The Division Bench held that continued residence in a matrimonial home does not necessarily negate cruelty, observing that endurance is often mistaken for consent or condonation.
The Rajasthan High Court at Jodhpur has dissolved a marriage under Section 13 of the Hindu Marriage Act, 1955 after setting aside a Family Court judgment that had refused divorce to the wife.
The High Court held that the Family Court wrongly treated the wife’s continued stay in the matrimonial home as proof that cruelty did not exist.
A Division Bench of Justice Arun Monga and Justice Sunil Beniwal delivered the judgment on April 10, 2026 in Kiran Bishnoi v. Sunil Kumar. Justice Arun Monga authored the judgment.
Wife Challenged Family Court Order
Kiran Bishnoi filed the appeal against the Family Court judgment dated September 24, 2025.
The Family Court at Bikaner had dismissed her divorce petition under Section 13 of the Hindu Marriage Act.
Advocate DK Gaur appeared for the appellant-wife, while Advocate Nitesh Mathur represented the respondent-husband.
Wife Alleged Dowry Harassment And Cruelty
The parties married on March 31, 2016 at Bikaner according to Hindu rites and customs.
The wife alleged that despite substantial dowry given by her family, the husband and his relatives continued demanding additional dowry, including a motorcycle and gold articles.
She further accused them of physical assault, emotional harassment, denial of stridhan, and grave acts of cruelty.
The wife also alleged sexual assault by her brother-in-law and father-in-law.
According to her, the husband’s family forcibly threw her and her minor daughter out of the matrimonial home on March 19, 2020.
She also alleged that the family later took away custody of the child, which police subsequently restored to her.
The wife lodged FIR No. 87/2020. Police later filed a charge-sheet against the husband and his father under Sections 498-A, 406, 323, and 34 IPC.
Husband Relied On ‘Aata-Sata’ Custom
The husband admitted the marriage and the birth of the daughter but denied all allegations of cruelty and dowry demand.
He claimed that the marriage took place under the “Aata-Sata” custom. Under this custom, families exchange daughters in marriage.
The dispute, according to the husband, arose because his sister Suman refused to perform “muklawa” after attaining majority.
The judgment explained “muklawa” as the custom where the bride formally begins living with her husband after marriage.
The husband argued that the wife voluntarily left the matrimonial home under the influence of her family members and falsely implicated him in criminal proceedings.
Family Court Blamed Wife
The Family Court concluded that the primary dispute arose from the Aata-Sata arrangement rather than dowry harassment.
It further held that the wife filed proceedings under Section 125 CrPC and Section 13 HMA only to pressure the husband’s family into sending Suman to live with the appellant’s brother.
The Family Court treated the wife’s conduct as cruelty towards the husband and rejected her divorce plea.
High Court Finds Serious Error In Family Court Approach
The High Court strongly disagreed with the Family Court’s reasoning.
The Bench held that the Family Court became “over swayed” by the collateral dispute arising from the Aata-Sata custom instead of examining cruelty within the marriage itself.
According to the High Court, the Family Court failed to distinguish between:
- disputes arising from the customary arrangement, and
- the independent legal test for matrimonial cruelty.
The Court observed that Suman had every right to refuse child marriage and decline muklawa after attaining majority.
The Bench held that this separate family dispute could not legally amount to mental cruelty by the wife against the husband.
Court Recognises Duress Behind Co-Residence
The High Court also rejected the Family Court’s conclusion that the wife voluntarily deserted the matrimonial home.
The Bench observed that many women continue staying in abusive marriages because of:
- economic dependence,
- social pressure,
- fear of stigma,
- lack of shelter, or
- concern for children.
The Court held that continued physical residence does not always mean peaceful cohabitation.
The Bench observed that a wife may continue living in the matrimonial home because she has “nowhere else to go.”
Therefore, the Court held that co-residence alone cannot disprove cruelty.
Legal Proceedings Were Not Malicious
The High Court further rejected the finding that the wife filed legal proceedings to harass the husband.
According to the Bench, the wife merely used legal remedies to secure maintenance, residence, and protection of her rights.
The Court held that such proceedings often reflect an abusive marital environment rather than malicious conduct.
Cruelty Includes Mental Trauma
The Bench clarified that cruelty does not only include extreme physical violence.
The Court observed that even subtle emotional conduct can amount to mental cruelty if it makes cohabitation unbearable.
The High Court found that the Family Court gave excessive importance to co-residence while ignoring the psychological trauma suffered by the wife.
The Bench also reiterated that matrimonial disputes require proof on the standard of preponderance of probabilities and not proof beyond reasonable doubt.
Long Separation Showed Marriage Had Broken Down
The Court noted that the parties had lived separately for nearly five years.
It also recorded that mediation proceedings before the Family Court had failed.
The Bench found no genuine effort by the husband to restore the marriage.
According to the Court, forcing the parties to continue the marriage would itself amount to cruelty.
Wife Gave Up Maintenance Claim
During the hearing, counsel for the wife informed the Court that she was willing to give up all claims for:
- alimony,
- past maintenance,
- present maintenance, and
- future maintenance.
The Court recorded the statement and clarified that she could not later claim those benefits from the husband.
Marriage Dissolved Under Section 13 HMA
Allowing the appeal, the High Court set aside the Family Court judgment dated September 24, 2025.
The Bench dissolved the marriage under Section 13 of the Hindu Marriage Act, 1955 and directed preparation of a fresh decree sheet.
The Court clarified that its observations would not affect pending criminal or custody proceedings between the parties.
Court Strongly Criticises Aata-Sata Involving Minors
Before concluding, the High Court strongly criticised the practice of involving minors in Aata-Sata marriages.
The Court observed that modern matrimonial law rests on:
- consent,
- adulthood,
- dignity, and
- free will.
The Bench noted that the Prohibition of Child Marriage Act, 2006 exists to protect children from exploitation.
According to the Court, no custom can override statutory law.
The Court observed that the same day the parties married, the husband’s minor sister Suman also married the appellant’s brother under the Aata-Sata arrangement.
The Bench stated that adults had effectively tied a minor girl to marriage without her informed consent.
‘Girl Child Is Not Consideration In Reciprocal Bargain’
The High Court strongly condemned the practice.
The Bench observed that reciprocal marriages involving minors reduce girls to instruments of family bargaining.
The Court held that such arrangements transform marriage into “mutual hostage-taking between families.”
The Court concluded that Aata-Sata involving minors:
- commodifies children,
- suppresses consent,
- entrenches patriarchy, and
- creates future conflict.
The Bench finally described the practice as a form of gender coercion, child-rights violation, and familial extortion disguised as custom.
