2. Introduction
• Hindu Law is the most ancient law in the world. Originally Hindu Law was created
to satisfy every need and welfare of the people. The sources of the concept for
Hindu Law are Shruti (words of God), Smriti (text), customs (old practices),
commentaries and digests.
• The codified law and uncodified law are two types of Modern Hindu Law.
Codified law administers every Hindu. The concepts of schools of Hindu Law does
not exist in codified law, however, it exists in uncodified Hindu Law. Vedas and
Smritis were the form of sources in which, many scholars all around India, wrote
the commentaries which formed the basis for schools of Hindu Law.
• With the development of the Smriti came the disparity in opinion amongst
commentators and interpreters. There was no authoritative position of law,
although various codes were developed. An authority could be accepted in one
part of India and totally rejected in other parts of India. Persons who accepted
one authority were likely not to accept other authorities. Thus, different schools
of thought emerged.
3. The two major schools of Hindu law are as follows:
• Mitakshara
• Daya Bhaga
• Mitakshara and Dayabhaga are the two important schools of Hindu
Law which have given us the required information about the present
legislated laws.
4. How these schools came into existence?
• Originally there were no schools 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 different parts of
India.
In Rutcheputty v. Rajendra, it has been observed that the different schools
of Hindu Law have originated due to different local customs prevailing in
different provinces of the country. The commentators of the Smritis could
not ignore the local customs and usages while interpreting the texts, and
therefore, they eventually incorporated local customs. The local conditions
and customs of the different provinces have, therefore, gone to mould the
principles of law prevailing in each province.
5. • Mitakshara School:
Mitakshara is one of the most important schools of Hindu law. It is a
running commentary of the Smriti written by Yajnvalkya. This school is
applicable in the whole part of India except in West Bengal and Assam.
The Mitakshara has a very wide jurisdiction. However different parts of
the country practice law differently because of the different customary
rules followed by them.
6. Mitakshara is further divided into five sub-schools namely as following:
• Benaras Hindu law school
• Mithila law school.
• Maharashtra law school.
• Punjab law school.
• Dravida or Madras law school.
These law schools come under the ambit of Mitakshara law school. They
enjoy the same fundamental principle but gives preference to certain
treaties and commentaries which control the certain passage of Mitakshara.
7. • Benaras law school:
This law school comes under the authority of the Mitakshara law
school and covers Northern India including Orissa. Viramitrodaya,
Nirnyasindhu, and Vivada are some of its major commentaries.
• Mithila law school:
This law school exercises its authority in the territorial parts of Tirhoot
and north Bihar. The principles of this law school prevail in the north.
The major commentaries of this school are Vivadaratnakar,
Vivadachintamani, and Smritsara.
8. Maharashtra or Bombay law school:
The Maharashtra law school has the authority to exercise its jurisdiction over the territorial
parts including Gujarat Karana and the parts where the Marathi language is proficiently
spoken. The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.
Madras law school:
This law school tends to cover the whole southern part of India. It also exercises its
authorities under Mitakshara law school. The main authorities of this school are Smriti
Chandrika, Vaijayanti, etc.
Punjab law school:
This law school was predominantly established in east Punjab. It had established its own
customs and traditions. The main commentaries of this school are Vramitrodaya and it
established customs.
9. • Dayabhaga School:
Dayabhaga school predominantly prevailed in Assam and West Bengal. This is
also one of the most important schools of Hindu laws. It is considered to be a
digest for the leading smritis. Its primary focus was to deal with partition,
inheritance and joint family. According to Kane, it was incorporated in
between 1090-1130 A.D.
Dayabhaga school was formulated with a view to eradicating all the other
absurd and artificial principles of inheritance. The immediate benefit of this
new digest is that it tends to remove all the shortcomings and limitations of
the previously established principles and inclusion of many cognates in the
list of heirs, which was restricted by the Mitakshara school.
10. In Dayabhaga school, various other commentaries were followed such
as:
• Dayatatya
• Dayakram-sangrah
• Virmitrodaya
• Dattaka Chandrika
11. • Difference between Mitakshara and Dayabhaga
• Schools of Hindu Law:
Mitakshara and Dayabhaga differ at certain positions.
• Important Differences are as follows:
On the basis of Succession:
Under the Mitakshara school, inheritance is governed by the rule of
consanguinity, i.e., blood relationship, whereas under the Dayabhaga
school inheritance is governed by the rule of spiritual efficacy.
Under the Mitakshara, cognates are postponed to agnates but under the
Dayabhaga some cognates like sister’s sons are preferred over several
agnates.
12. • This means that if the Hindu dies leaving his son and a daughter, the
daughter will be excluded from the inheritance, and the son will get
all the property. Likewise, if the Hindu dies leaving his son’s son and
daughter’s son, the son’s son will get the succession.
Under the modern Hindu Law, the difference between two main
schools is no longer reliable. Under the Hindu Succession Act, 1956,
there is one uniform law of succession for all Hindus.
13. • On the basis of Rights of Woman:
In the Mitakshara system the wife cannot demand partition. She, however,
has the right to a share in any partition effected between her husband and
her sons. Under the Dayabhaga, this right does not exist for the women
because the sons cannot demand partition as the father is the absolute
owner.
In both the systems, in any partition among the sons, the mother is entitled
to a share equal to that of a son.
Similarly, when a son dies before partition leaving the mother as his heir, the
mother is entitled to a share of her deceased son as well as share in her own
right when there is a partition between the remaining sons.v
14. Conclusion:
The Mitakshara system is Conservative. It provides good security in
times of difficulties as a member can rely on the joint family. However,
sometimes a member can become a parasite. The Dayabhaga system is
more liberal.
Among the two the Dayabhaga is more likely to last in modern times
with the growth of individualism, individual enterprise and economic
compulsions.
