- What is a school of thought?
- What are the schools of thought in Hindu Law?
- Discuss the Major Schools of Thought in Hindu Law
- Highlight the Distinguishing Factors of the Major Schools of Thought in Hindu Law?
Hindu Law is a personal law within the Indian region. The originating sources of Hindu Law are the ‘Shruti’ and ‘Smruti’.
The Smruti consist of moral and ethical rules. A vast majority of the rules were formulated by religious law makers. Due to a lack of authoritative precedents, this source of law was subject to diverse interpretations and opinions of many commentators. The conflicting commentaries and digests led to the evolution of schools of thought on the Smruti.
In this article, our discourse shall be centred on the schools of thought in Hindu Law. Our discussion shall flow in the following order:
- Meaning of School of Thought
- The Existing Schools of Thought in Hindu Law
- Examination of the Major Schools of Thought in Hindu Law
- Distinguishing Features of the Major Schools of Thought in Hindu Law
With the development of the Smruti 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 emanated.
These schools of thought evolved to have a higher strength of force than the original text of the Smruti. These schools have also left major impacts on the development of the Hindu Law, as at present.
It is therefore important to understand these schools of thoughts and their distinguishing factors, as these will lead to a better appreciation of Hindu Law.
MEANING OF SCHOOL OF THOUGHT
Schools of thoughts refers to the divided opinions on a subject matter. Thus, schools of thoughts on Hindu law refers to the varied and divided opinions on the rules and principles of Hindu Law.
Unlike statutes, they are not codified. They do not have force of law. However, they impact the minds of the legislature or law makers.
EXISTING SCHOOLS OF THOUGHTS IN HINDU LAW
There are two major schools of thoughts in Hindu Law. They are
- Mitakshara; and
Examination of the Major Schools of Thought in Hindu Law
- Mitakshara School of Thought
- This is an orthodox school of thought.
- It was formed on the basis of commentaries made by commentators.
- It was kick started by the commentary of Vijnyaneshwara in the 11th The commentary was focused on Yagnavalkya Smruti (Yajnavalkya was one of the early Smrutikas).
- All parts of India, except the people of Bengal, embrace this school of thought.
- There are four subdivisions in the Mitakshara school and they are as follows:
|The Banaras School:||· In the 17th Century Mitramishra wrote the Viramitrodaya commentary.
· The said commentary was focused on Yajnavalkyasmriti and is accepted as an authority by the members of the Mitakshara school.
· The commentary also forms the basis or authority of the Banaras school.
· Furthermore, the works of Kamalakara – Nirnayasindhu and Vivadatandava, are famous authorities of the Banaras school.
· The works focus on civil law and the law of Inheritance/ Heritageable rights of women.
· Although the Banaras school is prevalent in the North-India region, it is the Panjabs, however, do not embrace its tenets.
|Mithila School:||· This school is based on the commentaries of Vivada Chintamani, Vivada Ratnakara, Madan Parijata (which is focused on civil and religious duties), Vivadchandra and Lakshmidhara.
· This school is prevalent in Bihar.
|Bombay School or Maharashtra School:||· The unique factor of this school is that it has a more liberal approach in the recognition of women’s rights.
· It prevails in majority of India in communities like Gujarath, Bombay and North Kokan, who are adherents to Vyavhara Mayukha.
|Madras or Dravida School:||· In the 12th Century, Devanna Bhatta wrote the Digest, ‘Smruti Chandrika’.
· This forms the basic authority of the Madras school.
· The commentary dealt on inheritance.
· The school is dominant in Southern India
- Dayabhaga School
- Unlike the Mitakshara school, the Dayabhaga school is a more recent school of thought in Hindu.
- This school is formed on a digest of all codes of the Smruti, and not on commentaries.
- The school of thought is prevalent in the Bengal and Assam region of India.
- The originator of the school of thought is Jimutvahana, who was a Judge and Minister in Bengal.
- The school does not have subdivisions.
