Hindu
Code Bill (Clause by Clause Discussion)
______________________________________________
ANNEXURE I
Statement
by Dr. B. R.
Ambedkar in Parliament in Explanation Of His
Resignation From The Cabinet
ANNEXURE II
Hindu Code Bill
and its purpose—By Dharmadeo Vidyavachaspati in Hindi
[F1] HINDU CODE—contd.
Mr. Deputy
Speaker: The House will now proceed with the
further consideration of the Bill to amend and codify certain branches of the
Hindu Law, as reported by the Select Committee. Yesterday we disposed of Clause
2 ; the major contentious clause is over. I hope the other clauses will be
passed quickly.
Clause 3.—(Definitions)
The Minister of
Law (Dr. Ambedkar): I beg to move:
In clause 3,—
(i) for the words " unless there is anything
repugnant in the subject or context " substitute " unless the context
otherwise requires ";
(ii) renumber the existing items (i), (ii), (iii) and
(iv) as items (ii), (iii), (iv), (v) and insert the following as item (i),
namely:
' (i)" Aliyasantana law ' means the system of law
applicable to persons who, if this Code had not been passed, would have been
governed by the Madras Aliyasantana Act, 1949 (Madras Act IX of 1949) ; ' ;
(iii) in term (iii), as to renumbered, omit "
except in sections 41 and 49 " ;
(iv) in the Explanation
to item (v), as so renumbered, for " this clause " substitute "
clause (iv) and (v) " ;
(v) renumber the existing items (v), (vi), (vii) and
(viii) as items (viii), (ix), (x) and (xi) and insert, the following as items
(vi) and (vii) namely:
' (vi) " Marumakkattayam law " means the
system of law applicable to persons—
(a) who, if this Code had not been passed, would have
been governed by the Madras Marumakkattayam Act, 1932 (Madras Act XXII of
1933), the Travancore Nair Act, II of 1100, the Travancore Ezhava Act, III of
1100, the Nanjindad Vellala Act, 1101, the Travancore Kshatriya Act, 1108, the
Travancore Krishnavaka-Marumakkathayee Act, 1115, the Cochin Thiyya Act, VIII
of 1107 ; the Cochin Nayar Act, XXIX of 1113, or the Cochin Marumakkathayam
Act, XXXIII of 1113 or
(b) who belong to any community, the members of which
are largely domiciled in the State of Travancore Cochin or Madras, and who, if
this Code had not been passed, would have been governed by any system of
inheritance in which descent is traced through the female line; but does not
include the Aliyasantana law;
(vii) " Nambudri law " means the law
applicable to persons who, if this Code had not been passed, would have been
governed by the Madras Nambudri Act, 1932 (Madras Act XXI of 1933), the Cochin
Nambudri Act (XVII of 1114), or the Travancore Malayala Brahmin Act of 1106
(Regulation III of 1106);
(vi) in item (viii) as so renumbered, for " any
" substitute " a ".
Shri Naziruddin
Ahmad (West Bengal): I think that it would
be better to proceed seriatim, sub-clause by sub-clause, and subject by
subject. Otherwise, the difficulty would be that the debate would be of too
general a nature. In clause 2 the debate was much of a general nature because
we did not consider individual items or groups.
Mr. Deputy
Speaker : I agree, I shall proceed in the order
in which they have been noted in the order Paper.
Dr. Ambedkar: My amendment is so to say in two parts. Item I of my
amendment is merely a verbal change. It has been pointed out to me that the
words that are used in the existing clause " unless there is anything
repugnant in the subject or context " are not in consonance with the
language which we have been using since the passing of the Constitution, the
Constitution uses the phraseology " unless the context otherwise requires
" and in order to bring the language of this Bill in consonance with the
language of the Constitution, I am making that particular amendment, it is
merely a change of words.
With regard to the other amendments, they are necessary because it has now been proposed that the marriage and divorce law should also apply to persons who are governed by the Marmuakkattayam and Aliyasantana law. As the subsequent sections deal with that aspect of the matter, it is necessary to enlarge the definition clause so that necessary definitions which relate to that matter may be brought in and the definition clause be made complete.
Mr. Deputy
Speaker: amendment moved : In clause 3,—
(i) for the words " unless there is anything
repugnant in the subject or context " substitute " unless the context
otherwise requires ";
(ii) renumber the existing items (i), (ii), (iii) and
(iv) as items (ii), (iii), (iv) and (v),and insert the following as item (i),
namely:
(i) " Aliyasantana law ", means the system of law applicable to persons who, if this Code had not been passed, would have been
governed by the Madras Aliyasantana Act, 1949 (Madras
Act IX of 1949); (iii) in item (iii), as so renumbered, omit "except in
sections 44 and 49";
(iv) in the Explanation
to item (v), as so renumbered, for " this clause " substitute "
clauses (iv) and (v) " ;
(v) renumber the existing items (v), (vi), (vii) and
(viii) as items (viii), (ix), (x) and (xi), and insert the following as items
(vi) and (vii), namely:
(vi) " Marumakkattayam law " means the system
of law applicable to persons—
(a) who, if this Code had not been passed, would have
been governed by the Madras Marumakkattayam Act, 1932 (Madras Act, XXII of
1933), the Travancore Nair Act, II of 1100, the Nanjindad Vellala Act, 1101,
the Travancore Kshatriya Act, 1108, the Travancore Krishnavaka-Marumakkathayee
Act, 1115, the Cochin Thiyya Act, VIII of 1107, the Cochin Nayar Act, XXIX of
1113, or the Cochin Marumakkathayam Act, XXXIII of 1113, or
(b) who belong to any community, the members of which
are largely domiciled in the State of Travancore-Cochin or Madras, and who, if
this code had not been passed, would have been governed by any system of
inheritance in which descent is traced through the female line;
but does not include the Aliyasantana law; (vii) '
Nambudri law ' means the law applicable to persons who, if this Code had not
been passed, would have been governed by the Madras Nambudri Act, 1932 (Madras
Act XXI of 1933), the Cochin Nambudri Act (XVII of 1114), or the Travancore
Malayala Brahmin Act of 1106 (Regulation III of 1106);
(vi) in item (viii) as so renumbered, for " any
" substitue " a ".
Shri Naziruddin
Ahmad : My amendment No. 410 comes in by way
of priority according to the subject because this amendment is the real clause.
My amendment seeks to delete ' Aliasantana law '.
Mr. Deputy
Speaker: The Hon. Member may move it.
Shri Naziruddin
Ahmad: I beg to move: In the amendment
proposed by Dr. Ambedkar, in part (ii), omit the proposed part (i) of clause 3.
Before that I have certain verbal and formal amendments
which I think, need not be pressed before the House, that is in the amendment
proposed by the Hon. Minister of Law in item (ii) there is the renumbering
amendment that runs all through the amendments. If we take up the renumberings
at this stage it will create confusion, and we do not know where we would be.
