Case ID: 4461

Judgment:
N: Criminal Appeal No. 602 of 1981. From the judgment and order dated 27th August	 1980 of the Gujarat High Court at Ahmedabad in Cr. Revision Application No. 282 of 1979. N.N. Keshwan and R.N. Keshwani for the Appellant. Vimal Dave and Miss Kailash Mehta for Respondent No. 1. S C. Patel and R.N. Poddar for Respondent No. 2 The Judgment of the Court has delivered by FAZAL ALI	 J. This appeal by special leave is directed against a judgment dated August 27	 1980 of the Gujarat High Court accepting the revision application of the Respondent and setting aside the order of the Metropolitan Magistrate	 Ahmedabad. The facts of the case lie within a very narrow compass	 which may be detailed thus. The respondent who is the wife of the appellant filed an application before the Magistrate under section 125 of the Code of Criminal Procedure	 1973 (hereinafter referred to as the 'Code of 1973 ') for grant of maintenance by the appellant on the ground that her husband appellant was guilty of wilful neglect and was unable to fulfil his primary responsibility of discharging his marital obligations. The parties were married on May 27	 1978 according to Sunni Muslim rites. After the marriage the respondent lived with her husband upto July 1978. The respondent alleged that during this period she found her husband to be physically incapable of carrying on sexual relationship and that her husband frankly told her that he was impotent. The respondent further alleged that she was maltreated and ultimately driven out of the house by her husband on July 11	 1978. On November 17	 1978 the appellant sent a registered notice (Ext. 5) to the respondent informing her that he had no physical disability and was prepared to keep her with him and discharge his marital obligations. On October 28	 1978 the respondent filed an application before the Magistrate for awarding maintenance against the appellant. So far as the facts found are concerned	 there is no dispute and the case will have to be decided on the point of law that arises 698 on the contentions raised by the parties before the courts below as also in this Court. Both the High Court and the Metropolitan Magistrate clearly found that the appellant was physically incapable of having sexual relations with the respondent. In other words	 the concurrent finding of fact by the courts below is that the appellant was impotent and was	 therefore	 unable to discharge his marital obligations. The respondent	 however	 refused to live with her husband on the ground that as he was impotent and unable to discharge his marital obligations	 she could not persuade herself to live with him and thus inflict on herself a life of perpetual torture. The Metropolitan Magistrate relying on a decision of the Allahabad High Court in Bundoo vs Smt. Mahrul found that the mere ground that the husband was impotent was not a just cause for the refusal of the wife to live with her husband and accordingly dismissed the application filed by the respondent for maintenance. Thereafter	 the matter was taken up in revision before the High Court which differed from the view taken by the Magistrate and held that the husband having been found to be impotent	 this should be a just ground for the wife to refuse to live with the husband and hence she was entitled to the grant of maintenance. The High Court after having come to the aforesaid conclusion further held that having regard to the means of the husband he was in a position to pay Rs. 150/ per month by way of maintenance to the respondent. Hence	 this appeal by special leave by the appellant husband Mr. Keshwani	 learned counsel for the appellant	 vehemently contended before us that it is now well settled by a long course of decisions of various High Courts that impotency is no good ground or reason for the wife to refuse to live with her husband and hence the wife is not entitled to maintenance if she refused to live with the husband merely because her husband was impotent. Mr. Keshwani cited a number of decisions in support of his contentions	 on the other hand	 Mr. Dave	 appearing for the respondent	 submitted that the various authorities of the High Courts seems to have overlooked the legal effect of the second proviso to sub section (3) of section 125 of the Code of 1973 under which a wife could refuse to live with her husband if there was a just ground for doing so. The said proviso may be extracted thus: "Provided further that if such person offers to maintain his wife on condition of her living with him	 and she 699 refused to live with him	 such Magistrate may consider any grounds of refusal stated by her	 and may make an order under this section notwithstanding such offer	 if he is satisfied that there is just ground for so doing. " We are of the opinion that if the husband was impotent and unable to discharge his marital obligations	 how could he fulfil the main object of marriage	 more particularly	 under the Mahomedan law where marriage is a sacrosanct contract