FAMILY LAW-IFAMILY LAW-IB.A. LL.B. (Hons.)B.A. LL.B. (Hons.)

Schools of Hindu LawSchools of Hindu Law

Varsha Goyal-WrightVarsha Goyal-WrightAssistant ProfessorAssistant Professorvgoyal@amity.eduvgoyal@amity.edu

Schools of Hindu law emerged with the emergence of the era of Commentaries and Digests. The Schools of Hindu law have relevance only in respect of the uncodified areas of Hindu law.

There are two main schools of Hindu law:1.The Mitakshara school and2. The Dayabhaga school or Bengal School.

Mitakshara School

The Mitakshara school owes its name to Vijnaneshwara’s commentary on the Yajnavlkya Smriti by the name of “Mitakshara”.

The Mitakshara school prevails in the whole of India except Bengal and Assam.

It is not merely a running commentary on the Yajnavalkya Smriti but it is a digest of practically all the leading Smritis, and deals with all the titles of Hindu law.

The Mitakshara school is considered to be a conservative and orthodox school.

The Mitakshara school has the following sub schools:(i) Benares school; (ii) Mithila school; (iii) Maharashtra or Bombay School; and (iv) Dravida or Madras School

The four sub-schools of the Mitakshara subscribe to the same fundamental principles of the Mitakshara, though in some matters of details they differ from the Mitakshara and among themselves. There are some differences among the sub schools on succession and adoption. These differences have now been swept away by the Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956.

(i) Benaras School: The Benares school extends to the whole of Northern India except in rural punjab where its authority has been considerably modified by customary law. The main authorities of the school are: the Virmitrodaya and the Nirnaya Sindhu.

(ii) Mithila School: The Mithila school operates in Tirhut and certain districts of Northern Bihar. The main authorities are: the Vivada Chintamani and the Vivada Ratnakara.

(iii) Bombay School: The Bombay school extends to Western India including the whole of the Presidency of Bombay as well as Berar. The main authorities of the school are: the Vyavahara Mayukha, the Virmitrodaya and the Nirnaya Sindhu.

(iv)Madras School: The Dravida or Madras school covers Southern India including the whole of the old Presidency of Madras. The Principle authorities are the Smriti Chandrika, the Parashara Madhaviya, the Saraswati Vilasa and Vyavahara Nirnaya.

“The variances between the sub-divisions of the Mitakshara school are comparatively few and slight. Except in respect of the Maharashtra

school, this division serves no useful purpose, nor does it rest upon any true or scientific basis. It is to a certain extent misleading as it conceals the fundamental identity of doctrine between the

so-called Mithila, Benares, Maharashtra and Dravida schools and suggests that there are

more differences than what really exist.” Mayne’s Hindu Law and Usage (11th Ed.), 56

Dayabhaga SchoolThe Dayabhaga school owes its origin to Jimutavahana’s digest on leading Smrities by the name of “Dayabhaga”.

The Dayabhaga school prevails in Bengal and Assam. However, the Mitakshara prevails in Bengal and Assam too on all those matters on which the Dayabhaga is silent.

It is a digest on leading Smritis and deals only with partition and inheritance.

The Dayabhaga school is considered to be enlightened and progressive.

Main Differences Between The Mitakshara and the Dayabhaga Schools

Mitakshara1. As regard Joint Property

Right to property arises by birth (of the claimant); hence the son is a co-owner with the father in ancestral property. After the commencement of the Hindu Succession (Amendment) Act 2005, the daughter of the coparcener is also a coparcener.

Father has a restricted power of the alienation, and son can claim partition even against the father.

Dayabhaga

Right to property by death (of the last owner); hence son has no right to ancestral property during father’s lifetime.

Father has absolute power of alienation, and son cannot claim partition or even maintenance.

MitaksharaThe interest of a member of the joint family would, on his death, passed to the other members by survivorship. Section 6 (3) of the Hindu Succession Act, as substituted by the Hindu Succession (Amendment) Act, 2005 abolishes the principles of survivorship.

2) As regards AlienationMembers of the joint family cannot dispose of their shares while undivided.

3) As regards InheritanceThe law of inheritance is based on the principle of propinquity (i.e. nearness of blood- relationship)

Dayabhaga

The interest of every person would, on his death, pass by inheritance to his heirs, like widow or daughters.

Any member of joint family sell or give away his share even when undivided.

The law of inheritance is based on the principle of religious efficacy or spiritual benefit (i.e. offering of pindas).

MitaksharaThe Mitakshara school excludes females from inheritance and preference of agnates over cognates.

4) As regards Doctrine of Factum Valet (A fact cannot be altered by hundred texts)

It is recognised to a very limited extent.

DayabhagaThe Dayabhaga school does not prefer agnates over cognates but has its own peculiar notions and rules of cognates. Some cognates, like sister’s sons are preferred to many agnates.

Doctrine of Factum Valet is fully recognised.

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The Hindu Marriage Act, 1955