Poornima Tiwari (Smt.) vs Ajay Kumar Tiwari

Satish K. Agnihotri, J.

Heard finally.

By this appeal u/s 19(1) of the Family Courts Act, 1984, the appellant Smt. Poornima Tiwari has challenged the judgment and decree dated 5-5-2008 passed by learned Family Court, Camp Court Katghora, district Korba in Civil Suit no. 33-A/2007, whereby the application u/s 9 of the Hindu Marriage Act, 1955 (henceforth ''the Act, 1955'') filed by the respondent Ajay Kumar Tiwari against her for restitution of conjugal rights has been decreed in favour of the respondent.

Brief facts of the case are that the appellant was married to the respondent as per the Hindu traditions on 21-4-2007. This was second marriage of the respondent. First marriage of the respondent had taken place with one Nirmala Tiwari. Within their wedlock, two children, namely, Satyaprakash and Shubham Prasad were born. Nirmala Tiwari died on 11-12-2006. Thereafter, with the consent of mother of his first wife, the respondent married to the appellant. In July, 2007, the appellant left the matrimonial home and went to the maternal house. Thereafter, she did not return to the matrimonial home despite several efforts made by the respondent.

It is not disputed by the appellant she that was well aware of the fact of two children of the respondent before her marriage with him. The dispute between the parties is as to the vasectomy operation which the respondent had undergone after birth of two children with the first wife and prior to the marriage with the appellant. The appellant, in her reply to the application u/s 9 of the Act, 1955, has stated that the fact of undergoing vasectomy operation and, therefore, there can be no issue with him in future was suppressed to her by the respondent before her marriage with him and alleged that thereby he has treated her with cruelty. She has further stated that on account of this cruel treatment with her, she left the matrimonial home.

The learned Family Court framed two issues regarding appellant''s leaving to the respondent without sufficient reason, which was answered in positive and commission of cruelty by the respondent with the appellant which was answered in negative. The learned Family Court has held that the respondent has succeeded in proving his case u/s 9 of the Act, 1955 against the appellant and, therefore, decreed the suit in favour of the respondent and against the appellant for restitution of conjugal rights.

Shri Ravindra Agrawal, learned counsel appearing for the appellant would submit that the appellant was not informed about the sterilization operation before the marriage and as such that amounts to cruelty and in view of the fact that the respondent became infertile on account of artificial act of sterilization operation, the appellant cannot be directed to have restitution of conjugal rights by the impugned judgment and decree.

Per contra, Shri Arvind Kumar Dubey, learned counsel appearing for the respondent would submit that the appellant was quite aware about sterilization operation prior to marriage of the respondent with the appellant on 21-4-2007. The learned Family Court, after having considered all the aspects of the matter, came to the conclusion that the appellant failed to establish / prove that she was not aware of the sterilization operation of the respondent before their marriage. Thus, the impugned decree for restitution of conjugal rights was rightly passed.

We have heard learned counsel appearing for the parties, perused the pleadings and the documents of Court below produced before us. It appears that no document has been produced to prove the fact that the appellant was not aware of the fact of sterilization operation before entering in to marriage as the learned family Court has found that the respondent had informed prior to her marriage with him.

It is wall settled that the marriage is a institution and is regarded as solemn all over the civilized world. The marriage is not only for the purpose of cohabitation or procreation of children but being a social institution it amounts to union of two souls and bodies to share, joys, sorrows, happiness and conjugal relationship. In view of that, since the appellant has not taken any steps for severance of relationship on the ground of cruelty, the learned Family Court has rightly decreed the application of the respondent by granting a decree of restitution of conjugal rights.

For the reasons mentioned herein above, the impugned judgment and decree passed by the learned Family Court is unexceptionable. The first appeal is accordingly dismissed. No order as to costs.

A decree be drawn accordingly.