This article is written by Suryanshi Bothra. This article mainly discusses the schools of Hindu law that act as major sources in developing the roots of Hindu law. Different Sub schools of the classical schools are discussed in detail and it also distinguishes the features of the two major schools. 

Introduction

Hindu law refers to a system of personal law established to govern Hindus. Hindu law is considered to be one of the most ancient and prolific laws in the world. It is believed to be about 6,000 years old. The aim of the establishment of Hindu law was to facilitate people’s salvation. It was not established to remove crime or transgression from society. These laws were introduced for the welfare of the people. Sources of Hindu law consist of a wide range and variety of texts, traditions, and principles that together underpin one of the oldest systems not just in India but also around the world. At the core of this system lie the Vedas, regarded as the ultimate religious texts, which define spiritual philosophy and provide guidance for all aspects of Hindu living. Together with the Vedas, the Smritis-such as Manusmriti and Yajnavalkya Smriti, among others, lay down elaborate rules regarding matters like conduct and law. The literature of Dharmashastra, with its many commentaries and digests, includes general principles available for respective conditions in life but these are the acts of interpretation of laws that can vary between practical editions.

Besides these written sources, customary practices and traditions were also significant in moulding Hindu law. Puranas and historical epics such as the Mahabharata and Ramayana were critical to its development. Nibandhas (legal digests) also made important contributions to history, which have helped in developing primary aspects of Hindu Institutions. Judicial decisions and legislation have in modern times also become very important sources, filling the gaps left by ancient texts between doctrine and needed reforms. These ancient texts are interpreted and adapted by the courts based on contemporary social and legal contexts, making Hindu Law always relevant and up to date. The article will also be exploring the history and legacy of different versions of Hindu law. This article explores these various versions, along with their storied pasts and interpretive contexts, as well as how they continue to influence and shape the legal and ethical landscape of Hindu society.

Emergence of schools of Hindu Law

Schools of Hindu law are considered to be derived from the commentaries and digestives of the smritis. The presence of different schools has led to a widening of the scope of Hindu law. Furthermore, it has significantly contributed to its development. The schools of Hindu law have been developed and shifted over time in relation to the broader historical, social, and legal changes that occurred throughout India, especially during its colonial period. 

The notion of “schools” is found within the Mitakshara and Dayabhaga traditions, which were conceived as part of British colonial administration efforts to delineate Hindu legal tradition for the purposes of compiling law books. Before British rule, Hindu law was not written or codified in the manner that modern legal systems are. Rather, it was a mosaic of customary laws and religious texts subject to interpretation by scholars. These laws came primarily from the Dharmashastras and their interpretations in different ways by various scholars over time.

Existence of schools

The Schools of Hindu law have a diversity of doctrine which is derived from different reasonings and interpretations but is based on the same premises. British scholar and administrator H.T. Colebrooke were among the early Indologists who labelled “schools” of Hindu law in the 19th century. In his attempt to learn and digest the Hindu law for colonial administration, Colebrooke got from all this vast variety of interpretations and practices in different parts of India what he called “schools.” 

The British understood Islamic law better with its prescriptive schools of jurisprudence and so they tended to categorise accordingly. The distinction between them was formalised and perpetuated by the British colonial administration. The British sought to establish an unambiguous and orderly legal system for regulating their subjects by encapsulating aspects of Hindu law. First, this culminated in the acceptance and establishment of the Mitakshara and Dayabhaga schools in the legal system. The British also introduced the concept of precedent, further solidifying these schools as distinct legal traditions.

Mitakshara

The Mitakshara School of Hindu Law is one of the most important schools. It is a commentary on the Yajnvalkya Smrti. The commentary was written by 11th-century legal scholar Vijñaneśvara. Except for states like West Bengal and Assam, this school is applicable all over India. However, it is practiced differently in different parts of the country because of the different customary rules followed by them. This has led to the formation of various sub-schools and a wide jurisdiction. The purpose of Vijñāneśvara, a forest-dwelling sophisticated dharma philosopher and translator, was not to compile local laws but an encyclopaedic exposition on basic Hindu legal literature, starting with Yajnavalkya Smṛiti. The subject matter of his commentary is classified into three heads:

1. Dharma, dealing with daily rituals, rites and moral duties;
2. Vyavahāra comprising legal disputes, inheritance, etc. Consolation by ministers as well as the administration of justice to kings; 
3. Prāyaścitta embracing operations for purification. It includes various karmic actions and rituals for atonement. It has a wide appeal which was made possible by thorough and systematic work Mitākṣarā. 