They should be done by the Secretary or the Draftsman and therefore I suggest
that for the time being we should eliminate these renumbering amendments. I
have a lot of amendments to cure these verbal irregularities, but I do not wish
to move them because I want to leave them entirely to the Secretary.
Coming to my amendments, they are for the deletion of
the definition of Aliyasanatana law and I have other amendments to delete the
definitions of Marumakkattayam and Nambudri law. The reason for moving this
amendment is this ; that this is as well as other amendments relate to these
special laws, which I want to delete because this is the policy of the Bill,
namely to make no reservation, no exceptions in any case. In the case of Sikhs
we have decided to make no exception. In the case of others we have made no
provision to exclude them from the operation of the Code. That being the
accepted principle...
Mr. Deputy
Speaker : I understand the Hon. Minister to say
that he now proposes to extend all the provisions of this Act to both these
classes also.
Shri Naziruddin
Ahmad : That means the marriage and divorce
law laid down in the Bill will also apply to those Hindus who are now governed
by Aliyasantana, Marumakkattayam and Nambudri law separately.
Mr. Deputy
Speaker: Therefore, the objection is over.
Shri Naziruddin
Ahmad: The objection is that if general
provisions are to apply to all Hindus so far as marriage and divorce is concerned,
the definition is absolutely unnecessary! It is rather misleading.
Mr. Deputy
Speaker: We have accepted this. We had
included others as in the case of Sikhs. There is no need for separate
definition. The Bill includes it and therefore it is not necessary. Exception
is made for Aliyasantana and Marumakkattayam law. They are excluded from the
operation of marriage and divorce laws as envisaged in the Bill.
Shri Naziruddin
Ahmad : I do not think they should be
excluded at all.
Mr. Deputy
Speaker : That is exactly what the Hon. Law
Minister is trying to do.
Dr. Ambedkar: That is what I am trying to do.
Shri Naziruddin.
Ahmad : By the inclusion of this definition ?
If that is the specific purpose, then, my amendment is needless.
Mr. Deputy
Speaker: Originally, those who were governed
by the Aliyasantana Act and Marumakkattayam law were excluded and they were
allowed to be regulated by those two laws. The Hon. Law Minister now feels that
they must also be brought into the frame work of the Act so as to bring about
uniformity. That is why he is adding this.
Shri Nariruddin
Ahmad : My perplexity arises from the fact
that even apart from this definition, they will ordinarily be included.
Mr. Deputy
Speaker: The Bill specifically excludes them.
Shri Naziruddin
Ahmad : That portion should be deleted. There
is repetition.
Mr. Deputy
Speaker : The hon. Member began under the wrong
impression that originally they were included and the Law Minister wants to
exclude them.
Shri Naziruddin
Ahmad : The exclusion should be by amending
the general clause; not in the definition.
Mr. Deputy
Speaker: That is another matter. As a matter
of substance, hon. Member's amendment has absolutely no force.
Shri Naziruddin
Ahmad: I quite agree.
Mr. Deputy
Speaker : Then, why should he look at formal
affairs and verbal amendments. If it is necessary, let us have this definition
for the purpose of clarification instead of relegating it to some General
Clauses Act.
Shri Naziruddin
Ahmad: Not the General Clauses Act, but the
general definition of Hindus under this Act. It should apply to all Hindus.
This Aliyasantana law governs the Hindus. This is special mention and then
inclusion. The inclusion is already there.
Mr. Deputy
Speaker : The backbone of his objection is
broken. The hon. Member is trying to get at some formal affair. Is it necessary
?
The Minister of
Home Affairs (Shri Rajagopalachari) : I think the hon. Member has not realised the actual position. There
are two ways of excluding certain classes or groups ; one by actually ignoring
them in the whole Code and another by referring to them and providing for them
as exception. If the Hon. Law Minister has chosen now to provide for them by
making exceptions in the body of the Code, it is necessary to deadline them.
Mr. Deputy
Speaker : It is the other way about. He has
already made exceptions in favour of these and he has provided for exclusion
from the Bill.
Shri
Rajagopalachari: That is what I
have said.
Mr. Deputy
Speaker : What he wants to do is to include
them.
Shri
Rajagopalchari : I think the hon. Member who has
moved the amendment is thinking that we have applied the whole Code bodily to
these people and therefore, since you have defined the Hindus, why should you
define these people. The answer is, we do not propose to apply the provisions
in the Code bodily to them but to provide exceptions and therefore it is
necessary to define who they are.
Shri Naziruddin
Ahmad: I fail to appreciate all this
fineness. If the Code is to apply, it should straight forward be applied to
them, instead of leaving any exceptions.
Shri
Rajagopalachari : Suppose we
applied it to them; " they " should be defined here. That is what is
being done.
Shri Naziruddin
Ahmad : It should apply to all ; they are
already included in the definition of Hindus.
Shri
Rajagopalachari : There are
exceptional provisions for these people.
Mr. Deputy
Speaker : Let me understand first ; without
understanding, I cannot put it to the House. As the Bill stands at present,
clause 51 says:
"(1) Nothing contained in this Part shall be deemed to affect any right conferred by the Madras Marumakkattayam Act, 1932 to obtain the dissolution of a sacramental marriage, whether solemnised before or after the commencement of this Code. " Therefore, under the Bill as it has emerged from the Select Committee, Marumakkattayam Law is allowed to apply so far as those persons who are governed by this law are concerned. What the Hon. Law Minister wants to do is not to create exceptions in favour of any particular class, but to bring them all under this Act.
Dr. Ambedkar: Yes.
Mr. Deputy
Speaker : That is what Mr. Naziruddin Ahmad
wants. Originally he was under the impression that an exception is sought to be
made. He was under the impression that originally those governed by the
Marumakkattayam law and Aliyasantana law were governed by this Code and the
Hon. Law Minister wanted to make exceptions and that is what he objects to. Now
that he knows that the original Act made an exception and they are being
brought under it, he withdraws his objection, but he clutches,—let me withdraw
that word— he wants to raise a formal thing, regarding the definition of
Marumakkattayam and Aliyasantana. The substance has gone. Why should he worry
himself over these formal things ?
Shri Naziruddin
Ahmad: Clause 51 should be deleted. That
would be enough.
Mr. Deputy
Speaker: That is a matter of procedure.
Dr. Ambedkar: We will come to that later on.
Mr. Deputy
Speaker: We will come to that later on.
Shri Naziruddin
Ahmad : There are special provisions in this
Bill for all these people. That should be dropped. The definition should also
be dropped.
Mr. Deputy
Speaker: There is no harm in making it clear.
Shri Naziruddin
Ahmad: It would only be showing one's nose
in a round about way.
