Schools of Hindu Law

The term “Schools of Law”, as applied to the different legal opinions prevalent in different parts of India, seems to have been first used by the celebrated author Mr. Colebrooke. He found that the rules and principles of Hindu Law are not uniform all over India. They vary from place to place. Sometimes their difference is on the basics and sometimes on details. In order to identify this variance, the thesis of the School of Hindu law has been propounded.

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.

The two major schools of Hindu law are as follows:

  • Mitakshara
  • Daya Bhaga

MITAKSHARA SCHOOL

The Mitakshara School exists throughout India except in the State of Bengal. The Yagnavalkya Smriti was commented on by Vijnaneshwara under the title Mitakshara. The followers of Mitakshara are grouped together under the Mitakshara School. Mitakshara school is based on the code of Yagnavalkya commented by Vijnaneshwara, a great thinker and a law maker from Gulbarga, Karnataka. The Inheritance is based on the principle or propinquity i.e. the nearest in blood relationship will get the property. Sapinda relationship is of blood. The right to Hindu joint family property is by birth. So, a son immediately after birth gets a right to the property. The system of devolution of property is by survivorship (But now it has been amended by 2005 Amendment Act). The share of co-parcener in the joint family property is not definite or ascertainable, as their shares are fluctuating with births and deaths of the coparceners. The co-parcener has no absolute right to transfer his share in the joint family property, as his share is not definite or ascertainable. The widow of a deceased co-parcener cannot enforce partition of her husband‟s share against his brothers.
A woman could never become a co-parcener. But, the Hindu Succession (amendment) Act of 2005 empowered the women to become a co parcener like a male in ancestral property. A major change enacted due to western influence.

Mitakshara school is further subdivided into the following 5 types:

Benaras School – This school is prevalent in most of North India including Orissa except for Punjab. The school mainly focuses on Civil Law and the Law of Inheritance, including Women Inheritance Rights.

Mithila School – This school is prevalent in North Bihar. This school focuses on religious and civil duties. But in a few matters, it differs from Mitakshara School.

Bombay or Maharashtra School – Despite its name, this school is prevalent in the whole of Bombay, Gujarat including the parts where Marathi is spoken. The amazing thing about this school is that it’s one of the most liable ones among women Rights.

Dravida or Madras School – This school is prevalent in the entire southern part of India including Kerala, Mysore and Madras. The famous matrilineal system of Marumakayam and Aliya Santhanam was followed in these regions.

Punjab law School – This school is prevalent in East Punjab and also parts of Rajasthan and J&K.

It follows its customs and traditions. Established customs are one of the main commentaries of this school.

Apart from Yajnavalkya Smriti which is the basis on which the Mitakshara school came into existence, other Smritis and commentaries are relied upon in each head of the 5 Schools. Though these schools are no longer used due to the codified law that causes uniformity among the followers of different schools, still the courts rely on the same as an aid in deciding cases provided it is not contrary to the codified law.

DAYABHAGA SCHOOL

It exists in Bengal and Assam only. The Yagna Valkya smriti and some other Smrities are commented on by Jimutavahana under the title Dayabhaga. It has no sub-school. It differs from Mistakshara School in many respects. Dayabhaga School is based mainly on the code of yagnavalkya commented by Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased ancestors.

This School prevails over the regions of West Bengal and Orissa. It is relatively new as compared to Mitakshara. Jimatuvahana who was a judge and Minister in Bengal is said to be the writer of Dayabhaga. This School is seen as a commentary of particular works while a Digest of all codes. Unlike the Mitakshara school, Dayabhaga does not have any sub-schools. The Dayabhaga School bases its law of succession on the principle of religious efficacy or spiritual benefit. This means that the one who bestows more religious benefits on the deceased is entitled to inheritance in preference to the others who confer less benefit. This School was created with views to do away with the limitations of the Mitakshara School. It has a more liberal approach which can be seen in the fact that, unlike the Mitakshara, ancestral property here can be devolved upon the females. This was a curse in disguise because other male members in the family in the temptation and greed of property while taking advantage of the lower position of women in the Indian Society created an evil system known as the Sati system. Where a female was expected to jump in the funeral fire of her husband, it was seen as an act that will take her husband to heaven.

Ownership of property here arises only after the death of fathers which gave rise to murders. The above rule also meant that, unlike Mitakshara, Dayabhaga gave uncontrolled power of alienation in the hands of the father which was seen to be often misused by the same. In this school, heirship arises using pinda offerings (Spiritual benefit).

Differences between the two Schools in Coparcenary:-

MitaksharaDayabhaga
i) Right of a son by birth in the
ancestral property equal to the interest
of his father.
i) A son is entitled to his ancestral
property only on the death of his
father. The father is the absolute
owner of his property in his lifetime.
ii) A son becomes coparcener right
after his birth. His right is applicable
to the property of his grandfather and
grand-grandfather.
ii) A son becomes coparcener by
death of his father. This right is not
available within the property of his
father, grandfather or grandgrandfather
iii) Everyone is entitled to the
property as a unit. Their shares are
not defined. They have only the
commodity of ownership. There is
joint-tenancy.
iii) Everyone’s share is defined. There
is tenancy-in-common.
iv) One cannot transfer his share to
the third party.
iv) One can transfer his share.
v) The joint-property can be
partitioned. In that case, it will be
partitioned as it was in case of the
father.
v) As the shares are defined, one can
easily partition with his share.

Differences between the two Schools in Succession:-

1. Mitakshara– Property of a deceased Hindu is partitioned into two ways as the property is of two types- (a) Ancestor’s property (b) Separate
property.
Ancestors property is partitioned in accordance to the Rules of Survivorship. But a Separate property is partitioned to the descendants.
Dayabhaga– Property is of two types- (a) Joint, (b) Separate. The descendants inherits the property whatever type it is.

2. Mitakshara– In default of close heir, brother and immediate survivors inherit, the wife does not inherit.
Dayabhaga– If coparcener dies, his widow will get the property in default of a close heir but she cannot alienate.

3. Mitakshara– The order of heirs is decided by mereness of blood.
Dayabhaga– The order of heirs is decided by the competence to offer Pinda and Sraddho to the deceased.

Conclusion

It can be concluded that Hindu law is considered to be the most ancient and prolific laws in the world. It has been around every phase. It is about 6000 years old. Hindu law has been established by the people, not for the purpose of removing any crime or transgression from society but it was established so that the people will follow it in order to attain salvation. Originally Hindu law was established so that the need of the people gets fulfilled. The concept was initiated in for the welfare of the people. There is the two-fold classification of the sources of the Hindu law

  • Ancient sources
  • Modern sources 

Schools of Hindu law are considered to be the basic source of Hindu law which constituted in the development of the Hindu law from its roots. It is also known as the commentaries and the digestives of the smritis. These schools have widened the scope of Hindu law and explicitly contributed in its development.

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