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“Law Master’s” Publication “Hindu Law, Sources and Schools” Prof. Santosh D. Bhosale
(..1..)
Hindu Law, Sources, and Schools
QUESTION BANK
Q.1
Q.2
What are the sources of Hindu law?
Explain different schools of Hind Law.
Short Notes
1. Smriti as a source of Hindu law.
2. Shruti.
3. Commentaries and digests as sources of Hindu law.
4. Mitakshara School.
SYNOPSIS
I. Sources of Hindu Law-
A. Ancient Sources of Hindu Law-
1. Shrutis-
2. Smriti [ Dharmashastra-
3. Commentaries and Digests-
4. Custom-
B. Modern Sources of Hindu Law-
1. Judicial Decisions[ Rule of Precedent-
2. Legislation-
3. Justice, Equity, and Good Conscience-
II. Schools of Hindu Law-
A. Mitakshara-
1. The Benaras School-
2. Mithila School-
3. The Dravida or Madras School-
4. The Bombay or Maharashtra School-
5. The Punjab School-
B. Dayabhaga School-
Effect of migration on School-
Difference between Mitakshara and Dayabhaga Schools-
Mitakshara
Dayabhaga
1. Right to the property by birth-
2. Right of alienation-
3. Rule of Survivorship-
4. Disposition of undivided share-.
6. Basis of inheritance-
7. As regards Doctrine of Factum Valet.
I] Sources of Hindu Law:-
The conceptoflaw as we know it today was called “Dharma” in ancientHindu law.
Everyone was a subject of Dharma, even a King or a common man. According to Manu,
Shruti, Smriti, Sadachar, and good conscience were the sources of Dharma.
Sources of Hindu Law can be classified according to time as follows, viz.-
A. Ancient Sources of Hindu Law:-
Following are the ancient sources of Hindu Law, viz.-
1. Shrutis:-
‘Shruti’ means ‘what is heard. In the Hindu religion, Shruti means the very words
of Deity, which are revealed to inspired sages and written down by them. Due to its divine
source, Shrutis are considered the primary and paramount sources of Hindu Law. Shrutis
consist of the four Vedas and Upanishads. Therefore, Vedas and Upanishads are
considered direct revelations. of Deity.
Shruti contains rules of spiritual well-being, not of law. Thus, the Shrutis are the
divine utterances incorporated in the four Vedas, six Vedangas, and 108 Upanishads.
Four Vedas are (i) The Rugveda, (ii) The Yajurveda, (iii) The Samveda, and (iv)The
Athgarvaveda. The six Vedangas are (i) Ka;pa, (ii) Vyakerna, (iii) Chhanda, (iv) Shiksha,
(v) Jyotish, (vi) Nirukta.
2. Smriti [ Dharmashastra:-
After the Vedic period, the need to expound the meaning of the Vedas was felt.
There was a need to understandVedicprinciplesin light of society'snew needs. Therefore,
expounding Vedic principles according to the needs of the then-existing society started,
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“Law Master’s” Publication “Hindu Law, Sources and Schools” Prof. Santosh D. Bhosale
Smritis is the foundation of Hindu Law. Smriti contains religious, moral, social, and
legal duties. Rules of legal rights and obligations are also contained in Smritis.
Shrutis are expounded in the form of Smritis. The term Smriti literally means what
has been remembered. The difference between Shruti and Smriti is that Shruti is a direct
experience. The great Rishis heard the internal truth of religion (revelation by almighty)
and left a record of them for future generations. It is a direct experience, whereas Smiriti is
a recollection of that experience. Shruti is eternal, direct revelation, whereas Smritis are
manufactured. Therefore, Shruti is the primary authority, whereas Smriti is secondary. In
short, the difference between Shruti and Smriti is that Shruti is a direct experience or
revelation of the Almighty to Rishi, whereas Smirits are a recollection of that experience.
Thus, Smritis are based on Shruti, and what is remembered therefrom.
The period of Shruti is very ancient. It cannot be assigned to any author other than
the Almighty. However, the period of Smriti is later and traceable by mankind. Smritikars
or Sages are authors of Smritis.
