Sources of Hindu Law ?

“Hindu law has the oldest pedigree of any known system of jurisprudence, and
even now it shows no sign of decrepitude.”- Henry Mayne.

Origins of Hindu Law

It is believed that Hindu law is a divine law. It was revealed to the people by
God through Vedas. Various sages and ascetics have elaborated and refined
the abstract concepts of life explained in the Vedas.

In this modern times, the same laws have been codified in the form of several
acts of which the important ones are - Hindu Marriage Act 1955, Hindu
Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act
1956, and Hindu Succession Act 1956.

Source of Law:

Vijnaneshwar (commentator on the Yajnavalkya Smriti and founder of

Mitakshara School) has called it Jnapak Hetu i.e., the means of knowing law.

Hindu law is a set of personal laws governing the social conditions of Hindus
(such as marriage and divorce, adoption, inheritance, minority and
guardianship, family matters, etc.). It is not Hindus alone who must follow
Hindu law but there are several other communities and religious
denominations that are subject to its dominion such as Jains, Buddhists, Sikhs,
Brahmo-Samajists, Prarthana-Samajists, the Virashaivas and Lingayats and the
Santhals of Chhota Nagpur besides others.

Sources of Hindu Law:

The sources of Hindu law can be classified under the following two heads:

I. Ancient Sources

Under this would come the following:

1. Shruti
2. Smriti
3. Digests and Commentaries and
4. Custom.
II. Modern Sources

Under this head would come:

1. Justice, equity and good conscience

2. Precedent, and
3. Legislation.

Ancient Sources

Ancient Sources: Before the codification of Hindu Law, the ancient literature
was the only source of the law. These sources can be divided into four
categories:

(i) Shruti-

Shrutis include the four vedas - Rig, Yajur, Sama, and Atharva along with their
Brahmanas. The Brahmanas are like the appendices to the Vedas

Shrutis basically describe the life of the Vedic people.

Vedas do refer to certain rights and duties, forms of marriage, requirement of

a son, exclusion of women from inheritance, and partition but these are not
very clearcut laws.

(ii) Smritis-

The basis of the Smritis is Shrutis but they are human works.

The smritis can be divided into two –

1. Dharmasutras
The Dharmasutras were written during 800 to 200 BC. They explain
the duties of men in various relationships, inheritance, partition,
and stridhan, marriage, sonship, and inheritance, remarriage of
virgin widows.
2. Dharmashastras
They dealt with the subject matter in three parts
i. Aachara : This includes the theories of religious
observances,
ii. Vyavahar : This includes the civil law.
 iii. Prayaschitta : This deals with penance and expiation.
3. Manusmriti:

It compiles all the laws that were scattered in pre-smriti sutras and
gathas. He holds local customs to be most important. He directs the king
to obey the customs but tries to cloak the king with divinity. He gives
importance to the principle of 'danda' which forces everybody to follow
the law. Manusmriti was composed in 200 BC.

4. Yajnavalkya Smriti:

He did not deal much with religion and morality but mostly with civil
law. Vijnaneshwar's commentary 'Mitakshara' on this smruti, is the most
important legal treatise followed almost everywhere in India except in
West Bengal and Orissa.

5. Narada Smriti :

Narada was from Nepal and this smriti is well preserved and its complete
text is available. This is the only smriti that does not deal with religion
and morality at all but concentrates only on civil law.

(iii) Digests and Commentaries-

After Shrutis, came the era of commentators and digests.

The original source of Hindu law was the same for all Hindus. But schools of
Hindu law arose as the people chose to adhere to one or the other school for
different reasons.

The two major schools of thought, from whose commentaries, the modern
Hindu law emerged are

1. Vijnaneshwar's 'Mitakshara' followed almost everywhere in

India except in West Bengal and Orissa
2. Jimutavahana's Dayabhaga that is applicable in the Bengal and
Orissa area.

The basic objective of these texts was to gather the scattered material
available in preceding texts and present a unified view for the benefit of the
society. Various digests have been composed from 700 to 1700 AD.
(iv) Custom-

Custom is a principle source and its position is next to the Shrutis and Smritis
but usage of custom prevails over the Smritis. It is superior to written law.

Customs are of four types:

1. Local Customs- These are the customs that are followed in a given
geographical area
2. Family Customs- These are the customs that are followed by a
family from a long time. These are applicable to families where
ever they live. They can be more easily abandoned that other
customs.
3. Caste and Community Customs- These are the customs that are
followed by a particular cast or community. It is binding on the
members of that community or caste.
4. Guild Customs - These are the customs that are followed by
traders.

