A DESCRIPTIVE STUDY OF THE SCHOOLS OF HINDU LAW

THIS ARTICLE WAS WRITTEN BY PRAKRITI SINGH, A STUDENT OF HNLU.

INTRODUCTION

The modern Hindu Law has witnessed the codification of laws for several areas. However, there are still areas entrapped with absence of codification. In such areas, the schools of Hindu Law have played a crucial role.

The origin of the various schools of Hindu Law can be traced back to the evolution of several commentaries and digests. There are two schools of Hindu Law.

1. THE MITAKSHARA SCHOOL OF HINDU LAW
2. THE DAYABHAGA SCHOOL OF HINDU LAW

The Mitakshara School of Hindu Law has several sub schools.

This project will make a descriptive study of these two schools and the fundamental differences between them.

MITAKSHARA SCHOOL

The Mitakshara School of Law is one of the two major schools of Hindu Law

ORIGIN

In order to better understand this school of law, let us throw some light on the “Smriti”. Smriti is considered to be one of the most important sources of Hindu Law. The literary meaning of the word “Smriti” is something, which has been held by remembrance. Smriti, as a source of law has a religious connection. The subject matter of the Smritis is sourced from the memory of sages. The sages, whose memory acted as the depositories of the sacred Revelation. The sacred Revelation, as the very term suggests, is the revelation of sacred realities and sacred notions to the humans.

ETYMOLOGY

Coming back to Mitakshara School of Hindu Law, let us discuss its etymology. The Mitakshara School of Hindu Law derives its name from that of a commentary. Vijnaneshwara, a popular legal scholar of India, in the twelfth century, in the court of King Vikaramaditya had prepared a legal work. [i]This legal work was based upon “Yajnavakalya Smriti” and was named “Mitakshara”. The Mitakshara School of Hindu Law owes its name to this Mitakshara commentary by Vijnaneshwara. “Mitakshara” by Vijnaneshwara is not merely a commentary on “the Yajnavakalya Smriti”. It is a compendium of several prominent Smritis. Also, it is prolific as it deals with almost all titles of the Hindu Law.

GEOGRAPHICAL PREVALENCE

The followers of Mitakshara are members of the Mitakshara School of Hindu Law. The Mitakshara School of Hindu Law has a wide recognition in India. It is followed in every state of India, except West Bengal and Assam. [ii]

FEATURES

Coming to the law of succession and inheritance, the Mitakshara school of Hindu Law lays down certain frameworks and procedures to be followed in deciding issues related to succession and inheritance.

PROXIMITY OF RELATION

Being an orthodox ideology school, the Mitakshara school of Hindu Law has given importance and recognition to the doctrine of propinquity. [iii]The word “propinquity” can be defined as deciding the sequence of preference of heirs in order to decide succession on the basis of the magnitude of the proximity present in relations. In addition to this rule of “propinquity”, the Mitakshara school of Hindu Law lays down several distinctions to be followed while deciding issues of inheritance and succession.

EXCLUSION OF FEMALE

The Mitakshara school of Hindu Law advocates the exclusion of females from inheritance of property. Thus, a female has no right of inheritance, irrespective of her proximity to the owner of the property. This gender based discrimination is often criticized for being regressive. However, the modern “Hindu Law” has scrapped of this discriminatory feature. The 2005 Amendment to the Hindu Succession Act has given equal status to men and women.

AGNATES AND COGNATES

The Mitakshara School of Hindu Law has given precedence to agnates over cognates. According to Section 3 of the Hindu Succession Act, 1956, “an person is an agnate of someone if the two are related to each other by a blood relation or by adoption process wholly through males” and “a person is a cognate of someone if the two are related to each other through a blood relation or through adoption process but not wholly through males”. Thus, this provision for succession is also gender discriminatory.

PRIVILEGES AWARDED TO SONS

The Mitakshara School of Hindu Law promotes the principle that “son, by birth, has a right in the joint family property”. This is an exclusive addition made by the Mitakshara School of Hindu Law to Hindu Law jurisprudence. According to this principle of Mitakshara school of Hindu Law, a son, from the first moment of his existence in the world obtains his share of interest in joint family property.

