Discuss the sources of Hindu Law. Outline the three main differences between Mitakshara and Dayabhaga schools.

Question: Discuss the sources of Hindu Law. Outline the three main differences between Mitakshara and Dayabhaga schools. [BJS 2011]

Find the answer to Hindu Law only on Legal Bites. [Discuss the sources of Hindu Law. Outline the three main differences between Mitakshara and Dayabhaga schools.]

Answer

Hindu Law is the most ancient law in the world. It is considered the divine law. Hindu law has been derived from a variety of sources including a combined set of ancient and modern sources. As vibrant and vast as the Hindu culture is so are the sources from which it originated. The classification of sources of Hindu Law is given in a two-fold manner which consists of ancient and modern sources of law.

Ancient Sources

These are the primary sources of Hindu Law. Before the codification of Hindu Laws, the main sources were ancient religious texts and practices. These are the ancient sources of Hindu Laws, divided into four parts.

i) Shrutis

The word originated from the Sanskrit verb ‘Shru’ meaning what is heard. It is believed that the sages and seers attained the highest form of divinity and received the direct word of God in the form of Shrutis. They contain the four Vedas along with their six Vedangas and eighteen Upanishads. They are the most important source of Hindu Law.

ii) Smritis

Smriti originated from the Sanskrit term ‘Smri’ meaning to remember. Basically, smritis are what is remembered, they contain the forgotten portions of Vedas. The Smritis are divided into two parts Dharmasutras and Dharmashastras. The rules laid down in the Smritis are categorized into three parts; Achar (relating to morality), Vyavahar (relating to procedural and substantial rules), and Prayaschit (relating to the penal provisions).

iii) Customs

These are the practices that have been present for a long time and have now turned into customary laws. They are superior to the written as it is considered in the Hindu laws that Achara is regarded as the highest dharma. With time they have evolved and guided the Hindu Laws. They are of four kinds; local customs, family customs, caste and community customs, and guild customs.

iv) Digests and Commentaries

These have played a major role in the very formation of Hindu Law. After 200 AD all the works were done on the basis of Smritis. These are the interpretations of Smritis. A Single interpretation is known as the Commentary whereas different interpretations of Smritis are known as Digests. The famous schools of Hindu Laws originated from these only.

Modern Sources

The secondary sources also known as Modern sources of Hindu Laws, came into light during the British era as the concepts related to them were introduced in the Hindu Laws then only. The Modern sources are categorized into three parts.

i) Equity, Justice, and, Good Concise

Occasionally the courts cannot rely on the existing laws for the purpose of delivering justice. The principle of equity, justice, and good concise is used in such cases to avoid impartiality. The courts use the norms, basic values, and standards of fair play and propriety in such cases. These principles have been a source of Hindu Law since the 18th century when the British declared it to be used in the absence of laws.

In Kanchava v. Girimalappa, (1924) 51 1A 368, (before the passing of the Hindu Succession Act, 1956) it was laid down by the Privy Council that the murderer was disqualified from inheriting the property of the victim. The rule of English law was applied to Hindus on grounds of justice, equity, and good conscience, and this was statutorily recognized in the Hindu Succession Act of 1956.

ii) Precedent

The doctrine of stare decisis started in the British era. All the cases are recorded and binding on the lower courts as per the hierarchy of the courts. These serve as a source of law in need and are referred for the delivery of justice. The doctrine of precedent is used in cases that reflect similar facts or situations, also the judicial decisions are considered authoritative and binding in nature. Today the verdict of the Supreme Court is binding on all the sub-ordinate courts in India and a similar case is with the High Courts of respective states.

iii) Legislations

The laws made by Parliament after the independence of the country have served as the main and important source of law. All the laws are codified and also binding in nature. It has the power to enact, repeal, and amend laws as per the need of society. The legislation has introduced a vast range of Hindu laws that are mainly governing the affairs related to the same.

The important legislations which have modified, altered, and supplemented the Hindu law are as follows: The Caste Disabilities Removal Act, 1850; The Hindu Widow’s Remarriage Act, 1856; The Transfer of Property Act, 1882; The Hindu Women’s Right to Property Act, 1937; The Special Marriage Act, 1954; The Hindu Marriage Act, 1955; The Hindu Minority and Guardianship Act, 1956; The Hindu Succession Act, 1956.

Schools of Hindu Law

The commentaries and digests of smritis gave origin to the difference of opinion and the schools of Hindu Law. They have widened the concept of Hindu Laws. Though there is no written record of them, they have played an important role in the development of Hindu Law.

There are mainly two important schools of Hindu Law:

i) Mitakshara

This school is based on the commentary given by Yajnvalkya and applies to the whole of India except for the parts of Assam and West Bengal. It has a very wide jurisdiction and has a variety of customary practices which slightly differ by geographical area. It has five sub-schools under it that reflect the certain treaties of the specific areas to which they belong.

ii) Dayabhaga

This school is based on the commentary of Yajnvalkya by Jimutavahana. This school is mainly based in Assam and West Bengal. It has no sub-school and is different from Mitakshara school in many aspects.

Difference between Mitakshara and Dayabhaga Schools

The difference between these two schools can be based on various grounds

i) On the basis of Joint Family

According to Mitakshara School, a joint family refers to a male member by birth. A son has all the rights to the property by his birth and can ask for his share even during the lifetime of his father and other ancestors. He has a say in the disposition of the family property. Under this school, the power over the property is equally divided among the father, son, grandson, great-grandson, etc.

Whereas in the Dayabhaga School, the father has all the rights to the property and they are not divided. They can only be inherited by the son after the death of the father. The father is the only one who has any kind of say in the matter related to the disposition of property.

ii) On the basis of Partition

Both the Schools agree on the matter of partition of the property among the members. However, the manifestation of partition is different among both schools. The Mitakshara school believes that the partition of the property must be done in the form of definite shares of the property. Whereas the Dayabhaga School believes that the partition of the property must be done in the form of a physical partition of the property.

iii) 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. Under modern Hindu Law, the difference between the two main schools is no longer reliable.

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