Schools of Hindu law
It is very significant that the term ‘Hindu’ came into existence through Greek word who called the inhabitants of the Indus valley as ‘Indoi’ and later it becomes a ‘HINDU’.The nation came to be known as ‘Hindustan’ and its people as Hindu. Hindu Law is also known as the most ancient law in the world . Today the term ‘Hindu’ has no territorial significance ,nor is it a designation of nationality.School of means rules and principal of Hindu law which are divided according to the opinion. There are two types of Modern Hindu law exist in India. The first one is Codified law which deals with all uniform law for all Hindus and the second one is Uncodified law which deals with some variations due to interpretations with reference to local customs. The concepts of School of Hindu law does not exist in codified law, it belongs to uncodified areas of Hindu law. School of Hindu law emerged with the emergence of theera of Commentaries and Digests.
The two main School of Hindu law.
- TheMitakashara School
- The Dayabhaga School
The Mitakashara and Dayabhaga are the two important schools of Hindu Law which have given us the required information about the present legislated laws.
The Mitakashara School owes its name to Vijaneshwara’s commentary on the YajnavalkyaSmiriti by the name of “Mitakshara”. It is one of the most important schools of Hindu law. This school prevails in the whole India except Bengal and Assam. But such is the paramountcy of the authority of the Mitakashara that it prevails in Bengal and Assam on all those matters on which the Dayabhaga is silent. It has a very wide Jurisdiction.The followers of Mitakashara are grouped together under the Mitakashara School. In Mitakashara Inheritance is based on the principle or propinquity i.e. nearest blood relationship will get the property. Sapinda relationship is of blood .
Mitakashara school has the following five sub schools:-
- Benaras Hindu Law School
- Maharashtra or Bombay School
- Mithila School
- Dravida or Madras school
- Punjab School
Benaras law school
The Benaras school extends to whole of Nothern India including Orissa except in Punjab where its authority is modified by customary law in rural areas. Viramitrodaya Nirnyasindhu vivada are some of its major commentaries.
Maharashtra or Bombay School
It exist in Bombay (Mumbai) and Gujarat extends to Western India including the whole part of the Presidency of Bombay as well as Berar. The Bombay school has got an entire work of religious and Civil laws. The main authorities of these are Vyavhara Mayukha, the Virmitrodaya and the Nirnaya –Sindhu.
It covers Southern part of India including the whole of the Presidency of Madras. The main authority accepted by this school is Vyavahara Mayukha authored by Nilakantha.
The Mithila school exists in Trihut, North Bihar and Uttar Pradesh, near the Jamuna (Yamuna) river areas. The main authorities are : the Vivada Chintamani and the Vivada Ratnakara.
It exist in the part of the country called East Punjab. It had established its own customs amd traditions.The main authority accepted by this school is Viramitrodaya and its established customs.
Dayabhaga school schools prevails in Bengal and Assam. It is a digest on leading Smritis and it only deals only with partition and inheritance. The Yagna Valkya smriti commented by Jimutavahana under the title of Dayabhaga . It has no sub school. Dayabhaga school primary focus was to deal with partition and joint family.
Other commentaries are :-
- Dattaka chandrika
The differences between Mitakshara and Dayabhaga :-
On the basis of Coparcenary:-
- Under the Mitakshara law school the right of a son is given by birth in the ancestral property equal to the interest of his father while in Dayabhaga a son is entitled to his ancestral property only on the death of the father.
- Under the Mitakshara law school a son becomes coparcener right after his birth while in Dayabhaga the son become coparcener by death of his father.
- Under the Mitakshara law school everyone share is not defined and there is joint-tenancy while in Dayabhaga everyone share is defined and there is tenancy-in-common.
- Under the Mitakshara one cannot transfer his share to the third property while in Dayabhaga one can tranfer his share.
On the basis of Succession:-
- Under the Mitakshara law school the property is of two types- (a)Ancestor’s property (b) Seprate property ,while in case of Dayabhaga the property is of two types (a) Joint (b) Separate
- Under the Mitakshara law school Ancestor’s property is partitioned on the basis of Survivorship. But a separate property is partitioned to the descendants. while in the case of Dayabhaga the descendants inherits the property whatever type is.
- Under the Mitakshara law school in default of close heir , the wife doesn’t inherit, while in case of Dayabhaga if coparcener dies, his widow will get the property in default of close heir but she cannot aleinate.
- Under the Mitakshara law school the rule of blood relationship or consanguinity followed, while in Dayabhaga the inheritance is governed by the rule of the offering of pinda.
Effect of migration:-
- It has been often said that in India there is no lex loci and every person is governed by his personal law. This statement has two implications: (a) in respect of migration (b) in respect of domicile
- In respect of Migration- Where a Hindu migrates from one part of India to another, prima facie, he carries with him his personal law , if it is alleged that he has become subject to the local law ,then it must affirmatively be proved that he had adopted the local law.
- In respect of Domicile-The Privy Council observed : “If nothing is known about a person except that he lived in a certain place, it will be assumed that his personal law is the law which prevails in that place. In that sense only domicile is of importance”
It can be concluded that the Mitakshara system is Conservative where as Dayabhaga system is liberal. In Dayabhaga it provides good security in times of difficulties as a member. Among the two the Dayabhaga is more modern and long lasting in modern times.
Author: Divya Tripathi,
Shri Ramswaroop Memorial University LLB 3 Year ( 2 Semester)