The following are the modern sources of Hindu law:

1. Equity, Justice, and Good conscience: Equity means fairness in dealing.

Modern judicial systems greatly rely on being impartial. In terminology, this is
known as principles of justice, equity and good conscience. Yagyavalkya has
said that where ever there are conflicting rules, the decision must be based on
'Nyaya'. This principle has been followed by the Privy Council while deciding
cases.

2. Precedent: The doctrine of stare decisis started in India from the British
rule. All cases are now recorded and new cases are decided based on existing
case laws.

3. Legislation: Legislations are Acts of Parliament which have been playing a

profound role in the formation of Hindu law. After India achieved
independence, some important aspects of Hindu Law have
Schools of Hindu law ?

Broadly speaking, there are two main schools of Hindu law, namely:-

1. The Dayabhaga school, and

2. The Mitakshara school.

The Mitakshara is a running commentary on the code of Yajnavalka. It has

been written by an eleventh century jurist by the name of Vijnaneshwar and
prevails in all parts of India (except the province of West Bengal) and in
Pakistan.

The Dayabhaga School, which is followed mainly in Bengal, Bangladesh, is not a

commentary or any particular code, but is a digest of all the codes. It has been
written by Jimutavahana. It may also be noted that the Mitakshara is the
orthodox school, whereas the Dayabhaga is the reformist school of Hindu law.

The Dayabhaga is not divided into any sub-schools, However, the

Mitakshara is sub-divided into four schools prevailing in different part of India,
and these four sub-schools are as follows:-

a. The Banaras School, which prevails in northern and western India;

b. The Mithila School, which has most of its followers in Bihar
c. The Dravida or Madras School, which prevails in Southern India; and
d. The Maharashtra or Bombay School, which prevails in Western India.

The Mitakshara and the Dayabhaga school differed on important issues as

regards the rules of inheritance. However, this branch of law is now codified by
the Hindu succession Act, 1956, which has dissolved the differences between
the two.

The two schools mainly differ or the following points:-

1. Inheritance
2. Devolution of Property
3. Joint Family Property
4. Factum Valet

No. Mitakshara Dayabhaga

1 Mitakshara is sub-divided into four The Dayabhaga is not divided into
 schools prevailing in different part
of India
2 Under the Mitakshara system,
rights in the joint family properties
are acquired by birth, and as a rule
females have no right of succession
to the family property, which
passes by survivorship to the other
male members of the family
Mitakshara is also regarded there is
being a very high authority on all
question in respect whereof there
is no express conflict between the
two schools
Inheritance
1. The right of inheritance
arises from
propinquity(nearness)
2. There are there classes of
heirs—
a. Sapindas,
b. Samanadakas
c. Bandhu
3. So long there are gotraja
sapindas or samanadakas, no
bandhu or bhinn-gotra
sapindas can generally
inherit.
4. A large number of cognate
(born of the same family-
heirs are recognized in
Mitakshara than Dayavhaga
Succession
Under Mitakshara school property
devolves in two ways—
1. Survivorship, and
2. Succession.
Joint family
Joint family property under
Mitakshara school—
any sub-schools,
Under the Dayabhaga system,
rights in the joint family property
are acquired by inheritance or by
will, and the share of a deceased
male member goes to his widow in
default of a closed heir
Dayabhaga schools that prevails in
Bengal and Assam
1. The right of inheritance
depends on spiritual
efficacy.(oblation)
2. There are three classes of
heirs—
a. Sapindas
b. Sakulyas
c. Samanodakas
3. Both agnates and cognates
come in the list of sapindas
and inherit before sakulyas
or samanodakas.
4. Sapindas are those who can
offer oblations on the
deceased by offering pindas
and include both agnates and
cognates.
Under Dayabhaga no living Hindu
has got any heir; succession opens
after his death. But survivorship is
not recognized death.
Joint family property under
Dayabhaga school:
 1. A son, born to one of the 1. Succession opens to a son only
coparceners acquires an after the death of the father. A
interest in the property from Dayabhga father is competent
the moment of this birth and to make a tesatamentory
he cannot be ousted from disposition of the whole of
such interest which he is property. A son has got no right
alive. to object to it. A son cannot
2. The karta or manager has claim partition during the
got a restricted right of lifetime of his father.
transfer. 2. Succession once opens, share of
3. Property devolves on the each heir becomes fixed, and
male survivors only. every member can alienate his
4. Coparceners share cannot share in any way he likes.
be defined and disposed. It’s 3. Property passes by inheritance
a shared tenancy system only and may go to female heirs
1. like widows, daughter etc.
Rights of woman

Who are Hindus ? Who is Hindu law applicable to ?

