POORNIMA TIWARI (SMT.) Vs. AJAY KUMAR TIWARI

JUDGEMENT

(1.) HEARD finally. By this appeal under Section 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 under Section 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.

(2.) 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.

(3.) 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 under Section 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.