JUDGMENT 1. This appeal is directed against the judgment and order passed in T.S. No. 4(Div.)/2004 dated 30.5.2005 by the learned Addl. District Judge (F.T.C.), North Tripura, Kailashahar, thereby dissolving the marriage between the Appellant and the Respondent by granting the decree of divorce as prayed for by the husband/Respondent. 2. Heard Mr. P. Roy Barman, learned Counsel for the Appellant/wife and Mr. D.B. Sengupta, learned Counsel for the Plaintiff/Respondent. 3. The case of the Plaintiff/Respondent as pleaded in the plaint is that his first wife having expired on 24.7.1998 in a vehicular accident leaving three minor daughters, the Plaintiff married the Defendant/Appellant primarily to look after his children and age old mother following Hindu rights and customs on 23.10.1998. That the Appellant/wife concealed the actual date of birth at the time of marriage and she was also suffering from certain ailments which were not disclosed to the Plaintiff, that after the marriage, the Defendant/wife began to torture the minor daughters and the old mother of the Plaintiff brutally and on a number of occasions they were kept in starvation without giving any food and she never perform her responsibility as their mother and in spite of advice of the Plaintiff she did not mend herself. The Defendant/wife was also in the habit of leaving the house of the Plaintiff frequently without caring for the children and his old mother. With a view to resolve the differences and disputes that cropped between the parties at the initiation of the Plaintiff several rounds of discussions were held by the village panchayat organized by the local Nari Samittee and also vide discussions held on 16.5.2003 the Defendant was advised to live with her peacefully and to be sober with all the family members including the minor children, but instead of following such advice given by the elders in the panchayat, the Defendant left the matrimonial home and on 23.5.2010 the Plaintiff having protested against certain untoward activities of the she became furious and after assaulting the Plaintiff left the matrimonial house and since then she is residing separately. The Plaintiff is also paying Rs. 1,000 as maintenance allowance as directed by his superior in the office on the allegation of the Respondents which is being deducted from his salary. In the aforesaid situation, the marriage having broken down the Plaintiff has filed the suit for divorce. The Plaintiff is also paying Rs. 1,000 as maintenance allowance as directed by his superior in the office on the allegation of the Respondents which is being deducted from his salary. In the aforesaid situation, the marriage having broken down the Plaintiff has filed the suit for divorce. The Defendant contested the proceeding by filing written statement denying the allegations. The Defendant also alleged that the Plaintiff is addicted to alcohol and when he gets intoxicated he used to torture her without any reason. Though the Defendant tried to adjust with the Plaintiff, he was found to be illicitly involved with another girl, viz., Riku Bhadur who had been kept as maid servant in the house, and the Defendant having protested against such extra marital affairs with Rinku Bahadur she was beaten by the Plaintiff. It is further stated that the Plaintiff not having paid any maintenance allowance she approached the Superintendent of Police praying for exercising his good office to that effect and accordingly at his instance Rs. 1,000 is being deducted from his salary and is paid to her as maintenance allowance. 4. Based on the pleadings of the parties, the learned trial judge framed the following issues: (1) Is there any cause of action for the present case? (2) Whether the Respondent treated the Petitioner and his daughters with cruelty? (3) Whether the Petitioner is entitled to get the decree as prayed for? (4) What are the relief or reliefs the parties are entitled to get? 5. During the course of trial the Plaintiff apart from examining himself as PW1, also took assistance of three other witnesses in support of her case, who was duly cross-examined by the Defendant. On the other hand, the Defendant examined herself as DW1 and also examined one more witness in support of her case. The learned trial court upon appreciation and assessment of the evidence and materials available on record decided all the issues in favour of the Plaintiff and decreed the suit vide judgment and order dated 30.5.2005. Assailing the impugned judgment and order Mr. The learned trial court upon appreciation and assessment of the evidence and materials available on record decided all the issues in favour of the Plaintiff and decreed the suit vide judgment and order dated 30.5.2005. Assailing the impugned judgment and order Mr. P. Roy Barman, learned Counsel for the Defendant/Appellant, submits that the learned trial judge misread and misappreciated the evidence and materials on record, that the Plaintiff/Respondent having failed to produce his minor children as witness in support of his case, the learned trial judge ought to have dismiss the suit for non-production of the material witness and that the Appellant had to leave the matrimonial home as the Respondent treated her with cruelty and this fact was totally ignored by the learned trial judge, consequently the impugned judgment is not sustainable. 