Mr. Deputy
Speaker : Aliyasantana law is not a general law
going into the customs and other things. This is a Code.
The Minister of
State for Transport and Railways (Shri Santhanam) : After we have finished the whole thing, if any substantial provision
of Aliyasantana Act does not come in, then we can revert to this, if it is
superfluous. It is better to start with a definition because some provisions as
they stand has reference to it.
Mr. Deputy
Speaker : I suppose the hon. Member Mr.
Naziruddin does not see any necessity for this. As a matter of fact, his point
has been put forward in the Hon. Law Ninister's amendment. Therefore, all the
amendments standing in the name of Mr. Naziruddin Ahmad are not moved.
Shri Naziruddin
Ahmad : No, no.
Deputy Speaker: Amendment No. 372 is a formal one, I shall take the
responsibility for re-numbering.
Shri Naziruddin
Ahmad: Amendment 410 is not pressed.
Mr. Deputy
Speaker : Then, there are amendments 374 and
375.
Shri Naziruddin
Ahmad : I press amendment No. 374. But, my
amendment No. 377 comes earlier.
Mr. Deputy
Speaker : The hon. Member may move it. So far
as formal amendments are concerned with regard to brackets, etc., I shall
instruct the office about them.
Shri Naziruddin
Ahmad : I shall not move then any more at
all. That is quite enough. I Move Amendment No. 377.
Pandit Thakur Das
Bhargava (Punjab): Am I to take it that you
have exhausted sub-clause (i) ? I have got an amendment.
Mr. Deputy
Speaker: Let me first finish the first clause.
Pandit Thakur Das
Bhargava: I have no objection if Mr. Naziruddin
Ahmad claims to move all his amendments first.
Shri Naziruddin
Ahmad: It is not a claim; it would be more
convenient.
Mr. Deputy
Speaker: Let me first dispose of sub-clause
(i) of clause 3.
Pandit Thakur Das
Bhargava: I beg to move; In part (i) of clause
3, for the words "among Hindus " substitute the words " among
persons to whom this Code applies. " I do not want to make any speech as
the thing is very apparent.
Mr. Deputy
Speaker : Amendment moved : In part (i) of
clause 3, for the words " among Hindus " substitute the words "
among persons to whom this Code applies. "
Shri Santhanam : Clause 2, sub-clause (3) covers this point fully. 'Hindus
' means all people to whom this Code applies.
Mr. Deputy
Speaker: This House has already adopted the
definition.
Pandit Thakur Das
Bhargava: I know that. But, nothing is lost if
we use these words which are very expressive. Suppose a person reads any other
section ; then, he has to know what the definition is. Unless he keeps the
definition in mind, he would not be able to know to whom this Code applies.
These words express the meaning fully.
Mr. Deputy
Speaker: Even then, he has to revert back to
the meaning of persons to whom this Code applies. We are only using and
expanded definition.
Pandit Thakur Das
Bhargava: ' Persons to whom this Code applies
': he has to take this definition everywhere. This is more particular. I leave
it to the House.
Mr. Deputy
Speaker: I am only trying to know whether it
is a matter of substance on which greater emphasis should be laid or a formal
thing. Anyhow, I take it as moved.
Pandit Thakur Das
Bhargava: I beg to move: In part (i) omit the
words " and uniformity ".
Shri Santhanam: I want to get one point clear. Does the hon. Member
suggest that if there was a custom one thousand years ago in a particular
......
Pandit Thakur Das
Bhargava: I have not yet spoken on my
amendment, and my hon. Friend there is already opposing it.
Mr. Deputy
Speaker : No, the mover only means that
uniformity is a difficult matter for the whole of India. Amendment moved: In
part (i) omit the words " and uniformity ".
Pandit Thakur Das
Bhargava : With your permission I shall move
my other amdendment also: In part (i) of clause 3,—
(a) after the words " group or family "
occurring in line 4, add the following:
" or any rule which is certain not unreasonable and
has been judicially recognised as valid and binding in any local area, tribe,
community, group or family "; and
(b) Omit the first proviso.
If you will allow me, I shall argue out my point in
moving these amendments.
Mr. Deputy
Speaker: Not now, I shall come back to the
hon. Member. Amendment moved: In part (i) of clause 3,—
(a) after the words " group or family "
occurring in line 4, add the following:
" or any rule, which is certain not unreasonable
and has been judicially recognised as valid and binding in any local area,
tribe, community, group or family "; and
(b) Omit the first proviso.
Shri Jhunjhunwala (Bihar) : I want to move my amendment No. 413 in a
slightly modified form, using the word " varna " for the word " caste " occurring there.
Dr. Ambedkar : It rather confuses me if the word " sub-clause
" is used when referring to these parts or items of the clauses. In
matters of this sort, we speak of items. They are referred to as item I and
item 2 and so on. There are no sub-clause to these clauses. They may please be
referred to as entries or items.
Mr. Deputy
Speaker ; There are these clauses and then
these sub-clauses and sol......
Shri Santhanam: No, Sir, Sub-clauses are numbered as usual.
Dr. Ambedkar: Whatever word may be adopted, it is better to avoid
the word " sub-clause ".
Mr. Deputy
Speaker: All right. I shall use the word
" entry " or " part ". Here Mr. Jhunjhunwala wants to
modify his amendment by changing the word " caste " into " varna "—as was suggested by the Law
Minister yesterday.
Shri
Jhunjhunwala: I beg to move: In part (i) after the
word " tribe " insert the word " varna ". I would, also like to move my amendment No. 414 with
a slight modification, omitting the words coming after the words "
principle castes ", I beg to move: After part (i) insert the following new
part:
" (ia) the word''varna
" means according to the context in each case four principle " varnas ". "
Mr. Deputy
Speaker : Amendment moved : After part (i)
insert the following new part:
" (ia) the word "" Varna " means according to the context in each case four
principle " varnas ".
"
Shri R. K.
Chaudhari (Assam): I beg to move:
Omit the Provisions to part (i) of clause 3. Mr. Deputy Speaker : Amendment
moved : Omit the provisions to part (i) of clause 3.
Shri Syamnandan
Sahaya (Bihar): I also want to move the
amendment. We both of us have given notice of the amendment jointly.
Mr. Deputy
Speaker: I do not attach much importance to
the moving of the amendment by all the Members. But if the hon. Member wants to
withdraw any amendment, then I will see that the other hon. Member has his say
or if the hon. Member is absent, then the other hon. Member will be able to
withdraw it.
Captain A. P.
Singh (Vindhya Pradesh): I want to move my
amendment No. 378, dealing with part (viii).
Mr. Deputy
Speaker: We have not come up to that part.