Sages like Manu, Narada, Parashara, Yajnavalakya, Gautama, Herita, Yama,
Parashara, Samvarta, Acanas, Atri, Apastamba and Satatapa, etc., with their superpower,
have mastered the Vedas and derived Smritis from them. Therefore, Smritis are named
after Smriticars, such as Manu Smriti, Yajnavalakya Smriti, Parashara Smriti, etc. Manu
stands foremost among all the Smiritikars. Manu has ably expounded the legal principles
found in the Vedas. Therefore, Manusmriti was taken as an authority. The Smriti of
Yajnavalakya isalso consideredimportantafterManu.Smritikarshave dealtexplicitly with
positive law. Smritis have laid down rules as to Achara , i.e. rule of morality, Vyavhara,
i.e. rules applied in settlement of disputes in the administration of justice and Prayashchit
, i.e. penal provisions.
Smritis aredividedinto (i) Early Smritis, which is alsoknown as Dharmasutras,and
(ii) Latter Smritis, which is also known as Dharmashastras.
3. Commentaries and Digests:-
The commentaries or Nibhandas interpret the law laid down in Smritis and recite
the customs and usages found vague in them. In short, commentaries modify old laws
according to changing times and society.
The main commentaries are Mitakshara by Vijnaneshwara, abhaga by
Jamutavahana, Vir Mitrodaya by Mitra Misra, Vivid chintamanis by Vachaspati Misra.,
Vivadratnakar by Chandeshwar, Dayatattra by Raghunandana etc.
1 Before Christ
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“Law Master’s” Publication “Hindu Law, Sources and Schools” Prof. Santosh D. Bhosale
These commentaries are not just interpretations of Smritis but also recognise the
customs and usages prevalent in that community.
Digest literature also grew along with commentaries. The digest is the collection of
all available law texts on specific points. Digest gave concrete meaning to scattered law on
particular points.
Although written in the later period and largely based on Smritis, the commentaries
and digests assumed greater significance and necessity than Smritis. Moreover, since the
commentator put his own interpretation and his personal glaze and gloss on the text, his
authority was received and recognised in one part of the country but rejected in another.
This gave rise to different schools with conflicting doctrines.
4. Custom:-
A custom is a rule in a particular family or district by which long usage obtains the
force of law.
Customs have played a vital part in Hindu law, and most Hindu law is nothing but
recognised custom. Customs influence even commentaries and digests. The customs have
occupied such importance that in case of conflict with Smritis, the custom prevails.
Indian courts have recognised three types of customs, viz. (i) local customs
prevailing in a particular locality, (ii) class customs prevailing in a particular class of
persons, and (iii) family customs prevailing in particular families.
However, the custom to be recognised must be ancient, certain, continuous, and
reasonable. It must not be opposite to morality, public policy, and law.
Until recently, Hindu Law was customary. Its codification started in 1955. The
instances of customary law still prevalent are-
(a) The custom of impartibility of estate.
(b) The custom of allowing distant female relations to inherit.
(c) The custom of marrying a maternal uncle.
(d) The custom of adopting sisters’ sons, etc.
B. Modern Sources of Hindu Law:-
The following are modern sources of Hindu law.
1. Judicial Decisions[ Rule of Precedent:-
Due to judicialdecisions,HinduLaw made significantprogressin the 19th and20th
centuries. These decisions have often superseded commentaries.
The Privy Council, the Supreme Court, and the High Courts in India have issued
numerous judgments covering all important points of Hindu Law.
These decisions, in large measure, have modified and supplemented pure Hindu Law.
As per Art. 141 of the Indian Constitution, these decisions form the rule of
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“Law Master’s” Publication “Hindu Law, Sources and Schools” Prof. Santosh D. Bhosale
precedent, whereby the decisions of the High Courts and the Supreme Court are binding
on the lower judiciary.
Thus, judicial decisions have formed a very important and fruitful source of
Hindu Law since the British era.
2. Legislation:-
Legislation has played a very important role in the evolution of modern Hindu law.
It has not only enacted scattered and diverse provisions of textual law but also reframed
and superseded them.
The British Government started reformation through legislation in Hindu Law in
1850. After independence, legislation has also played a pivotal role in enacting and
reforming Hindu law with respect to marriage, adoption, maintenance, succession,
minority and guardianship.