6. Per contra Mr. Sengupta, learned Counsel appearing for the Respondent-husband submits that the learned trial judge has passed the impugned judgment and decree upon proper and correct assessment of the evidence and materials on record and on the basis of the available materials the learned trial judge came to the finding that the Appellant treated the minor children of the Respondent through his first wife with cruelty and also defying the advice of the elderly people of the panchayat, left the matrimonial house without any reason. Further the contention of the learned Counsel is that the Defendant/Appellant in her written statement, has alleged adultery against the Plaintiff/Respondent which itself is a cruelty against the Respondent/husband within the meaning of law and on such consideration the impugned judgment and decree are not liable to be interfered with. 7. Submissions made by the learned Counsels for the appearing parties received due attention of the Court. The evidence and materials available on record have also been perused and scrutinized. In order to effectively consider the submissions made by the learned Counsels let us now see how far the respective parties were successful in proving their respective pleas as raised in their pleadings. 8. The Plaintiff examining himself as PW1, submitted his in chief evidence by way of affidavit. In his in-chief, the Plaintiff has categorically deposed to the effect that his daughters were minor at the time of death of his first wife and his mother was about 90 years old. 8. The Plaintiff examining himself as PW1, submitted his in chief evidence by way of affidavit. In his in-chief, the Plaintiff has categorically deposed to the effect that his daughters were minor at the time of death of his first wife and his mother was about 90 years old. It is in his pleading that his three daughters were aged about nine years, seven years and two years respectively, and his marriage with Defendant took place by exchange of garlands in a local temple after negotiation. It is specifically alleged that in his absence from the house due to exigency of service, the Defendant used to inflict torture upon his minor daughters and sometimes kept them in starvation and when protest was made by him in this regard, the Defendant became very much annoyed. It is also stated that his wife was in the habit of going out of the house for several days together in his absence without any information and even on the advice of the local panchayat which was held in presence of the Nari Samittee could not mend the Defendant and she left the matrimonial house on 6.1.2003 for 5 months. When the illegal activities of the Defendant were objected to by the Plaintiff on 23.5.2003, she became furious and left the matrimonial house. The allegation of torture inflicted upon the Defendant on being intoxicated has been totally denied by the Plaintiff. It is specifically stated in his in chief that the Defendant has falsely accused him of being a womanizer and drunker and the allegation of his extra marital affairs with the maid servant namely Rinku Bahadur has been denied and further stated that such allegation has given him serious mental strain. Although PW1 was cross-examined but the facts disclosed in his in-chief evidence could not be demolished. In his cross-examination also he denied that he has got any illicit relationship with Rinku Bahadur. PW2 is the mother of the Defendant who is about 90 years who corroborated the statements made by PW1 and she also deposed that the Defendant was suspicious about Rinku Bahadur who was working as maid servant in their house. The allegation of cruelty meted out to the minor children has also been corroborated by PW2. In her cross-except giving few suggestions to which PW2 denied nothing material was asked and her in-chief evidence was not at all shaken. The allegation of cruelty meted out to the minor children has also been corroborated by PW2. In her cross-except giving few suggestions to which PW2 denied nothing material was asked and her in-chief evidence was not at all shaken. PW3 is another lady and neighbour of the Plaintiff who corroborated the allegations of torture inflicted upon the minor daughters of the Plaintiff by the Defendant. The scandalous allegations made against the Plaintiff was also stated to be false by this witness. In her cross-examination she stated that she was present in the meeting organised by the local panchayat and she denied the suggestion that the Defendant did not keep the children of the Plaintiff unfed. She also denied the suggestion that, the Plaintiff was addicted to alcoholism and assaulted his wife. PW4 who attended the panchayat held on 16.5.2003 also corroborated the allegation of inflicting torture upon her step children by the Defendant. He also stated that the Defendant spread false and scandalous allegations against her husband. PW5 is another lady who also corroborated the allegation leveled against the Defendant as regards inflicting torture upon her step children by the Defendant. She also denied the scandalous allegations made by the Defendant against her husband. 