Shri Syamnandan
Sahaya: You were pleased to say that you
would first deal with all amendments belonging to one category or group. I
suggest that only the amendments dealing with the definition of one thing be
taken up now, discussed and disposed of and then we go to another set of
amendments dealing with another point. Otherwise it will lead to difficulties.
Mr. Deputy
Speaker: That is exactly what I am doing. We
are now dealing with amendments to only part (i)—"Custom" and
"usage."
Shri Bhatt (Bombay) : I have tabled an amendment which must have
reached you. It is about custom and usage.
Mr. Deputy
Speaker: Well, what is it ?
Shri Bhatt: It is about part (i).
Mr. Deputy
Speaker: But I have not got a copy. I would
not like the House to be taken by surprise. At least the mover of the Bill
should be given a copy of the amendment sufficiently in advance and also a copy
sent to me. That is the minimum I expect. We should not be taken by surprise.
Shri Bhatt: I thought you would probably have got a copy of it from
the office as I got one just half an hour ago.
Mr. Deputy
Speaker: When was it delivered ?
Shri Bhatt: This morning.
10 A.M.
Mr. Deputy
Speaker: I do realise that some amendments may
have to be allowed either from the Government side or the other side at the
last moment. But I would suggest to hon. Members that at least the Law Minister
must be given previous intimation of such amendments and a copy also sent to
me. I will rigorously adopt this rule so far as new amendments are concerned.
They should be agreed to by all sections of the House.
Shri Bhatt: For part (i) of it I have proposed I beg to move: For
part (i) of Clause 3, substitute the following:
" (i) the expressions ' custom ' and ' usage '
signify any rule which having been in vogue for a long time, has obtained the
force of law among Hindus in any local area, caste, sub-caste, tribe,
community, group or family:
Provided that the rule is certain and not unreasonable;
and Provided further that in the case of a rule applicable only to a family it
has not been discontinued by the family, ".
Mr. Deputy
Speaker: What is the 'difference between this
and that?
Shri Bhatt : That I have taken out of it. A portion of it has been
retained. That is why I have drafted this amendment in this way.
Mr. Deputy
Speaker : Amendment moved : For part (i) of
Clause 3, substitute the following: " (i) the expressions " custom '
and ' usage ' signify any rule which having been in vogue for a long time, has
obtained the force of law among Hindus in any local area, caste, sub-caste,
tribe, community, group or family:
Provided that the rule is certain and not unreasonable;
and
Provided further that in the case of a rule applicable
only to a family it has not been discontinued by the family. ".
Shri Syamnandan
Sahaya: The amendment moved by Shri R. K.
Chaudhari relates to part 2 and not one.
Dr. Ambedkar: It refers to the clause as it stand now.
Pandit Thakur Das
Bhargava : In connection with my amendment
Nos. 444 and 446. I would like to make
some general observations regarding custom. The sole basis for the present Code
is that such customs and laws as are opposed to the principle to be enacted in
the Code will be abrogated for all time. I take it that the central principle
of this codification is that all various customs in all parts of the country
will, as a matter of fact, be so unified by the provisions of the Act that one
law shall be applicable to the whole of India for the communities concerned. I
have accepted that basis as good and I am in favour of the codification,
because our laws will then become certain and they will become applicable to
all Hindus all over India.
Apart from the unification of the customs sought to be
done by the Code, there are many customs and laws, which we want to see,
changed. It is not only an attempt at codification. It is certainly a code in
which we want all our bad customs and laws to be modified and hence in that
respect it is a reform Bill also. I am in favour of the provisions of the Bill because
I think they are a great advance upon the present practices and they imply
reforms of a very great degree among the laws and customs now obtaining among
the Hindus.
But when I find Dr. Ambedkar agreeing to this or that
custom coming into the Bill I feel that the essential principle on which the
Code is based is being sacrificed to opportunism. I know that he is in a great
fix and I have nothing but sympathy for him. Left to himself I am sure he will
not accept these customs. Left to myself I would behave in the same way and
there is no difference so far as this attitude is concerned between him and
myself ......
Mr. Deputy
Speaker : We are now on the definitions only.
Such matters as sapinda, sagotra or
degrees, in regard to which whether custom ought to be allowed to prevail, we
will deal with them, we come to individual cases. Is it the hon. Member's
intention that the definition of Customs should go ?
Pandit Thakur Das
Bhargava: The definition of the word "
custom " will govern the word wherever it appears in the subsequent
clauses. That word will have the meaning which we assign here.
Therefore it is very necessary to understand the significance of the word " custom " and see how it affects our principles. For us to know the full meaning of the word it is necessary that we realise how we are altering the entire provisions of the Code, when we define " customs " in the manner proposed.
Mr. Deputy
Speaker: The hon. Member is sufficiently an
elderly Parliamentarian to know things but I want to understand things for
myself. When individual items such as marriage or divorce come up we shall see
what further changes have to be made in respect of that particular portion. We
might say " Notwithstanding this, this shall not be allowed, etc." We
are now on the definition and let us not enlarge the scope and discuss every
one of the entries and see how such and such custom will work hardship. That
would mean another general discussion.
Pandit Thakur Das
Bhargava: I understood you Sir, even without
the exposition which you have been kind enough to make. I quite see the force
of the point you have made. You are here only defining customs but whatever
definition is given here will apply to all those customs, which are allowed in
respect to certain matters.
Mr. Deputy Speaker: Not necessarily. With regard to the Sikhs or some
others we might say " Notwithstanding, this custom shall not prevail
".
Pandit Thakur Das
Bhargava: What is the meaning of our saying
that customs in regard to the incidents of marriage will prevail ? It means
that a certain kind of rule shall prevail and that rule or principle we are
defining here, whether it should be such as is opposed to public policy but all
the same one which has got the force of law.
Mr. Deputy
Speaker: As to how custom ought to be
recognised, if hon. Members want to impose restrictions it is certainly within
the scope without going' into the details of the various customs prevailing.
Pandit Thakur Das
Bhargava : I am not on details at the moment.
When the occasion arises we shall see whether the custom should be allowed to
prevail in respect to those matters. Here I am making only general observations
and submitting to Dr. Ambedkar ......
Mr. Deputy
Speaker: The general observation that there
shall be no customs and so forth could come at the first and second stage.
Pandit Thakur Das
Bhargava: I am not saying that no custom should
be allowed. I am only saying that he should not be very liberal and allow many
kinds of customs, which will take away from the effect of the Bill. Then it
would mean that there would be no use having this Code if in respect of every
matter you allow a custom to prevail.
Mr. Deputy
Speaker: We are once again going into the
details. It is one thing to say that hereafter no custom at all will prevail,
only the law will prevail. But it is another thing to say that we have to allow
certain customs. In that case when we go into the details we will find out what
ought to be allowed and what customs ought not to be allowed.