DOCTRINE OF SURVIVORSHIP

Another principle of Mitakshara School of Hindu Law collateral to the aforementioned principle is the “principle of survivorship”. According to this principle of survivorship, the succession of joint family does not operate on the basis of inheritance but on the basis of the magnitude of length of life amongst coparceners. This means that amongst the coparceners, those to survive longer, are the inheritors of joint family property.

VOLATILITY OF SHARES

Another important principles related to succession of joint family property under the Mitakshara School of Hindu Law are “community of ownership” and “unity of possession”. These principles imply that prior to the partition of joint family property no coparcener has a fixed share in the respective joint family property. The interest of the coparceners is volatile, subject to the prospective death or births in the group. If more sons are born, there will be further divisions and decrease of shares. If the existing coparceners die, the share remaining with the rest of the coparceners will increase.

In addition to these principles and doctrines of the Mitakshara school of Hindu Law, there are several sub schools in the Mitakshara school of Hindu Law.

SCHOOLS UNDER THE MITAKSHARA SCHOOL OF HINDU LAW

BENARES SCHOOL

The Benares School of Mitakshara is followed in all the parts of northern Indian except that of rural Punjab. The Benares School derives its authority from various sources. These are Viramitrodaya, Nirnayasindhu, Dattaka Mimansa, Vivada Tandava, Subodhini and Balam-Bhatti.

MITHILA SCHOOL

The Mithila School under Mitakshara school of Hindu Law has its base in Tirhut and some areas of the North part of Bihar. The main authorities of The Mithila School of Mitakshara School of Hindu Law are- Vivada Ratnakar, Vivada Chintamani, Smriti Sara or Smrityarthasara and Madana Paruata.

BOMBAY SCHOOL

The Bombay School of Mitakshara School of Hindu Law has followers in Bombay and Gujarat. The main authorities of The Bombay School of Mitakshara School of Hindu Law are- Vyavhara Mayukha, Viramitrodaya, Nirnaya Sindhu, and Vivada Tandava.

MADRAS SCHOOL

The Madras School under the Mitakshara School of Hindu Law is also known as Dravida School. The main authorities of The Madras School under the Mitakshara School of Hindu Law are – Smriti Chandrika, Parasara Madhaviya, Saraswati Vilasa and Vauayanti.

PUNJAB SCHOOL

The Punjab School under the Mitakshara School of Hindu Law has its prevalence in the eastern parts of Punjab. Its primary governance is done by customs.

DAYABHAGA SCHOOL OF HINDU LAW

THE FEATURES OF DAYABHAGA SCHOOL OF HINDU LAW AND DIFFERENCE BETWEEN MITAKSHARA AND DAYABHAGA SCHOOL OF HINDU LAW

ORIGIN AND PREVALENCE OF DAYABHAGA SCHOOL OF HINDU LAW

The Dayabhaga School of Hindu Law is recognized in the states of Bengal and Assam. The Dayabhaga School of Hindu Law derives its name from a legal work. Jimutvahana was a prominent scholar in India. He is the author of several legal treatises. [iv]Dayabhaga is a work authored by Jimutvahana. Contrary to Mitakshara, Dayabhaga is a treatise only on some selected Smritis. The Dayabhaga School of Law is based on this work. Contrary to the Mitakshara School of Hindu Law, the Dayabhaga School of Hindu Law does not have any sub school. Also, as opposed to Mitakshara School of Hindu Law, the Dayabhaga School of Hindu Law has dealt merely with the issues of partition and inheritance.

The Mitakshara School of Law does portray a patriarchal stance on the issues of inheritance and partition. It excludes females from the inheritance process. It also gives preference to agnates over cognates. Thus, the Mitakshara School of Hindu Law does portray orthodox and conservative values. However, the Dayabhaga School of Hindu Law has proved to be quite reformist when assessed on these parameters.

NO PREFERENCE TO SONS

Contrary to the Mitakshara School of Hindu Law, the Dayabhaga School of Hindu Law does not confer privileges to sons in case of devolution of rights on a joint family property. The Dayabhaga School of Law does not give rights on joint family property to sons, from the moment of their birth. The rights in joint family property operate on the basis of inheritance. In simple words, till the time the father lives on the earth, he is the sole owner of all the properties. The rights are devolved only subsequent to his death.