This original intention of the code to not record regional customs meant that it was incidentally more versatile, with its detailed provisions across various regions, particularly in most parts of India except Bengal.

The Mitakshara School has three distinguished characteristics: 

1. Blood relationships are very important in matters of inheritance. 
2. The schools has placed restrictions on coparceners’ share in the joint family property
3. Distinction between male and female heirs.

In the Mitakshara School the property is owned by the coparcenary (joint heirship) and sons acquire a right by birth. Due to the birth or death of other coparceners, a coparcener’s share in joint family property constantly fluctuates and is not absolute. Therefore, they do not have the right to transfer their shares. The Mitakshara recognises agnate succession as far as the fourteenth in descent fourteenth ancestor i.e. twelfth cousins. This was clarified in Atmaram Abhimanji vs Bajirao Janrao (1935). The Mitakshara’s rules on cognate succession are similar to the current thinking of those of the Dayabhaga. The Mitakshara’s content, in other legal writings like the Sarasvati Vilasa, Vyavahara Mayukha, the Smriti Chandrika, the Vivada Chintamani, the Vyavahara Madhaviya, the Viramitrodaya, the Madana Parijata, and even the Dayatattva copy word-for-word or sum up, lays out the cognate succession in a clear way: 

Bandhus (cognates) inherit the estate when Gotrajas (agnates) are not available. Bandhus fall into three groups: 

1. Atma-bandhus (own cognates) 
2. Pitr-bandhus (father’s cognates) 
3. Matri-bandhus (mother’s cognates) 

Proximity of relation decides the order of succession among Bandhus. Atma-bandhus inherit first. If there are no Atma-bandhus, Pitr-bandhus come next. Matri-bandhus inherit if there are no Pitr-bandhus.

Mitakshara is further divided  into five sub-schools namely

• Benaras school
• Mithila school
• Maharashtra school
• Punjab school
• Dravida or Madras school

These law schools come under the ambit of Mitakshara school. They enjoy the same fundamental principle but differ in certain circumstances.

Sub Schools of Mitakshara

Benaras law school

The Benares School of Hindu Law is also known as the Varanasi or Kashi School. It is one of the primary sub-schools of Mitakshara School. It is predominantly followed in northern and central India, including Uttar Pradesh, Bihar, Madhya Pradesh, and parts of Orissa. Viramitrodaya, Vivada and Nirnyasindhu are some of the major commentaries that the Benaras school relies on. This school emphasises principles like coparcenary and joint family property, where male descendants inherit ancestral property by birth. Compared to other schools, the Benares School adheres strictly to the Mitakshara principles, focusing on male heirs. The courts in some cases emphasised the strict application of these sub-schools based on region in Ramaji Batanji vs. Manohar Chintaman And Ors. (1959). The court determined that the parties in the case were governed by the Benares School, based on historical precedents and the consistent application of this school in the Central Provinces (excluding Berar). It established that the Benares School was the lex loci of the Central Provinces. The principle of stare decisis, which emphasises legal certainty through adherence to precedents, played a significant role in this decision. 

Mithila law school

Mithila law school holds jurisdiction over the regions of Tirhoot and North Bihar. The legal principles of the school are dominant in these northern areas. Vivadaratnakar, Vivadachintamani, and Smritsara are the main commentaries relied on by this school. It developed from the teachings and writings of ancient sages and scholars in the region, becoming formalised during the medieval period. The Mithila School is known for its strict adherence to ancient texts and rituals, often emphasising the importance of traditional ceremonies and customs in legal matters. In the Mithila School of Hindu Law, Gandharva form of marriage is not considered invalid. In Kamani Devi vs. Kameshwar Singh (1945), the Patna High Court held that Gandharva marriage is binding against husband and wife according to this school. Even in these cases, the husband has to maintain his wife, the husband cannot escape the liability solely due to the form of marriage. The Mithila School’s principles were subject to judicial scrutiny.  For example, in cases like determining the validity of practices like the appointment of a daughter (putrika) to raise an issue (putrika-putra). The term “putrika” refers to a daughter who is appointed to perform certain rituals or act as a son (putrika-putra) in religious or familial contexts, typically to ensure the continuity of lineage or inheritance. This practice finds its roots in ancient Hindu texts and traditions. In Shyam Sunder Prasad Singh & Ors vs. State Of Bihar & Ors (1980), the Court examined whether such practices had become obsolete and unenforceable. It was especially examined in light of societal changes and evolving customs. The judicial scrutiny of practices like putrika-putra under the Mithila School exemplifies how the law constantly adapts to societal changes. It underscores the role of courts in balancing tradition with contemporary values, ensuring legal principles remain relevant and equitable. 

