Sep 9, 2020 07:52 UTC
Sep 9, 2020 at 07:52 UTC
Study Notes: Who is Hindu? and Schools of Hindu Law
There is no mention of the term ‘Hindu’ in the ancient Sanskrit text or Dharmashastras. The word Hindu has been derived from the word ‘Sindu’ which means the river ‘Indus’ in the subcontinent. It is denoted to the people living east of the river Sindu. The subcontinent came to be known as ‘Hindustan’ and the people living there as ‘Hindu’.
The term ‘Hindu’ is a general term. According to Section 2 of the Hindu Marriage Act, 1955, it denotes all those persons who profess Hindu religion either by birth or by conversion to the Hindu faith. By referring to the Acts codified by Parliament in four acts i.e. the Hindu Succession Act 1956, the Hindu Marriage Act 1955, the Minority and Guardianship Act 1955, the Hindu Adoption and Maintenance Act 1955, the definition of the term ‘Hindu’ could be inferred as,
“A person who is a Hindu by religion in any of its form or development, who is a Buddhist, Jain or Sikh by religion. Hindu is a person who is domiciled in India, who is not a Muslim, Christian, Parsi or Jew by religion. A Person who is domiciled in territories to which these four acts extends and those people who are followers of Hindu Law.“
A person who follows Hindu Law can be:
- Legitimate child of Hindu parents
- An illegitimate child of Hindu parents
- Children of one Hindu parent
- Someone who has gone through conversion. All Hindu laws will be applicable upon that person except the law of succession.
Persons who are not subject to Hindu Law:
- Person who has converted from Hindu Religion.
- Non- Hindu child of one Hindu Parent.
- Perumal V. Ponnuswamy, 1970: The court held that the mere claim of a person that he is Hindu is not acceptable. It will not convert him to Hindu. The person’s bonafide intention in his conversion to the Hindu faith and the manner and conduct of his way life could be considered as evidence.
- Abraham V. Abraham: The privy council held that any person who converts to Christian or other religion is not subject to Hindu Law.
- Commissioner Of Wealth Tax, Madras & Ors vs Late R. Sridharan, 1976: The Supreme Court held that the son of a Hindu father and Christian mother (under Special Marriage Act), was a Hindu as the father had a bonafide intention and had declared his family as a Hindu Undivided Family.
SCHOOLS OF HINDU LAW
Schools of Hindu law are considered to be the commentaries and the digestives of the smritis. These schools have widened the scope of Hindu law and explicitly contributed to its development.
Hindu Law is of two types:
- Codified Hindu Law
- Un-codified Hindu Law
The codified Hindu Law applies to all Hindu equally whereas the uncodified Hindu Law applies differently according to the situation.
The application of Uncodified Hindu Law depends upon the context of different schools.
The two major schools of Hindu law are as follows-
- Daya Bhaga
Mitakshara Law School
Mitakshara School: Mitakshara is one of the most important schools of Hindu law. It is a legal treaty on inheritance. It was written by Vijneshswara, a scholar. It became one of the most influential texts in Hindu Law and its principal regarding property distribution, property rights and succession are still is applicable in the whole part of India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. It is a running commentary on the code of Yajnavalkya Smriti. However different parts of the country practice law differently because of the different customary rules followed by them.
Features of Mitakshara School of Law:
- Rights in the Joint Family property is acquired by birth.
- As a rule, females have no rights of succession to the family property.
- The right of property passes by sponsorship to the other male (Karta) male members of the family.
Mitakshara is further divided into five sub-schools namely
- Benaras Hindu law school
- Mithila law school
- Maharashtra law school
- Punjab law school
- Dravida or madras law school
These law schools come under the ambit of Mitakshara law school. They enjoy the same fundamental principle but differ in certain circumstances.
- BENARAS LAW SCHOOL
It covers Northern India including Orissa, South Bihar, and some parts of Madhya Pradesh. Viramitrodaya Nirnyasindhu vivada are some of its major commentaries.
- MITHILA LAW SCHOOL
This law school comes under the authority of the territorial parts of Tirhoot and North Bihar. The principles of the law school prevail in the north. The major commentaries of Mithila law school are Vivadaratnakar, Vivadachintamani, Smritsara.