and not a purely religious ceremony as in the case of Hindu law. This would certainly be a very just and reasonable ground on the part of the wife for refusing to live with her husband	 as also in cases under the Hindu law or other Laws. In Nanak Chand vs Shri Chandra Kishore Agarwala and Ors. this Court held thus: "Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties." After having heard counsel for the parties we are clearly of the opinion that the contention of the counsel ' for the respondent is sound and must prevail. It is true that there are several decisions of the High Courts taking a contrary view but they seem to have proceeded on a totally wrong assumption and we are constrained to observe that in taking such a narrow view they have followed a most outmoded and antiquated approach. The learned Magistrate mainly relied on a decision of the Allahabad High Court in Bundoo 's case (supra). It is true that Bakshi	 J. in that case seems to have been influenced more by the concept of neglect rather than by the reasonableness of the ground on which the refusal of the wife was based. While dwelling on this aspect of the matter	 the learned Judge observed as follows: "Assuming now for the purpose of argument that Bundoo was physically incapable of satisfying the sexual desire of his wife	 it cannot be said this inability amounted intentionally to disregarding	 slighting	 disrespecting or carelessly and heedlessly treating his wife. In this view of the matter	 I am of the opinion that the element of neglect as envisaged under Section 488 Cr. P.C.	 old and under Section 125 Cr. P.C. new	 has not been established. " 700 The attention of the learned Judge does not seem to have been drawn to the provisions of second proviso nor has the Judge come to any clear finding that the refusal of the wife could not fall within the ambit of "just ground" as contemplated by the aforesaid proviso. Secondly	 the learned Judge mainly relied on an earlier decision of Hidayatullah	 J. (as he then was) in Emperor vs Daulat Raibhan and Anr. in which it was held that a wife was not entitled to live apart from her husband and claim maintenance on the ground that her husband was impotent and unable to perform his marital obligations. In fact	 a number of decisions of the High Courts which were relied upon by the counsel for the appellant follow the decision of the Nagpur High Court as also the previous decisions of other High Courts replied upon by Hidayatullah	 J. in the Nagpur case. We shall consider the legal effect of this decision a little later. So far as the decision of the Allahabad High Court	 in which the Magistrate had relied	 is concerned	 the observations of Bakshi	 J. were purely obiter. It would appear that there was a clear finding cf fact by the Magistrate. which had been accepted by the High Court	 that the wife failed to prove by convincing evidence that her husband was impotent. In view of this finding of fact	 the question of law posed and decided by Bakshi	 J. did not fall for decision at all because if the wife failed to prove that her husband was impotent	 the question of her refusal to live with him for a just ground did not arise at all. While adverting to this finding of fact	 Bakshi	 J. in the aforesaid case observed as follows: "I find from the perusal of judgment of the Magistrate that he has taken into consideration the entire evidence on the record led in connection with this question and he was of the opinion that Shrimati Mahrul Nisa failed to prove by convincing evidence that Bundoo was impotent." (Emphasis supplied) In the circumstances	 we are not in a position to accept the observations of Bakshi J. which are in the nature of obiter dictum	 in support of the argument of Mr. Keshwani. This brings us now to the consideration of the authorities of other High Courts which seem to have taken ' the view that impotency is no ground for grant of maintenance to the wife. We would first deal with the decision of Hidayatullah	 J. in Daulat Raibhan 's case 701 (supra). In the first place	 the learned Judge thought that the point A raised before him was one of first impression and his decision was	 therefore	 greatly influenced by the fact that there was no direct decision on the point taking a contrary view. In this connection	 the learned Judge observed as follows: "No authority has been cited before me in support of the case of the wife that she is entitled to live separate from her husband on account of his impotence." Subsequently	 the learned Judge mainly relied on the following observations made in Arunachala Anandayammal: "I cannot see that section 488	 Criminal P.C. has anything to do with ordinary conjugal rights; it deals with maintenance only. " The learned Judge seems to have been under the impression that so far as the provisions of section 488 of the Code of 1898 were concerned they had no bearing on conjugal relations between the husband and the wife. With great respect to the learned Judge we are unable to agree