Who is Hindu ?

A precise definition of Hinduism does not exist. Hence, it is impossible to

define a fixed criteria for determining who is a Hindu. So a negative definition
of 'who is not a Hindu' is used. Further, in this land, several religions have been
born and they follow the same customs and practices. So it cannot be said that
Hindu Law can be applied only to people who are Hindus by religion. Due to
these reasons, in general, the following people are considered to be Hindu
with respect to application of Hindu Law.

Hindu Law applies to the following categories of persons:

1. Hindus by birth, and also to Hindus by religion, i.e., converts to

Hinduism;

The Supreme Court in Pennnal v. Ponnuswami observed that a person

may be a Hindu by birth or by conversion. A mere theoretical allegiance
to the Hindu faith by a person born in another faith does not convert
 him into a Hindu, nor is a bare declarations that he is a Hindu is
sufficient to convert him to Hinduism.

But a bona fide intention to be converted to the Hindu faith

accompanied by conduct unequivocally expressing that intention may be
sufficient evidence of conversion.

Important: No formal ceremony of purification is necessary to effectuate

conversion.

1. Illegitimate children where both parents are Hindus;

2. Illegitimate children where the father is a Christian and the mother a
Hindu, and the children are brought up as Hindus.

Note: But the Hindu Law of coparcenary, which contemplates the father as
the head of the family and the sons as coparceners by birth with rights of
survivorship, cannot form the very nature of the case apply to such
children;

1. Jain, Buddhists in India, Sikhs and Nambudri Brahmans except, so far

such law is varied by custom and to Lingayats who are considered as
Shudras;
2. A Hindu by birth who, having renounced Hinduism, has reverted to it
after performing the religious rites of expiation and repentance or even
without a formal ritual of reconversion when he was recognised as a
Hindu by the community;
3. Sons of Hindu dancing girls of the Naik caste converted to
Mohammedanism where the sons are taken into the family of the Hindu
grand-parents and are brought up as a Hindu;
4. Brahmos Arya Samajists, and to Santhals of Chota Nagpur, and also to
Santhals of Manbhum except so far as it is not varied by custom;
5. Hindus who made a declaration that they were not Hindus for the
purpose of the Special Marriage Act, 1872; and
6. A person who is born in a Hindu religion, does not cease to be a Hindu
merely because he departs from the standard of orthodoxy in matters of
diet and ceremonial observations.
 Since the passing of Hindu Marriage Act of 1955, Hindu Succession Act of
1956, Hindu Adoptions and Maintenance Act of 1956 and Hindu Minority
and Guardianship Act of 1956, the following persons shall be deemed to be
Hindus;

1. Any person who is Hindu by religion irrespective of or regardless of its forms

or developments, including—

a. A Virashaiva,
b. A Lingayat,
c. A follower of the Brahmo, Prathana or Arya Samaj.

2. Any person who is either—

(i) A Buddhist by religion; or

(ii) A Jain by religion; or
(iii) A Sikh by religion.

3. Any other person domiciled in the territories to which this Act extends who
is not—

a. A Muslim by religion, or
b. A Christian by religion, or
c. A Parsi by religion, or
d. A Jew by religion,

Except when it is proved that any such person would not have been governed
by the Hindu Law or by any custom or usage as part of that law (Hindu Law) in
respect of any of the matters which are dealt with in these Acts if these Acts
had not been passed.

The following persons are Hindus, Buddhists, Jains or Sikhs by religions:

a. Any child, legitimate or illegitimate, both of whose parents belong to any

of the above religions;
b. Any child, legitimate or illegitimate, both of whose parents (father and
mother) are Hindus, Buddhists, Jains or Sikhs by religion;
c. Any child, legitimate or illegitimate, one of whose parents either (father
or mother) is a Hindu, Budhist, Jaina or Sikh by religion and who is
brought up as a member of the tribe, community, group or family to
 which such parent (either the father or the mother) belongs or
belonged;
d. Any person who is a convert or recovert to the Hindu, Buddhist, Jaina or
Sikh religion.

