[2026:RJ-JD:5756-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Misc. Appeal No. 1608/2024 Smt. Rukaiya Alias Sonu Alias Mini W/o Shri Arif Mohammed, Aged About 44 Years, D/o Shri Shafi Mohammed Chhipa, B/c Chhipa Musalman, R/o Junawas Bhilwara. At Present House No. 54 Near Hanuman Mandir, Panchwati, Chittorgarh. At Present Working As Udc Cmho Office, Near Collectorate, Chittorgarh.

----Appellant Versus Arif Mohammed S/o Shri Rafique Mohammed Chhipa, Aged About 48 Years, B/c Chhipa Musalman, R/o Junawas Bhilwara.

----Respondent For Appellant(s) : Mr. Sameer Khan For Respondent(s) : Mr. Usman Ghani HON'BLE MR. JUSTICE ARUN MONGA HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT

Order(Oral)

02/02/2026 Per : Arun Monga, J

1. The appeal herein is directed against the order and decree dated 22.02.2024 passed by the learned Family Court No. 1, Bhilwara, whereby the suit for restitution of conjugal rights filed by respondent husband was allowed.

2. The respondent filed a suit for restitution of conjugal rights stating that the marriage between the parties was solemnized on 26.05.2001 as per Muslim law and that two children were born out of the wedlock, both presently residing with the appellant at Chittorgarh. It was alleged that the appellant, who was employed as an LDC, gradually became cruel and indifferent, frequently stayed away at Chittorgarh due to her service, and remained engaged in phone conversations, adversely affecting the marital relationship. After the respondent met with an accident on 26.12.2018 and fractured his leg, the appellant left for Chittorgarh and never returned, despite repeated efforts by the respondent, his parents, and community elders, thereby deserting the respondent without reasonable cause.

2.1 The appellant, in her written statement, denied all allegations of cruelty and desertion, asserting that the respondent failed to discharge his duties as a husband and father, did not provide maintenance, and neglected the education of the children, which compelled her to reside at her parental home in Chittorgarh. She denied the accident story and claimed that the respondent sustained injuries due to his quarrelsome nature, for which she had earlier arranged treatment at her own expense. The appellant further alleged that, it is her, who was, in fact subjected to cruelty by the respondent; that he remained unemployed, and that she lodged FIR No. 39/2022 under Sections 498-A, 406, and 504 IPC, in which a charge-sheet has been filed, asserting that she and her children were unsafe with the respondent.

2.2 On the basis of the pleadings, the Family Court framed two issues and recorded the evidence of the respondent as A.W.-1 and the appellant as N.A.W.-1. After hearing final arguments, the learned Family Court No. 1, Bhilwara, allowed the respondent’s suit for restitution of conjugal rights and passed a judgment and decree dated 22.02.2024 directing the appellant to reside with the respondent. Aggrieved by the said judgment and decree, the appellant has preferred the present appeal before this Hon’ble Court.

3. Having heard the rival contentions and perused the record available on file, including the impugned judgment dated 22.02.2024, we are of the view that the appeal deserves to be allowed. Let us see how.

4. First and foremost, before adverting to the merits of the case, it would be prudent to refer to the impugned judgment, which is, inter alia, premised on the reasoning that since the appellant has filed collateral proceedings seeking dissolution of the marriage with the respondent as per Mohammedan law, the same per se reflects that she is the erring party. However, what has been given complete short shrift by the learned Family Court is the defense taken by the appellant qua the alleged cruelty inflicted upon her by the respondent/husband.

5. The learned Family Court has merely noticed the defense but has recorded no discussion as to why the same was not found to be admissible, despite there being evide