with this process of reasoning. In fact	 the fundamental basis of the ground of maintenance under section 488 is conjugal relationship and once conjugal relationship is divorced from the ambit of this special provision	 then the very purpose and setting of the statutory provision vanishes. In the matter of the Petition of Din Mohammed	 Mahmood	 J. very pithily and pointedly observed as follows: "The whole of Chapter XLI	 Criminal Procedure Code	 so far as it relates to the maintenance of wives	 contemplates the existence of the conjugal relations as a condition precedent to an order of maintenance and	 on general Principles	 it follows that as soon as the conjugal relation ceases	 the order of maintenance must also cease to have any enforceable effect." (Emphasis supplied) We find ourselves in complete agreement with the observations made by the eminent Jurist Mahmood	 J. which lays down the correct law on the subject. Thus	 one of the fundamental premises on which rested the decision of Hidayatullah	 J. appears to us to be 702 clearly wrong and directly opposed to the very object of the section (which at the relevant time was section 488). In Arunchala 's case (supra) which was relied upon by Hidayatullah	 J.	 Burn J. Observed thus: "I cannot see that section 488	 Criminal P.C. has anything to do with ordinary conjugal rights; it deals with "maintenance" only and I see no reason why maintenance should be supposed to include anything more than appropriate food	 clothing and lodging. " It would be seen that here also the learned Judge proceeds on a legally wrong premise	 viz.	 that section 481 had nothing to do with ordinary conjugal rights. Moreover	 the Madras decision as also the earlier decision seem to have followed the outmoded and antiquated view that the object of section 488 was to provide an effective and summary remedy to provide for appropriate food	 clothing and lodging for a wife. This concept has now become completely out dated and absolutely archaic. After the International Year of Women when all the important countries of the world are trying to give the fair sex their rightful place in society and are working for the complete emancipation of women by breaking the old shackles and bondage in which they were involved	 it is difficult to accept a contention that the salutary provisions of the Code are merely meant to provide a wife merely with food	 clothing and lodging as if she is only a chattel and has to depend on the sweet will and mercy of the husband. The same line of reasoning was adopted in an earlier decision of the Madras High Court in Jaggavarapu Basawama vs Jaggavarapu Seeta Reddi. Here also	 the Judge was of the opinion that food and clothing was sufficient for the maintenance of the wife and even if the husband refused to cohabit that would not provide any cause of action to the wife to claim separate maintenance. In a recent decision in Velayudhan vs Sukmari a Single Judge observed as follows: "Learned magistrate seems to have concentrated solely on the last mentioned ground namely	 failure of the husband to perform his marital duties	 and has held that it is a sufficient ground entitling the wife to live away from the husband	 and claim separate maintenance. But I do not think	 in the face of authorities cited before me that this 703 is a sufficient ground justifying the award of separate maintenance to the wife. It was observed by Kumaraswami Sastri	 J. in Basawamma vs Seetareddi (AIR 1922 Mad. 209) that there is nothing in the Code which compels the criminal court to award separate maintenance to a wife whom the husband agrees to protect and maintain in a manner suitable to her position in life; refusal to cohabit is no ground. Here also	 the Judge while noticing that the ground taken by the wife was that the husband has failed to perform his marital duties	 found himself bound by the decisions of the Madras High Court in Jaggavarapu Basawamma 's case (supra). Thus even in this decision though given in 1971 when the entire horizon of the position and status of women had changed	 it is rather unfortunate that the Judge chose to stick to the old view. There is however a very formidable circumstance which seems to have been completely overlooked by later decisions while following the previous decisions of the Nagpur or the Madras High Courts. Although the second proviso to sub section (3) of section 125 of the Code of 1973	 which was also a proviso to the old section 488	 clearly provided that it is incumbent on the Magistrate to consider the grounds of refusal and to make an order of maintenance if he was satisfied that there was just ground for refusing to live with the husband	 yet this salutary provision which was introduced with the clear object of arming the wife with a cause of action for refusing to live with the husband as the one which we have in the present case	 no legal effect to the legislative will and intent appears to have been given by the aforesaid decisions. Another important event which