Pandit Thakur Das
Bhargava: I am restricting the scope of customs
by this definition. Supposing only those customs as have been judicially
recognised are to be allowed, that would certainly restrict the scope of
custom. Otherwise if we leave custom undefined when a man is faced with
difficulty and produce any amount of evidence ; custom can be proved not only
by instances but by opinions, by reference to texts. Therefore, I want that so
far as custom is concerned its scope may be restricted. It is not that I have
only taken one case and put it for the consideration of Dr. Ambedkar. I have
gone further and just to show the absurdity of how he is allowing so much
liberalisation of customs, I have given certain amendments to show to him and
to impress upon him that he should proceed cautiously. Therefore, my amendment
No. 446 says:
" or any rule which is certain not unreasonable and
has been judicially recognised as valid and binding in any local area, tribe,
community, group or family ".
I can understand that there are some customs, which are
growing, some which have been crystallised. As regards those, which are
growing, we want that they may not grow because that is the only way of having
a statutory rule effective. In regard to customs, which have not been
judicially recognised, my own view is that we should not bring them within the
scope. Either we accept that the society should accept custom as the sole rule
of conduct and there should be no other rule among the Hindu community as was
the case before—in that case also we will reach a stage when custom will become
so stereotyped that we will attain what we want to—or, in the other case when
we want to impose the rule of thumb, when we want to lay down by statute that
such-and-such shall be the rule. Anyhow we will be well advised if we recognise
customs which have been judicially recognised. In the definition given, it
would appear there is no mention of any judicial recognition of any customs. On
the contrary, the words in the first proviso are:
" that the rule is certain and not unreasonable or
opposed to public policy ".
I am opposed to the wording, " opposed to public
policy ". I do not know what the " public policy " is. So far as
monogamy is concerned, I understand the public policy to be that the Government
seems to be of the view the monogamy is a good thing for Hindus but then for
rest of the community it does not apply ; as regards my Mussalman friends, many
of whom I know do not like polygamy still the government is undecided and has
taken shelter under the specious plea that they have not been consulted. If a
thing is opposed to public policy, it is so for all. I know of a custom in the
Punjab where kharva marriages are
allowed. They cannot be called absolutely bigamous, but at the same time they
are a different edition of bigamy because after the man dies the devar of the woman, that is the younger
brother of the deceased husband, though his spouse may be living, is allowed to
marry that widow; the property remains with the family, and the lady also
remains with the family. So, opposed to public policy might mean anything. It
is so flexible a term that it shall vary with the length of the foot of the Law
Minister, I am therefore opposed to these words. I would rather like that any
custom which has been judicially recognised, which has stood the test of time
should be recognised.
Mr. Deputy
Speaker: Hereafter there will not be any
custom.
Pandit Thakur Das
Bhargava : My submission is that in regard to
this matter in which the Hindu Code seeks to provide, there should be no custom
; otherwise the whole purpose of the Code will disappear. You are perfectly
right. Sir, when you say that in future there will be no custom on matters on
which the Hindu Code provides, but in regard to other matters, so far as the
Hindu Code does not relate to those matters at all......
Mr. Deputy
Speaker: What will happen if there is a
particular custom which is undisputed ? It need not come to court. Only a
disputed custom comes to court and is recognised or not. Any custom which is
not obnoxious to public policy is recognised by the community. Merely on
account of not having been recognised by a court does it lose its stand ?
Pandit Thakur Das
Bhargava: My submission is that if there is
provision for it in the Code then it does not grow. If there is no provision
then it will remain and grow, and even if you took away these words "
opposed to public policy " still it will remain because it is a rule of
law. If you put the words " opposed to public policy " then, in spite
of the fact that a custom is a good one and observed by great numbers in the
community, it will not grow if somebody is able to say that it is opposed to
public policy.
Mr. Deputy
Speaker: The Hon. Member is a good lawyer. My
own interpretation is different. Wherever this Code specifically provides for a
particular thing, unless an exception is made, to that extent a custom is
abrogated whether it be opposed to public policy or not. What is the difficulty
under which the hon. Member is labouring ? There are certain customs, which
have to be recognised, certain customs which are obnoxious and so opposed to
public policy. Public policy is only a matter which can be judged by the foot
of the judge. In regard to those matters we can say, why leave them to the
court to decide; those customs are absolutely obnoxious. But with regard to
other customs why say that they ought to be recognised by a court ? I think it
is impossible to legislate for all the things.
Dr. Ambedkar: Perhaps you will allow me to intervene for a minute or
two to clarify the point.
Pandit Thakur Das
Bhargava: I am. Sir, of the same view as was
expressed by you, but I am expressing it in a different way. I do not want to
tamper with the customs which are growing which are good customs, but my fear
is that any court may take upon itself to say that it is opposed to public
policy. All the customs are not treated here because we have not the time and
energy to go into all the customs throughout the country. Because we cannot say
what customs will be saved, we should say that a custom to be recognised shall
have to be judicially recognised as not opposed to public policy.
Dr. Ambedkar : The question which has been raised by my friend
Pandit Bhargava is no doubt very important and so far as I know there is not the
slightest difference between the view that I take and the view that he takes.
The only thing is that he has applied his mind, if I may say so, to a wrong
clause and that is why he has been rather confused as to what exactly is the
position. Those Members of the House who are interested in the subject of
custom versus the Code had better
begin to apply their mind not to clause 3 but to clause 4 which is the main
clause which deals with this matter of authority of custom as against the
authority of the code and the law. And you will find, Sir, a very clear
statement therein that unless a custom has been expressly saved that custom
will not have any operation as against this law. Therefore, the question
whether any particular custom has been expressly saved or not has to be gone
into when we come to discuss each of the clauses of this particular Bill
whereon Members may raise the question whether the particular clause should
stand in the absolute way in which it has been drafted or whether it should be
made subject to any particular custom. If any particular clause in this Bill
does not say " Save as otherwise provided by custom " or "
unless there is a custom to the contrary " there is no custom which this
Bill proposes to recognise. Therefore, on that point there ought to be no
doubt. There is not the slightest intention to allow custom to override in a
general way the provisions of this Code.
My. hon. Friend has, I know, a particular question or an
occasion in mind when he feels that I have been going rather soft on this
particular subject, but I can tell him that it is only in very very rare cases
that I propose to yield on this subject, subject to the fact that anyone who
presses upon me that the custom should override this particular Code in any
particular way will carry upon him the burden of showing that that custom is
more progressive than the provisions of this particular Bill.
Now, supposing that we do introduce a qualifying statement when we come to deal with different subjects, i.e. we say that that clause shall be subject to any existing custom or something like that, even then the question remains : What is the standard to which that particular custom must conform before it can have that over-riding effect ? It is that question which is dealt with in the definition clause, so that whenever any custom is saved it will nonetheless be open to find out whether the custom which is allowed by the particular clause to prevail upon a provision of this Bill conforms to the definition which is really a definition laying down the standard to which a custom must reach before it can be accepted by the court. That is the position.