Although it was held in Moolchand v. Mrs. Marita Bai that personal law moves with whom it covers however, it is important to know that migration plays a huge role in determining what school of thought governs a person. From case laws, the conclusion that can be drawn is that where a Hindu migrates, he is likely to be governed by the school of thought predominant within his new location. He therefore has the option to adopt the law of the new place where he resides – Notraz v. Sunbathing Raya. However, before this can be obtainable, there must be an actual migration. A mere temporary relocation does not count. And as observed in Keshavarao v. Swadeshrao, 1930,migration is moving to another place. If a place is divided into two administrative area, that will not be regarded as migration. In Gope v. Manjura Goralin, it was held that the burden of proving migration lies on him who pleads it.
Distinguishing Features of the Major Schools of Thought in Hindu Law
Prior to the Hindu Succession Act, 1956, there was much disparity in the opinions of this schools as regards the rule of inheritance. With the codification on the rules of inheritance, the disparities have been laid to rest. Presently, the major difference between these schools of thoughts is on the issue of joint family system.
The Mitshakara School of thought seem to favour the male children of the family and creates an early ownership right for them. The Dayabhaga school, on the other hand, takes a more liberal and reformed approach as it recognizes the rights of the female to joint ownership. However the Dayabhaga school does not create an early right for the children; ownership rights still vest in the father and can only be passed after his death.
With the above in mind, we shall now make a wholistic comparison between these schools of thought.
Opinions of the Mitakshara School.
- Under the Mitakshara school right to joint family ownership is acquired by a male child at his birth.
- On the birth of a son, the foundation of coparcenary is laid and the son’s right extends to his grand father and great-grandfather’s property.
- The unit of ownership is the essence of copacernary
- Coparcenary consists only of males. Females do not belong.
- A son has the right to ask for the partitioning of property, which is his inheritance. He can also ask his father to give account on the property.
- Ancestral property cannot be completely disposed of by a father. However, section 30 of the Hindu Succession Act, 1956 indicates the conditions under which such a disposal may happen.
- Property cannot be transferred to a third party.
- The male members of the family jointly hold ownership in the property and their shares are not defined.
- Right of succession is also passed to other male family members by survivorship.
- Females have no right to joint ownership or succession to the family property.
- Where a coparcener dies, his share passes to other coparceners by survivorship.
- The widow of a coparcener has no right to succeed him.
- The order of hierarchy is determined by blood propensity
Opinions of the Dayabhaga School
- A son’s right to joint ownership of the family property begins on the death of the father and not by birth.
- Females have a right of succession to the family property.
- A father is entitled to completely dispose off ancestral property as if it were his own personal property.
- Property can be transferred to a third party.
- Since a son’s right to inheritance begins upon his father’s death, a son is not entitled to ask his father to account for the property or partition the property.
- It is upon the death of a father, that the foundation of coparcenary is laid.
- A coparcener’s right does not extend to the property of grand father or great-grand father.
- Coparcenary is not restricted to males but also extends to the female members of the family.
- The shares in property are well defined.
- Possession is the essence of coparcenary.
- On the death of a coparcener, the share of the coparcener passes to his heirs. This is because every coparcener is entitled to his defined share of property.
- Property can transfer to a coparcener’s widow. However she cannot alienate such property.
- In determining the order of heirs, the rule of efficacy of religion is applicable. The order of determining heir is by competency to offer Pinda and Sraddho.
There are two major schools of thought in Hindu Law. The first school of thought, the Mitakshara School, is orthodox. Over the years, the Dayabhaga school of thought evolved and it is more liberal in its approach towards the female gender. The major difference between the school of thoughts are in their opinions towards joint family system in relation to properties. Under the Mitakshara school, the rights of joint ownership is restricted to the male Hindu upon his birth.
The Dayabhaga school however grants both sexes the right to ownership. A son’s right to ownership is activated upon the death of his father. Although personal law covers the one who is subject to it, it is observed that location and migration has an impact on the school of thought.