This article deals with the different schools of Hindu Law and describes how they are distinct in their own forms of existence. These schools of thought evolved to have a higher strength of force than the original text of the Smriti. These schools have also left major impacts on the development of the Hindu Law, as at present.
Introduction
Hindu Law is the most ancient law in the world. Originally Hindu Law was created to satisfy every need and welfare of the people. The sources of the concept for Hindu Law are Shruti (words of God), Smriti(text), customs (old practices), commentaries and digests.
The codified law and uncodified law are two types of Modern Hindu Law. Codified law administers every Hindu. The concepts of schools of Hindu Law does not exist in codified law, however, it exists in uncodified Hindu Law. Vedas and Smritis were the form of sources in which, many scholars all around India, wrote the commentaries which formed the basis for schools of Hindu Law.
With the development of the Smriti came the disparity in opinion amongst commentators and interpreters. There was no authoritative position of law, although various codes were developed. An authority could be accepted in one part of India and totally rejected in other parts of India. Persons who accepted one authority were likely not to accept other authorities. Thus, different schools of thought emerged.
Schools of thoughts refer to the divided opinions on a subject matter. Thus, schools of thoughts on Hindu law refers to the varied and divided opinions on the rules and principles of Hindu Law. Unlike statutes, they are not codified. They do not have the force of law. However, they impact the minds of the legislature or lawmakers.
Schools of Hindu law are commentaries and the digestives of the smritis. These schools have widened the scope of Hindu law and explicitly contributed to its development.
The two major schools of Hindu law are as follows-
- Mitakshara
- Daya Bhaga
Mitakshara and Dayabhaga are the two important schools of Hindu Law which have given us the required information about the present legislated laws.
How these schools came into existence[1]
Originally there were no schools of Hindu Jurisprudence. Schools of Hindu Law came into being when different commentaries appeared to interpret the Smritis with reference to different local customs in different parts of India.
In Rutcheputty v. Rajendra[2], it has been observed that the different schools of Hindu Law have originated due to different local customs prevailing in different provinces of the country. The commentators of the Smritis could not ignore the local customs and usages while interpreting the texts, and therefore, they eventually incorporated local customs. The local conditions and customs of the different provinces have, therefore, gone to mould the principles of law prevailing in each province.
Process of development
In the case of Collector of Madras v. Mootoo Rantalinga[3], the Privy Council has held that “the remoter sources of the Hindu Law (Smritis) are common to all the different schools. The process by which those schools have been developed seems to have been of this kind.
Works universally or very generally received, became the subjects of subsequent commentaries. The commentator put his own gloss on the ancient texts, and his authority having been received in one and rejected in another part of Indian schools with conflicting doctrines arose. The variances between the subdivisions of the Mitakshara school are comparatively few and slight.
The reasons for these differences are as follows:
- One reason which used to be given for this division is that “the glosses and commentaries upon the Mitakshara are received by some of the schools but are not by all”.
- Another reason given for this division into schools is that the commentaries in a particular province which follow the Mitakshara put a particular gloss on it and are agreed upon it among themselves.
Mitakshara School
Mitakshara is one of the most important schools of Hindu law. It is a running commentary of the Smriti written by Yajnvalkya. This school is applicable in the whole part of India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However different parts of the country practice law differently because of the different customary rules followed by them.
Mitakshara is further divided into five sub-schools namely as following:
- Benaras Hindu law school
- Mithila law school
- Maharashtra law school
- Punjab law school
- Dravida or Madras law school
These law schools come under the ambit of Mitakshara law school. They enjoy the same fundamental principle but gives preference to certain treaties and commentaries which control the certain passage of Mitakshara.
Benaras law school
This law school comes under the authority of the Mitakshara law school and covers Northern India including Orissa. Viramitrodaya, Nirnyasindhu, and Vivada are some of its major commentaries.
Mithila law school
This law school exercises its authority in the territorial parts of Tirhoot and north Bihar. The principles of this law school prevail in the north. The major commentaries of this school are Vivadaratnakar, Vivadachintamani, and Smritsara.
Maharashtra or Bombay law school
The Maharashtra law school has the authority to exercise its jurisdiction over the territorial parts including Gujarat Karana and the parts where the Marathi language is proficiently spoken. The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.
Madras law school
This law school tends to cover the whole southern part of India. It also exercises its authorities under Mitakshara law school. The main authorities of this school are Smriti Chandrika, Vaijayanti, etc.
Punjab law school
This law school was predominantly established in east Punjab. It had established its own customs and traditions. The main commentaries of this school are Vramitrodaya and it established customs.
Dayabhaga School
Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of the most important schools of Hindu laws. It is considered to be a digest for the leading smritis. Its primary focus was to deal with partition, inheritance and joint family. According to Kane, it was incorporated in between 1090-1130 A.D.
Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations of the previously established principles and inclusion of many cognates in the list of heirs, which was restricted by the Mitakshara school.
