Schools of Hindu Law | 05 Sep 2023
Introduction
The author Mr. Colebrooke coined the term "Schools of Law" to refer to different legal
opinions prevalent in various parts of India.
School means rules and principles of Hindu Law which are divided into opinion and
are not codified.
He noticed that the rules of Hindu Law vary from place to place and lack uniformity.
For the purpose of identifying this variance, the thesis of the School of Hindu Law has
been propounded.
Emergence of Schools of Hindu Law
Originally, there were no schools of Hindu jurisprudence. Due to the emergence of
various commentaries on Shruti and Smriti, different schools of thought arose.
Shruti means which has been heard. The shrutis include the four Vedas - Rig,
Yajur, Sam, and Athrava along with their brahmanas. Vedas primarily contain
theories about sacrifices, rituals, and customs.
Smriti means what is remembered. It includes those works which are created by
the virtue of memory of sages and are further divided into Dharmashastras and
Dharmasutras.
The commentary in one part of the country varied from the commentary in the other
parts of the country.
In Rutcheputty v. Rajendra (1839), the privy council observed that different schools of
Hindu law have originated because of different local customs prevailing in different
parts of India.
Existence of Schools of Hindu Law
In the codified area of Hindu Law, there is no scope for existence of Schools as the
codified Hindu Law lays down uniform law for all Hindus.
The Schools of Hindu Law have relevance only in respect of the uncodified areas of
Hindu Law.
Schools of Hindu Law
There are two main schools of Hindu Law:
Mitakshara School
Dayabhaga School
Mitakshara School
The Yagnavalkya Smriti was commented on by Vijnaneshwara under the title
Mitakshara.
The followers of Mitakshara are grouped together under the Mitakshara School.
The Mitakshara is not only a commentary on the Smriti of Yajnavalkya but it is also a
digest of practically all the leading Smritis of Hindu Law.
The provisions of this School are applicable throughout India except in the State of
Bengal and Assam.
Features of Mitakshara School
Mitakshara School is based on the principle of the joint family system where ancestral
property is passed on from generation to generation, and each member of the family has
a right to a share in the property.
It also recognizes the concept of survivorship, where the share of a deceased
coparcener automatically passes on to the surviving coparceners.
One of the unique features of Mitakshara School is that the coparcener male child (four
generations from a common ancestor) acquires right in family property by mere birth.
A woman could never become a coparcener. But the Hindu Succession (Amendment)
Act, 2005 empowered women to become a coparcener like a male in ancestral
property.
Sub – Schools Under the Mitakshara School
There are four Sub-Schools under the Mitakshara School which are as follows:
Madras School or Dravidian School of thought
Maharashtra School or Bombay School of thought
Benaras School of thought
Mithila School of thought
Madras School or Dravidian School of Thought
It exists in South India.
The main authority accepted by this school is Smriti Chandrika authored by
Devananda Bhatta.
In the case of adoption by a widow it has a peculiar custom that the consent of the
sapindas was necessary for a valid adoption.
Two individuals are considered sapindas of each other if they have a common
ancestor within the preceding three generations.
In other words, if they share a common bloodline within three generations, they
are considered sapindas.
Maharashtra School or Bombay School of Thought
It exists in Bombay (Mumbai) and Gujarat.
The main authority accepted by this school is Vyavahra Mayukha authored by
Nilakantha.
This school has got an entire work of religious and Civil laws.
Benaras School of Thought
It extends of whole of northern India except in Punjab where its authority is modified
by customary law in rural areas.
The main authority accepted by this school is Viramitrodaya authored by Mitra Mishra.
Mithila School of Thought
It exists in Tirhut, North Bihar and Uttar Pradesh near the Yamuna River areas.
The main authority accepted by this school is Vivad Chintamani authored by
Vachaspati Mishra and Vivad Ratnakara authored by Chandeshwar Thakur.
Dayabhaga School
The Yagnavalkya Smriti and some other Smritis are commented on by Jimutavahana
under the title Dayabhaga.
It exists in Bengal and Assam only.
It has no sub-school.
Features of Dayabhaga School
Sapinda relation is by pinda offerings.
The right to Hindu joint family property is not by birth but only on the death of the
father.
The system of devolution of property is by inheritance. The legal heirs (sons) have
definite shares after the death of the father.
Each brother has ownership over a definite fraction of the joint family property and
so can transfer his share.
On the death of the husband the widow becomes a coparcener with other brothers of
the husband. She can enforce partition of her share.
Difference between Mitakshara and Dayabhaga School
Mitakshara School
Under this school the right to
ancestral property arises by
birth.
The son becomes the coowner of the property sharing
similar rights as of fathers.
Dayabhaga school
Under this school the right to
ancestral property is only
given after the death of the
last owner.
It does not recognise the birth
right of any individual over
ancestral property.
The father does not possess
the absolute right to alienate
the property.
The father has the absolute
right of alienation of the
ancestral property as he is the
sole owner of that property
during his lifetime.
The son attains the right to
become the co-owner of the
property and he can ask for
the partition of the
ancestral property even
against the father and can
demand for his share.
The son has no right to ask
for the partition of
ancestral property against
his father.
Under this school the
survivorship rule is
prevalent. In case of the
death of any member in the
While in case of Dayabhaga
school the interest of the
member on their death shall
joint family, his interest shall
pass to other members of
the family.
pass on to their heirs like
widow, son, daughters.
The members can’t dispose
of their share of property.
The members of the family
enjoy the absolute right to
dispose of their property.
The rule of blood
relationship or
consanguinity is followed in
case of inheritance.
Inheritance is governed by
the rule of the offering of
pinda.