Persons to Whom Hindu Law does not Apply

The Hindu Law does not apply—

(i) To the illegitimate children of a Hindu father by a Christian mother and

who are brought up as Christians, or to illegitimate children of a Hindu father
by a Mohammedan mother, because these are not Hindus either by birth or by
religion;

(ii) To the Hindu converts to Christianity. Succession to the estate of a Hindu

convert to Christianity who dies a Christian intestate is governed by the Indian
Succession Act, 1865 (now Indian Succession Act, 1925). A person ceasing to be
a Hindu in religion cannot, since the passing of the Act of 1865, elect to
continue to be bound by the Hindu Law in the matters of succession;

(iii) To descendants of Hindus who have formed themselves into a distinct

community or sect with a peculiar religion and usages so different from the
principles of Shastras that the community cannot but be regarded as being
outside Hinduism in the proper meaning of the words;

(iv) To convert from Hindu to the Mohammedan faith.

Requirements of a valid Hindu marriage

Section 5 of the Hindu Marriage Act 1955 includes essential conditions of a

valid marriage. It contains such conditions which if violated shall result in a
void marriage.

Section 5 of Hindu Marriages Act says, A marriage may be solemnized between

any two Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
a. is incapable of giving a valid consent of it in consequence of
unsoundness of mind; or
b. though capable of giving a valid consent has been suffering from
mental disorder of such a kind or to such an extent as to be unfit
for marriage and the procreation of children; or
c. has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and
the bride the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship
unless the custom or usage governing each of them permits of a
marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two;

The following Ceremonies for a Hindu marriage are also conducted as per
Section 7, HMA Act.

(1) A Hindu marriage may be solemnized in accordance with the customary

rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptapadi (that is, the
taking of seven steps by the bridegroom and the bride jointly before the
sacred fire), the marriage becomes complete and binding when the
seventh step is taken.

Registration of Hindu marriages under Section 8, is optional, and an omission

does not make it invalid.
Concept of marriage, void marriage and voidable marriage under Hindu law

What is nullity of marriage ?

Nullity of marriage :

Nullity of marriage is a judicial declaration that marriage was not in

existence. It refers to the validity of marriage according to law. It means that
there was not a valid marriage has performed between the parties.

The law of nullity relates to pre-marriage impediments to marriage. These are

impediments, due to which parties cannot marry each other. If they marry,
despite these impediments, their marriage may not be valid. These
impediments are divided into two

1. Absolute impediments. If absolute impediments exist, the marriage is

void ab initio.
2. Relative impediments. If relative impediments exist, the marriage is
voidable at the instance of either party to the marriage.

Void Marriage

But after enforcement of Hindu Marriage Act, 1955 there are certain grounds
on which marriage shall be declared null and void. These grounds are given
under Clause (i), (iv) and (v) of Section 5 of The Hindu Marriage Act, 1955.
These grounds are as follow:

1. If either party has living spouse at the time of marriage i.e. bigamy
2. If marriage between prohibited degree relation unless customs and
usage are allowed,
3. If marriage between sapindas unless customs and usage are allowed
such marriage
4. If the proper ceremonies have not been performed as per Section 7 of
the Hindu Marriage Act

 Sagotra marriage is valid under Hindu Marriage Act, 1955

In addition
 1. Void marriages do not need a court issued decree of nullity, as the
decree of nullity is a mere declaration. The court only makes clear that
there was no marriage between the parties.
2. The wife from a void marriage cannot claim maintenance, as she does
not have a status of wife under a void marriage.
3. Applications for decree of nullity cannot be issued after a reasonable
period of marriage has elapsed, as it is barred by the statute of
limitation.
4. Marriage can be annulled, if the identity of one of the party to a
marriage is misrepresented during marriage.

Voidable marriages

There are voidable marriages also which are valid until declared null and void.
Voidable marriage shall be annulled by the decree of nullity under section 12
of Hindu Marriage Act, 1955. It is at the option of the parties to continue with
marriage or to annul marriage by decree of court. Grounds are as follow

1. Inability of the respondent to consummate the marriage on account

of his or her impotency
2. Incapacity to give valid consent or forced consent of parties or mental
illness or person unfit for procreation of child
3. Consent of petitioner obtained by fraud or force.
4. Concealment of pre-marriage pregnancy by the respondent
5. That any conditions of marriage under Section 5(ii) have not been
met.

