Schools of Hindu Law

Schools of Hindu Law: A Comparative Study

S.S. Jain Subodh Law College

“Schools

of Hindu Law: A Comparative Study”

Project Submission as the Partial Fulfillment of Periodic Evaluation of Family Law

Submission To:

Submitted By:

Dr. Alpana Sharma

Prashant Kumar

FACULTY OF FAMILY LAW

Roll no:- 8 V Semester S.S. Jain Subodh Law College

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Schools of Hindu Law: A Comparative Study

TABLE OF CONTENTS

1. Acknowledgment............................................................................................ iii 2. Research Methodology.................................................................................. iv 3. Abstract.......................................................................................................... v 4. Introduction.................................................................................................... 6 5. Schools of Hindu Law.................................................................................... 7 6. Mitakshara and Dayabhaga Schools ............................................................ 8 7. Migration and the schools............................................................................. 15 8. Conclusion & Suggestions............................................................................ 17 9. Bibliography.................................................................................................. 18

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Schools of Hindu Law: A Comparative Study

ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to Dr. Alpana Sharma for inspiring me and guiding me during the course of this project work and also for his cooperation and guidance from time to time during the course of this project work on the topic.

Jaipur 15th August 2014

Prashant Kumar

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Schools of Hindu Law: A Comparative Study

RESEARCH METHODOLOGY Aims and Objectives: The aim of the project is to present a detailed study of the topic “SCHOOLS

OF

HINDU

LAW: A COMPARATIVE STUDY” forming a concrete informative capsule of the same with an insight into its relevance in the Indian Society.

Research Plan The researchers have followed Doctrinal method.

Scope and Limitations: In this project the researcher has tried to include different aspects, special attention is also provided on Migration between Different Schools,and aspects of schools of Hindu Law. It is a doctrinal research project. . Sources of Data: The following secondary sources of data have been used in the project

Case Study



Websites



Case Laws



Books

Method of Writing and Mode of Citation: The method of writing followed in the course of this research project is primarily analytical. The researcher has followed Uniform method of citation throughout the course of this research project.

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Schools of Hindu Law: A Comparative Study

ABSTRACT This project aims at introducing the concept of schools of Hindu. From thousands of years people living in the Indian subcontinent have been leading their lives by following the guidelines and concepts given in the Vedas. These guidelines have evolved into rules followed by the people and enforced by the rulers and have thus become de facto law. In this modern times, the same laws have been retrofitted to suit present conditions and have been codified in the form of several acts of which the important ones are - Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956.In hindu law school have major importance.School means rules and principles of Hindu Law which are divided into opinion. It is not codified. There are two Schools of Hindu Law- (a) Mitakshara (b) Dayabhaga. Mitakshara School prevails throughout India except in Bengal. It is a running commentary on the code of Yagnavalkya. Mitakshara is an orthodox School whereas the Dayabhaga is Reformist School. The Mitakshara and Dayabhaga Schools differed on important issues as regards the rules of inheritance. However, this branch of the law is now codified by the Hindu Succession Act, 1956, which has dissolved the differences between the two. Today, the main difference between them is on joint family system.

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Schools of Hindu Law: A Comparative Study

Introduction:

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.

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Schools of Hindu Law: A Comparative Study

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. There are two main schools of hindu law : 1. The mitakshara schools, and 2. The dayabhaga school or Bengal school The mitakshara school has the following sub-schools: i.

Benares school,

ii.

Mithila school,

iii.

Maharashtra school or Bombay school, and

iv.

Dravida or Madras school

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Schools of Hindu Law: A Comparative Study

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 enformed to vedic requirement.he lays down minutre 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 remarriageof widows or their duty to raie up their chidern to their deceased huband. Intercastemarriage were limited to the three castes known as the twice-born. The seconde part of his work deals with vyavhar 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, bailment, contract of service , law of mortgage, the allowable intrestin loans, the rules of evidence, duties of kings, etc.

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Schools of Hindu Law: A Comparative Study

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 subschool. 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 inhertence, based on theory of propinquity conscious of the shortcomings and limitation of Vijnaneswar‘s 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‖.1 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.

1

[Prof. V. C. Sarkar – Hindu Law p.48]

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Schools of Hindu Law: A Comparative Study

Sub-school of Mitakshara: The Mitakshara School may be subdivided into four schools:

(i) Dravida School or Madras School: In addition to the Mitakshara, in southern India certain law books2 are treated as of great authority, they are:

(a) Parasara Madhaviya: This great work by Madhavacharya is a commentary on Parasara Smriti. The great Acharya was the guru (Teacher) and Minister of Bukka and Harihara who were the founders of the Vijayanagar dynasty. Madhavacharya crowned Harihara in 1335 A.D. and died in 1386. It is probable that this commentary was composed for governing the Vijayanagar Empire.