happened in 1949 also seems to have been completely ignored by the recent decisions while following the previous decisions of the High Courts. It would appear that by the Code of Criminal Procedure (Amendment) Act No. 9 of 1949 an additional provision was added after the proviso which may be extracted thus: "If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife 's refusal to live with him. " The object of introducing this provision was clearly to widen the scope and ambit of the term 'just ground ' mentioned in the 704 proviso. This provision is not exhaustive but purely illustrative and self explanatory and takes within its fold not only the two instances mentioned therein but other circumstances also of a like or similar nature which may be regarded by the Magistrate as a just ground by the wife for refusing to live with her husband. Under the Code of 1973	 this provision has been incorporated as Explanation to the second proviso to sub section (3) of section 125. The decisions of the High Courts given prior to the Amendment of 1949 would no longer be good law after the introduction of the Amendment which gives	 as it were	 a completely new complexion to the intendment and colour of the second proviso to section 488 (now Explanation to the second proviso to sub section (3) of section 125) and widens its horizon. It is	 therefore	 needless to refer to these decisions or to subsequent decisions which have followed the previous cases. A clear perusal of this provision manifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. As already indicated	 by virtue of this provision	 the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending provision as also other instances of physical	 mental or legal cruelty not excluding the impotence of the husband. These	 circumstances	 therefore	 clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly	 where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband 's parents or relations	 such an apprehension also would be manifestly a reasonable justification for the wife 's refusal to live with her husband. Instances of this nature may be multiplied but we have mentioned some of the circumstances to show the real scope and ambit of the proviso and the Amending provision which is	 as already indicated	 by no means exhaustive. In other words	 where a husband contracts a marriage with another woman or keeps a mistress this would be deemed to be a just ground within the meaning of the second proviso so as to make the refusal of the wife to live with her husband fully justified and entitled to maintenance. If this is so	 can it be said by any stretch of imagination that where a wife refuses to live with her husband if 705 he is impotent and unable to discharge his marital obligation	 this would not be a just ground for refusing to live with her husband when it seems to us that the ground of impotence which had been held by a number of authorities under the civil law to be a good ground not only for restitution of conjugal rights but also for divorce. Indeed	 if this could be a ground for divorce or for an action for restitution of conjugal rights	 could it be said with any show of force that it would not be a just ground for the wife to refuse to live with her husband. The matter deserves serious attention from the point of view of the wife. Here is a wife who is forced or compelled to live a life of celibacy while staying with her husband who is unable to have sexual relationship with her. Such a life is one of the perpetual torture which is not only mentally or psychologically injurious but even from the medical point of view is detrimental to the health of the woman. Surely	 the concept of mental cruelty cannot be different in a civil case and in a criminal case when the attributes of such a cruelty are the same. In Rita Nijhawan vs Balkrshaan Nijhawan (Sachar	 J.) while dealing with a case of annulment of marriage under the Hindu Marriage Act on the ground of impotency very poignantly and pithily observed as follows: "Thus the law is well settled that if either of the parties to a marriage being a healthy physical capacity refuses to have sexual intercourse the same would amount to cruelty entitling the other party to a decree. In our opinion it would not make any difference in law whether denial of sexual intercourse is the 'result of sexual weakness of the respondent disabling him from having a sexual union with the appellant	 or it is because of any wilful refusal by the respondent. . . Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a women 's mind and body. The result being that if she does not get proper sexual satisfaction	 it will lead to depression and frustration. " 706 We find ourselves in complete agreement with the very practical and pragmatic view that the learned Judge has taken and the principles adumbrated by the Judge apply fully to proceedings for maintenances because as we have said the concept of cruelty is the same whether it is a criminal case or a civil case. As far back as 1906	 the Bombay High Court came out with the concept of cruelty which could be considered for exercising jurisdiction under section 488 of the Code of 1898. In Bhikaji Maneekji vs Maneekji Mancherji a Division Bench of the Bombay High Court observed as follows: "Where it is proved that a husband has not refused or neglected to maintain his wife	 a criminal Court	 acting under the section	 has no jurisdiction to make an order upon the husband for her maintenance on the ground that the husband has been guilty of cruelty to her. But that is a very different thing from holding that no evidence of cruelty can be admitted in a proceeding under the section to prove	 not indeed cruelty as a ground for separate maintenance	 but the conduct and acts of the husband from which the Court may draw the inference of neglect or refusal to maintain the wife. A neglect or refusal by the husband to maintain his wife may be by words or by conduct. It may be express or implied. If there is evidence of cruelty on the part of the husband towards the wife from which	 with other evidence as to surrounding circumstances	 the Court can presume neglect or refusal	 we do not see why it should be excluded. There is nothing in section 488 to warrant its exclusion	 and such has been the practice of the Court. But the section has been altered and now the Court can pass an order for maintenance where neglect or refusal is proved	 even if the husband is willing to maintain the wife	 provided the Court finds that there are "just grounds" passing such an order. This alteration gives a wider discretion to the Court	 which means that in passing such an order it is legitimate for it to take into account the relations between the husband and the wife	 and the husband 's conduct towards her." This decision	 given as far back as 1907	 while construing the proviso appears to be both prophetic and pragmatic in its approach 707 and it is rather unfortunate that subsequent decisions have not noticed this important principle of law decided by the Bombay High Court. We fully endorse this decision as laying down the correct law on the subject and as giving the correct interpretation of the proviso to section 488 particularly the concept of the words 'just ground '. Another decision which had touched the question of 'cruelty ' is the case of Bai Appibai vs Khimji Cooverji where the following observations were made: "If	 however	 the husband by reason of his misconduct	 or cruelty in the sense in which that term is used by the English Matrimonial Courts	 or by his refusal to maintain her	 or for any other justifying cause	 makes it compulsory or necessary for her to live apart from him	 he must be deemed to have deserted her	 and she will be entitled to separate maintenance and residence. " In Gunni vs Babu Lal Dixit	 J. sounded a very pragmatic note on this aspect of the matter and in this connection pointing out the scope of the Amendment of 1949 observed thus: "There is nothing in the Criminal Procedure (Amendment) Act	 1949 to show that it would not be a just ground for the wife 's refusal to live with her husband if the husband has contracted marriage with another wife or taken a mistress before the amendment made in section 488. The amendment is clearly intended to put an end to an unsatisfactory state of law	 utterly inconsistent with the progressive ideas of the status and emancipation of women	 in which women were subjected to a mental cruelty of living with a husband who had taken a second wife or a mistress on the pain of being deprived to any maintenance if they chose to live separately from such a husband. If my view to hold that the amendment is intended to afford a just ground for the wife 's refusal to live with her husband only in those cases where he has after the amendment	 taken a second wife or a mistress is to defeat in a large measure the very object of the amendment. " 708 We find ourselves in complete agreement with the observations made by the learned Judge. In Mst. Biro vs Behari Lal	 a decision to which one of us (Fazal Ali	 J. as he then was a party	 where the importance of the Amendment of 1949 also touched	 the following observations were made: "Before the amendment	 the fact of the husband 's marrying a second wife or keeping a mistress was not by some High Courts considered a just ground for the first wife 's refusal to live with him	 although it was taken into account in considering whether the husband 's offer to maintain his first wife was really 'bona fide ' or not. The amendment is clearly intended to put an end to an unsatisfactory state of law utterly inconsistent with the progressive ideas of the status and emancipation of women	 in which women were subjected to a mental cruelty of living with a husband who had taken a second wife or a mistress on the pain of being deprived of any maintenance if they chose to live separately from such a husband." In Sm. Pancho vs Ram Prasad	 Roy	 J. while dealing with the Hindu Married Women 's Right