Project on Hindu School Law

PROJECT REPORT On

SCHOOLS OF HINDU LAW CONTENTS:  Introduction  Origin of Schools of Law  Schools of Hindu Law  Difference between Schools of Hindu Law

SUBMITTED TO :

BY :

Mrs. BHAJAN KAUR

KULWINDER KAUR LL.B. 1st SEMESTER SECTION - B ROLL NO. – 84

INTRODUCTION Before the advent of Muslims in India, the term Hindu had no special meaning. It seems that the word Hindu came into vogue with the arrival of Greeks who called the inhabitants of the Indus Valley as Indoi. Today the term Hindu has no territorial significance. Till this day, there is no precise definition of the term Hindu available either in any statute or in any judgment. However, an attempt has been made to define the term Hindu in section 2(1) of The Hindu Marriage Act, 1955. Section 2 (1)of the Hindu Marriage Act, 1955 says that this Act applies:(a)

to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b)

to any person who is a Buddhist, Jaina or a Sikh by religion, and

(c)

to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, Unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matter dealt with herein if this Act had not been passed.

This Act extends to whole of India except the State of Jammu and Kashmir. Origin of Schools of Law The terms Schools of Law as applied to the different legal opinions prevalent in different parts of India, seems to have been first used by Mr. Colebrooke.

The term of Schools of Hindu Law emerged with the emergence of the era of Commentaries and Digests. The different views expressed by the Commentators, who were of authority in different parts of India, gave rise to different Schools of Hindu Law. Originally there was no School 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 vogue in different parts of India. In Rutcheputty Versus Rajendra, it has been observed by the Privy Council that the different Schools of Hindu Law have originated due to different local customs prevailing in different provinces of India. In Collector of Madura versus Moottoo Ramalinga (1868), the Privy Council has held that: “The remoter sources of Hindu Law i.e. the Smritis are common to all the Schools. Schools of Hindu Law It is usual to talk of the existence of several Schools of Hindu Law, but strictly speaking there are only two Schools of Hindu Law: (1)

The Dayabhaga School or the Bengal School,

(2)

The Mitakshara School.

1. The Dayabhaga School or the Bengal School : The Dayabhaga School is not a commentary or any code, but it is a digest of all the code written by Jimutavahana between 1090-1130 A.D. This School prevails in West Bengal as well as in Assam, except in one point in which written law is at variance with the customs of the locality.

The authorities respected in this School are as follows:(1)

Dayabhaga

(2)

Dayatattya

(3)

Daya-Krama-Sangraha

(4)

Viramatrodaya

(5)

Dattaka Chandrika

2. The Mitakshara School The Mitakshara School is a running commentary on the code of Yajnavalkya Smriti written by Vijnaneshwara in the latter part of Eleventh Century (A.D.1100-1200) The Mitakshara is of supreme authority through out India except Bengal. But even in Bengal the Mitakshara is still regarded as a very high authority on all questions in respect of which there is no conflict between it and Dayabhaga School and the other works prevalent there.

Those who fall under the Mitakshara head are divided by minor

differences of opinion, but are in principle substantially the same.

Originally the

Mitakshara School was sub divided in four parts but with the passage of time it is divided in five sub Schools namely:(1)

The Benaras School;

(2)

The Mithila School;

(3)

The Dravida or Madras School;

(4)

The Bombay or Maharashtra School; and

(5)

The Punjab School.

a) The Benaras School

This School prevails in the whole of Northern India including Orissa but except Mithila and Punjab. It is the local law (Lex loci) of the State of Madhya Pradesh. The following commentaries are respected in this School:(1)

Mitakshara;

(2)

Viramitrodaya;

(3)

Dattaka Mimansa;

(4)

Nirnaya Sindhu;

(5)

Vivada Tandava;

(6)

Sobodhini; and

(7)

Balambhatti

b) The Mithila School This School prevails in Tirhoot and North Bihar. Of course, the Mitakshara is the law of this School, except in a few matters. Thus it was observed by the Privy Council in Surendra versus Hari Prasad case that “the law of the Mithila School is the law of Mitakshara except in a few matters in respect of which the law of Mithila School has departed from the law of Mitakshara School.” The following are the commentaries respected in this School:(1)

Mitakshara;

(2)

Vivada Ratnakar;

(3)

Vivada Chintamani;

(4)

Smriti Sara ; and

(5)

Madana Paryata

c) The Dravida or Madras School

The whole of the Madras state is governed by the Madras School of Hindu Law. This School was once sub divided into a Tamil, Karnatka and an Andhra School for which, however, there was no justification. The following are the commentaries respected in this School:(1)

Mitakshara;

(2)

Smriti Chandrika;

(3)

Patasara Madhavya;

(4)

Saraswati Vilasa;

(5)

Viramitrodaya;

(6)

Vijavahara-Nirnayia;

(7)

Dattaka Chandrika;

(8)

Daya-Vibhaga;

(9)

Kesva Vayayanti or Vaiyayanti;

(10)

Madhabi;

(11)

Nirnaya Sindhu;

(12)

Narada Rajya ; and

(13)

Vivada Tandava

d) The Bombay or Maharashtra School The Bombay School prevails in almost the whole of the states of Bombay, Gujarat, Kanara and parts where the Marathi Language is spoken as the local language.

The following are the commentaries respected in this School:-

(1)

Mitakshara;

(2)

Vyavahara Mayakha;

(3)

Viramitrodaya;

(4)

Nirnaya Sindhu;

(5)

Parasara-Madhavya; and

(6)

Vivada Tandava

e) The Punjab School. It prevails in the part of the country called the East Punjab. This School is mainly governed by the customs prevalent in this part of the country. The following are the commentaries respected in this School:(1)

Mitakshara;

(2)

Viramitrodaya ; and

(3)

Punjab Customs.

