Hinduism is an ancient religion that has been professed, practised and followed by approximately 900 million people, it is the 3rd largest religion in the world with 95% of Hindus living in India. There are several customs, rules, traditions etc followed by Hindus that combine to create Hindu law. Hindu law is classified into 2 types coded e.g. various statutes that apply to all Hindus in India namely the Hindu Marriage Act, Hindu Succession Act etc and uncoded. Unlike coded law, the application of uncoded law depends on factors like which school of thought is followed. We will discuss the Schools of Hindu law: Mitakshara school and Dayabhaga school in this article.
“Hinduism is not a religion it’s a way of life”
School of thought
School of thought means a difference in views on a particular subject matter. The sources of Hindu law are classified into two types: ancient and modern. The commentaries belonging to the ancient source are the reasons for the creation of the Hindu Schools of Thoughts. The Nimbhandakars or commentators’ interpretation of the commentaries went on to be either practice or opposed thus giving rise to 2 major different Schools of Hindu law called the Mitakshara and the Dayabhaga. One of the reasons some interpretations were refused was the fact that they did not embody in them the regional customs that are seen in high regards by the people.
Schools of Hindu law
Now, let’s talk in details about the schools of Hindu Law:-
Mitakshara is one of the oldest among the 2 Schools. It has the widest jurisdiction and is applicable in the whole of India except Assam and West Bengal where the Dayabhaga is applied. The vastness of this school is reflected in the fact that though it is one single school but is practised in different forms as per the customs of the regions. One of the unique features of Mitakshara School is that the coparcener male child (four generations from Common ancestor) acquires right in family property by mere birth. It doesn’t believe in the rights of women to succeed in joint family property. It practices a Sponsorship i.e. the right to senior-most property evolved first to the senior-most male in the family (from the common ancestor) which is termed as a Karta (manager of the family) then upon 4 generations. Death of a Coparcener in this School means the entry of further generations into the coparcenary to maintain the 4 generations rule.
Mitakshara school is further subdivided into the following 5 types:
This school is prevalent in most of North India including Orissa except for Punjab. The school mainly focuses on Civil Law and the Law of Inheritance, including Women Inheritance Rights.
This school is prevalent in North Bihar. This school focuses on religious and civil duties. But in a few matters, it differs from Mitakshara School.
Bombay or Maharashtra School.
Despite its name, this school is prevalent in the whole of Bombay, Gujarat including the parts where Marathi is spoken. The amazing thing about this school is that it’s one of the most liable ones among women Rights.
Dravida or Madras School
This school is prevalent in the entire southern part of India including Kerala, Mysore and Madras. The famous matrilineal system of Marumakayam and Aliya Santhanam was followed in these regions.
Punjab law School
This school is prevalent in East Punjab and also parts of Rajasthan and J&K.
It follows its customs and traditions. Established customs are one of the main commentaries of this school.
Apart from Yajnavalkya Smriti which is the basis on which the Mitakshara school came into existence, other Smritis and commentaries are relied upon in each head of the 5 Schools. Though these schools are no longer used due to the codified law that causes uniformity among the followers of different schools, still the courts rely on the same as an aid in deciding cases provided it is not contrary to the codified law.
This School prevails over the regions of West Bengal and Orissa. It is relatively new as compared to Mitakshara. Jimatuvahana who was a judge and Minister in Bengal is said to be the writer of Dayabhaga. This School is seen as a commentary of particular works while a Digest of all codes. Unlike the Mitakshara school, Dayabhaga does not have any sub-schools. The Dayabhaga School bases its law of succession on the principle of religious efficacy or spiritual benefit. This means that the one who bestows more religious benefits on the deceased is entitled to inheritance in preference to the others who confer less benefit. This School was created with views to do away with the limitations of the Mitakshara School. It has a more liberal approach which can be seen in the fact that, unlike the Mitakshara, ancestral property here can be devolved upon the females. This was a curse in disguise because other male members in the family in the temptation and greed of property while taking advantage of the lower position of women in the Indian Society created an evil system known as the Sati system. Where a female was expected to jump in the funeral fire of her husband, it was seen as an act that will take her husband to heaven.
Ownership of property here arises only after the death of fathers which gave rise to murders. The above rule also meant that, unlike Mitakshara, Dayabhaga gave uncontrolled power of alienation in the hands of the father which was seen to be often misused by the same. In this school, heirship arises using pinda offerings (Spiritual benefit).
Differences between Mitakshara and Dayabhaga
The 2 schools differ in the geographical regions they apply to.
- Mitakshara school is the running Commentary on the Yajnavalkya Smriti which was written by Vijnaneshwara, while Dayabhaga was written by Jimutavahana.
- Mitakshra gives a Coparcener son the right to the ancestral property by birth, while in Dayabhaga the son has to wait for his father’s death to acquire the same.
- The position of coparcener Son in Mitakshara School is way more strong since he can demand partition of the joint family property while a Son in Dayabhaga school is not allowed the same.
Impact of migration
While many questions arose on what will be the effect of migration on the schools and which to be governed now. The answer to this is provided in multiple court cases where the court held that if the migration is for a temporary period of time then there will be no impact on the Schools. But if it was a permanent migration then the rules of the new School will be governed and the burden of proving migration shall lie upon the person who pleads the same.
Hindu law was not devised with the intention to curb crime but to be followed to attain salvation. The 2 schools of Hindu law are the basic sources of the same which widened the scope, which in turn caused the growth and development of Hindu Law. This has been a big help in the codification process of Hindu law since all the sources of the same was written in Sanskrit making it difficult to interpret at many places and the presence of Schools that have interpreted the same made the task less hectic. Currently, in India, all kinds are governed by the codified law but the codified law has kept in mind the role of good customs hence it provides relaxation to certain rules as and when the good custom in that aspect prevails.