to Separate Residence and Maintenance Act (19 of 1946) expounded the concept of 'legal cruelty ' and observed thus: "In advancement of a remedial statute	 everything is to be done that can be done consistently with a proper construction of it even though it may be necessary to extend enacting words beyond their natural import and effect. . . Conception of legal cruelty undergoes changes according to the changes and advance of social concept and standards of living. With the advancement our social conceptions	 this feature has obtained legislative recognition that a second marriage is a sufficient ground for separate residence and separate maintenance. Moreover	 to establish legal cruelty	 it is not necessary that physical violence should be used. Continuous ill treatment	 cessation of marital intercourse	 studied neglect	 indifference on the part of the 709 husband	 and an assertion on the part of the husband that the wife is unchaste are all factors which may undermine the health of a wife. The learned Judge has put his finger on the correct aspect and object of mental cruelty. The fact that this case did not arise out of the proceedings under section 125 makes no difference because we have already observed that the concept of cruelty remains the same whether it is a civil case or a criminal case or a case under any other similar Act. The general principles governing acts constituting cruelty legal or mental ill treatment or indifference cannot vary from case to case though the facts may be different. Similarly	 while dealing with a case under the 	 a Division Bench of the Karnataka High Court in Dr	 Srikant Rangacharya Adya vs Smt. Anuradha dwelling on the aspect of impotency and its impact on the wife observed as follows: "In these days it would be an unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore	 the sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman 's mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman 's brain	 develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse. " We find ourselves in entire agreement with the observations made by the learned Judges of the Karnataka High Court which seems to be the correct position in law. Even the learned Judge who had delivered the judgment in the instant case had very rightly pointed out as follows: 710 "If the maintenance of a wife is supposed to include only food	 shelter and clothing having regard to the conjugal rights and if the just cause on which wife can refuse to stay with the husband and yet claim maintenance	 can have reference only to the comfort and safe of the wife then it might reduce the wife to the status of a domesticated animal. In the context of the changing status of woman in society such a proposition would seem outdated and obsolete. . In other words	 the Courts cannot compel the wife to stay with husband on the ground that the husband though he is forcing her in a situation where her physical and mental well being might be adversely affected	 as there is no intention on the part of the husband to inflict that cruelty	 she should suffer that predicament without demur and be satisfied with a grab to bite and some rags to clothe her and a roof over her head. " We fully endorse the observations made above. Apart from the various decisions referred to above	 there is a direct English decision on the point. In Sheldon vs Sheldon	 Lord Denning observed as follows: "I rest my judgment on the ground that he has persistently	 without the least excuse	 refused her sexual inter course for six years It has broken down her health. I do not think that she was called on to endure it any longer. It has been said that	 if abstinence from intercourse causing ill health can be held to be cruelty	 so should desertion simpliciter leading to the same result. " Thus	 from a conspectus of the various authorities discussed above and the setting	 object and interpretation of the second proviso to sub section (3) of section 125 of the Code of 1973	 we find ourselves in complete agreement with the view taken by the learned Judge of the High Court. We hold that where it is proved to the satisfaction of the court that a husband is impotent and is unable to discharge his marital obligations	 this would amount to both legal and mental cruelty which would undoubtedly be a just ground as contemplated by the aforesaid proviso for the wife 's refusal to live 711 with her husband and the wife would be entitled to maintenance from her husband according to his means. In these circumstances	 therefore	 it would be pusillanimous to ignore such a valuable safeguard which has been provided by the legislature to a neglected wife. For these reasons	 therefore	 we find no merit in the appeal which fails and we accordingly dismiss the same without any order as to costs. In view of our decision in this case	 it follows that the decisions referred to above in the judgment taking a contrary view must be held to be no longer good law and are hereby overruled. P. B. R. Appeal dismissed.