Maharashtra or Bombay Law School

This school has its jurisdiction over Gujarat, Karana and other parts where the Marathi language is proficiently spoken. Vyavhara Mayukha and Virmitrodaya are some of the main authorities of this school. The Bombay School of Hindu Law recognises female bandhus (distant relatives) as heirs. They did not refer to Baudhayana’s text while mentioning the females as heirs. The Bombay School of Hindu Law, as courts interpret it, acknowledges the inheritance rights of female heirs, called bandhus, to own the property outright. This group includes both agnates and cognates reaching relatives within five degrees of kinship from a shared ancestor through lines where women come in between. Legal texts like the Mitakshara list bandhus as examples rather than a complete set, opening the door to include daughters of descendants, ascendants, and collaterals. The Judicial Committee of the Privy Council interpreted the term “gotraja” to mean individuals belonging to the same ancestral lineage or clan, and this included both males and females according to the prevailing practices in the Bombay Presidency. This interpretation extended the status of “gotraja” to the widows of “gotraja sapindas,”. These are the relatives within the same lineage up to seven degrees on the father’s side and five degrees on the mother’s side. This gave them the same relational standing as their husbands. As a result, a wider range of female relatives were recognised as heirs. The additional relatives included in the list were:

1. Stepmothers
2. Brothers’ widows
3. First cousins
4. Daughters-in-law
5. Widows of undivided brothers’ sons
6. Widows of half-brothers
7. Widows of predeceased sons
8. Daughters of descendants and collaterals, such as granddaughters, sisters’ daughters, fathers’ sisters, half-sisters, and mothers’ sisters, paternal grandfathers’ sisters’ sons’ daughters, and illegitimate daughters.
9. Sister, born into the same gotra as her brother

Court rulings confirm that female heirs through maternal lines can inherit, making sure their rights to inherit from the last male owner of the estate stay intact. This approach promotes inclusion and recognises the key role of maternal kinship in inheritance. In Vimla Bai (Dead) By Lrs vs. Hiralal Gupta And Ors (1989), the Bombay School of Hindu Law was pivotal in determining the rightful heir to the property. The primary issue in the case was whether the plaintiff, who was from Ahmednagar District and migrated to Indore, was governed by the Bombay School or the Banaras School of Hindu Law. The plaintiff claimed her right to inherit property based on the Bombay School of Hindu Law. Rights. 

Madras law school

Madras School covers the entire southern part of India. Its authorities come under Mitakshara Law School. The Madras School is heavily based on authoritative texts such as the Smriti Chandrika, Parasara Madhaviya, and Viramitrodaya, with the Mitakshara being the principal text but secondary to these other works. The Madras school followed the Vedic doctrine of the general exclusion of women. Here, they interpreted the Sruti text to mean that except for the daughter, the mother and other female ancestors, whose right to inherit is expressly provided by special texts, females as a class are incompetent to inherit property. However, with time, certain other females, besides the expressly recognised female heirs, were given the ability to inherit. It was either as bandhus, or relatives connected through the female lineage, of the deceased. The list of additional members who were given the right to inherit as bandhus were-

1. Son’s daughter
2. Daughter’s daughter
3. Sister
4. Father’s sister
5. Brother’s daughter
6. Sister’s daughter 

In the Madras School, a widow’s right to adopt was contingent upon the permission of the husband’s kinsmen. The court’s analysis in Venkanna Narasinha vs. Laxmi Sannappa (1950) elucidates that the Madras School of Hindu Law had a significant influence on the legal landscape of the regions under its jurisdiction. The case delved into the historical and legal context to determine whether the Hindu residents of North Kanara were governed by the Madras School or the Bombay School of Hindu Law. In the case of Mahableshvar v. Durgabai, the Madras School’s requirement for the consent of the husband’s kinsmen was pivotal in determining the validity of an adoption.  In Vithappa Kasha Hegde vs. Savitri Ganap Bhatta (1910), the court noted the Madras School’s view that daughters inherited as joint tenants, unlike the Bombay School’s tenant-in-common doctrine. The Madras school follows joint tenancy, which means that each daughter holds an undivided interest in the entire property. In this principle, in case of the death of one daughter, her interest in the property does not pass on to her heirs. Instead, it is absorbed by the surviving daughters. This principle is known as the right of survivorship, where the property remains with the surviving co-owners. In practice, this doctrine ensures that the family property remains consolidated. It ensures that control does not get diluted over successive generations through multiple individual ownerships. 