So far as (ii) of clause 3 is concerned, there is
nothing in this clause which is not bodily taken from the judicial
pronouncements of the different High Courts in our country which have had to
consider what is the custom to which they will give their sanction, and I think
the ingredients of custom which the courts have laid down have been bodily and
literally embodied in (ii) of clause 3. So, I do not think there is any ground
for quarrelling with the definition, because the definition is necessary. Even
where we allow custom to prevail, we do not allow any kind of custom to prevail
but only custom which conforms to the standards which have been laid down by
the High Courts and hon. Members will see that the standards laid down in (ii)
are the standards which have been sanctified and laid down by the various
courts in our country.
Shri Naziruddin
Ahmad: Even in foreign courts this is so.
Dr. Ambedkar: Everywhere this is the same. I have looked up even
Stephen's Digest of English law and I find that the wording is almost the same
as we have got here.
Pandit Thakur Das
Bhargava : I am very much obliged to my Hon.
Friend the Law Minister for his having kindly explained.
Shri J. R.
Kapoor: (Uttar Pradesh) : Has the hon. Member
not finished ?
Mr. Deputy
Speaker: No. He will continue. He is on his
legs. Incidentally not only Members of Parliament but also outsiders are
watching the progress of this Bill and there is some misunderstanding about my
position. Once I sit here I have absolutely no colour, no caste, no creed. That
is my honest position. To the best of my conscience I have tried to discharge
my duties impartially. If any hon. Member feels rightly or wrongly that I am
not doing it properly, I always welcome his coming and telling me privately
that I must do this and that.
I find that even hon. Members of this House are under
the impression that when an hon. Member is on his legs I can ask him to sit
down. I have been appealing to hon. Members that with respect to important
matters, certainly sufficient latitude and time is necessary and must be
allowed but if they repeat matters which have been discussed at various stages
that is not right. Barring that, I am not in a position to impose any time
restriction. If the Hon. Minister of Law can tell me that I can impose any time
restriction on speeches under the law, it will be only too glad to avail of it.
Dr. Ambedkar : It cannot be done. But we have agreed amongst ourselves
to impose a self-abnegation ordinance.
Mr. Deputy
Speaker : I am very glad of that, but the
burden should not be cast on the Chair. In a Finance Bill, I can apply the
guillotine. This has been newly introduced. Hitherto the guillotine was applied
to only Budget Grants, but recently it has been introduced so far as Finance
Bills are concerned. I can fix a time limit and all amendments will be lost
unless they are moved and accepted or rejected before that time limit. But with
respect to other Bills, I have no right to fix a time limit even with respect
to the Bill as a whole. With this restriction, I feel very much embarrassed if
any hon. Member thinks that I am allowing too much time. That is my position
and the position of anybody who may be in the Chair.
Lastly, if any hon. Member feels that there has been sufficient discussion on a particular clause, he can kindly tell me. There of course, I have my discretion. If I too feel that the matter has been elaborately discussed or at any rate sufficiently discussed, I will agree to the closure motion. To that extent, there is discretion in me. Hon. Members who make suggestions will kindly bear all these things in mind. I am making this statement because an impression is created out-side that notwithstanding the suggestions of hon. Members I am standing in the way and holding the pendulum back.
In this connection, may I also inform the House that I
have received a letter from the Managing Editor of the Indian News Chronicle ? Yesterday, as the House will recall Shri
Amolak Chand drew my attention to a cartoon appearing in this paper which
described some Members as holding the minute hand and hour hand and withholding
the progress of the clock, and the Deputy Speaker as catching hold of the
pendulum firmly so that the clock cannot move this side or that side. The hon.
Members are shown as looking up and not looking down and seeing as to who is
the man that is really holding the clock back. That is the impression that was
created by that cartoon. Since I made reference to this matter yesterday and it
is practically a privilege of the House and I am only its spokesman, I would
like to read this letter. It is written by Shri Deshbandhu Gupta, Managing Editor
and runs thus:
" My dear Shri Ananthasayanam Ayyangar. I am
informed that you took exception to the cartoon which appeared in the Indian
News Chronicle yesterday morning under the caption " putting the Clock
Back ". You are reported to have expressed the view that the cartoon was
calculated to cast aspersions on the Chair. I am very sorry that the cartoon
has given cause for offence to you personally or in the capacity of the Deputy
Speaker. The cartoonist assures me that it was remotest from his intention to
show any disrespect to the Chair or to the House and joins me in assuring you
of the desire of the Indian News Chronicle to uphold the dignity of both.
The theme of the cartoon as you will kindly see is to
illustrate the current situation in Parliament in which in spite of the
Chairman's desire to regulate the debate so as to conform as nearly as possible
to time schedule, some members participating in the debates have endeavoured to
prolong the debate and thereby hold the progress of the Bill. I am assured by
the cartoonist that in introducing the Deputy Speaker in the cartoon in this
role he had no other intention. While regretting that anything in the cartoon
should have given cause to you for offence. I hope you will be good enough to
accept this explanation and our sincere assurance that there was no intention
whatsoever of showing disrespect to the Chair and the House. "
I think this is sufficient.
Dr. Deshmukh : From the Chair, he has shifted to Members. He is
accusing Members now. It is worse.
Shri Radhelal
Vyas : (Madhya Bharat) : I think the
matter should be referred to a Committee of Privileges.
Shri Bhatt: It should be made clear that it was not intended to
cast aspersion on any Member either.
Dr. Deshmukh: Shri Deshbandhu Gupta should be made to apologise to
the House.
Mr. Deputy
Speaker: Evidently he feels that the speed
which he expects of the progress of the Bill has not been made in this case. I
shall later look into the matter as to whether any aspersion or insinuation has
been cast on any hon. Members of this House.
Pandit Thakur Das
Bhargava: So far as your observations are
concerned, with your permission I would like to say a word. The Members of this
House realise that the Chair is sacred. Here sat Vithalbhai Patel—whose
portrait we see before us—who sanctified the Chair. After him was it adorned by
men of great eminence and prominence. We all know that the Chair has been
holding the scales even. It is idle for the outside world or any members here
to think or feel that the Chair is not impartial or dealing fairly with any
question.
But at the same time when passions are frayed, when
persons take sides, they are apt to see from an unbalanced standpoint the
conduct of the Chair or of the Members of this House. Now great exception was
taken by some Members, and they even asked you to stop a Member during the
course of his speech. I can fully understand the view-point of every Member who
wants to make a long speech. Even Dr. Ambedkar made certain statements to which
certain Members took exception, though I was not one of them. Every Member has
a right to criticise. So far as we are concerned our skins are too thick now to
get offended by such criticism. So far as the conduct of the Chair in this
House is concerned, no member has for a moment even thought that it is
conducting the business in a partial manner.
