This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article, she has discussed the Mitakshara and Dayabhaga schools of law along with differences between the two.
In our country, family law does not vary from one state to the other. Every community is governed by one single system of law. But even in this single system of law, people can be governed by a different set of rules due to various factors, the most prominent among them is local custom. In the domains of Hindu law, which are codified there is a uniform law for all Hindus. But under the uncodified areas of Hindu law, there can be some variations due to various interpretation with reference to local customs. The schools of Hindu law have relevance only in those uncodified areas of Hindu law. The schools of Hindu law have some regional connotation while it is not so in the case of Muslim law, it is as per sect. There are two main schools of Hindu law:
- The Mitakshara school
- The Dayabhaga school
These schools have widened the horizons of Hindu law and contributed a lot in its development.
Cause of evolution of two schools
Hinduism is one of the oldest religion in the world. It is based on ancient scriptures, smritis’ and shrutis’. Repeatedly various scholars have tried to interpret the provisions within it. The interpretation of these sources of Hindu law with reference to customs and usages gave rise to different views. So, different thoughts emerged which resulted in the formation of different Schools of thought, namely Mitakshara and Dayabhaga.
In Rutcheputty v. Rajendra, the privy council observed that different schools of Hindu law have originated because of different local customs prevailing in different parts of India.
Mitakshara and Dayabhaga school
The Mitakshara is based on the running commentaries on the Yajnavalkya Smriti written by Vijneshwara The Mitakshara school is applicable in the whole of India except Bengal and Assam. It prevails even in Bengal and Assam on all those matters on which the Dayabhaga is silent. The Mitakshara is not merely based on a single commentary, but is also a digest of practically all the leading smritis, and deals with all the titles of Hindu law. There are four sub-schools of Mitakshara
- Benares school – This sub-school prevails in the whole of Northern India except in rural Punjab where its authority has been considerably modified by customary law. The main authorities of the school are Virmitrodaya and the Nimaya Sindhu.
- Mithila school – The Mithila school functions in Tirhut and certain districts of Northern Bihar. The main authorities under this are: the Vivada Chintamani and the Vivada Ratnakara.
- Bombay school – The Bombay school extends to Western India including the whole of the Presidency of Bihar as well as Berar. The main authorities under this school are: the Vyavahara Mayukha, the Virmitrodaya and the Nimaya-Sindhu.
- Madras school – The Dravida or Madras school prevails in Southern India including the whole of the old Presidency of Madras. The principle authorities are the Smriti Chandrika, the Parashara Madhaviya, the Saraswati vilasa and the Vyavahara Nimaya.
The four sub-schools of Mitakshara attach to the same fundamental principles of the Mitakshara, though in some matters of detail they differs from Mitakshara and among themselves. There were some differences among the sub-schools on secession and adoption. These differences have now been removed by the Hindu Succession Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956.
The Dayabhaga school is based on Jimutavahana’s digest on leading smritis by the name of “Dayabhaga”. The Dayabhaga school prevails in only Bengal and Assam. But on all those matters on which Dayabhaga is silent, are regulated by Mitakshara. The Dayabhaga is a digest on leading smritis, and deals only with partition and inheritance.
Difference between Mitakshara and Dayabhaga
The differences between the two schools of law are in the following respects:
Rule of Succession
- The Mitakshara school based its law of inheritance on the principle of propinquity ( nearness of blood relation or community of blood). It means that the person who is nearer in blood relation succeeds.
- Dayabhaga school based its law of succession on the principle of religious efficacy or spiritual benefit. It means one who confers a more religious benefit on the deceased is entitled to inheritance in preference to the others who confer less spiritual benefit. The religious benefit is based on the doctrine of an offering of oblations or pind-dan to the deceased.
In the modern Hindu law, the difference between the two main schools no longer exists. Under the Hindu Succession Act, 1956 we have a single uniform law of succession for all Hindus of all school or sub-schools.
- In the Mitakshara School, all the members of the joint family enjoy Coparcenary status during the father’s lifetime. While in Dayabhaga school, Coparcenary does not exist, it’s only upon the death of the father, the family members have an option to enter into Coparcenary
- Under the Mitakshara school, the coparcener’s share is not defined. So it can’t be disposed of. While in the Dayabhaga school the share of each coparcener is defined and it can be disposed of also.
Concept of Joint family
- The Mitakshara propounds the doctrine of son’s (i.e., son, son’s son and son’s son’s son) by birth in the joint family property. Under the Mitakshara school right to ancestral property arises by birth. So under this school, the moment a son is born in a joint family, he acquires an interest in the joint family property which, by partition, can be, at any time converted into separate property. So under this system each son on his birth acquires an equal interest with his father in the joint family property.
- Under the Dayabhaga school, the doctrine of son’s birthright and the devolution of property by survivorship do not find any place. Under this school, son’s have no right by birth in any property, all properties devolve by inheritance. The right to ancestral property in Dayabhaga is only given after the death of the last owner. Till the lifetime of the father, he is the master of all properties whether ancestral or self-acquired.
- From the concept of joint family property under the Mitakshara school we can understand that there is a notion of a community of interest and unity of possession in the Mitakshara. So this means, before partition no individual coparcener can say that he owns some particular share in the joint family property. Under this school, the interest of each coparcener is a fluctuating interest.
- But under the Dayabhaga school, coparceners have specified shares in the joint family property so their interest don’t fluctuate on birth or death.
- Under the Mitakshara school, the son attains the right to become the co-owner of the property. He can demand his share and ask for the partition of the ancestral property even against his father. But in Dayabhaga school, son has no right to ask for partition against his father.
- Under the Mitakshara school, neither the father nor any other coparcener can ordinarily alienate the joint family property. Under the Dayabhaga school, there is no such restriction. Each coparcener has full right of alienation which they can exercise through the Karta.
The codified Hindu law doesn’t affect the joint family system of Hindus and therefore both the schools with there differences still operate.
Persons entitled to partition
- Under the Dayabhaga school every adult coparcener, whether male or female can enforce a partition of the coparcenary property. Under the Mitakshara before 2005 amendment of Hindu Succession Act, a female couldn’t be a coparcener so she was not entitled to partition. But after the amendment, a female can also be coparcener.
Under the Mitakshara school, the wife can’t demand partition but she has the right to a share in any partition, which took place between her husband and her sons. Under the Dayabhaga school, this right doesn’t exist for the women because the sons can’t demand partition as the father is the absolute owner.
The Mitakshara school seems to favour the male child of the family as initially, only males could be coparcener. The Mitakshara school had a conservative approach. The Dayabhaga school, on the other hand, took a more liberal approach, as it recognised the rights of the female also to the joint ownership. The major difference between the schools of thoughts are in their opinions towards joint family system in relation to properties. The enforcement of Hindu secession Act 1956 and the Hindu Succession (Amendment) Act, 2005 have brought many changes. The new provision has wide-sweeping ramifications on the Hindu Joint family.