Punjab law school

The Punjab school under Mitakshara school was predominantly established in east Punjab. The main commentaries of this school are Viramitrodaya. The customs of the territory also played a major role in the establishment of the sub-school.

Mayukha school

The Mayukha school of Hindu law is associated prominently with the western regions of India, like Gujarat and parts of Maharashtra. This school represents a significant sub-division within Mitakshara. The court in Ambabai Bhaichand Gujar vs. Keshav Bandochand Gujar (1940) clarified this stance, claiming that the Mayukha is a sub-division or branch of the broader Mitakshara school, not a separate school of law. It interpreted that the phrase “law of Mitakshara” mentioned in the Hindu Law of Inheritance (Amendment) Act, 1929, includes all sub-divisions, including the Mayukha. According to the Mayukha school, succession on the principle of propinquity (blood relationship), which is in contrast with the Dayabhaga school.  The court in Bhagwan Vithoba vs. Warubai Baburao Mudke (1908) observed that the Mitakshara is silent on the exact place of a uterine sister in the line of heirs. The Vyavahara Mayukha explicitly places the sister immediately after the grandmother in the order of succession. The court considers this positioning when interpreting Mitakshara school’s silence on the matter.

Dayabhaga school

This school was mostly prevalent in Assam and West Bengal. It is one of the most important schools of Hindu law. It is derived from digests and leading smritis. The school primarily focused on dealing with inheritance, partition, and joint families. P.V. Kane was a scholar, historian and former Rajya Sabha member. According to him, the Dayabhaga School was incorporated between 1090-1130 A.D. The principles of the school were formulated to eradicate all the other absurd and artificial principles of inheritance. It removed all the shortcomings and limitations of the previous principles. It included many cognates in the list of heirs,  which were previously restricted by the Mitakshara school of Hindu law. Dayabhaga School relies on many commentaries, such as Dayatatya, Dayakram-sangrah, Virmitrodaya and Dattaka Chandrika. 

Features of Dayabhaga school

Some of the key features of Dayabhaga school are-

1. Inheritance, according to Dayabhaga, arises from the spiritual offerings to the deceased ancestors.
2. In this school, the right over Hindu joint family property is passed down to the heir on the death of the father. Not like the Mitakshara School, which is passed down by birth. 
3. Each share of each of the heirs is definite. The heirs can sell their particular fraction of the share.  
4. In cases where there are no male descendants, a widow has the right to enforce partition and inherit her deceased husband’s share.

The Dayabhaga school recognises individual ownership. Property is solely owned by the person during their lifetime. Here, property is inherited by succession upon the death of an individual, rather than by birth. The property devolves upon the heirs, who take definite and determined shares in the property. After the death of the property owner, each heir has the right to demand partition of property under the Dayabhaga school. The property does not automatically become joint family property; rather, it is held in specific shares by the heirs. The concept of joint family property is not recognised, the property remains separate and distinct, even if the family members live together. The Dayabhaga school included five females in the list of heirs. They were:

1. Widow
2. Daughter 
3. Mother
4. Maternal grandmother 
5. Paternal great grandmother

Differences between Mitakshara and Dayabhaga schools

The difference in relation to the joint property

Aspect	Mitakshara	Dayabhaga
Right to Ancestral Property	The right to ancestral property arises by birth. The son becomes a co-owner at birth and has rights similar to the father.	The right to ancestral property arises after the death of the last owner. There is no birthright to ancestral property.
Father’s Right to Alienate Property	The father does not have the absolute right to alienate the ancestral property.	In this school, the father has the absolute right to alienate the ancestral property since he is the sole owner during his lifetime.
Son’s Right to Partition	Son/Sons can ask for partition of the ancestral property. They can ask for it even against the father and demand his share.	Son/Sons have no right to ask for partition of ancestral property against their father since they have no right over the property if the father is alive.
Rule of Survivorship	In case of the death of a family member, their interest passes on to other family members.	Here, in case of the death of a family member, their interest passes to their heirs (widow, son, daughters).
Right to Dispose of Property	Members of the joint family cannot dispose of their share of property while undivided.	Members have an absolute right over their share of the property and can dispose of their property.