The newspapers have a right to criticise anybody and everybody. I personally would not mind if any pressman criticises me. Let them criticise—they have their own point of view. Let us not be so thin-skinned,
So far as aspersions on the Chair are concerned, by any
person either inside or outside the House, I would take strong exception and if
you feel that the apology offered is not satisfactory, you should take action
against the person concerned.
Mr. Deputy
Speaker: So far as I am concerned, I am
satisfied with what he has written. It is, therefore, unnecessary to pursue the
matter. If, however, any hon. Member feels that this letter casts any aspersion
on him, we shall look into it. At present I do not think any aspersion is cast
on any hon. Member or on the House.
Shri Santhanam : Is it suggested that only Government is liable to
criticism and not the Members ?
Dr. Deshmukh : While Mr. Gupta wrote the letter with the intention of
clarifying his position so far as the cartoon was concerned, he has
unnecessarily gone out of his way to criticise a section of the Members by
alleging that they were obstructing this measure.
Mr. Deputy
Speaker: This letter consists of two parts. So
far as the Chair is concerned and the privilege of the House is concerned, the
matter may be left to me. I am satisfied with what he has written. If, however,
any hon. Member feels that it casts any aspersion on him, he may meet me in my
chamber and we shall discuss the matter.
Pandit Thakur Das
Bhargava: What objection could be taken to that
? Mr. Deshbandhu himself took four hours on the Press Bill ; our friend Mr.
Naziruddin Ahmad took seven hours on this Bill.
Dr. Deshmukh: It is a case of the pot calling the kettle black. In
regard to what you said about yourself and the conduct of business in the
House. I want to say a word with your permission and that is this. Whereas I
sincerely welcome all your interruptions and the help you give for the conduct
of the business of the House, I would like to point out with all due respect,
that if the debate is allowed to go on, probably we might spend lesser time. I
have the utmost respect for the Chair and it intervenes only with the idea of
helping the proceedings. But if it could be minimised and help given only when
it is necessary, we will probably be able to advance better.
Shri Bharati (Madras): It is a direction to the Chair which is uncalled
for.
Dr. Deshmukh: The Chair has invited our opinion.
Shri Bharati: Not for giving directions to the Chair.
Pandit Thakur Das
Bhargava: As a Member of this House I wish
that this rule of free speech is stuck to. I do not want to put any obstacles in
the progress of this Bill. All the same I feel very much offended if I feel an
inner urge to speak more and more and yet the Chair pulls me up and does not
allow me to speak fully. All Members are expected to put a self-restraint on
themselves. Now, I come to the subject.
I am very much indebted to Dr. Ambedkar for having very
kindly explained this point of law. I quite see that custom has been defined in
many judicial pronouncements. But that was not my point. I wanted to suggest
that one of the accepted canons for the validity of custom should be that it
should be judicially recognised. I suggest this fact that customs have been
judicially recognised may not be given a goby when custom is opposed to public
policy. If a custom has been judicially recognised, it means that it has passed
through the seam of courts and has received recognition at the hands of the
judiciary.
Dr. Ambedkar: If I may intervene for a moment, that question will
again arise, or may arise, or may be raised, when we are dealing with each
particular clause. My hon. Friend suggested " any custom which is
judicially recognised " ! It is perfectly open to him to say so. But as
you very rightly observed, if we are to confine our recognition to a judicially
recognised custom, it will create many difficulties, because there are good
customs which satisfy all the ingredients of the definition, yet have not come
to the court for judicial recognition. I am only anticipating the difficulties.
Shri Santhanam: The word ' judicially recognised ' may mean,
recognition by a district court, or a High Court. We cannot say judicially
recognised means recognised by the Supreme Court.
Pandit Thakur Das
Bhargava : It must be judicially recognised and
further it must be certain. It must be not unreasonable, it must be continuous
and it must have the force of law. I only want custom which has been judicially
recognised should not be given a go-by in the name of public policy. Therefore
all these ingredients of a valid custom which are defined by the judicial
courts may be accepted.
Mr. Deputy
Speaker: The proviso requires that " the
rule is certain ".
Pandit Thakur Das
Bhargava : It must be certain, not unreasonable
and have the force of law. But the words " and uniformity " and
" or opposed to public policy " may not be there. This is the
difference I want to see carried out.
Mr. Deputy
Speaker : Where a single custom applies to
all classes of human beings, then it is only by nature ......
Pandit Thakur Das
Bhargava : I beg to be excused. When it is said
that a custom should apply to all human beings it must be almost a universal
rule or law. It applies to a tribe, community, group or family, as has been
defined here. If you say " uniformity " this would mean that the custom
that applies to any family or caste or community or tribe will all go away.
When the word " continuously " is there and when the word " law
" is there I do not understand the necessity for the word "
uniformity ".
Mr. Deputy
Speaker : I understand " uniformity "
to mean without variation.
Dr. Ambedkar : That is the point. I was almost going to say that.
Pandit Thakur Das
Bhargava: There are different customs between
different families. How can they be uniform ?
Mr. Deputy
Speaker : The hon. Member has not appreciated
the point. We shall assume that there is a custom and it has been continuous,
but it has been followed with variations. Suppose somebody is collecting Rs. 10
in a certain period and it was Rs. 15 in the next period and Rs. 20 in a third
period, is it suggested that the application should be not only with respect to
custom but to laws and grants also ? Suppose it is held by judicial decisions
that this was not uniform. Therefore, you cannot presume. Similarly, uniformity
means not uniformity with respect to the caste or family etc. but in the family
itself it must have been not only continuous but uniform also, that is without
variation.
Dr. Ambedkar: That is what it means—without variation.
Pandit Thakur Das
Bhargava: As if the changed custom will not be
recognized by law. If there is a custom which has gone out of use ......
Mr. Deputy
Speaker: Wherever there is a change, that
change must have been so continuous, so long and so certain ...
Pandit Thakur Das
Bhargava : The word " continuous " is
there and I do not object to it. I object to the word " uniformity ".
Mr. Deputy
Speaker: Has Mr. Naziruddin Ahmad got any
substantial amendment ? I do not think so.
Shri Naziruddin
Ahmad: I want to speak on ' custom '.
Mr. Deputy
Speaker; First I will deal with those who
have got amendments. Does Mr. Jhunjhunwala want to speak on his amendment '? I
am not inviting him to do so!
Shri
Jhunjhunwala: Yes, Sir, I want to speak on it. In
my amendment I want to add the word " varna
" after " tribe ".
