S.R. MISRA, J.

(1) THIS appeal is directed against the judgement and decree of the learned Additional District Judge, 4th Court, Alipore, 24 Parganas in Matrimonial Suit No. 28 of 1987, whereby he decreed the suit. Shri Swapan Manna (Husband) plaintiff respondent in the appeal filed a suit for a decree of divorce disolving the marriage between the petitioner and the respondent and the custody of the children on the ground of desertion and cruelly. Undisputedly, the marriage between the parties were solemnized according to Hindu Marriage Rites and Customs on 23rd of January, 1976 and out of the said marriage three children, one son and two daughters were born out of the said wedlock. According to husband from the very beginning he was received very coldly and subsequently he came to know that the defendant was in the habit of seeing picture in quick succession and she was very fond of outings and she could not enjoy things during one weeks stay at husbands place. Detailed allegations have been made In the plaint in support of the application for divorce. It has also been stated that in spite of plaintiffs repeated request for bringing the wife back all attempts failed and he was treated with cruelty by the wife and father-in-law.

(2) ACCORDING to the statement of the husband the wife left matrimonial home on 1st of November. 1983 without any information and when he returned from his office he came to know that his wife has left the matrimonial home with bag and baggages and three children. Immediately the plaintiff went to the father-in-laws place who started abusing him with filthy language and also gave a slap and asked him to get out from the house and threatened him if he tried to take away his daughter (wife of the petitioner) he would be murdered. Having no other alternative he came with a broken heart and extreme disappointment in a most pitiable condition.

(3) IN paragraph 34 of the plaint it has been stated that due to prolonged misbehaviour and cruelty by the defendant since 1-11-1983 till the filing of the suit, the respondent lived separately wilfully deserting plaintiff and the relationship between plaintiff and respondent having permanently broken. Hence, the application under section 13 (ia) and 13 (ib) of the Hindu Marriage Act, 1955 for the decree of divorce.

(4) WIFE appellant contested the suit and filed a written statement denying the allegations and the averment of the plaint. According to wife on the 9th day of marriage husband left the house of the father of the respondent without their knowledge and she returned to her matrimonial home with her father. The newly born baby was taken by the parents of the defendant and with knowledge and consent of the husband and other relatives. Since the husband did not care to look after the wife and the baby, she went to her fathers place. She further stated that in spite of her matrimonial home she was compelled to reside at the house of her parents as the petitioner did not take her from her parents house.

(5) ONE of the reasons assigned was that husbands family members were not satisfied with the presentation received at the lime of marriage. She was always prepared to stay at matrimonial home along with the husband and other family members but the husbands family members including his mother treated her with cruelty.

(6) ON 1-11-1983 petitioner picked up a quarrel with the wife and ultimately she was driven out of her matrimonial home and she is living with her parents in complex circumstances. The husband has no affection for the children and in fact she become a victim of cruelty and desertion by her husband. She further stated that petitioner was involved in indecent mixing, with other ladles.

(7) SHE was forcibly driven out of the house on 1-11-1983 being assaulted by the sister of her husband and her mother-in-law and they forced her to leave the house and threatened her to kill. So she tell the house with her three children. It is disputed that since 1. 11. 83 the parties have been living separately and the three children born out of the wedlock have been living along with their mother.

(8) BOTH parties adduced evidence that is plaintiff appeared as P. W. 1 and no other witness and the wife appeared as D. W. 1 and Ajit Kumar Das as D. W. 2. The learned Judge on consideration of the materials on the record held that the allegations on desertion made by the plaintiff-husband have been proved beyond all reasonable doubts and also cruelty mentally and physically at the instance of the wife and thus decreed the suit on contest. Being aggrieved the wife-appellant has preferred the instant appeal challenging the correctness and propriety of the findings alleging it to be erroneous by the learned Additional District Judge (4th Court). It has been contended on behalf of the appellant that the Trial Judge has erred in decreeing the suit on the ground of cruelty and desertion but on a proper appreciation and on the evidence of the parties it is clear that the husband has failed to prove his case and the suit should have been dismissed by Trial Court and the judgment and decree is liable to be set aside.

(9) THE learned Counsel for the respondent has tried to justify the judgment of the Trial Court and according to him, the Trial Court has rightly decreed the suit and there is no substance In the present appeal.

