Schools of Hindu Law

Dr. Shakuntala Misra National

FAMILY LAW, PROJECT ON

(UNDER THE SUPERVISION OF DR. VIJETA DUA

SUBMITED TO:
SUBMITED BY:
Dr. VIJETA DUA TANDO
Ashwani Singh Faculty of Law, DSMNRU
B.Com.LL.B(Hons.)
Lucknow 5TH
Semester

1 | Page
 Schools of Hindu Law

TABLE OF CONTENTS

1. Acknowledgment............................................................................................ 3
2. Introduction.................................................................................................... 4
3. Schools of Hindu Law.................................................................................... 4
4. Mitakshara and Dayabhaga Schools ...............................................................5
5. Migration and the schools................................................................................7
6. Conclusion & Suggestions...............................................................................9
7. Bibliography...................................................................................................10

ACKNOWLEDGEMENT

2 | Page
 Schools of Hindu Law
Any project completed or done in isolation is unthinkable. This project, although prepared by me, is a
culmination of efforts of a lot of people.

Firstly, I would like to thank my Professor for Family Law Dr. Vijeta Dua Tandon for his valuable
suggestions without which this wouldnt have been possible. Moving further, I would also like to
express my gratitude to my senior, the library staff and my friends who were always there for me when I
needed any sort of help regarding this project. Lastly, I would like to thank the almighty for making this
happen.

Ashwani Singh

Introduction:

3 | Page
 Schools of Hindu Law

With the exceptions of the hindus and the muslims, the other communities have no school. In the case of
hindus, schools have some regional connotation, while it is not so in case of muslims, it is as per sects.

Hindu law has two main schools: the Mitakshara School and Dayabhaga. The former has four sub-
schools: the Mithila, the Benares, the Bombay and the south India or the Dravida. The sub schools
prevail in their respective jurisdictions and some matters modify the Mitakshara law; otherwise it is the
Mitakshara law which prevails. The Dayabhaga school of Hindu law prevails in the Bengal, Assam,
Tripura, Manipur, Mizoram, Arunachal and Meghalaya. In rest of India, it is the Mitakshara school
which has its sway. The Mitakshara School prevails even in the Dayabhaga jurisdiction on all those
mattes on which Dayabhaga is silent.

The peculiarity of school of Hindu law is that if a Hindu governed by a school migrates to another
region (where different school has jurisdiction), he will continue to be governed by his own school,
unless he gives up school and adopts the law of the place where hi has settled. In the modern Hindu law,
schools have relevance only in respect of the uncodified Hindu law; they have lost all their relevance in
regard to the codified Hindu law.

Another important aspect of Hindu law is that a person will be governed by custom if he is able to
establish a custom applicable to him, even though such a custom is in derogation to Hindu law.
Although the codified Hindu law overrides all rules and customs of Hindu laws, yet such has been the
impact of custom that in certain areas custom has been expressly saved.1

Schools of Hindu Law:

The codified hindu law lays down uniform law for all hindus. In the codified areas of hindu law, there is
no scope for existence of schools. The schools of hindu law have relevance only in respect of the
uncodified areas of hindu law.

Schools of Hindu law emerged with the emergence of the era of commentaries and digests. The
commentator put his own gloss on the ancient texts, and his authority having been received in one and
rejected in another part of India, schools with conflicting doctrines arose.

1 Dr. Diwan Paras, family law, 10th Ed, 2014

4 | Page
 Schools of Hindu Law
There are two main schools of hindu law:

1. The mitakshara schools, and

Mitakshara and Dayabhaga School:

1. Mitakshara:

The Mitakshara by Vijnanehvara or Vijnana Yogin is the most celebrated and authoritative of all the
commentaries of the Yajnavalkya Smriti. The age of Vijnaneshvara has been fixed by recent research to
be the latter part of the 11th century

The Mitakshara in its turn has been the subject of several commentaries. Amongst them the best known
are the Subodhini of Visveswarabhatta (1360-1390 AD) and the Balambhatti said to have been
written by Balakrihna alias Balabhatt in the name of his 0mother Lakshmidevi toward the end of the
18th century AD.

