2 Major Schools of Hindu Law Notes
Dayabhaga and Mitakshara School of Hindu Law Notes
Dayabhaga and Mitakshara School of Hindu Law: Over the period of time, there was widespread disparity due to varied opinions and interpretations due to difficulty in deciphering the smritis. The works were written later on to comprehend the smritis were termed as commentaries, two major schools of thought played an important role in curating these digests and commentaries; Dayabhaga school of hindu law is focused on the commentaries of Jimutuvahana and Mitakshara, which is a significant source of law that is focused on the commentaries of Vijnaneshwara.
What are the main schools of Hindu law?
Answer: These commentaries were an attempt to unify and amalgamate the scattered texts to benefit the society at large. Therefore, various Hindu laws are believed to be derived from these two major schools, Mitakshara School of Hindu Law, and Dayabhaga School of Hindu Law.
What is Mitakshara School of Hindu Law?
Answer: This is considered to be an orthodox school, which is based upon the commentaries of Vijnaneshwara which were based upon the Yajnavalkya. These commentaries are widely accepted and applied to the whole of India barring West Bengal and Assam. Essentially, the Mitakshara School of Hindu Law is further divided into various sub-divisions, these include
- Benares Hindu law school: This is applied to the northern parts of India, inclusive of Orrisa. Some of the commentaries under this school are Viramitrodaya Nirnyasindhu vivada. Despite being prevalent in the northern part of India, it is not applicable to Punjab. This majorly deals with civil laws, mostly laws regulating inheritance, and the rights of women in inheritance.
- Mithila law school: This is widely accepted in Bihar, it is centered upon various commentaries based on Vivada Ratnakara, Vivada Chintamani, Madan praijata (this deals with religious as well as civil duties), etc.
- Maharashtra law school: It is prevalent in the undivided Maharashtra, therefore accepted in the areas of Bombay (currently Mumbai), Gujrat, and northern parts of Konkan. Mainly the ones who follow Vyavhara Mayukha. This school of thought is belived to have a relatively progressive approach as it recognised the rights of women.
- Punjab law school: this school was prevalent and widely accepted in the parts of Punjab, it is based upon commentaries such as viramitrodaya
- Dravida or madras law school: The commentaries under this school of thought form the basis of laws prevalent in Madras, these commentaries primarily dealt with inheritance.
Common/Salient features of Mitakshara School of Hindu law Notes
- The ownership is acquired by the male child by the virtue of being born in that family
- After the birth of the son, his rights can extend to the property of his great-grandfathers.
- The coparcenary rights were only extended to male members, females had no say or right over it
- The property which is ancestral cannot be disposed off
- A third person cannot take part in the transfer of ancestral property.
- The ownership of property is jointly held by only the male members, females have no right over the property.
What is Dayabhaga School of Hindu Law?
Ans: This school of thought is relatively recent in comparison with Mitakshara School of hindu law. It is based upon the digests as opposed to commentaries written upon smritis. While Mitakshara School of Hindu Law is prevalent throughout India, Dayabhaga School of hindu law is prevalent in Bengal and Assam. This school was originated by Jimutvahana. Unlike Mitakshara School of Hindu Law, there are no further subdivisions.
This school primarily centres on regulating joint family, partition, and inheritance. It was aimed at eliminating the shortcomings in the established laws and customs. Dayabhaga school Hindu law formulated “factum valet quod fieri non debuit” which literally translates to “what ought not to be done becomes valid when done” which states that after the act is commissioned it becomes a concrete fact which cannot be altered by any written or unwritten laws.
What is the Features Dayabhaga School of Hindu Law
- The son’s right to inherit the Family property only begins upon the death of the father, unlike Mitakshara School of Hindu Law where the right begins from birth.
- Unlike Mitakshara School of Hindu Law, in Dayabhaga School of hindu law, females have succession rights in the family’s property.
- A third person can take part in the transfer of ancestral property
- The concept of coparcenary is introduced into the family only after the death of the father. Such coparcenary is also extended to women, including the widows in the family.
- When the coparcener dies, his/her shares are passed to their heirs.
Application of Hindu law
In India, religion and customs play an important role in regulating the personal matters of an individual. Each community is governed by their own personal laws. In order to be considered to be a member of a particular religious community, there is no persistent need to be a staunch believer of that particular religion. A person merely by the virtue of being born in a particular family, or by the means of conversion, or any other ways mentioned under the legislation can be included or considered to be a part of a particular religion.
Who Is Hindu?
Right Answer: The term Hindu mentioned under the Hindu Marriage Act, 1955 has a wider application. Primarily it is applied to three following categories.
1. Hindu by religion
Under the Section 2(1 )(a) and 2(1 )(b) of the Hindu Marriage Act, 1955 the term includes within its ambit the religious communities belonging to Buddhist, Jain, or Sikh, apart from the person who follows the religion of Hindu these also include Virashaiva, a Lingayat and the ones who follow Arya Samaj, Prarthana or Brahmo. In order to better understand who is considered to be a Hindu, one has to closely understand the decision of the Supreme Court in the case of Yagnapurushdasji v. Vaishya where the bench elaborated the broader features that come within the ambit of Hindu religion. Dr. Radhakrishnan stated that essentially the term Hindu has a territorial characteristic ascribed as opposed to religious.
