Rajasthan HC Dismisses Divorce Plea of Husband Who Took Second Wife Under 'Nata' Custom, Calls Practice Legally Untenable
A Division Bench at Jodhpur rejected a husband's divorce petition, holding that his unlawful second marriage under the Nata custom was the cause of matrimonial breakdown, not the wife's conduct.
A Division Bench of the High Court of Judicature for Rajasthan at Jodhpur, comprising Justice Arun Monga and Justice Sandeep Shah, on 12 May 2026 dismissed a husband's appeal against the Family Court, Rajsamand's refusal to grant him a divorce. The husband, Laxmilal, had contracted a second marriage with a woman named Krishna in 1997 under the local custom of nata, while his lawful marriage with Parwati remained intact and undissolved. The bench held that a party who engineers the very circumstances of matrimonial breakdown cannot invoke those circumstances as grounds for relief. In an epilogue to the judgment, the bench went further, declaring that the nata custom, where a second matrimonial union is entered into without dissolving the first marriage, cannot receive legal recognition and must be condemned as incompatible with the Hindu Marriage Act, 1955.
The Marriage, the Second Union, and the Divorce Petition
Laxmilal and Parwati were married on 5 May 1992 at Village Badnore, District Bhilwara, according to Hindu rites. Two sons were born from the marriage. Both parties were employed as government teachers. In 1997, Parwati was transferred to Jhadol, Tehsil Raipur, District Bhilwara, and began residing there with the children on account of her posting.
That same year, Laxmilal entered into a nata marriage with Krishna, claiming Parwati had consented. Parwati denied any such consent and alleged that Laxmilal had deserted her after developing a relationship with Krishna, and had even used his influence to engineer her transfer to Jhadol. Following the second marriage, Parwati lodged a criminal complaint, registered as Criminal Case No. 594/1997, which was subsequently compromised.
Laxmilal thereafter filed a petition for dissolution of marriage before the Family Court, Rajsamand, alleging cruelty and desertion by Parwati over a prolonged period. The Family Court dismissed the petition by judgment and decree dated 24 May 2023, finding that Laxmilal was the erring party and could not claim relief on account of his own matrimonial wrong. Laxmilal challenged that dismissal before the Division Bench in D.B. Civil Miscellaneous Appeal No. 1211/2023.
Arguments Before the Division Bench
Counsel for Laxmilal pressed three principal contentions. First, that Parwati had lodged a false criminal complaint under Sections 498A, 406, 494 and 323 IPC, resulting in FIR No. 268/2021 at Police Station Asind. The police, after investigation, submitted a final report dated 21 December 2021 finding the allegations to be false, and the protest petition filed by Parwati was dismissed by the Judicial Magistrate, Asind on 14 February 2023. Filing a false criminal complaint, counsel argued, amounts to mental cruelty.
Second, counsel submitted that the parties had been living separately for more than 27 years and all efforts at reconciliation had failed, resulting in a complete breakdown of the matrimonial relationship. Third, counsel argued that the Family Court had failed to appreciate that the long separation, combined with the false criminal proceedings, entitled Laxmilal to a decree of divorce.
Counsel for Parwati opposed the appeal, contending that the impugned judgment rested on a sound appreciation of evidence and required no interference.
What the Family Court Had Found
The Division Bench reproduced the relevant portions of the Family Court's judgment. The Family Court had found that Laxmilal's own admissions in cross-examination were decisive: he admitted that his Aadhaar card recorded Krishna Devi as his wife, and that he had one son and two daughters with her. The Family Court concluded that Laxmilal had left his lawfully wedded wife Parwati and was living with Krishna Devi as his wife, a situation entirely of his own making.
On the question of cruelty, the Family Court found that Laxmilal had not placed on record any specific evidence of the nature or manner of the alleged abuse or quarrels. On desertion, the court noted that both parties were posted at different locations due to government service, and that Parwati's separate residence was therefore not without reasonable cause. The court held that Parwati had reasonable cause to separate once Laxmilal contracted a second marriage, and that no relief could be granted to a party for his own fault.
The Division Bench's Reasoning: Clean Hands and Constructive Desertion
The Division Bench expressed its agreement with the Family Court in full, but elaborated its own reasoning at length. Justice Arun Monga, writing for the bench, opened by recording the court's “deep disquiet at the imprudence with which the appellant has conducted himself.”
The bench stated that a decree of divorce under the Hindu Marriage Act is not a matter of right. It is equitable relief, available only to a party who approaches the court with clean hands and a legitimate grievance. A party who has himself inflicted the matrimonial wrong forfeits his standing to seek the court's indulgence. The bench invoked the maxim: he who comes into equity must come with clean hands.
