School of Hindu Law

INTRODUCTION

Hindu Law is the most ancient law among all laws in the world. It is 600 years old law. Hindu Law is originated from the two sources, ancient source and modern source. In the ancient time the sources of the concept for Hindu Law are from Shruti {what we heard}, Smriti {text}, Customs {old practices}, Digest and Commentaries. 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. The codified law and uncodified law are two types of Modern Hindu Law. The concepts of schools of Hindu Law does not exist in codified law, however, it exists in uncodified Hindu Law. The codified Hindu Law applies to all Hindu equally whereas un-codified Hindu Law applies differently according to the situation.

With the development of the Smriti, disparity came in opinion among the commentators and interpreters of India. At that there was no authoritative position of law, although various codes were developed. An authority which is accepted in one part of India is 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 at that time. Schools of thoughts means the division of opinions on a subject matter. So, schools of thoughts on Hindu law refers to the varied and divided opinions on the rules and principles of Hindu Law.

According to different thoughts of people Hindu law schools can be divided into two types: –

  • Mitakshara
  • Dayabhaga

ORIGIN OF SCHOOL OF THOUGHTS

Initially there were no schools of Hindu Jurisprudence. Schools of Hindu Law came into being when different ideas and commentaries appeared to interpret the Smritis with reference to different local customs in different parts of India. In Rutcheputty v. Rajendra, it has been observed that the different schools of Hindu Law have originated due to different local customs and law 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. Second reason which used to be given for this division is that “the glosses and commentaries are received by some of the schools but are not by all”. And the third 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 without thinking about other provinces.

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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:

  1. Benaras Hindu law school
  2. Mithila law school
  3. Maharashtra law school
  4. Punjab law school
  5. Madras law school

These five law schools follow the thoughts of Mitakshara law school. They enjoy the same fundamental principle but they are different in certain circumstances.

Benaras Law School

This law school covers Northern India including Orissa and it comes under the authority of the Mitakshara law school. Viramitrodaya Nirnyasindhu vivada are some of its major commentaries.

Mithila Law School

This is the second law school which comes under the authority of the Mitakshara law school. It exercises its authority in the parts of Trihoot and north Bihar. The major commentaries of this school are Vivadaratnakar, Vivadachitamani, smritsara.

Maharashtra or Bombay Law School

This is the third law school which comes under the authority of the Mitakshara law school. The Maharashtra or Bombay law school has the authority to exercise its jurisdiction over the parts including Gujarat Karana and it also includes the parts where there is the Marathi language is proficiently spoken. The main commentaries of this school are Vyavhara Mayukha, Virmitrodaya, etc.

Punjab law school

This is the fourth law school which comes under the authority of the Mitakshara law school. This law school has the authority to exercise its jurisdiction east Punjab. It follows thoughts of Mitakshara law school but it had established its own customs and traditions. The main commentaries of this school are Vramitrodaya and it established customs.

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Madras Law School

This is the fifth and last law school which comes under the authority of the Mitakshara law school. This law school has the jurisdiction over the whole southern part of India. The main commentaries of this school are Smriti Chandrika and Vaijayanti.

Dayabhaga School

This is another most important school of Hindu laws. This school predominantly has the authority to exercise its jurisdiction in Assam and West Bengal. It is considered to be a digest for the leading smritis. Its main 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 and partition. The immediate benefit of this new thought is that it tends to remove all the shortcomings and limitations of the previously established principles and inclusion of many categories in the list of heirs, which was prohibited by the Mitakshara school.

Difference between Mitakshara and Dayabhaga Schools:

The differences between the Dayabhaga and the Mitakshara schools of law may be categorized under the following: –

1.Differentiation on the basis of Joint Family

According to the Mitakshara law school a joint family refers only to the male member of a family and extends to include his son, grandson and great-grandson. They collectively have co-ownership in the Joint Family. Whereas in the Dayabhaga law school, the son has no ownership right by birth but he acquires it on the demise of his father. In the Dayabhaga school, the father has whole and uncontrolled power over the family property till his death but in Mitakshara school, the father’s power over the property is divided by the equal rights by birth enjoyed by a son, a grandson and a great-grandson.

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2.Differentiation on the basis of Co-ownership: – In the Mitakshara school of law all the members of the joint family enjoy co-ownership rights during the father’s lifetime. Whereas in Dayabhaga School till the father is alive the sons do not have any rights on property, they acquire it on the death of the father.

  1. Differentiation on the basis of Partition: – In the Mitakshara system, no members of the co-owners 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 co-owners has a definite share in the joint family property even though the family is joint and undivided and the possession is common.
  2. Differentiation on the basis of Rights of Women: – According to the Mitakshara school the wife cannot demand partition. But she has the right to share in any partition effected between her husband and her sons. Whereas the according to the Dayabhaga school this right does not exist for the women because the sons cannot demand partition as the father is the absolute owner of the property until his death.
  3. Differentiation on the basis of Widow’s rights: – In the Dayabhaga school when one of the brothers dies, his widow can get his share of the property but under the Mitakshara widow there is no such rights. In this the widow can only get the right to maintenance.

Conclusion

It is very difficult to decide that which school is best in modern time. But according to me among the Dayabhaga and Mitakshara, the Dayabhaga is more likely to last in modern times with the growth of individualism, individual enterprise and economic compulsions. From Mitakshara system we can conclude that it is more conservative but Dayabhaga system is more liberal. However, both the school of Hinduism promotes the Hindu law and develop the Hindu law from its core of the roots to all the world.

Author: Shashi Sharma,
symbiosis law school, Nagpur, first year law student

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