Also, the following conditions have to be met

1. A voidable marriage is not declared void, until the Court has issued the
decree annulling the marriage.
2. The parties to a voidable marriage cannot marry again till the Court has
issued the decree annulling the marriage.
3. If the petitioner has had intercourse with the other party to the
marriage, after he discovered a pre-marriage pregnancy, then the
marriage is not voidable, and cannot repudiate the marriage on that
basis.
 Legitimacy of children in void in voidable marriages

According to Section 16 of the Hindu Marriage Act,

1. The children of void and voidable marriages are legitimate, if the child is
born after or before the marriage.
2. The children of void and voidable marriages are subject to full property
rights of their parents, but not any other birth rights in the Hindu Joint
Family Property, and cannot claim any right in the coparcenary entities
of the father. But they can inherit the property of their parents under
Section 8 of the Hindu Succession Act, 1956.

What is dissolution of marriage ?

Introduction

Earlier divorce was unknown to general Hindu law as marriage was regarded as
an indissoluble union of the husband and wife. Manu declared that a wife
cannot be released by her husband either by sale or by abandonment, implying
that the marital tie cannot be severed in any way. Although Hindu law does not
contemplate divorce yet it has been held that where it is recognized as an
established custom it would have the force of law.

However, this changed when divorce was introduced in the Hindu Marriage
Act, 1955.

Essential elements

There are basically three theories for divorce

I. Fault grounds,
II. Mutual consent
III. Irretrievable breakdown of marriage.

I. Fault grounds :
Under this, marriage can be dissolved only when either party to the marriage
has committed a matrimonial offence. It is necessary to have a guilty and an
innocent party, and the only innocent party can seek the remedy of divorce.
However, the most striking feature and the drawback is that if both parties
have been at fault, there is no remedy available. Under Section 13(1) of the
Hindu Marriage Act, either husband or wife could sue for divorce

1. Adultery
a. In adultery there must be voluntary or consensual sexual intercourse
between a married person and another, whether married or
unmarried, of the opposite sex, not being the other’s spouse, during
the subsistence of marriage.
b. Hindu Marriage Act considers even the single act of adultery enough
for the decree of divorce

2. Cruelty

The concept of cruelty is a changing concept. The modern concept of cruelty

includes both mental and physical cruelty. While physical cruelty is easy to
determine, it is difficult to say what mental cruelty consists of. Perhaps, mental
cruelty is lack of such conjugal kindness, which inflicts the pain of such a
degree and duration that it adversely affects the health, mental or bodily, of
the spouse on whom it is inflicted.

Some Instances of Cruelty are as follows

a) false accusations of adultery or unchastity

b) demand of dowry
c) refusal to have marital intercourse/children
d) impotency
e) birth of child
f) drunkenness
g) threat to commit suicide
h) wife’s writing false complaints to employer of the husband
i) incompatibility of temperament
 j) irretrievable breakdown of marriage
3. Desertion

Desertion means the rejection by one party of all the obligations of marriage-
the permanent forsaking or abandonment of one spouse by the other without
any reasonable cause and without the consent of the other. It means a total
repudiation of marital obligation.

The following 5 conditions must be present to constitute desertion; they must

co-exist to present a ground for divorce:

1. the factum of separation

2. animus deserdendi (intention to desert)
3. desertion without any reasonable cause
4. desertion without consent of other party
5. statutory period of two years must have run out before a petition is
presented.

In Bipinchandra v. Prabhavati[vii] the Supreme Court held that where the

respondent leaves the matrimonial home with an intention to desert, he will
not be guilty of desertion if subsequently he shows an inclination to return & is
prevented from doing so by the petitioner.

4. Conversion

When the other party has ceased to be Hindu by conversion to any other
religion for e.g. Islam, Christianity, Judaism, Zoroastrianism, a divorce can be
granted.

5. Insanity

Insanity as a ground of divorce has the following two requirements-

1. The respondent has been incurably of unsound mind

2. The respondent has been suffering continuously or intermittently
from mental disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with the
respondent.
 6. Leprosy

Contagiousness of leprosy and repulsive outward manifestations are

responsible for creating psychology where man not only shuns the company of
lepers but looks at them scornfully. Thus, it is provided as a ground for divorce.
The onus of proving this is on the petitioner.

7. Venereal Disease

At present, it is a ground for divorce if it is communicable by nature-

irrespective of the period for which the respondent has suffered from it. The
ground is made out if it is shown that the disease is in communicable form & it
is not necessary that it should have been communicated to the petitioner
(even if done innocently).

