decree, the instant appeal has been preferred on the grounds mentioned in the memo of appeal.

5. Shri San jay Dwivedi, learned counsel for the appellant submitted that the Court below has not appreciated the evidence in proper perspective. The evidence led by appellant remained intact throughout and the respondent has not produced any evidence in rebuttal. In such situation, the allegations made in reply by her ought not to have been taken into consideration for the purpose of rebuttal of cogent and clinching evidence led by the appellant-husband. It has been proved that no cohabitation took place in between them on account of non-cooperation and hostile attitude of the respondent and this amounts to mental cruelty to him. Similarly, she has deserte