Summary:
The respondent was the appellant 's wife. In her petition under section 125(3) Criminal Procedure Code	 1973 for grant of maintenance	 the Metropolitan Magistrate	 upheld her allegation that the appellant was impotent and was incapable of having sexual relations with his wife. But the Magistrate refused to grant maintenance to her on the ground that the husband 's impotence was not a just cause for her refusal to live with the husband. Holding that impotence of the husband was a just ground for the wife to refuse to live with the husband	 the High Court granted her maintenance. In appeal to this Court while the husband contended that impotence was not a good ground for the wife 's refusal to live with him	 the wife contended that the second proviso to section 125(3) 1973 Code enabled the wife to refuse to live with the husband if there was a suit ground for doing so and in this case the husband 's impotence was a just ground for such refusal. Dismissing the appeal	 ^ HELD: Proved impotence of the husband and his inability to discharge his marital obligations amount to both legal and mental cruelty make it a just ground for the wife to refuse to live with the husband. The wife would be entitled to maintenance from him according to his means. [710G 711A] The second proviso to section 125(3) of the 1973 Code was a proviso to section 488 of the 1898 Code which provides that it is incumbent on the Magistrate to consider the grounds of refusal and to make an order of maintenance	 if he is satisfied that there is a just ground for the wife to refuse to live with the husband. Decision of High Courts that section 488 of the 1898 Code had nothing to do with the ordinary conjugal rights were directly opposed. to the very object of the section. [703 D F] Bundoo vs Smt. Mahrul 	 Emperor vs Daulat Raibhan & Anr.	 A.I.R. 1948 Nagpur 69	 Arunachala vs Anandayammal	 A.I.R. 1933 Mad. 668	 Jaggavarapu Basawamma vs Japgavarapu Seeta Reddi	 A.l.R	 & Vedayudhan vs Sukmari overruled. 696 In the Matter of the Petition of Din Muhammad ILR [1883] 5 Allahabad 226 approved. By an amendment made in 1949 the scope and ambit of the term "just ground" had been widened by adding a second proviso to section 488 of the 1898 Code. The object of introducing this provision was to widen the scope and ambit of the term "just ground". This provision is not exhaustive but purely illustrative and self explanatory and takes within its fold not only the two instances mentioned Therein but other circumstances also of a like nature which may be regarded by the Magistrate as a just ground by the wife for refusing to live with her husband. In the present Code this provision has been incorporated as explanation to the second proviso to section 125(3). [703 G 704 B] A perusal of this provision shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. By virtue of this provision	 the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending provision as also other instances of physical	 mental or legal cruelty not excluding the impotence of the husband. These circumstances clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly	 where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband 's parents or relations	 such an apprehension also would be manifestly a reasonable justification for the wife 's refusal lo live with her husband. [704 D F] Where a husband had contracted a married with another woman or kept a mistress	 it was considered to be a just ground for the wife 's refusal to live with the husband Similarly where a wife refuses to live with an impotent husband who is unable to discharge his marital obligations that would be a just ground. Moreover when impotence under the civil law is a good ground for granting divorce or for refusing restitution of conjugal rights there is no reason to hold that it would not be a just ground under section 125. The concept of cruelty remains the same whether it is a civil case or a criminal case or a case under similar Acts. The general principles governing acts constituting cruelty legal or mental ill treatment or indifference cannot vary from case to case	 though the facts may be different. [704 H 705 C	 709 C] It is well recognized that sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. Abstinence from intercourse effecting ill health of the wife can be held to be cruelty. [709 E	 710 F] Rita Nijhawan vs Balkishan Nijhawan	 AIR 1973 Delhi 200	 Bhikaji Maneckji vs Maneckji Mancherji	 	 Bai Appibai vs Khimji Cooverji	 AIR 1936 Bom. 138	 Gunni vs Babu Lal	 AIR 1952 Madnya Bharat 131	 Biro vs Behari Lal	 AIR 1958 J & K. 47	 Smt. Panchoo vs Ram Prasad	 AIR 1956 All. 41 and Dr. Srikant Rangacharya Adya. vs Smt. Anuradha	 AIR 1980 Karnataka 8	 approved. Sheldon vs Sheldon referred to.