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Hindu Law, Sources,[1] and Schools[2]

QUESTION BANK

Q.1 What are the sources of Hindu law?

Q.2 Explain different schools of Hind Law.

Short Notes

Smriti as a source of Hindu law.
Shruti.
Commentaries and digests as sources of Hindu law.
Mitakshara School.

SYNOPSIS

Sources of Hindu Law-
Ancient Sources of Hindu Law-
Shrutis-
Smriti [ Dharmashastra–
Commentaries and Digests-
Custom-
Modern Sources of Hindu Law-
Judicial Decisions[ Rule of Precedent-
Legislation-
Justice, Equity, and Good Conscience-
Schools of Hindu Law-
Mitakshara-
The Benaras School-
Mithila School-
The Dravida or Madras School-
The Bombay or Maharashtra School-
The Punjab School-
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 concept of law as we know it today was called “Dharma” in ancient Hindu 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[3]:-

‘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.[4] 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[5] [ Dharmashastra:-

After the Vedic period, the need to expound the meaning of the Vedas was felt. There was a need to understand Vedic principles in light of society’s new needs. Therefore, expounding Vedic principles according to the needs of the then-existing society started, and Smriti came into existence. The period of Smriti is 800 to 200 B.C.[6].

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[7] 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 is also considered important after Manu. Smritikars have dealt explicitly with positive law. Smritis have laid down rules as to Achara[8] , i.e. rule of morality, Vyavhara[9], i.e. rules applied in settlement of disputes in the administration of justice and Prayashchit[10] , i.e. penal provisions.

Smritis are divided into (i) Early Smritis, which is also known as Dharmasutras, and (ii) Latter Smritis, which is also known as Dharmashastras.

3. Commentaries[11] and Digests[12]:-

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.

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[13]:-

A custom is a rule in a particular family or district by which long usage[14] 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-

The custom of impartibility of estate.
The custom of allowing distant female relations to inherit.
The custom of marrying with maternal uncle.
The custom of adopting sisters’ sons etc.

B. Modern Sources of Hindu Law:-

Following are modern sources of Hindu law.

1. Judicial Decisions[15][ Rule of Precedent:-

Due to judicial decisions, Hindu Law made significant progress in the 19th and 20th 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 precedent, whereby the decisions of the High Courts and 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 also, legislation has 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.

The Caste Disability Removal Act. 1950.
The Hindu Widows’ Remarriage Act. 1856.
The Native Converts Marriage Dissolution Act. 1866.
The Special Marriage Act, 1872.
The Indian Majority Act. 1875[16]

3. Justice, Equity and Good Conscience[17]:-

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 existed in English law and were suitable to Indian conditions, were applied in India.

In Kanchava v. Girimalappa[18], Privy Council laid down that, like English law, 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 Act.

II] Schools[19] 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 11^th 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 particular regions. Therefore, although they acknowledge the supremacy of 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 prevails in Tirhoot and North Bihar. Mitakshara is the law of this School 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.

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 leading series than commentary. 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[20] conscious of the shortcomings and limitations of Vijnaneshwar’s Doctrine. Jimutvahana propounded the theory of spiritual benefit to govern the rules of succession. The immediate benefit of this new theory was the inclusion of many 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 Mitakshara, the right to property arises by birth; therefore, the son and now the daughter are the coparcener (co-owner) in that property with the father.

In Dayabhaga, the right to property by birth is recognised. Therefore, a son or a daughter is not a coarcener with the father by birth. The right to property arises after 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 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.

In Dayabhaga, the father or last owner has absolute power to alienate the whole property. The son cannot claim partition. He cannot alienate the property of which he is not a coparcener.

3. Rule of Survivorship:-

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.

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.

4. Disposition of undivided share:-

In Mitakshara, joint family members cannot dispose of their share while undivided.

In Dayabhaga, joint family members can dispose of their share while undivided.

6. Basis of inheritance:-

In Mitakshara, the principle of inheritance is consanguinity (i.e. blood- relationship).

However, cognates are preferred to agnates.

In Dayabhaga, the principle of inheritance is spiritual efficacy (i.e. offering of pindas).

However, some cognates, like the sister’s son, are preferred by many agnates.

7. As regards the Doctrine of Factum 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 limited extent in Mitakshara[21].

The doctrine of factum valet is fully recognised in Dayabhaga.

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.

*****

[1] हिंदू कायदयाचा आरंभ, मूळ उगमस्थान [ हिंदू कानून की उत्पत्ति/ मूल स्रोत ]

[यहाँ से कुछ महत्वपूर्ण अंग्रेजी शब्दों के मराठी और हिंदी’ में उनके अर्थ दिए गए हैं। इसका उद्देश्य छात्रों को विषय को अच्छी तरह से समझाना है। सिर्फ इसलिए कि मराठी अर्थ विषय पर आधारित हैं, , जरूरी नहीं कि वे शब्दकोशों के रूप में सटीक हों। विद्यार्थियों को पढ़ते समय विभिन्न मराठी और अंग्रेजी शब्दकोशों का प्रयोग करना चाहिए। ]

[2] हिंदू कायदयाच्या शाखा, विचारधारा [ हिंदू कानून की शाखाएं विचारधारा ]

[3] श्रुति- ईष्वराने स्वतः साक्षात्कारी ऋशींचे माध्यमातुन दिलेले लिखित केलेले ज्ञान ज्यामध्ये वेद व उपनिशेधांचा समावेष होतो. [वेद और उपनिषदों सहित प्रबुद्ध ऋषियों के माध्यम से स्वयं ईश्वर द्वारा दिया गया [ लिखा हुआ ज्ञान। ]

[4] ईष्वरीय साक्षात्कार [ दिव्य रहस्योद्घाटन ]

[5] स्मृति [ स्मृति ]

[6] Before Christ

[7] सदाचार [ गुण ]

[8] आचार [ आचरण ]

[9] व्यवहार [ लेनदेन ]

[10] प्रायष्चित्त [प्रायश्चित करना ]

[11] अर्थ स्पस्ट करने[ भाष्य [ अर्थ-टिप्पणी स्पष्ट करने के लिए ]

[12] कायदयाचे मुळ ग्रंथ [ कानून के मूल ग्रंथ]

[13] चाल, रूढ, प्रथा [चाल, रीति–रिवाज ]

[14] रीत, रिवाज, वहीवाट [ शिष्टाचार, रीति–रिवाज, ]

[15] न्यायीक निर्णय [न्यायिक निर्णय ]

[16] 6. The Transfer of Property Act. 1935.

The Guardians and Wards Act. 1890
The Hindu Disposition of Property Act. 1916.
The Indian Succession Act. 1935.
Inheritance (Removal of Disabilities) Act. 1928.
The Hindu Law of Inheritance (Amendment) Act. 1919 etc.

[17] न्याय, समानता व सद्सद्विवेकबुद्धी [ न्याय, समानता और विवेक ]

[18] (1924) 41 IA 368

[19] शाखा [ शाखा ]

[20] नातेसंबंध [ संबंध]

[21] E.g. giving a daughter in marriage by mother is prohibited by Yajnavalayaka Smriti. It requires father to 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 provisions of ancient texts relating to the capacity of giving and taking in adoption are mandatory and above maxim won’t affect its mandatory provision.