Schools of Hindu Law

Schools of Hindu Law

Introduction

School of Hindu Law came into existence when different commentaries appeared to interpret ‘Smritis’ with reference to different local customs in vogue (The prevailing fashion or style at a particular time) in different parts of India.

The Commentators of the Smritis could not ignore the local customs and usages and while interpreting the texts, they eventually incorporated different 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 Collector of Madura Vs Mottoo Ramalinga, the Privy Council has held that, “The remote sources of Hindu Law (that is Smritis) are common to all the different Schools. The process by which those schools have been developed seems to have been of this kind. The Commentator puts his own gloss on the ancient Text, and his authority having been received in one and rejected in another part of India, thus the Schools with conflicting doctrines arose”.

Schools of Hindu Law

There are two main schools of Hindu Law, they are

1. Mitakshara School

2. Dayabhaga School

Dayabhaga is followed in Bengal.

Mitakshara is followed in other parts of India. Mitakshara is a running commentary on the code of Yajnavalkya and was written by Vijnaneshwara during eleventh Century.

Dayabhaga is not a commentary on any one Code, but purpose to be a digest of all the codes.

It was written by Jimutavahana about two centuries later than the Mitakshara.

The Mitakshara is of supreme authority throughout India except in Bengal.

The Dayabhaga is of supreme authority in Bengal. But even in Bengal, the Mitakshara is still regarded as very high authority when a conflict arises between Mitakshara and Dayabhaga.

The Dayabhaga has permitted the woman to let in the coparcenary (Joint ownership) whereas the Mitakshara has discarded this very notion.

The Dayabhaga is more dynamic and is definitely an improvement upon Mithakshara.

Mitakshara School

The Mitakshara School is further sub divided into four main Schools, They are

·         Banaras

·         Mithila

·         Bombay or Maharastra

·         Dravida or Madras

One more school namely ‘Punjab’ school is added which recognizes the authority of the Mitakshara as well as Viramitrodaya.

Banares School

The Whole of Northern India including Orissa was governed by Benares School. The “lex loci” in the Central Provinces (Now Madhya Pradesh) is the Benaras School of Hindu Law

Mithila

The School prevails in Tirhoot and North Bihar, Uttar Pradesh near Jamuna River. The Mitakshara is the law of this school, except in a few matters.

  

Bombay or Maharashtra School

The Bombay or Maharashtra School of Hindu Law prevails in almost the whole of Bombay including Gujarat, Kanara and the parts where the Marathi Language is spoken as the local language.

Dravida or Madras School

The whole of Madras state is governed by the Madras School of Hindu Law. This school was once sub divided into a Tamil, a Karnataka and an Andhra School for which however there was no Justification.

Name of the Sub School	Name of Commentator / Book	Area in which it prevails
Banaras	Mitakshara, Viramitrodaya,	Northern India Incl. Orissa
Mithila	Mitakshara, Vivada Chintamani	Bihar, Uttar Pradesh
Bombay or Maharastra	Mitakshara, Viramitrodaya	Bombay, Gujarat
Dravida or Madras	Mitakshara, Smriti Chandrikas	Southern India

Dayabhaga

This School prevails in West Bengal as well as in Assam with some variances based on the authority of Customs.

The Following Authorities are accepted in this School

1.      Dayabhaga

2.      Dayatatva

3.      Daya Sangraha

4.      Viramitrodaya

5.      Dattaka Chandrika

Dayabhaga was written by Jimutavahana during 13^th Century.

Difference between Mitakshara and Dayabhaga Schools

S.No	Content	Mitakshara	Dayabhaga
1.	Property	Right of property arises by Birth (the son is a co-owner with the father in ancestral property)	Right to Property by Death (Son has no right to ancestral property during father’s lifetime)
2.	Alienation (Separation)	Members of Joint family cannot dispose of their shares while undivided.	Any member of joint family may sell or give away his share even when undivided.
3.	Inheritance	The Principle of inheritance is Consanguinity (ie. Blood Relationship)	The Principle of inheritance is spiritual efficacy (ie. Offering of pindas)
4.	Doctrine of Factum Valet	It is recognized to very limited Extent	It is Fully recognized
5.	Coparcener	A woman would never become Coparcener	A woman would be considered as Coparcener
6.	Prevailing Areas	School prevails all over India except Bengal	School prevails only in Bengal
7.	Sub Schools	It has four sub schools	There are no Sub Schools
8.	Followers	Majority of Hindus follow the Mitakshara School	Small fraction of Hindus follow Dayabhaga School
9.	Opinion of Hindu Jurisprudents	It is the Orthodox School	It is the reformed School
10.	Commentary	Vijnaneshwara wrote the commentary	Jimutavahana wrote the commentary
11.	Right to property	The property right is based on Sapinda ( the nearest in Blood relationship)	The property right is based on Pinda (the Rice Ball offering to deceased ancestors)

  

Migration and the Schools of Law

1. On Migration the family continues to be governed by the law of locality of Origin and the burden is heavy on the party alleging (declaring) otherwise.

ie.) If a Hindu family migrates from one State to another, it carries with it the customs regulating succession and family relations prevailing in the state from where it came. However this presumption may be rebutted (denied) by proving that the family has now already adopted the law and usage of the state to which it has migrated.  

 

2. It is a settled law that there is a presumption that parties residing in a particular area are governed by lex loci unless migration is proved. However not based on the theory of lex loci, but on the ground of it is being a personal Law.

3. If nothing is known about a man 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 such a case domicile (residence) plays an important role.

Conclusion:

The main source of Hindu Law is Vedas (sruti). From Vedas smritis were born. The Commentators wrote commentaries based on the principles of Sruti, smritis and Customs. Smritis are common to all the schools. Mitakshara and Dayabhaga are the major schools of Hindu Law. The Mitakshara is still regarded as very high authority when a conflict arises between Mitakshara and Dayabhaga Schools.