ABSENCE OF ANY DOCTRINE ON SURVIVORSHIP

The Mitakshara School of Hindu Law has propounded the “doctrine of survivorship”, according to which, the length of the lives of the coparceners determines their inheritance rights. However, the Dayabhaga school of Hindu Law does not comprise any such doctrine.

As described above, the Mitakshara School of Hindu Law supports the doctrine of “community of ownership”. This doctrine makes the shares of the coparceners in joint family property volatile and fluctuating.[v] However, in the absence of any such doctrine in the Dayabhaga School of Hindu Law, the coparceners have explicitly clarified and decided shares in joint family property. In the Dayabhaga School of Hindu Law, the rights of coparcenaries will not fluctuate due to any birth or death in the coparcener group. The coparcenaries will have fixed shares in joint family property. [vi]

NO PROXIMITY OF RELATIONS

The Mitakshara School of Hindu Law has followed the “principle of propinquity” in case of succession of property. However, the Dayabhaga school of Hindu Law follows a different doctrine. It has based its system of succession of property on “spiritual benefit”. [vii]The doctrine of “spiritual benefit” or “religious efficacy” implies that the preference order for determining the devolution of rights on property is decided on the basis of the magnitude of benefit conferred on the “deceased”.  The one who confers more spiritual benefit is preferred over the one who confers lesser spiritual benefit on the “deceased”. This religious and spiritual privilege is based on principles of offer of “pindadana” to the “deceased”.

EMPOWERING THE WIDOWS

The Mitakshara School of Hindu Law has proved to be orthodox when it comes to the rights of widows. According to the Mitakshara School of Hindu Law, on the death of a brother, his widow cannot be an inheritor to his share under the joint family property. [viii]The Dayabhaga School of Hindu Law has proved to be progressive on this point. Under the Dayabhaga School of Hindu Law, the widow of a deceased brother can be an inheritor of joint family property.

CONCLUSION

After making a study of the Mitakshara and Dayabhaga schools, it can be concluded that the Mitakshara school is orthodox on several grounds. The Dayabhaga School has features which are progressive and reformist on several counts. Thus, in the coming times, the Dayabhaga School will become more popular.

BIBLIOGRAPHY

[i] Bansal, Nitya. “The Different Schools of Hindu Law | Explained.” Legal Bites – Law And Beyond, 29 July 2020, https://www.legalbites.in/different-schools-of-hindu-law.

[ii] Asthana, Subodh. “All You Want to Know about Sources and Schools of Hindu Law.” IPleaders, 10 Sept. 2019, https://blog.ipleaders.in/sources-schools-hindu-law/.

[iii] “Study Notes: Who Is Hindu? And Schools of Hindu Law.” Legal Wires, https://legal-wires.com/lex-o-pedia/study-notes-who-is-hindu-and-schools-of-hindu-law/. Accessed 1 Apr. 2021.

[iv] Admin. 2 Major Schools of Hindu Law: Detailed Notes – Prolawctor. https://prolawctor.com/school-of-hindu-law/. Accessed 1 Apr. 2021.

[v] Rashmi Dubey. Schools of Hindu Law. https://www.slideshare.net/RashmiDubey21/schools-of-hindu-law.

[vi] Jha, Shefali. “Difference Between Mitakshara And Dayabhaga School of Hindu Law.” Bail Me Out, 14 June 2020, https://bailmeout.in/difference-between-mitakshara-and-dayabhaga-school-hindu-law/.

[vii] Chauhan, Arun. “Explain the Various Schools of Hindu Law and Examine How Did They Arise.” Infipark.Com, 20 Sept. 2017, https://www.infipark.com/articles/explain-various-schools-hindu-law-examine-arise/.

[viii] “The Big Picture: Hindu Succession Law & Daughter’s Rights.” Drishti IAS, https://www.drishtiias.com/loksabha-rajyasabha-discussions/the-big-picture-hindu-succession-law-daughter-s-rights. Accessed 1 Apr. 2021.