(10) HAVING heard the learned Counsel for the parties and having gone through the evidence on record, the judgment of the Trial Court is not happily worded but at the same time we are not inclined to set aside the judgment and decree of the Trial Court on that ground. A perusal of the judgment of the Trial Court would go to show that the sole testimony of the husband-petitioner has been accepted without a corroboration though corroboration is not a rule of law. But in the normal course it may require corroboration. However, from the materials it is clear that the husband and the wife, both are living separately since 1. 11. 83. Our attempts for reconciliation or reuniting them have failed. Even husband failed to appear before us inspite of the fact that we wanted his statement during the course of the proceeding but on his failure no other alternative is left except to decide this appeal.

(11) IT is true that the parties have made statements which are oath against oath. As a court of fact has accepted the statement of the husband, we do not find any good ground for upsetting the judgment believing the statement of the husband though no reasons have been recorded by the Trial Judge as to why the statement of the wife be rejected. Wife has also made allegations against the petitioner for indecent mixing with other lady. However, inspite of this allegation the wife was prepared to live along with her husband in the matrimonial home. It is difficult to give a comprehensive definition of cruelty. This word of cruelty has been the subject matter of a number of decisions including that of the appex court. Broadly speaking it depends on a number of factor and circumstances of each case where cumulative conduct of the party concerned was sufficiently good enough to come to a conclusion from a reasonable persons point of view that it is not possible for one party on account of the conduct of the other party to continue with the ties of marriage and acts of such a nature committed by the other party causing mental injury of physical injury as a result of which living together is impossible. When allegations and counter-allegations are made by the spouse, in some case with substance and in the other case without substance especially doubting the character, living separately for a long period before the filing of a suit and also during the pendency of the suit and the marriage, in fact, has broken down irretrievably and irreparably, in this background agreeing with the judgment of the Trial Judge we modify the order to the extent for the payment of alimony to the wife and to three children. While considering the cases of divorce mere austerity of temper, rudeness of language even on occasion salic if they do not threaten bodily hard. It may not amount to a legal cruelty when in fact the marriage has broken and the court is called upon to pass a decree for divorce. Minor differences and petty things are always ignored, that is, if a very technical view of the matter is taken that slight losing of temper against the wishes of the other party or anything done which is not liked by the other party may not be a ground for divorce unless such an act is of a serious nature which may cause mental or physical injury.

(12). While considering the question what is a cruelly, the status of the parties, their social custom, their standard of living, their settlement in life may be taken into consideration in arriving at a conclusion whether the act complained of will amount to a cruelly or not. It is relevent to take into consideration the overall aspect of the matter in the light of the material allegations and counter-allegations of the parties. In such a matter where a finding of the cruelty has been arrived at by the Trial Court it is no use keeping a marriage alive when in all respects it has been broken down. In AIR 1984 SC 1562 [LQ/SC/1984/192] , the Supreme Court has observed as follows:

" Further more we reach this conclusion without any mental compunction because it is evident that for whatever be the reason this marriage has broken down and the parties can no longer live together as husband and wife if such is the situation it is better to close the chapter. "

(13) IN another decision reported in AIR 1994 SC 710 [LQ/SC/1993/1001] V. Bhagat v Mrs. D. Bhagat, the Supreme Court has observed as follows:

"there must be really some extra-ordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable break-down of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground (s) alleged is made out and in termining the relief to be granted, the said circumstances can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insolvable mess, when the court finds it in the interest of both the parties. "

(14) ACCORDINGLY, the appeal partly succeeds with the result while up holding the decree of the Trial Court on the question of divorce we award alimony to the wife at the rate of Rs. 500/- (Rupees five hundred) per month and at the rate of Rs. 400/- (Rupees four hundred) per month to each of the three children. This amount is payable so far as the children concerned, namely, two daughters so long they are not married and the son is not employed and so long as the wife is not re-married. The first instalment of this alimony for the month of February and March will be payable by 30th of April, 1996 and the subsequent payment will be made by 15th of each succeeding month.

(15) IF the payment indicated above is not paid continuously for a period of three months, it will carry an interest of 12/o and on the failure on the part of the husband-respondent to make the payment as directed by this court, this amount of alimony will be the first charge on the property and income of the husband and the children are entitled to take appropriate steps for realisation and execution of the amount decreed by this Court. Parties are directed to bear their own costs. S. Narayan. J. , I agree. Appeal allowed