9. As against the aforesaid evidence of Plaintiff/Respondent, the Appellant/Defendant herself was examined as DW1. In her examination-in-chief by way of affidavit she has reiterated what has been alleged in her written statement. She reiterated that the Petitioner inflicted torture upon her being intoxicated and upon such intoxication one day the Plaintiff injured her middle finger by a razor. She also deposed that the relationship between the Plaintiff and Rinku Bahadur was very suspicious and she asked the girl not to come to the house and on this issue their relationship deteriorated day by day. She further stated that on 24.10.2003 when she objected to mixing of the Plaintiff with the said girl nakedly the Plaintiff assaulted her and on the following morning she was turned out from the matrimonial house. The Defendant was cross-examined by the Plaintiff and in her cross she also admitted the fact of negotiation attempted by the village panchayat and Nari Samitee. She denied that she misbehaved with his husband for assaulting her. The Defendant was cross-examined by the Plaintiff and in her cross she also admitted the fact of negotiation attempted by the village panchayat and Nari Samitee. She denied that she misbehaved with his husband for assaulting her. The other witness the DW2 in her deposition stated that on one day while she went to the R.J. Hospital she saw the Defendant in the hospital and on being asked she told that she came to the hospital for treatment as the Respondent assaulted her with razor, as a result of which, she sustained injury in her middle finger. In her cross she admitted that on that particular day she was standing in front of the hospital when she saw the Defendant coming out of the hospital and she denied the suggestion that the Defendant did not tell her about receiving any injury. 10. The learned trial court critically examined and analyzed the evidence of the witnesses adduced by the parties and upon such appreciation found that the Plaintiff could prove the allegation of cruelty made by the Plaintiff against the Defendant and granted the decree of divorce. 11. Balancing the evidence of the respective parties we find that the Plaintiff in order to prove the case, the allegation levelled against the Defendant apart from examining himself as PW1 also produced his old mother aged 90 years and three other independent witnesses. Two of such witnesses were also members of the panchayat who tried to resolve the issue. The resolution of the panchayat dated 16.5.2003 is also on record. The crux of the allegation leveled against the Defendant is that she inflicted torture upon the minor children and kept them unfed for few days. Out of the three minor children, the youngest was aged about two years at that time and other two were aged seven and nine years respectively. A two year old child requires love, care, protection and timely monitoring in food apart from nursing. As against the positive evidence of the PWs regarding torture inflicted by the Defendant upon the minor children, except denial of the fact there is no evidence adduced by the Defendant. The Defendant could have produced the evidence including the members of the family of her parents and neighbours, but that was not done. As against the positive evidence of the PWs regarding torture inflicted by the Defendant upon the minor children, except denial of the fact there is no evidence adduced by the Defendant. The Defendant could have produced the evidence including the members of the family of her parents and neighbours, but that was not done. Marshalling the evidence and materials available on record and balancing the proved facts it can be safely held that the Plaintiff has been able to prove that the Defendant inflicted torture upon the minor children and sometime kept them unfed which was one of her prime duties as the house wife. On the other hand, the Defendant miserably failed to prove that the Plaintiff had any illicit extra marital relationship and led adulterous life with the maid servant, namely, Rinku Bahadur by any clear, cogent and impeachable evidence and, thus, the Defendant failed to discharge the said burden. 12. The aforesaid facts proved on appreciation of the materials and evidence on record would require further examination as to whether inflicting such penalty to the step children who were admittedly minors would amount to cruelty within the meaning of Section 13 of the Act. It will further require for the court to consider as to the effect of the allegation of adultery made by the Defendant/wife against the Petitioner which he could not be proved by any clear, cogent and acceptable evidence. The very concept of cruelty amounts to such conduct of the party which reasonably causes apprehension in the mind of that party that it would be harmful or injurious for him/her to live with the other party. Such cruelty may be physical violence and mental strain. 