Principle School of Hindu Law

By

Trinabh Sharma

Third Year BB.A.LL.B

Roll. No. 45418341037

Family Law - I

14 October 2020
 CERTIFICATE

This is to certify that this project entitled study on: “Principle Schools of Hindu Law”
submitted to Christ Academy Institute of Law, is a bonafide record of work done by “Trinabh
Sharma” under my supervision as per the guideline’s issues by KSLU (Karnataka state law
university).

Signature

Assistant Professor of Law

Mr. Priyank Jagawanshi

 DECLARATION

I hereby declare that the project entitled study on “Principle Schools of Hindu Law”,
submitted to Christ Academy Institute of Law, Bangalore, is a record of an original work
done by me under the guidance of Assistant Professor of Law, Mr. Priyank Jagawanshi,
Family Law- 1. This work has been done according to the guideline’s issues by KSLU. The
work has not been submitted to any other institution for any degree/diploma/certificate in the
university or in any other university of India or abroad.

Name: Trinabh Sharma

Course: BB.A.,L.LB(5th Sem.)

Batch: 2018-2023

Roll no. : 45418341037

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to our Assistant Professor of Law, Mr.
Priyank Jagawanshi, who gave me this excellent opportunity for the study on Principle
schools of Hindu Law, which lead me in doing a lot of research work through which I came
to know a lot more about the same.
 Table of Contents
CERTIFICATE.....................................................................................................................................2

DECLARATION...................................................................................................................................3

ACKNOWLEDGEMENT.....................................................................................................................4

Introduction:-.........................................................................................................................................6

Schools of Hindu Law:-.........................................................................................................................6

Mitakshara School:-...............................................................................................................................7

Dayabhaga:-..........................................................................................................................................8

Sub Schools of Mitakshara:-..................................................................................................................9

Migration and the School:-..................................................................................................................11

Differentiation between ‘Mitakshara’ and ‘Dayabhaga’ schools of Hindu Law:-................................12

Conclusion:-........................................................................................................................................14

Reference:-..........................................................................................................................................15
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 concerning 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.

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:

 Benares school,
 Mithila school,
 Maharashtra school or Bombay school, and
 Dravida or Madras school

Mitakshara School:-
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
mother Lakshmi Devi 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. The Mitakshara is considered as a great authority in all natters in
respect where if 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 inform to Vedic requirement. He lays down
minute rule regarding pregnancy and the rites to be performed from time to time until 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 vyavhar and embrace is in 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 interesting
loans, the rules of evidence, duties of kings, etc.
Dayabhaga:-
The Dayabhaga 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. Jimutavahana who lived
sometime in the 12th century has written it. Dayabhaga is not divided into any sub school.

Some consider the Mitakshara is the orthodox school whereas the Dayabhaga, 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‘.
Jimuta 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 Banaras 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 Dayabhaga 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
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.

1
[Prof. V. C. Sarkar – Hindu Law p.48]
In the Dayabhaga School, besides the authority of Dayabhaga, the following commentaries
were followed:

(i) Dayatatva;
(ii) Dayakram – sangrah;
(iii) Virmitrodaya and Dattaka chandrika.

Sub Schools of Mitakshara:-

The Mitakshara School is sub divided into four sub 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 ended that hostility.

(d) Vyavahara Nimaya:

2
Hindu Law and Usage (11th Ed.), 55.
This is work of Varadaraja who lived in the 17thcentury.

(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) Banaras School

The Banaras School recognizes the following as authoritative in addition to Mitakshara.

(a) Viramitrodya:

The author of this digest is Mitra Misra, who composed in 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 3493, 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 4484, 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 Banaras School”.

3
Vedachela v. Subramania, 1921 (48) IA 349
4
Girdkarilal v. Bengal Government, 1868 (12) MIA 448
 (b) Nirnayasindhu:

This work is received as an authority not only in Western India but also in Banaras School.
Similarly in western India Viramitrodaya is received as an authority.

(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 is a Nibhanda 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 Madanpala who ruled in Kastha on the
Jamuna. Visweswarabhatta who was also the author of Subodhini, a commentary on the
Mitakshara, composed it between 1360 and 1390.

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 Banaras school of law migrated from
Jodhpur. It was held that the Hindu Women 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.

Differentiation between ‘Mitakshara’ and ‘Dayabhaga’ schools of Hindu Law:-

The main points of fundamental difference between the Mitakshara and Dayabhaga are as
follows:

(1) As Regards Joint Property:

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.

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.

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.
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.

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:

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.

Under the Mitakshara, cognates are postponed to agnates but under the Dayabhaga some
cognates like sister‘s sons are preferred to many agnates.

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.

Conclusion:-
Hindu is one of the most ancient religion on the world. So the laws of Hindu are came from
different sources. In ancient times the Hindus are maintain only the law which they believe
that come from Deity, 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.

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 time, 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
Yajnavalkya. 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. The understanding can be developed from the
following introduction is that the Mitakshara system is conservative. It provides good
security in times of difficulties as a member one can rely on the joint family. However
sometimes a member can become a parasite. The Dayabhaga system is more liberal. Between
the two schools, the Dayabhaga is more likely to last in modern times with the growth of
individualism, individual enterprise and economic compulsions.

Reference:-
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