While delivering a judgment granting a divorce to a woman from Bikaner, the Rajasthan High Court recently issued a judicial critique of the “atta satta” custom — where families ‘exchange’ daughters in marriage, often tying the fate of one marriage to another.

In the process, the court also sharply criticised atta satta arrangements involving minors, describing the practice as “familial extortion disguised as custom” that turns a marriage into “mutual hostage-taking between families.”

Two families, tied together

Two weddings were organised on the same day in Bikaner in 2016. Kiran Bishnoi married Sunil Kumar, and simultaneously, his minor sister, Suman, was married off to Kiran’s brother, Ravindra, under the atta satta custom. Roughly meaning “give and take”, it is practised in many parts of the state. The arrangement creates a kind of certainty for both families. In communities where a daughter’s marriage is an economic event as much as a social one, this symmetry has brutal efficiency.

In situations where one of the brides is a child, the girl is ceremonially married while she is a minor, but does not live with her husband’s family until she is older. The ritual marking that transition is called “muklawa”, which is the formal sending of the bride to her husband’s home once she comes of age.

In this case, once Suman attained majority, she declined to accept the marriage. It is pertinent to note that in an atta satta marriage, because families treat the two marriages as bound together, a decision made in one home about one woman’s life immediately affects the other.

Kiran’s matrimonial home stated that the decision resulted in continuous physical harassment, where her in-laws increasingly raised demands for dowry. This eventually led to her forcible eviction from the matrimonial home, along with her minor daughter. Eventually, she filed for divorce under the Hindu Marriage Act.

The law

The Prohibition of Child Marriage Act, 2006, prohibits the solemnisation of marriages involving girls under 18 and boys under 21. It does not automatically void a child marriage — it makes it voidable, meaning the child, on attaining majority, has the option to walk away.

The Hindu Marriage Act, 1955, adds another layer. For a marriage under the Act to be valid, the parties should be adults, and consent must be free and competent. A minor cannot give either. What atta satta does, in practice, is manufacture the appearance of a marriage during a period when the law explicitly withholds that capacity from the person being married.

What the court held

The family court dismissed Kiran’s petition, saying she had voluntarily deserted her matrimonial home and filed legal proceedings to pressure her husband into sending Suman to her brother. Her conduct, using litigation as leverage, amounted to cruelty towards her husband, the court said.

But, the division bench of the High Court held that the family court treated a third party’s personal decision as the explanation and implicit justification for everything Kiran had experienced.

Allowing her appeal against the family court order that denied her divorce, the bench comprising Justices Sunil Beniwal and Arun Monga held that the lower court wrongly treated her separation as “voluntary desertion” while ignoring allegations of mental cruelty and dowry harassment. It held that “in cases of matrimonial cruelty, the standard of proof is one of preponderance of probabilities and not proof beyond a reasonable doubt.”

On the question of voluntary desertion, the High Court said that the only reason women stay in marriages that they should leave is that they have nowhere else to go, because of children, because of economic dependence, and because of the reality of social stigma.

“Continued residence under compulsion of circumstances is not the same thing as voluntary, harmonious cohabitation. A wife staying because she has ‘nowhere else to go’ cannot be treated as proof that no cruelty existed. Endurance is often mistaken for consent and/or condonation,” the court said.

Kiran’s filing of legal proceedings, the bench held, “were not acts of malice, but rather necessary defensive measures taken to secure her basic rights of maintenance and residence when those rights were otherwise being denied.” A legal remedy sought in response to abuse, it reasoned, is a symptom of the abuse. To read it as evidence of bad faith is to punish a woman for using the law.

The court’s sharpest language was reserved for the structural logic of atta-satta itself. Calling it a means that “commodifies children, suppresses consent”, the court said that “One daughter’s life is made dependent on another daughter’s submission. If one refuses, another is pressured. If one marriage breaks down, retaliation follows in the other household.”

This structure, the court found, treats girls as “transferable obligations rather than rights-bearing individuals.” The bench observed that “What is presented as a community custom is, in substance, an exchange transaction in human lives…It is nothing more than a reciprocal exchange in which minors are treated as bargaining instruments between families.”

The court said that “Dressing exploitation in cultural language does not sanitize it. A girl child is not consideration in a reciprocal bargain.” Consent, it said, “given on attaining majority, after coercive childhood conditioning, is not a free consent.”