13. After the amendment of the Hindu Marriage Act effected on 1976 it is no longer necessary that cruelty must be of such character as to cause danger to life, limb or health or give rise to a reasonable apprehension of such danger under the law and that stand as on date if it is proved that after solemnization of the marriage treated the Petitioner with cruelty the marriage would be dissolved. The term "cruelty" has not been defined under the Hindu Marriage Act. The term "cruelty" has not been defined under the Hindu Marriage Act. "Cruelty" in the context of its applicability under the Act as the term signifies is a conduct of such type that the Petitioner could not be expected to live with the husband or it has become impossible for the spouse to live together. References: V. Bhagat v. Ms. D. Bhagat, AIR 1994 SC 710 Suman Kapoor v. Sudhir Kapur, 2009(1) SCC 422 14. Whether a particular act or conduct would amount to cruelty that would depend on the facts of each case and no clear cut formula could be arrived at by the court. However, in such a case also it would be required to prove for getting a decree of divorce on the ground of cruelty by the Petitioner is that the act of the Defendant amounts to cruel treatment and the effect of the same on the aggrieved spouse is that it is not possible to continue a united family life. Cruelty should be of such conduct that the spouse need not reasonably expect to live with the husband or wife as the case may be and it must be more than something ordinary, wear and tear of marital life. For consideration whether an act complained of is a cruel act and to determine this aspect the court is to consider the cumulative effect upon the parties, circumstances and background, social status, customs and traditions, caste and community and upbringing and public opinion of the locality excluding the trivialities. In the case of Suman Kapoor (supra) the Apex Court dealing with the legal concept of cruelty held as follows: 43 Recently, in Samar Ghosh v. Jaya Ghosh this Court held SCC pp. 546-47 para 101 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that Situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other Spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision or refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. Again in the case of Vineeta Saxena v. Pankaj Pandit, 2006 (3) SCC 778 the Apex Court held as follows: 35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time-to-time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered. 36. The legal concept of cruelty which is not defined by the statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. 36. The legal concept of cruelty which is not defined by the statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relation must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complaints, accusations or taunts. It may be mental such as indifference and frigidity towards the wife, denial of a company to her, hatred and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage, however, mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the Appellant's side ought this Appellant to be called on to endure the conduct? From the Respondent's side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which the Respondent might have in the circumstances, the conduct is such that the Petitioner ought not be called upon to endure. 15. In view of the above background, based on the proved facts, we hold that the torture inflicted by the Defendant Appellant upon her step children admittedly who were minors during the relevant time and one of whom was aged about two years, would amount to cruelty inflicted upon the Plaintiff inasmuch as, the family life of the Petitioner cannot continue to remain isolated from the care and protection essentially required to be extended to the minor children by their father, the Plaintiff more particularly upon the death of the their natural mother. The Defendant, as indicated above, has made serious allegation against the Plaintiff as leading an incest marital life having extra marital affairs with the maid servant. The Defendant, as indicated above, has made serious allegation against the Plaintiff as leading an incest marital life having extra marital affairs with the maid servant. Not only she made this allegation in her written statement but she also deposed to that extent in her evidence but there was no corroborative evidence in this regard and the PWs stoutly denied this allegation. 16. As discussed above, the unfounded allegation of leading an adulterous life by the Plaintiff husband has caused mental shock to the Respondent as deposed by him. In the case of Srnt. Chanderkala Triuedi v. Dr. S.P. Trivedi, 1993 (4) SCC 232 the Apex Court dealing with such a situation held as follows: Whether an allegation of the husband that she was in the habit of associating with the young boys and the findings recorded by the three courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that, the marriage of the two cannot in any circumstances be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife. 17. In the instant case we also find that the parties are separated from each other since 25.10.2003. The marriage between the parties have been solemnized on 23.10.1998 which lasted for only about 5 years and the matrimonial trouble started after few months of the marriage. The Plaintiff has been able to prove the cruelty meted out by the Defendant/wife as discussed above and could prove his pleaded case in order to get a decree of divorce. The Appellant could not show or establish any illegality in passing the impugned judgment and decree, nor could show that she could prove her case to the satisfaction of the court sufficient enough to dismiss the suit. 18. The discussions made hereinabove, prompted us to hold that the present appeal is devoid of merit and accordingly it stands dismissed. 19. No costs. Appeal dismissed