The authority of Mitakshara is supreme throughout India except in Bengal and became the leading
school in Bengal also. The mitakshara is considered as a great authority in all natters in respect where of
there is no conflict between it and the dayabhaga.

By his time, caste system was, it seems, fully entrenched. He classified all society into four classes, the
Brahmin, the kshatriya, the vaishya and lastly the shudra of whom the first three were called twice-born
(Dwija) whose life to informed to vedic requirement. He lays down minute rule regarding pregnancy
and the rites to be performed from time to time till the sacred thread ceremony. Regarding marriage, he
forbids marriage between a shudra and a twice born and he advocates limited polygamy. He recites the
eight form of marriage, out reprobates remarriage of widows or their duty to raise up their children to
their deceased husband. Inter-caste marriage were limited to the three castes known as the twice-born.
The second part of his work deals with yavhar and embrace is in great detail and is the basis of the
present day law of partition. The rest of the work deals with boundary disputes, misdemeanors,

2 Dr. Paras Diwan, Modern Hindu law,2nd Ed, 2013

5 | Page
 Schools of Hindu Law
bailment, contract of service , law of mortgage, the allowable interesting loans, the rules of evidence,
duties of kings, etc.3

2. Dayabhag:

The Dayabhag School which finds it following mainly in Bengal and Assam is not a commentary on any
particular code but is a digest of all the codes. It has been written by Jimutavahana who lived sometime
in the 12th century. Dayabhaga is not divided into any sub-school.

Some consider the Mitakshara is the orthodox school whereas the Dayabhag, or the Bengal school, as it
is sometimes called, is the reformed school of Hindu law. The Mitakshara and Dayabhaga schools differ
on important issue as regard the rule of inheritance.

The author of the Dayabhaga was Jimuta Vahan, of whom very little is known except that he was a
Brahmin of the Paribhadriya class and was the author of another work Kalavivek. Jamuta Vahan
professes to base his view on the manusmriti which he says have not been fully comprehended. Basing
his view on other smriti-writer and sages, he refuted the doctrines of the Baneras and Mithila schools
and with a candour characteristic of his able reasoning his own views.

According to Siromani, Jimuta refers to the opinion of Srikara, Bhajdeva, Vishwaraf and Govindaraja.
In the words of Prof. Sarkar, The Dayabhag was supposed to have been written by way of revolt
against many artificial and sometimes even absurd principles of inheritance, based on theory of
propinquity conscious of the shortcomings and limitation of Vijnaneswars doctrine. Jimuta-Vahana
propounds the theory of spiritual benefit for the governance of the rules of succession. The immediate
benefit of this new theory was the inclusion of many cognates in the list of heirs, excluded by the
Mitakshara which was mainly agnatic.4

Without accepting the set of propositions laid down by other commentators, he deals with the subject of
inheritance, partition and succession as an objective science with a forthright and direct approach. He
appeals to reasons and logic and not merely to precepts, precedents or postulations. Examining the roots
by digging up various stand points, he plunges into the heart of the subject to come up with doctrine that
were close to practicality and rationality.
In the Dayabhag School, besides the authority of Dayabhag, the following commentaries were followed:
(i) Dayatatva; (ii) Dayakram sangrah; (iii) Virmitrodaya and Dattaka chandrika.

3 Ibid.

4 Prof. V. C. Sarkar;Hindu Law, p.48

6 | Page
 Schools of Hindu Law
Migration and the School:

A Hindu is governed by the law of the place to which he originally belonged. On migration he continues
to be governed by the law of the original domicile. A Hindu family carries with it, its law including
customs of locality and the burden is heavy on the party alleging otherwise.

Where a Hindu Marwari governed by the Benaras school of law migrated from Jodhpur it was held that
the Hindu Womens Right to Property Act, 1937 applied to his estate on the ground that law does not
hold a migrating family to be immune from changes introduced in the law of its origin by statutes
governing all Hindus subsequent to its migration.

