Dayabhaga – the earliest legal attempt at women empowerment

Since the dawn of civilization, particularly after human society became agrarian, dispute over property has been a primary source of concern for the society. Needless to say that the whole Mahabharata war was because the Kauravas would not concede the ownership rights of even five villages to the Pandavas.

The issue of inheritance was addressed on and off by various rishis in their treatises on general social customs. But systematic treatises on this issue were made by two ancient scholars. One is known as the Mitakshara School based on the commentaries of Vignaneswara on Yagnavalkya Smriti. Another one is known as Dayabhaga school which is part of Jimutavahansa’s recovered trilogy known as Dharmaratna.

When it comes to dating of any ancient text, it is interesting to note that western scholars usually have a tendency to assign a much later date than their Indian counterparts. Jimutavahan’s treatise on law of inheritance is no exception as scholars put arguments dating it from 10th century AD to 14 century AD.

Lawyers and students of law need no introduction to both these schools. These systems were followed extensively in legal jurisprudence to decide cases of inheritance till major changes were made to the law by enacting Hindu Succession Act, 1956. Subsequently further reforms were made by the succession Act of 2005.

The most glaring difference between these two schools is that while Mitakshara School recoginses succession by birth, Dayabhaga School recognises succession by death. Till the Hindu Succession Act of 1955, Dayabhaga was applicable in Bengal and Assam while the Mitakshara principles were applicable to the rest of India. Basically it was the British who brought prominence to both these schools of law.

Dayabhaga, in a sense, was one of the earliest legal attempts at women empowerment. It recognized the right of a widow to inherit husband’s ancestral property. The Mitakhara system did not give any right whatsoever to women. Some may question – why only the widow and why not any daughter? Let us remind ourselves that we are talking of a time when the child marriage was the norm. At a very early age the child was earmarked to belong to another family. Sometimes girls were widowed long before the marriage got consummated and widow marriage was an absolute no no. Seen in such a context, Dayabhagha system was revolutionary. I wonder why the British did not make it applicable to the whole of India.

After Hindu Succession Act of 1956 there has been uniformity in most of the areas except a few areas like the joint family system. In spite of all the reforms brought out in the latest succession Act of 2005, these two schools provided the foundation for the law of inheritance for the Hindus. Here let it be noted that according to the Supreme Court ruling Sikhs, Buddhists, Jains, and all different sects like Radhaswamy, Swamynarayana etc. are considered as Hindus for the purpose of Hindu Laws.

The major difference between the two schools of law can be summarised as follows:

Mitakshara	Dayabhaga
Orthodox School	Reformist School
Recognizes the right of a son on ancestral property since birth	Does not recognize the right on ancestral property as long as father / father in law is alive
The basis of inheritance is principle of propenquity i.e., nearness in blood relationship.	The law of succession is based on religious efficacy or religious benefits, therefore a person who confers more religious benefit on deceased has preference
Coparceners has joint ownership on ancestral property and shares of coparceners are not defined till partition.	Recognizes individual ownership in coparcener of share in joint family property and share of each coparcener is predefined.
Coparcenary comes into existence on the birth of a son and it can consist of son, father, father’s father and father’s father’s father.	There cannot be any coparcenary between fathers and son. Coparcenaries come into existence between sons on the death of the father.
Father cannot dispose of ancestral property except  for the legal necessity	Father can dispose of ancestral property

Of course after reading the above there will be scholars who will say, “Look how patriarchal Indian Society India is”. The fact is – these were written in 11th century and tell me which society was not patriarchal in those days. Even western scholars who do Hindu bashing based on Women’s rights forget that it was not untill 1920 that women got voting rights in US.

What is most important to note is that Dayabhaga school attempted to reform many aspects of the orthodox Mitakshara school and gave a foundation for the laws of inheritance while not deviating too much from the prevailing social customs and the complex family and joint family system of India.

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Other notable texts starting with alphabet D are:  Devi Bhagavata / Devichandragupta / Dasakumaracharita (Dandi) / Dhruvamanasa. In case I missed a book please let me know. Please subscribe to my blog to get my posts regularly in your email. Drop in your thoughts in the comment box.

This is the fourth post (alphabet D post) of Blogchatter AtoZ Challenge 2021. My theme this year is ‘The beauty of Sanskrit and Sanskrit texts’, where in I explore selected compositions in Sanskrit and also some unique aspects of Sanskrit language. Join with me in my journey to understand India’s intellectual heritage. All the posts of AtoZ Challenge 2021 can be accessed here.