(b) Smritichandrika: This work by Devanna Bhatta deals with the subject of inheritance. It was also composed during the, Vijayanagar Empire. It is a Nibandha or digest of law.

(c) Saraswativilasa: This was a work of the great ruler Prataparudra Deva, who belonged to the Gajapati dynasty and ruled Orissa between 1497-1539. This author should not be confused with the Kakatiya ruler of that name who ruled Warangal and was captured by the Delhi Sultan in 1322. The probable date of the Saraswati Vilasa is 1515. The absence of any reference to Parasaramadhaviya in this work is explained by the fact that the Gajapathi rulers of Orissa were hostile to Vijaynagar. Krishna Deva Raya of the Vijayanagar dynasty married the daughter of Gajapathi (Tukka Devi alias Jaganmohini) in 1516 and brought that hostility to an end.

(d) Vyavahara Nimaya: This is a work of Varadaraja who lived in the 17th Century.

2

th

Hindu Law and Usage (11 Ed.), 55.

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Schools of Hindu Law: A Comparative Study

(ii) Bombay School: Bombay School In addition to the Mitakshara, the Bombay School attaches great importance to the following works:

(a) Vyavahara Mayukha: Mayukha means a ray. Each part of his work Bhagavanta Bhaskara is called a Mayukha by the author Nilakantha Bhatta. The Vyavahara Mayukha is the part dealing with secular law. The entire work is an encyclopaedia of religious and civil law and was composed between 1610 and 1645.

(b) Nirnaya Sindhu: This was composed in 1612 by Kamalakara who was the son of Nilakantha Bhatta‘s paternal uncle. There is internal evidence to indicate that between Kamalakara and Nilakantha there was rivalry in the field of scholarship.

(iii) Benaras School: The Benaras School recognises the following as authoritative in addition to Mitakshara.

(a) Viramitrodaya: The author of this digest is Mitra Misra, who composed it between 1610-1640 under the patronage of King Virasimhadeva, a scion of the Kasiraju family who ruled at Orchha from 1605 to 1627. In Vedachela v. Subramania, 1921 (48) IA 349, the Privy Council observed: ―The Viramitrodaya holds in Western India a high position. It supplements many gaps and omissions in the earlier commentaries and illustrates and elucidates with logical preciseness the meaning doubtful prescription‖. In Girdkarilal v. Bengal Government, 1868 (12) MIA 448, the Privy Council had observed: ―The Viramitrodaya is properly receivable as an exposition of what may have been left doubtful by the Mitakshara and declaratory of the law of the Benaras School‖.

(b) Nirnayasindhu: This work is received as an authority not only in Western India but also in the Benaras School. Similarly in Western India Viramitrodaya is received as an authority. xi

Schools of Hindu Law: A Comparative Study

(iv) Mithila School: The important authorities of this School are:

(a) Vivada Chintamani: This is a Nibandha work of Vachaspati Misra and was written under the patronage of King Bhairavendra of Mithila in the 15th Century.

(b) Vivada Ratnakara: This a Nibandha work (digest) written by Chandeswara, the Chief Judge and Minister of King Harasimhadeva of Mithila. It was composed in the 14th Century.

(c) Madanaparijata: This was composed under the patronage of King Madanapala who ruled in Kastha on the Jumna. It was composed between 1360 and 1390 by Visweswarabhatta who was also the author of Subodhini, a commentary on the Mitakshara.

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Schools of Hindu Law: A Comparative Study

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. xiii

Schools of Hindu Law: A Comparative Study

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.

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Schools of Hindu Law: A Comparative Study

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 father‘s 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. xv

Schools of Hindu Law: A Comparative Study

(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 sister‘s sons are preferred to many agnates. 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. Under the modern Hindu Law, the difference between two main schools is no longer tenable. Under the Hindu Succession Act, 1956, we have one uniform law of succession for all Hindus, to whatever school or sub-school they may belong.

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Schools of Hindu Law: A Comparative Study

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.

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Schools of Hindu Law: A Comparative Study

Bibliography

1: Dr. Diwan Paras- family law; Tenth edition reprint, 2014 ISBN: 81-89530-33-x 2: http://www.shareyouressays.com/117391/what-are-the-sub-schools-of-the-mitakshara 3: Dr. Paras Diwan- Modern Hindu law; twenty second edition reprint, 2013 4:S.R. Myneni – Hindu Law(FamilyLaw I) First Ed.(Reprint)- 2010 ISBN: 978-93-80553-64-3 5: Sharma, Dr.B.K, Hindu Law, 1st Ed., Central Law Publishers, 2007

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