In Dayabhaga school, various other commentaries were followed such as:
- Dayatatya
- Dayakram-sangrah
- Virmitrodaya
- Dattaka Chandrika
Effect of migration
Although it was held in Moolchand v. Mrs Marita Bai that personal law moves with whom it covers, however, it is important to know that migration plays a huge role in determining what school of thought governs a person. From case laws, the conclusion that can be drawn is that where a Hindu migrates, he is likely to be governed by the school of thought predominant within his new location.
He, therefore, has the option to adopt the law of the new place where he resides – this was held in Notraz v. Sunbathing Raya. However, before this can be obtainable, there must be an actual migration. A mere temporary relocation does not count. And as observed in Keshavarao v. Swadeshrao, migration is moving to another place. If a place is divided into two administrative areas, that will not be regarded as migration. In Gope v. Manjura Goralin[4], it was held that the burden of proving migration lies on him who pleads it.
Difference between ‘Mitakshara’ and ‘Dayabhaga’ Schools of Hindu Law[5]
Mitakshara and Dayabhaga differ at certain positions.
Important Differences are as follows:
On the basis of Succession
Under the Mitakshara school, inheritance is governed by the rule of consanguinity, i.e. blood relationship, whereas under the Dayabhaga school inheritance is governed by the rule of spiritual efficacy.
Under the Mitakshara, cognates are postponed to agnates but under the Dayabhaga some cognates like sister’s sons are preferred over several agnates.
This means that if the Hindu dies leaving his son and a daughter, the daughter will be excluded from the inheritance, and the son will get all the property. Likewise, if the Hindu dies leaving his son’s son and daughter’s son, the son’s son will get the succession.
Under the modern Hindu Law, the difference between two main schools is no longer reliable. Under the Hindu Succession Act, 1956, there is one uniform law of succession for all Hindus.
On the basis of Joint Family
Under the Mitakshara, the right to property for the son arises by birth; hence the son is a co-owner with the father in ancestral property. This means the moment a son is born in the family, he receives the right in the joint family property.
Under the Dayabhaga, the right to property appears after the death of the last owner. Therefore, the son has no right to ancestral property during his father’s lifetime. Under the Mitakshara, the father has the limited power of separation for an ancestral property, while the father has absolute power of separation for ancestral property under the Dayabhaga School.
Under the Mitakshara, the son can demand partition of the joint family property even against the father, whereas under the Dayabhaga, the son cannot demand partition against the father.
The concept of joint family property under the Mitakshara school implies the belief for the community of ownership and unity of possession. This expression means that before partition, no individual co-parcener can say that he owns such a share within the joint family property.
The interest of co-parceners is much variable, it lowers on birth and increases on death in the family. But there’s no concept of birthright under the Dayabhaga school, interest of co-parceners remain constant, not affected by death or birth within the family. Under both, the school of unity of possession is the same.
On the basis of Partition
While both the Mitakshara and the Dayabhaga schools hold that the true test of partition is in the intention to separate, the manifestation of this intention is different in each of the schools. In the case of the Mitakshara School the intention, it involves holding the property in defined definite shares while in the Dayabhaga School there has to be a physical separation of the property into specific portions and assigning of separate share to each coparcener.
In the Mitakshara system none of the members of the coparceners can claim a definite physical share of the joint property. So, partition in this system involves in ascertaining and defining the share of the coparcener i.e. In the numerical division of the property.
In the Dayabhaga system, each of the coparcener has a definite share in the joint family property even though the family is joint and undivided and the possession is common. So, partition in this system involves the physical separation of the joint property into the separate shares of the coparceners and assigning to each of the coparceners the specific portion of the property.
On the basis of Rights of Woman[6]
In the Mitakshara system the wife cannot demand partition. She, however, has the right to a share in any partition effected between her husband and her sons. Under the Dayabhaga, this right does not exist for the women because the sons cannot demand partition as the father is the absolute owner.
In both the systems, in any partition among the sons, the mother is entitled to a share equal to that of a son. Similarly, when a son dies before partition leaving the mother as his heir, the mother is entitled to a share of her deceased son as well as share in her own right when there is a partition between the remaining sons.
Conclusion
The Mitakshara system is Conservative. It provides good security in times of difficulties as a member can rely on the joint family. However, sometimes a member can become a parasite. The Dayabhaga system is more liberal. Among the two the Dayabhaga is more likely to last in modern times with the growth of individualism, individual enterprise and economic compulsions.
[1] Rocher, L., & Lariviere, R. (2012). Schools of Hindu Law. In D. Davis, Jr (Ed.), Studies in Hindu Law and Dharmasastra (pp. 119-128).
[2] 1839,2. M.I. A,132.
[3] 1 (1968) 12 MIA 397.
[4] AIR 1973 Pat 208.
[5] Paras Diwan, Modern Hindu Law (2013).
[6] Janhavi SS, Overview of Gender Equilibrium from the Perspective of Women’s Coparcenaries Rights, Journal of International Academic Research for Multidisciplinary (2016) Available here