It is a settled law that there is a presumption that parties residing in particular area are governed by the
lex loci unless migration is proved. The burden of proving that the family came from some other tract
and is, therefore, governed by some other branch of Hindu law is on the party which asserts it.

The ordinary presumption is that a Hindu is governed by the law of the land where he resides. This
presumption is, however, not based on the theory of Lex loci but on the ground of its being a personal
law.

Their Lordships of the Privy Council said, where a Hindu family migrates from one part of India to
another, prima fade they carry with them their personal law, and if they are alleged to have become
subject to a new local custom, their new custom must be affirmatively proved to have been adopted but
when such a family emigrates to another country, and being themselves Mohammedans, settle among
Mohammedans, the presumption that they have accepted the law of the people when they have joined
seems to their lordships to be one that should be much more readily made.

The analogy is that of a change of domicile on settling in a new country rather than the analogy of a
change of custom on migration within India. If nothing is known about a man except that he lived in
certain place, it will be assumed that his personal law is the law which prevails in that place.

In such a case domicile plays an important role, e.g., Khojas and Kutchi Memons of Kutch and
Kathiawad on migration to Madras and other parts of India retained the (Mitakshara) rules of Hindu law
in general not only in matters of succession and inheritance but also with regard to their property
including the Hindu concept of coparcenary and survivorship.5

5 S.R. Myneni; Hindu Law(FamilyLaw- I),1st Ed.(Reprint)- 2010

7 | Page
 Schools of Hindu Law
Differentiation between Mitakshara and Dayabhaga Schools of Hindu Law:

The main points of Fundamental difference between the Mitakshara and Dayabhagaa are as follows:

(1) As Regards Joint Property:

1. Under the Mitakshara, The right to property of the coparcener arises by birth; hence the son is a co-
owner with the father in ancestral property, whereas under the Dayabhaga the right to property arises
after the death of the last owner. Hence the son has no right to ancestral property during fathers life
time.

2. Under the Mitakshara the father has the restricted power of alienation of ancestral property whereas
the father has the absolute power of alienation of ancestral property under the Dayabhaga School.

3. Under the Mitakshara the son can ask for partition of the joint family property even against the father,
whereas under the Dayabhaga the son cannot demand partition against the father.

4. The interest of a member of joint family under the Mitakshara would, on his death pass to other
members by survivorship whereas under the Dayabhaga, the interest of a member would, on his death,
pass by inheritance to his heirs namely widow, son and daughters.

5. Under the Mitakshara, members of joint family cannot dispose of their shares while undivided,
whereas under the Dayabhaga any member of joint family may sell or give away his share even when
undivided.

The modern Hindu Law does not affect the joint family system of Hindus and therefore both the Schools
with their differences still operate. The Hindu Succession Act, 1956, affects the Mitakshara joint family
only on its fringes.

(2) As Regards Inheritance:

1. Under the Mitakshara, inheritance is governed by the rule of consanguinity i.e., blood relationship,
whereas under the Dayabhaga inheritance is governed by the rule of religious efficacy i.e., offering of
Pindas.

2. Under the Mitakshara, cognates are postponed to agnates but under the Dayabhaga some cognates
like sisters sons are preferred to many agnates.

8 | Page
 Schools of Hindu Law
3. As regards the recognition of the doctrine of factum valet, Mitakshara extended its recognition to a
very limited extent but Dayabhaga has extended its full recognition to it.6

Conclusion:

Hindu is one of the most ancient religion on the world. So the laws of hindu are came from
differentsources. In ancient times the hindus are maintain only the law which they believe that come
from Diety, but now they have also some manmade law. All the sources of the law of ancient and the
modern are mentioned above. Both schools has played very important role in their aspects. The
differentiation between them was not such kind that make the difference in their jurisprudential life but
they really exists.

Bibliography

1. Dr. Diwan Paras- family law; Tenth edition reprint, 2014

6 Dr. B.K. Sharma, Hindu Law, 1st Ed., Central Law Publishers, 2007

9 | Page
Schools of Hindu Law

10 | P a g e