Following are some laws relating to Hindus enacted by the legislation, viz.
1. The Caste Disability Removal Act. 1950.
2. The Hindu Widows’ Remarriage Act. 1856.
3. The Native Converts Marriage Dissolution Act. 1866.
4. The Special Marriage Act, 1872.
3. Justice, Equity and Good Conscience:-
Justice, equity, and good conscience are important sources of the High Court. In the
absence of any specific law, the principles of justice, equity, and good conscience apply in
the event of a conflict between Smritis.
Early Hindu law also incorporated the principles of justice, equity, and good
conscience into its interpretation. We find such references in Manu's Yajnavalakya
commentaries. However, British judges in India also applied these principles.
The principles of justice, equity, and good conscience, which existedin English law
and were suitable to Indian conditions, were applied in India.
in Hindu law, the murderer is disqualified from inheriting the property of the murderer.
The same disqualification is also statutorily recognised in the Hindu Succession
2 6. The Transfer of Property Act. 1935.
7. The Guardians and Wards Act. 1890
8. The Hindu Disposition of Property Act. 1916.
9. The Indian Succession Act. 1935.
10. Inheritance (Removal of Disabilities) Act. 1928.
11. The Hindu Law of Inheritance (Amendment) Act. 1919 etc.
3 (1924) 41 IA 368
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“Law Master’s” Publication “Hindu Law, Sources and Schools” Prof. Santosh D. Bhosale
Act.
II]
Schools of Hindu Law:-
The Schools of Hindu Law emerged in the era of commentaries and Digests. The
commentators put their own glow and gloss on the ancient texts of Smriti, and therefore,
there arose conflict among commentators, which led to schools of Hindu law. These
commentaries are accepted in one part of India and rejected in another part, depending
upon the customs and usages prevalent in that area. There are two main schools of Hindu
law, viz.
A. Mitakshara:-
Mitakshara is the commentary written by Vijnaneshwar in the latter half of the 11th
Century. The Mitakshara is of supreme authority throughout India except for Bengal.
The Mitakshara School is further divided into four sub-schools. All these sub-
schools acknowledge Mitakshara's supreme authority; however, the exact practice of law
differs in different parts of the country due to differences in the customary rules followed
by them.
These sub-schools acknowledge certain treaties and commentaries written in
particularregions.Therefore,although theyacknowledgethe supremacyof the Mitakshara
school, they differ in certain details. These schools are as follows-
1. The Banaras School:-
The Banaras School prevails in Northern India except in some areas of Punjab and
Mithila. Besides Mitakshara, the following commentaries are accepted in this School, viz.
Virmitrodaya, Dattaka Mimansa, Nirynaya Sindhu, Vivada Tandava, Balambhatti, and
Subodhini.
2. Mithila School:-
The School prevailsinTirhoot and NorthBihar. Mitaksharaisthe law of thisSchool
except for a few matters.
Besides Mitakshara, the following commentaries are accepted in this School, viz.
Vivad Ratnakar, Vivad Chintamini, Smritisara or Smriti Tattvasara, Madan Parijata.
3. The Dravida or Madras School:-
The School prevails in the whole of Madras State. This School was further divided
into (i) Tamil, (ii) Karnataka and (iii) Andhra Schools; however, there is no justification
for these sub-schools.
Besides Mitakshara, the school also accepts the following treaties and
commentaries, viz. Smriti Chandrika, Parasara Madhavya, Saraswati Vilas, Virmitrodaya,
Vyavhara Nirnaya etc.
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“Law Master’s” Publication “Hindu Law, Sources and Schools” Prof. Santosh D. Bhosale
4. The Bombay or Maharashtra School:-
The School prevails in all of Maharashtra, including Gujarat, Karnataka, and the
parts where the Marathi language is spoken as a local language.
Besides Mitakshara, the School also accepts some treaties and commentaries, such
as Virmitrodaya, Nirnaya Sindhu, Parasara Madhavya, and Vivada Tandava.
5. The Punjab School:-
The school prevails in the East Punjab region. In addition to Mitakshara, the School
accepts some treaties and commentaries, like Virmitrodaya, and Punjab customs.
