Essay on the Major Schools of Hindu Law

As regards the origin of schools of Hindu Law, the following observations of the Privy Council are relevant: “The remoter sources of Hindu Law (i.e. the Smritis) are common to all the different schools. The process by which these schools have been developed seems to have been of this kind: Works universally or very generally received became the subject of subsequent commentaries. The commentator put his own gloss on the ancient text, and his authority, having been received in one and rejected in another part of India, schools with conflicting doctrines arose.”

Broadly speaking, there are two main schools of Hindu Law, the Mitakshara and the Dayabhaga. The Mitakshara (literally meaning “a concise work”) is a running commentary on the code of Yajnavalkya. It has been written by an eleventh century jurist by the name of Vijnaneshwar, and prevails in all parts of India, except in Bengal.

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The Dayabhaga School, which is followed mainly in Bengal, is not a commentary on any particular code, but is a digest of all the codes. It has been written by Jimutavahana, who lived sometime in the twelfth century. It may also be noted that the Mitakshara is the orthodox school, whereas the Dayabhaga (or the Bengal school, as it is sometimes called) is the reformist school of Hindu Law.

It may be noted that the Dayabhaga is not divided into any sub- schools. However, the Mitakshara is sub-divided into four schools prevailing in different parts of India. These different schools have the same fundamental principles, but differ in matters of details, especially with reference to the topics of adoption and inheritance.

These four Mitakshara sub-schools are as follows:

(a) The Banaras School, which prevails in northern and north­western India;

(b) The Mithila School, which has most of its followers in Bihar;

(c) The Dravida or Madras School, which prevails in southern India; and

(d) The Maharashtra or Bombay School, which prevails in western India.

The Mitakshara and the 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.

The main divergence between the two in matters connected with the joint family system has now been diluted further after the 2005 Amendment of the Hindu Succession Act, which has abolished the gender inequality which existed prior to the said Amendment,

Although it is the Dayabhaga School that prevails in Bengal, the Mitakshara is also regarded there is being a very high authority on all questions in respect whereof there is no express conflict between the two schools. Likewise, the Dayabhaga is also referred to sometimes in a case governed by Mitakshara law, on points on which the latter is silent. (Mahavir Prasad v. Rai Bahadur Sing, 18, Luck. 585)

Jimutavahana:

Jimutavahana, who lived around the beginning of the twelfth century, was the founder of the Dayabhaga School. Very little is known about him, although there is sufficient evidence to indicate that he was an eminent Judge and a Minister of a King of Bengal.

Jimutavahana’s doctrines on the law of inheritance and the joint family system were totally opposed to some basic rules of the Mitakshara School. Although he did not break away from any of the authoritative texts of the leading Smritikars, he did differ basically from the Mitakshara system, which favours a particular mode of devolution of joint family property at the time of the death of a coparcener. This can clearly be seen from the points of difference between a Mitakshara and a Dayabhaga coparcenary, discussed at length in Chapter III of the book.

In introducing certain radical innovations in a number of incidents of the joint family and rights of the members of such a family, Jimutavahana purported to base his theories on certain precepts of Manu, which he felt were not properly comprehended by previous commentators. His theories show that his appeal is more to reason and stern logic, than to precepts or precedents, and his approach to most of the controversial questions is direct and forthright.

It is rather difficult to say as to when the advanced views of Jimutavahana began to be accepted as binding authority in Bengal, but it appears that his celebrated treatise, the Dayabhaga, soon commanded recognition and acceptance as the fountain-head for a number of commentators, the earliest of whom appears to be Srinath Acharya Chudamani.

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