On the nata marriage itself, the bench was unequivocal. Laxmilal's second marriage with Krishna in 1997 took place during the continued subsistence of his lawful marriage with Parwati, a marriage never dissolved by any court of competent jurisdiction. Section 5(i) of the Hindu Marriage Act, 1955 prohibits bigamy, and Section 11 renders such a marriage void ab initio. The bench recorded its finding that invoking the nata custom in these circumstances was “nothing but a transparent attempt to launder a void and statutorily prohibited second marriage through the garb of custom”, a custom that cannot override the express mandate of a Parliamentary enactment.
The bench rejected Laxmilal's claim that Parwati had consented to the second marriage. Even if such consent had been given, it would be without legal consequence. The prohibition on bigamy under Section 11 read with Section 5(i) is a matter of public policy and statutory mandate, not a private right capable of waiver by the existing spouse.
On cruelty under Section 13(1)(ia), the bench held that the conduct complained of must be assessed in its totality. Whatever discord existed in the matrimonial home was not unprovoked on Laxmilal's part. To characterise Parwati's reaction to her husband's second marriage as cruelty towards him would, in the bench's words, be to turn the law upon its head.
On desertion, the bench examined both elements: the factum of separation and the animus deserendi. It found that Parwati's separate residence arose from the exigencies of government posting, not from an intention to permanently abandon the marriage. More fundamentally, the bench held that where a spouse's departure from the matrimonial home is occasioned by the other spouse's wrongful conduct, that departure is not desertion in law, it is constructive desertion by the wrongdoer. No wife, the bench observed, can be expected to share her matrimonial home with a husband who has taken another woman as his wife and is living with her openly.
On the 2021 criminal complaint, the bench held that a police investigation that does not result in a charge-sheet is not necessarily the equivalent of a false and malicious complaint. Even if the complaint were found to have been made without adequate basis, Laxmilal, who had himself performed an unlawful second marriage and lived openly with the second wife, could not be heard to complain that Parwati's complaints constituted cruelty towards him.
The bench concluded that the true and proximate cause of the matrimonial breakdown was Laxmilal's second marriage, an unlawful act committed in defiance of both law and the sanctity of his existing marriage. Parwati's subsequent conduct, her refusal to cohabit, her complaints to the police, her resistance to reconciliation, all flowed directly from that pivotal event. A wrongdoer cannot manufacture a cause of action by first committing a wrong and then pointing to the injured party's reaction as the basis for relief.
The Epilogue: Nata Custom Condemned
Before parting, the bench addressed the broader social dimension of the nata custom. The bench noted that nata is prevalent in certain communities in Rajasthan, where a person enters into a second matrimonial union without formally dissolving the first marriage through legal divorce.
The bench examined whether Section 29(2) of the Hindu Marriage Act, which saves rights recognised by custom or conferred by special enactment to obtain the dissolution of a Hindu marriage, could provide any shelter. It rejected that argument. Section 29(2) is a saving clause that speaks narrowly of customs relating to the dissolution of marriage, that is, customary divorce. Nata does not dissolve the first marriage; it simply bypasses it. The saving clause cannot be stretched to cover a practice that violates Section 5(i) by creating a second marriage over an existing, legally intact one.
The bench identified the harm the custom inflicts on two sets of women simultaneously. The first wife, whose marriage remains legally subsisting, is left in a state of abandoned limbo, deserted in fact but still a wife in law, unable to remarry without social and sometimes legal consequences. The woman in the nata relationship enjoys no formal legal status: no recognised matrimonial rights, no enforceable claims to maintenance, inheritance, or matrimonial property, and her children may face questions of legitimacy.
The bench held that legal recognition of nata as a valid defence would institutionalise the vulnerability of both women simultaneously, an outcome irreconcilable with Article 14 read with Article 15 of the Constitution, and with the directive principles under Article 39 mandating equal rights for men and women. Accepting nata as a defence against bigamy would, the bench found, render the Hindu Marriage Act meaningless and reduce the rule of law to absurdity.
The bench declared that the nata custom, where a second marriage is entered into without divorcing the first spouse, directly contradicts the foundational provisions of the Hindu Marriage Act and cannot be accorded legal recognition. It must, in the bench's words, “be unequivocally disapproved of by society, condemned and thrown out altogether from the bounds of acceptable practice.”
Outcome
The Division Bench dismissed D.B. Civil Miscellaneous Appeal No. 1211/2023. The judgment and decree of the Family Court, Rajsamand dated 24 May 2023, dismissing Laxmilal's petition for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955, was upheld. All pending applications were disposed of. The order was marked reportable.