Schools of Hindu Law
Author : Gargi Soman
Introduction
The source of Hindu law had not been originally classified into schools or institutions, rather it was a consequence of the difference in approach taken while interpreting the commentaries. Shruti, Smriti, customs etc., were the primary sources of Hindu law. Various scholars studied these Vedas and Smritis and wrote commentaries on them. These commentaries were interpreted by different communities in different ways and thus, different schools of thought emerged.
The most prominent ones were the Mitakshara and Dayabhaga schools of Hindu law. However, it is pertinent to understand here that the laws that were promulgated by these schools of law were not codified and thus, is not imposed on every Hindu. It is the codified laws that administers Hindus today. Nevertheless, schools of Hindu law have been significant contributors to codifying the Hindu law, as even today, these laws shape the minds of legislators and lawmakers while formulating new laws for the same.
The emergence of these schools of thought was due to the different local customs to which the inhabitants were accustomed to. The scholars also could not neglect the significance of these mores and eventually incorporated them in the law that was prominent in the province. This was held in Rutcheputty v. Rajendra.
The rule of inheritance in the Hindu law is now codified by the Hindu Succession Act of 1956, however, both the schools were equally considered while deliberating upon the laws of inheritance that were to be formulated.
1. Mitakshara School of Law
The primary point as to where both the schools of law diverge is the rules of inheritance. The Mitakshara school of law is widely followed is widely followed throughout India except its eastern parts. This school of law emerged as a result of the commentary that was written by Vijnaneshwara on the Yajnavalkya smriti and was also a prominent thinker and law maker from Karnataka.
It believes in the sapinda relationship which means that only those connected by blood would inherit the property by birth. It is also guarded by the theory of survivorship which implies that at the birth of a son, his property to be inherited is not definite as it would also depend on the birth and death of his co-parceners. Previously, the widows were prohibited from claiming inheritance in the ancestral property, however, with the enactment of the Hindu Succession (Amendment) Act of 2005, women too are now the rightful heirs to the ancestral property.
The Mitakshara school can be widely divided into five sub-categories:
i). Benaras Hindu Law School:
It is said to have influenced the whole of North India including Odisha except Punjab. The main commentary of this school would be the Viramitrodaya.
ii). Mithila Law School:
It exists in North Bihar and Uttar Pradesh. The primary commentaries of this school are Smritsara and Vivadratnakar.
iii). The Maharashtra School of Thought
It is prevalent in Maharashtra and Gujarat. It has an extensive work on religious and civil laws. The amin commentary of it is that of Vyavahara Mayukha.
iv). Madras school (The Dravidian School of Thought)
Being prominent in South India, it had a unique custom with regards to adoption by widows. They have to mandatorily seek permission from Sapindas i.e., her blood relations. The main work of this school is Smriti Chandrika.
v). Punjab School
This school finds its roots in East Punjab. It is mainly known for its local customs and its chief work is Viramitrodaya.
2. The Dayabhaga School
This school of thought was prominent in Assam and West Bengal. It made an attempt to remove the ambiguities or the inconsistencies that existed in the previous school of law. So, while the Mitakshara school of law can be called a traditional school, the Dayabhaga school can be called a reformist school.
While the Mitakshara school can be perceived as son-centric, the Dayabhaga school can be perceived as father- centric. While the Mitakshara school gives rights in ancestral property to a son as soon as he is born, the Dayabhaga school gives it only when the father dies.
In Dayabhaga school, the father carries absolute power for separation but it is not the case in the Mitakshara school where instead, the son is authorized to demand partition. Also, the partition system significantly differs in both the schools. In the Mitakshara system, there is no definite physical distribution of share and so, the partition takes place in the form of numerical division of property.
In both the schools of thought, the mother cannot demand partition. However, she is entitled to a share that is equal to what her sons receive upon partition. The primary difference here would be that in Mitakshara, the sons are able to demand partition whereas in Dayabhaga, it is not the case as the father is the absolute owner and the decision lies with him whether to partition the property or not.
Conclusion
Thus, as can be seen, the Mitakshara and Dayabhaga Schools of Thought have sharp distinct features which also makes them significant contributors of the Hindu law. While the Mitakshara school of thought can be perceived to be conservative, the Dayabhaga school of thought seems to be more modernist or reformist in nature.
This is observed because in the Mitakshara school of thought, the rights in the joint property are acquired by the sons as soon as they are born while no opportunity to inherit property is given to the females. However, in Dayabhaga school of thought, the rights in the joint property are passed down only by inheritance or will and if circumstances so render that a male member is deceased, the share is passed on to the widow, in the absence of a closest heir.
[1] The Different Schools of Hindu Law, Nitya Bansal (2020) https://www.legalbites.in/different-schools-of-hindu-law as last assessed on Feb 8.
[2] 1839, 2. M.I.A, 132.
[3] The Hindu Succession Act, 1956.
[4] Schools of Hindu Law, Neha Singh http://www.patnalawcollege.ac.in/econtent/HINDU%20LAW%20SCHOOLS%20by%20Neha%20Singh.pdf as last assessed on Feb 7.
[5] The Hindu Succession (Amendment) Act, 2005.
[6] Schools of Hindu Law, Neha Singh http://www.patnalawcollege.ac.in/econtent/HINDU%20LAW%20SCHOOLS%20by%20Neha%20Singh.pdf as last assessed on Feb 7.
[7] The Different Schools of Hindu Law, Nitya Bansal (2020) https://www.legalbites.in/different-schools-of-hindu-law as last assessed on Feb 8.
[8] Ibid.