8. Renunciation of the world

Hindu law lays down that a spouse may seek divorce if the other party has
renounced the world and has entered a holy order. A person who does this is
considered as civilly dead. Such renunciation by entering into a religious order
must be unequivocal & absolute.

9. Presumption Of Death

Under the Act, a person is presumed to be dead, if he/she has not been heard
of as being alive for a period of at least seven years. A decree of divorce
granted under this clause is valid & effective even if it subsequently transpires
that the respondent was, in fact, alive at the time when the decree was
passed.

II. Wife’s special ground for dissolution of marriage

Besides the grounds enumerated above, a wife has been provided four
additional grounds of divorce under Section 13(2) of the Hindu Marriage Act,
1955. These are as follows-

1. Pre-Act Polygamous Marriage

 This clause states the ground for divorce as, “That the husband has another
wife from before the commencement of the Act, alive at the time of the
solemnization of the marriage of the petitioner.

For example, the case of Venkatame v. Patil where a man had two wives, one
of whom sued for divorce, and whilst the petition was pending, he divorced
the second wife. He then averred that since he was left only with one wife, and
the petition should be dismissed. The Court rejected the plea.

2. Rape, Sodomy Or Bestiality

Under this clause, a divorce petition can be presented if the husband has, since
the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

3. Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section

125, Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption &
Maintenance Act, 1956 & cohabitation has not been resumed between parties
after one year or upwards, then this is a valid ground for suing for divorce.

4. Repudiation Of Marriage

This provision provides a ground for divorce to the wife when the marriage
was solemnized before she attained the age of fifteen years, and she has
repudiated the marriage, but before the age of eighteen. Such repudiation may
be express (written or spoken words) or may be implied from the conduct of
the wife (left husband & refused to come back). Moreover, this right (added by
the 1976 amendment) has only a retrospective effect i.e. it can be invoked
irrespective of the fact that the marriage was solemnized before or after such
amendment.

III. Mutual consent.

The underlying rationale is that since two persons can marry by their free will,
they should also be allowed to move out of the relationship of their own free
will. However, critics of this theory say that this approach will promote
 immorality as it will lead to hasty divorces and parties would dissolve their
marriage even if there were slight incompatibility of temperament.

IV. Irretrievable breakdown of marriage :

The Irretrievable breakdown theory of divorce is the fourth and the most
controversial theory in legal jurisprudence, based on the principle that
marriage is a union of two persons based on love affection and respect for
each other. If any of these is hampered due to any reason and if the
matrimonial relation between the spouses reaches to such an extent from
where it becomes completely irreparable, that is a point where neither of the
spouses can live peacefully with each other and acquire the benefits of a
matrimonial relations, than it is better to dissolve the marriage as now there is
no point of stretching such a dead relationship, which exist only in name and
not in reality.

The breakdown of the relationship is presumed de facto. The fact that parties
to marriage are living separately for reasonably longer period of time (say two
or three years), with any reasonable cause (like cruelty, adultery, desertion) or
even without any reasonable cause (which shows the unwillingness of the
parties or even of one of the party to live together) and all their attempts to
reunite failed, it will be presumed by law that relationship is dead now.

Difference between void and voidable marriage

No. Void Marriage Voidable marriage

1. Meaning: A void marriage is no marriage
at all. It does not exist from the very
beginning.
Meaning: A voidable marriage is one which can
be avoided at the option of one of the parties
to the marriage. It remains valid for all
practical purposes until and unless its validity is
questioned.

2 Section: Section 11 of the Hindu
marriage Act, 1955 deals with void
marriage.
3 Marriage does not exist in the eye of
law.
4 The court simply passes the decree of
nullity since the marriage has no
existence at all.
5 Parties can remarry without decree of
nullity from the court.
6 Wife cannot claim maintenance under
Section 125 of Cr.P.C
Section: Section 12 of the Hindu marriage Act,
1955 deals with voidable marriage.
Marriage exists and continues to be valid
unless it is challenged.
The court passes the decree after taking into
account necessary conditions.
Parties cannot do so.
Wife can claim maintenance.
7 Void marriage is void ab initio
8 Parties to a void marriage are criminally
liable.
9 In void marriages, not only first wife but
a third party who is affected can bring a
suit in Civil Court for declaring such
marriage void.
A voidable marriage is regarded as valid until
the competent court annuls it.
Parties to voidable marriage are not laid down
with penalty.
In voidable marriages, only the parties have
right to apply for annulment of marriage.