NOTES AND COMMENTS

HOW ‘VOID’ IS AVOID MARRIAGE?

A comment on Velamuri Venkata Sivaprasad v. Kotliuri Venkateshwarlu

LAWS ARE passed by the Parliament but it is the judiciary which gives concrete
form to them by applying and interpreting them in cases which come before
the ctiurts. With the needs of changing times, laws are amended and so also
their interpi etation and application. Whethei real justice has been imparted in
° 8 'Vef1 case Often depends on the way the courts apply the law. While strict
application of a statutory prt›vision might sometimes cause injustice, at times
the reverse is true and the demands ofjustice may be more aptly met by flexible
approach to the pi ovisions. In other words, law could be like a double-edged
weapon which has thc potential to cause justice as well as injustice, depending
on the facts and circumstances of a given case and the attitude of the court. It
needs no saying, however, thiit laws are meaningless without judiciary and
vice versa, and justice is the outcome of interplay of substantive law and its
application.
While subjectivity and personal opinion of the judge cannot be extricated
from the process of decision making, what is discomforting is when general
established principles of law and justice are applied discriminately.
The judgment of the apex court in Velainuri Venkata Sivaprasad v. Kothuri
Venkateswarlu' is an example of how specific provisions of law as well as
general established principles of law are capable of being subjectively applied.
The same principles have been ignored to give advantage to some (male)
litigants while these have been made grounds for depriving others (female) of
significant rights.
A brief reference may be made, chronologically, of the legal provisions
which have a bearing on this case.
The Hindu Widow’s Remarriage Act, 1856 was passed to remove legal
obstacles to the marriage of Hindu widows. However, vide section 2 of the
Act, all the rights in the properties of her decreased husband which she may
have, would cease on her remarriage, “as if she had then died”.
The Madras Hindu (Bigamy Prevention and Divorce) Act was passed in
1949. Section 2 thereof declared a bigamous marriage as a void marriage.

I . ATR 2000 SC 434.

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M4 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

The Hindu Marriage Act, passed in 1955 declares some marriages,

performed in contravention of certain mandatory conditions for a marriage, as
void. Under section 5, a marriage is void, inter alia if it is bigamous i.e. a
party already has a living spouse at the time of marriage. Such marriage is
void ipsofacto in terms of section 11 of the Act.
In 1956 the Hindu Succession Act was passed which brought significant
changes in the rights of Hindu females in respect of ownership and succession
to properties. Under section 14 her limited rights over properties already in her
possession have been enlarged to absolute ownership rights.
In 1983 the Hindu Widows Remarriage Act was repealed.
In this backdrop, a reference may be made of the issue, which inter alia,
is the crux of the case in Velamuri Venkata Sivaprasad. be husband died in
1937. Since the Succession Act was not in existence at that time, whatever
the widow got under the terms of a will or compromise was by way of limited
estate only. In 1953 she remarried her sister’s husband during the subsistence
of his earlier marriage. Under the 185d Act, there was no bar to her remarriage
but since she had married an already married man whose wife was living,
the remarriage was void in terms of the Madras Hindu (Bigamy Prevention
and Divorce) Act, 1949 (referred to above). The issue, inter alia, which came
up for determination was whether her remarriage, void though, could divest
her of her limited rights to her deceased husband’s property. If so, the question
of any limited right transforming into an absolute right does not occur because
she would already have been divested of any rights prior to 1956.
After analyzing the case law and general principles of ethics, estoppel
and morals, the court came to the conclusion that the widow was barred in
view of her remarriage. Even though the marriage was void, that does not
obliterate the disqualification from inheritance by reason of remarriage.
“Voidness of marriage cannot be termed to be an absolute nullity,” said the
court. In support of this proposition, the court referred to section 16 of the
Hindu Marriage Act whereunder even if a marriage is void under section 11, a
status of legitimacy is given to the children. According to the court, this is “a
statutory recognition of limited voidness and not a nullity”.
The court also greatly emphasized the doctrine of sincerity, clean hands
and ‘moral estoppel’. It referred to section 23(I)(a) of the Hindu Marriage Act
under which one who takes advantage of his own wrong or disability is not
entitled to relief. It also referred to the Latin maxim gin approbat non reprobate
(one who approbates cannot reprobate) as a basic inhibitory principle of law.
Further, according to the court, the Madras Act is penal in nature. A literal
application if the Act, according to the court would lead to incongruity as well
as absurdity since it would mean that if she had married someone without a

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