Primarily, the people who resided upon the Indian side of the Sindhu River were referred to as Hindus. According to tilak, “Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion”.
The court pondered into various philosophical thinkers and scholars to better understand their approach to ascertain characteristic to Hindus and observed that “If we study the teachings of these saints and religious reformers, we would notice an amount of divergence in their respective views; but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion”.
Further, the bench highlights that the constitution of India states that “the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly”. Consequently, by the virtue of being a Hindu, their personal laws will be regulated by Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956, the Hindu Adoption and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956.
In the case of Commr. Of Wealth Tax, Madras & Ors. vs. Late R. Sridharan, the bench states that “It is a matter of common knowledge, that Hinduism embraces within self so many diverse forms of beliefs, faiths, practices, and worship that it is difficult to define the term `Hindu’ with precision.”
2. Hindu by conversion
The aforementioned act under section 2 (1)(c) mentions within its provisions that if a person, wither by undergoing certain ceremonies to convert or reconvert or by renouncing his faith adopts another (i.e. converts to Hinduism, Buddhism, Jainism, or Sikhism) would be considered Hindu. Originally the Dharmashastra does not mention any specific mode of conversion, however, due to ambiguities in this area, the judiciary laid down certain specifics.
In Kusum v. Satya, l L R. (1930) the court stated that the person has undergone any religious ceremony which has been prescribed to convert from one religion to another then after the completion of that specific ritual the person will be successfully converted. In Peerumal v. Poonuswami, that mere expression of a bonafide intention which can be either implied or explicitly mentioned to become a Hindu or he follows or lives his life as a Hindu or is accepted by the particular community as a member.
In the case of Mohandas V. Devasan Board, the court added that if any form of a bonafide declaration made by a person where he merely states that “I declare that I am a follower of Hindu faith”. Therefore, any person who converts to Hinduism or any of its offshoots such as Jainism, Buddhism or Sikhism as they are considered to be Hindu under the constitution. A person who has earlier ceased to be a Hindu can reconvert to Hinduism, Jainism, Buddhism or Sikhism will be considered to be Hindu.
However, when a person denounces Hinduism by declaring himself to be an atheist or indulges in activities which condemned by Hindu doctrines such as eating beef, despite this he/she continues to be Hindu. The court in Arumugam v. Rajagopal, stated that if a person reconverts to Hinduism, he/she will go back to being a member of the caste or community he belonged to prior to the previous conversion.
3. Hindu by birth
The section 2(1) the Hindu Marriage Act, 1955 states that any child, be illegitimate or illegitimate by the virtue of being born to Hindu parents which extends to “Buddhists”, “Jains” or “ Sikhs”. This clause lays down two essential requirement,
- Should be born to Hindu parents or
- Brought up in a family when either one of the parents is a Hindu (Hindu, Jain, Buddhist or Jain).
Therefore if the mother is Hindu and the father is Muslim and the child is been brought up adhering to a Hindu way of life in such a scenario the child is considered to be Hindu.
Apart from the aforementioned categories persons who do not belong to either of the following religious communities namely,
In such a scenario the Section 2 of the Hindu Marriage Act, 1955 states that by the virtue of being born or residing in the territory of India, moreover not belonging to any other religion the person is considered to be regulated by personal laws governing Hindus.
Non applicability of Hindu law
- These laws are non-applicable to an illegitimate child who is born to a Hindu father but his mother is a Christian (or belongs to any non-Hindu religious community) and the child is consequently brought up in a not adhering to a Hindu way of life or Hindu customs.
- These laws are non-applicable to a Person who has denounced Hinduism and converted to either Christians, Muslims, Jews, or Parsi.
The constitutional validity of Hindu personal laws
The constitution of India provides for various provisions, which have to be complied with in order to ensure the constitutional validity of these codes. These provisions lay down Segway for these personal laws:
- Equality and equal protection which has been ensured under article 15 of the constitution. This prohibits or bans any form of an act that allows for discrimination on the basis of religion, race, caste, sex, or place of birth. Therefore these laws shall be in concurrence with these provisions
- However, Article 25 is considered to be the quintessential article which enables a person to practice, profess, and propagate religion. Personal laws are founded upon Article 25 as they secure validity from this article.
- Article 26 allows a person to establish (religious institution) and manage one’s own personal religious affairs.
- Freedom to impart religious education at certain educational institutions established has been provided for under Article 28. However, “No religious instruction shall be provided in any educational institution wholly maintained out of State funds.” But that being said, “Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution”.
- Article 29 establishes the rights and interests of the religious minorities which need to be protected.
- Article 30 further fortifies the above-mentioned rights of minorities by acknowledging their rights to establish and maintain educational institution.