Although is has become a practice to make the sub division of the Mitakshara School into five Sub Schools yet there is a fundamental identity of doctrine between those sub divided Schools and the variances between the sub Schools are few and slight. The commentaries that generally follow the Mitakshara are not the specific property of any one School. They have been and can be cited in all the Schools. According to Mayne, except in respect of Maharashtra School, this division serves no purpose, nor does it rest upon any true or scientific basis.

Reasons given in support of division of Mitakshara School in to five sub Schools are as follow:-

(1)

The basic reason which used to be given for this division is that, “the glosses and commentaries of Mitakshara are received by some of the Schools but are not received by all. At a time when the opinions of the pundits who were the only conversant with the few text books in each province guided the decision of courts, it was natural to assume that the text books they used to refer were of the special authority in

the

particular provinces. With the widening of knowledge it is clear that this assumption is no longer correct (2)

Another reason given for this division deals with the right of a widow to adopt a son to her deceased husband. In Mithila School no widow can adopt. In Bengal and Benaras Schools she can adopt a son but with the prior permission of her deceased husband.

In southern India and in

Punjab she can adopt a son even without a permission of her husband provided she has the consent of her husband’s Spindas. In western India she can adopt a son without any consent. But this important difference on one point of Hindu Law is not sufficient to justify the division of Mitakshara School into five sub Schools. (3)

The third and most important reason given for this division deals with the Maharashtra School. This School materially differs from Mitakshara in relation to the right of females to inherit, the nature of their estate, the rules as to the stridhana and its devolution. More over, the interpretation of the Maharashtra School is clearly influenced by the Mayukha and in some places it is controlled by it. The Maharashtra School, therefore, may be regarded as an important branch of Mitakshara School. So it is rightly said by Mayne that except in respect of Maharashtra School this division serves no purpose, nor does it rest upon any true or scientific basis.

Main Difference between the two schools

The Dayabhaga and the Mitakshara schools fundamentally differ on certain matters. The basic differences between the two are clear from the following table:Dayabhaga School

It is a running Commentary on the

It is a digest of all the

code of Yajnavalkya.

1. codes

It is written by Vijnaneshwara. According to Kane the date of its

2.

It

is

written

by

Jimutavahana. 3.

A.D.

According to Kane the

Bengal.

between 1090-1130 A.D.

Right to property arise by birth of

It

prevails

in

West

the claimant, hence the son is

Bengal and some parts of

coparcener

Assam.

ancestral property.

5.

Right

with

the

father

in

to property arise

by death of the last owner,

Father has a restricted power of

hence the

alienation

right

son

has

no

to ancestral property

during the father’s lifetime. Father

has

and

son

can

claim

partition even against father. The interest of a person who is a

absolute

member of a coparcenery would on

power of alienation and son

his death pass to the other members

can’t claim partition or even

by survivorship. But

maintenance. 7.

It prevails throughout India except

date of its composition lies 4.

6.

composition lies between 1100-1200

The interest of every person would, on his death, pass by inheritance to his heirs. Mitakshara School

if

he was

8.

Any member may sell or give away his share even when undivided.

9.

Each

his heirs

by succession. (Doorga

Presad Vs. Doorga Konwari 1878). Members of coparcenery can’t

coparcener

has

dispose

off

their

shares

while

a definite share in joint family

undivided.

property.

Definite share is not available to any member as it is capable of

10.

A widow or daughter(s), though

females,

got

into

being

enlarged by deaths and liable to be diminished by births in the family.

coparcenery, representing the

No female can be a coparcener

share

although a female can be a member

of

their

deceased

husband or father as the case

of a Joint Hindu Family.

might be. 11.

The

principle

of

inheritance spiritual efficacy i.e. offering of Pindas. 12.

The

only

The principle of inheritance is females

propinquity i.e. nearer in blood.

recognized as heirs are the widow

(Durga

Chintamani

Nath

-1904),

Vs.

The females recognized as heirs

the

are

the

widow,

the

daughter

daughter (Sankar Dome Vs.

(Jamnabai Vs. Khimji - 1890),

Kalidasi Dasi-1970), mother

the mother, the father’s mother, the

(Ram Nath Vs. Durga 1879),

father’s

the

daughter, daughter’s daughter (Ben

father’s mother, the

father’s father’s mother.

father’s

mother,

son’s

Madhu Vs. Kalidas 1949), Sister (Ujagar

Singh Vs. Jeo 1959),

father’s sister etc. separate at the time of his death, his whole property, would pass to 13.

The condition of chastity applies not only to the widow,

but also to other female heirs, such as daughter & mother. 14.

Only

that

The only female liable to

property

exclusion from inheritance by

belonging to a woman is

reason of unchastity is the

Stridhana,

widow.

which

she

can

dispose off at her pleasure

Property of any description

without

belonging to a woman is

consent.

her

husband’s

Stridhana.

It is clear from the above table that there are differences of fundamental character between the two schools, but the claim made by some that the Dayabhaga is a reformed school while the Mitakshara is an orthodox school is substance less. Though the Dayabhaga lets in women as coparceners along with men and hence can be said to have improved upon the Mitakshara, the latter has discarded the test of religious efficacy and preferred the secular standard of blood relationship to determine the priority in succession. The only justification of the claim is that the Dayabhaga was written about two centuries later than the Mitakshara and the rules of the former make the law less complicated than those of the latter. The codified Hindu Law doesn’t affect the Joint Family System (Coparcenery) of Hindus & therefore both the Schools with their differences still operate. The Hindu Succession Act, 1956 affects the Mitakshara joint family only on its fringes.