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 and Dayabhaga are the two important schools of Hindu Law which have
given us the required information about the present legislated laws.
How these schools came into existence:
Originally there were no schools of Hindu Jurisprudence. Schools of Hindu Law
came into being when different 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 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.
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:
- Benaras Hindu law school
- Mithila law school.
- Maharashtra law school.
- Punjab law school.
- Dravida or Madras law school.
These law schools come under the ambit of Mitakshara law school. They enjoy the
same fundamental principle but gives preference to certain treaties and
commentaries which control the certain passage of Mitakshara.
Benaras law school:
This law school comes under the authority of the Mitakshara law school and
covers Northern India including Orissa. Viramitrodaya, Nirnyasindhu, and Vivada
are some of its major commentaries.
Mithila law school:
This law school exercises its authority in the territorial parts of Tirhoot and
north Bihar. The principles of this law school prevail in the north. The major
commentaries of this school are Vivadaratnakar, Vivadachintamani, and Smritsara.
Maharashtra or Bombay law school:
The Maharashtra law school has the authority to exercise its jurisdiction over
the territorial parts including Gujarat Karana and the parts where the Marathi
language is proficiently spoken. The main authorities of these schools are
Vyavhara Mayukha, Virmitrodaya, etc.
Madras law school:
This law school tends to cover the whole southern part of India. It also
exercises its authorities under Mitakshara law school. The main authorities of
this school are Smriti Chandrika, Vaijayanti, etc.
Punjab law school:
This law school was predominantly established in east Punjab. It had established
its own customs and traditions. The main commentaries of this school are
Vramitrodaya and it established customs.
Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also
one of the most important schools of Hindu laws. It is considered to be a digest
for the leading smritis. Its primary focus was to deal with partition,
inheritance and joint family. According to Kane, it was incorporated in between
Dayabhaga school was formulated with a view to eradicating all the other absurd
and artificial principles of inheritance. The immediate benefit of this new
digest is that it tends to remove all the shortcomings and limitations of the
previously established principles and inclusion of many cognates in the list of
heirs, which was restricted by the Mitakshara school.
In Dayabhaga school, various other commentaries were followed such as:
- Dattaka Chandrika
Difference between ‘Mitakshara’ and ‘Dayabhaga’ Schools of Hindu Law:
Mitakshara and Dayabhaga differ at certain positions. Important Differences are
On the basis of Succession:
Under the Mitakshara school, inheritance is governed by the rule of
consanguinity, i.e., blood relationship, whereas under the Dayabhaga school
inheritance is governed by the rule of spiritual efficacy.
Under the Mitakshara, cognates are postponed to agnates but under the Dayabhaga
some cognates like sister’s sons are preferred over several agnates.
This means that if the Hindu dies leaving his son and a daughter, the daughter
will be excluded from the inheritance, and the son will get all the property.
Likewise, if the Hindu dies leaving his son’s son and daughter’s son, the son’s
son will get the succession.
Under the modern Hindu Law, the difference between two main schools is no longer
reliable. Under the Hindu Succession Act, 1956, there is one uniform law of
succession for all Hindus.
On the basis of Rights of Woman:
In the Mitakshara system the wife cannot demand partition. She, however, has the
right to a share in any partition effected between her husband and her sons.
Under the Dayabhaga, this right does not exist for the women because the sons
cannot demand partition as the father is the absolute owner.
In both the systems, in any partition among the sons, the mother is entitled to
a share equal to that of a son.
Similarly, when a son dies before partition leaving the mother as his heir, the
mother is entitled to a share of her deceased son as well as share in her own
right when there is a partition between the remaining sons.
The Mitakshara system is Conservative. It provides good security in times of
difficulties as a member can rely on the joint family. However, sometimes a
member can become a parasite. The Dayabhaga system is more liberal.
Among the two the Dayabhaga is more likely to last in modern times with the
growth of individualism, individual enterprise and economic compulsions.