B. Dayabhaga School:-
The School prevails in Bengal. It came into existence after Mitakshara School. The
Dayabhaga is Digest on the leadingseriesthancommentary. It was written by Jimutvahana
two centuries later than the Mitakshara.
According to Prof Sarkar, “The Dayabhaga was supposed to have been written by
way of revolt against many artificial and sometimes even absurd principles of inheritance,
based on the theory of propinquity conscious of the shortcomings and limitations of
Vijnaneshwar’sDoctrine.Jimutvahanapropoundedthetheoryofspiritualbenefit togovern
the rulesofsuccession.The immediatebenefitof thisnew theorywas the inclusionofmany
cognates in the list of heirs, excluded by Mitakshara”.
Besides the Dayabhaga, the School accepts the following commentaries, viz.
Dayatatya, Dayakram Sangrah, Virmitrodaya, Dattaka Chandrika.
Effect of Migration on Schools:-
On migration from one place to another, a Hindu family continues to be governed
by the law and School the family originally belonged. Therefore, if a family from
Maharashtra governed by Mitakshara School and Bombay sub-school migrates to Bengal,
the family still continues its original School and Sub-school, i.e. Mitakshara and Bombay.
In short, it carries the law of the land (lex loci).
Difference between Mitakshara and Dayabhaga Schools:-
There are the following main differences between these two, viz.
Mitakshara
Dayabhaga
1. Right to the property by birth:-
In Dayabhaga, theright to propertybybirth
is recognised. Therefore, a son or a
daughter is not a coarcener with the father
by birth. The right to property arises after
In Mitakshara, the right to property arises
by birth; therefore, the son and now the
daughter are the coparcener (co-owner) in
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“Law Master’s” Publication “Hindu Law, Sources and Schools” Prof. Santosh D. Bhosale
that property with the father.
the father's death (or the last owner). The
father or last owner is the absolute owner
until his death.
2. Right of alienation:-
In Dayabhaga, the father or last owner has
In Mitakshara, the father or last owner has
a restricted right of alienation of property
(i.e. restricted to his share). Therefore, the
son can claim partition even against his
father.
absolute power to alienate the whole
property. The son cannot claim partition.
He cannotalienatethepropertyofwhichhe
is not a coparcener.
3. Rule of Survivorship:-
In Dayabhaga, a member of the joint
family's interest passes by inheritance to
his heirs, like widows or daughters, on his
death, not to brothers and sisters.
In Mitakshara, a member of the joint
family's interest would, on his death, pass
to other members by survivorship. Thus, if
the brother dies before the partition opens,
his interest in the joint property would pass
to his other surviving brothers and sisters
but not to his widow and daughter.
4. Disposition of undivided share:-
In Dayabhaga, joint family members can
dispose of their share while undivided.
In Mitakshara, joint family members
cannot dispose of their share while
undivided.
6. Basis of inheritance:-
In Dayabhaga, the principle of inheritance
is spiritual efficacy (i.e. offering of
pindas).
In Mitakshara, the principle of inheritance
is consanguinity (i.e. blood- relationship).
However, cognates are preferred to
agnates.
However, some cognates, like the sister’s
son, are preferred by many agnates.
7. As regards the Doctrine of Factum
The doctrine of factum valet is fully
recognised in Dayabhaga.
Valet:-
The doctrine of fatum let means what is
not to be done becomes valid when done.
In other words, the doctrine declares that a
fact cannot be altered by a hundred texts of
law. The doctrine is recognised to a very
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“Law Master’s” Publication “Hindu Law, Sources and Schools” Prof. Santosh D. Bhosale
However, the difference between the two main schools is no longer tenable under
modern Hindu Law. This is because the Hindu Succession Act of 1956 provides a uniform
law of succession for all Hindus to whatever School or sub-school they may belong to.
*****
4 E.g. giving a daughterin marriage by motherisprohibited by Yajnavalayaka Smriti.It requires fatherto give daughter
in marriage (i.e. Kanyadan). But if a daughter is given in marriage by her mother, the act is done and therefore,
whatever is stated in Yajnavalyaka Smriti won’t make marriage void or illegal.
However, this doctrine applies to directory and not mandatory texts.Therefore,the provisionsof ancient texts
relating to the capacity of giving and taking in adoption are mandatory and above maxim won’t affect its mandatory
provision.