- MAHARASHTRA or BOMBAY LAW SCHOOL
The Maharashtra law school has the authority to exercise its jurisdiction over the territorial parts including Maharashtra, Madhya Pradesh and few parts of Andhra Pradesh. The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.
- MADRAS LAW SCHOOL
This law school has the authority to exercise its jurisdiction over the southern part of India like Mysore, Kerala and Madras. The main authorities of this school are Smriti Chandrika, the Saraswati Vilasa, the Vyavahara Nirnaya and the Parashara Madhviya.
- PUNJAB LAW SCHOOL
This school extends to the area of Punjab, Rajasthan and Jammu and Kashmir. It had established its own customs and traditions. The main commentaries of this school are Viramitrodaya and it established customs.
Dayabhaga Law School
Dayabhaga school prevailed in Assam and West Bengal. This is also one of the most important schools of Hindu laws. It is considered to be a digest for the leading smritis. Its primary focus was to deal with partition, inheritance, and joint family. According to Kane, it was incorporated in between 1090-1130 A.D. The Dayabhaga school is considered to be the dissident school of the old Benaras school. It was written by Jimutavahana and has much influenced the Hindu Civil Code of Modern India.
Dayabhaga is a commentary on a specific work, but a digest of all the codes. The Dayabhaga School bases its law of succession on the principle of religious efficacy or spiritual benefit. It means that the one who confers more religious benefits on the deceased is entitled to inheritance in preference to the others who confer less benefit. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations of the previously established principles and inclusion of many cognates in the list of heirs, which was restricted by the Mitakshara school.
Features of Dayabhaga School:
- Rights in the joint family, property are required by inheritance or by will.
- Females have right in the property.
- Shares of a deceased male member go to his widow in default of a closed heir
In Dayabhaga school various other commentaries were followed such as:
- Dattaka Chandrika
Differences Between Mitakshara & Dayabhaga School
The Mitakshara and the Dayabhaga schools fundamentally differ on certain matters. The basic difference between the two are:
- Under the Mitakshara school, the rights of the son by birth in the ancestral property equal to the interest of his father, while under the Dayabhaga school, a son is entitled to his ancestral property only on the death of his father. The father is the absolute owner of the property in his lifetime.
- Under the Mitakshara school, everyone is entitled to the property as a unit. Their shares are not defined whereas, under the Dayabhaga school, everyone’s share is defined.
- Under the Mitakshara, a son becomes the coparcener right after his birth whereas, under the Dayabhaga, a son becomes coparcener only after the death of his father.
- Under the Mitakshara, one cannot devolve his shares with the third party whereas, under the Dayabhaga, one can share his shares.
- Under the Mitakshara, the property of the deceased Hindu is partitioned into two ways: Ancestor’s property, Separate property. Ancestor’s property is partitioned in accordance with the Rules of Survivorship. But a Separate property is partitioned to the descendants. While under the Dayabhaga School, there are two types of School one is Joint Property and the other is Separate property. The descendants inherit the property of whatever type it is.
- Under the Mitakshara, in default of the close heir, the brother of immediate survivors inherit, the wife doesn’t inherit. Under the Dayabhaga, when the coparcener dies, his wife will get the property in default of a close heir.
Most of the ancient sources of Hindu law are written in Sanskrit and it is well known that in the present times there is a dearth of Sanskrit scholars. There is hardly any importance left of the ancient sources since the time the modern sources have emerged and been followed.
It can be said that proper codification of Hindu law without room for ambiguity is the need of the hour. It has been opined that the present sources of Hindu law are uninviting, the Legislature could look into sources and customs of other religions and incorporate them into Hindu law if it caters to the need of the society and meets the test of time.
- Perumal V. Ponnuswamy, 1971 AIR 2352, 1971 SCR (1) 49 (Supreme court of India 1970).
- Commissioner Of Wealth Tax, Madras & Ors vs Late R. Sridharan (Supreme court of India 1976).
- Hindu Marriage Act. (1955).