The difference as regards to inheritance

Aspect	Mitakshara School	Dayabhaga School
Rule of Inheritance	The School follows the rule of blood relationship or having the same descendant.	In this school, inheritance is governed by the rule of offering funeral oblations or pinda.
Preference in Inheritance	Cognates are not preferred over agnates. Cognates are postponed.	The cognates are preferred over agnates.
Recognition of the doctrine of Factum Valet	The doctrine of factum valet is recognised to a very limited extent.	This doctrine is fully recognised and expanded.

The difference as regards to Stridhana

Since Mitakshara School didn’t recognise women’s rights to inherit property from their husbands’ families, women could only possess stridhan. This is a term that refers to women’s property or fortune. There are 2 types of Stridhan in Mitakshara. 

1. Saudayika Stridhana– This includes property of a married or single girl that she gets from her husband or parents while she’s at her husband’s or father’s home. The woman has complete control over this type of property. She can spend it, sell it, or give it away as she likes. Her husband can’t tell her what to do with Saudayika Stridhana. 
2. Non-Saudayika Stridhana– Non-Saudayika Stridhana covers all other kinds of Stridhana. A woman can’t get rid of this property during her marriage unless her husband agrees.

Mitakshara School recognises 9 heads of Stridhan. Out of these, the last 2 are the most controversial. 

1. Gifts  from relatives; 
2. Gifts from strangers; 
3. Property acquired through personal effort and technical skills;
4. Property purchased using stridhan;
5. Property acquired by compromise; 
6. Property secured through adverse possession;
7. Property obtained in lieu of maintenance
8. Inherited Property; 
9. Share of property obtained by partition.

On the other hand, Dayabhaga school talks about two types of Stridhan. 

1. Yautaka  

Yautaka refers to anything given at the time of marriage. It encompasses all gifts given to brides during marriage ceremonies. These gifts are presented while she and her husband sit together. 

2. Ayautaka  

Ayautaka includes all gifts not classified as Yautaka. This category covers gifts bequests made by the father. It also includes those given by other relatives before marriage. Included are gifts made by relatives other than the father after marriage.

The doctrine of factum valet

The doctrine of “factum valet quod fieri non debuit” translates to what ought not to be done and becomes valid when done. It highlights that certain acts become valid and binding once accomplished, even though they shouldn’t have been performed according to legal or religious rules. The principle was formulated by the authors of the Dayabhaga school. It was only recognised to a limited extent by the Mitakshara school. The key element of the doctrine is that it states that once an act is done or a fact is accomplished, it can’t be altered by subsequent written texts of laws. The fact is considered to be a concrete establishment and is deemed to be legally binding. This doctrine could be found in instances of marriages or property transfers that do not conform to the prescribed rituals or legal procedures. The validity of these is upheld despite the fact that they were initially performed without following proper procedure. 

Conclusion

The diverse schools of Hindu law—namely the Mitakshara and Dayabhaga and Benares, Mithila, and Dravida sub-schools—demonstrate India’s rich legal heritage. It is one of the most prolific laws in the world. It has been around throughout every phase of history and is known for its complexity. It is believed to be about 6,000 years old. The diverse legal heritage continues to influence modern legal practices and reflect the cultural and philosophical landscape. Understanding these schools is essential to grasping the historical development and current application of Hindu law in India. The ancient sources, including the smritis and commentaries, played an important role in the formation of these laws. These laws continued to evolve with the help of modern sources of Hindu law, including landmark judgements and new legislation. These schools widened the scope of Hindu law and contributed to its development. Mitakshara and Dayabhaga historically followed separate rules but currently there is a uniform law of succession for all Hindus. Matters of marriage and inheritance are governed by the Hindu Marriage Act and Hindu Success Act, 1956, respectively. 

Frequently Asked Questions (FAQs)

Who was the founder of Mitakshara school?

Mitakshara is a running commentary on Yajnvalkya Smrti written by 11th-century legal scholar Vijñaneśvara. Therefore, he is known as the founder of the Mitakshara school of Hindu law. 

What are the classical schools of Hindu law?

Dayabhaga and Mitakshara are the classical schools of Hindu law. And each of them has many subschools.

How many schools of Hindu law are there?

There are 2 broad schools of Hindu law. 

1. Mitakshara
2. Dayabhaga

References 

• https://www.jstor.org/stable/25654333
• https://www.jstor.org/stable/23005497
• https://www.jstor.org/stable/44147711
• https://www.jstor.org/stable/25654333
• https://www.jstor.org/stable/j.ctt1gxpdbp.12
• https://www.jetir.org/papers/JETIREW06096.pdf
• https://www.jstor.org/stable/j.ctt1gxpdbp.12