Mr. Deputy
Speaker : He wants caste custom also to be
recognised there. He wants to introduce among the various categories "
caste " also, after the word " tribe ". He has already tabled an
amendment to that effect. Now he wants to change the nomenclature of the word
from " caste " to " varna
".
Shri Jhunjhunwala
: I want that the word " varna " should occur after the word
" tribe " in clause 3(i). The object of my putting in this amendment
is that while customs and usages will be recognised according to the area,
tribe, community, group or family, the reasons for recognising such usages and
customs have not been explained by the Honourable Doctor. But if the principle
is accepted that certain customs and usages will be recognised, if as he has
said these are proved to be progressive, in that case the customs which are
prevalent in different varnas
according to Varnashrama Dharma
should be recognised if the conditions laid down by the Hon. Doctor are
satisfied.
This Varnashrama
Dharma is of no recent origin. People say that it is only in the puranic
time that these varnas, castes and
all these things have come into existence. But that is not a fact. These things
were in existence long before, say 3,000 years back. They have got a great deal
to do with our life and social structure as well as our economic structure. All
the four varnas have got different
usages and different customs, and they have meaning behind them. Every usage
and custom has got meaning behind it, and duties are allotted to different varnas according to their ability. The
other day when a question was put to him whether he has got the sacred thread,
the Hon. Mr. Gadgil said, " Yes, I had a sacred thread ", then he
took off his coat and said, " See, I have taken it away ". Mr. Deputy
Speaker: He did not take off his coat. Shri Jhunjhunwala: I stand corrected. He
did not take off his whole coat and the reason which he gave, to which I attach
importance, was that he is not capable of following the Dharma of a Brahmin for which the sacred thread is worn, and he
said, " Therefore, as an honest man I thought it my duty to throw it away
". Sir, this shows that even the hon. Mr. Gadgil recognizes that there is
something very great and sanctifying in the usage and of putting on the sacred
thread before a Brahmin is married. In the same way there are similar customs
in other varnas also. Therefore, it
is very necessary that all the customs which are prevalent in different vamas should be recognised if they
satisfy the conditions laid down by the Hon. the Law Minister. I have therefore
put in this amendment only with this object that if any such clauses come
subsequently regarding marriage, divorce or any other thing, we may be in a
position to show that these customs, though they may not be prevalent in any
tribe or community or group of family, are prevalent in differently varnas and these are very essential.
These are the reasons for which I want to add the word " varnas " there.
Shri B. K. P.
Sinha (Bihar): May I know one thing from
the hon. Member ? Is it his contention that while abrogating the smritis and shrutis we should not abrogate custom and usage ?
Mr. Deputy
Speaker: Shrutis and smritis
have not been abrogated; they have been incorporated.
Shri Jhunjhunwala ; He will find that the Law Minister recognizes them.
Shri Syanmandan
Sahaya: My amendment, as you will see
suggests the omission of the two provisions in the sub-clause or item dealing
with the expression 'custom and usage'. The purpose of suggesting this
amendment is exactly what has been mentioned by the Hon. Law Minister. The Hon.
Law minister has said that the definition given here is more or less based on
judicial findings on the point and judicial decisions have all been that the
words ' customs and usage ' should signify what he has laid down in the
definition. The words ' custom and usage ' must have been and have been the
subject of various judicial findings and I
therefore thought that if that is the legal or judicial meaning which has been
given to the words ' custom and usage ', it would not be desirable to encumber
or burden this definition by making the provisions here, because that is
exactly what they will mean. The reason for my making the submission is
Mr. Deputy
Speaker: I can understand. When there is no
definition at all he can rely upon judicial decisions.
Dr. Ambedkar: The court will also be open ......
Mr. Deputy
Speaker: Custom is continuous and uniform.
Shri Syamnandan
Sahaya: When a certain word is used in a
legislation, which has been the subject of judicial interpretation, then that
word whenever submitted to judicial interpretation will be liable to the
interpretation that judicial decisions have given on it. On the other hand my
feeling is that this law makes such revolutionary changes that the normal
course of the manner in which the Hindu law has been interpreted will also
undergo unthought of changes and my submission is that with the existence, of
the provisos, the judiciary may feel that the interpretations and rulings have
to be considered afresh and the words ' custom and usage ' may now have to be
dealt with not only, for instance, on the ground that it has been continuous,
that the rule is certain and not unreasonable or been opposed to public policy.
You will see the difficulty. Sir, in this as you know that ' public policy ' is
a matter which is an ever-changing process.
Mr. Deputy
Speaker: Nobody denies that. What is the
public policy under particular circumstances is the matter that will be
decided. …
Shri Syamnandan
Sahaya: Not only under particular
circumstances but in the changing conditions of Government. One Government may
have one public policy and another Government tomorrow may have another public
policy.
Dr. Ambedkar : The word ' public policy ' also occurs in the Law of
Contracts.
Mr. Deputy
Speaker: Under the Transfer of Property Act,
no transfer is valid which is opposed to ' public policy '.
Shri Syamnandan
Sahaya: I also support the amendment of
Pandit Thakur Das Bhargava with regard to the word ' uniform '. The words '
custom and usage ' in my opinion are liable to lead to difficulties and also
further litigation. It is not necessary that a certain rule or usage or custom
should have been uniformly followed in a particular family and I shall refer to
a Privy Council Case, if the Hon. Law Minister will have no objection. I refer
to a very important case which was taken to the Privy Council by the successors
of the Moghul Emperors. Now the case was as to who was to be the recipient of
the pension paid by the Government of India to the successors of the Moghul
Emperors and several people were disputing rights. One said, " I am the
successor of the Moghul Emperor " and another said, " I am the
successor ". The matter went up to the Privy Council and the point arose
as to which of them was circumcised, because one of them was not ......
Dr. Ambedkar: I know that case.
Shri Syamnandan
Sahaya : And the Privy Council held in this
particular case that although normally the rule and custom of circumcision obtained
in the Muslim families, in the case of the Moghul Emperors, when there was a
child from the Hindu wife, circumcision was not necessary and they were
entitled to the pension or something like that. Therefore the Hon. Law Minister
will appreciate that this uniformity with regard to customs even in a
particular family has not been a necessary factor and I think that he will do
well to adopt this amendment of Pandit Thakur Das Bhargava, suggesting that the
word ' uniformily ' be dropped.
Dr. Ambedkar : This has no judicial value. The distinction there was
made between custom and practice. Practice has no judicial value.
Shri Naziniddin
Ahmad: I want to speak with regard to the
definition of the word ' custom ' to begin with and I must say that I am in
entire agreement with the official draftsman.
Shri Syamnandan
Sahaya: For once.
Shri Naziruddin
Ahmad : I am in general agreement with the
Hon. Minister except on occasions when he cannot be made 'reasonable. With
regard to this definition of the word ' custom ' it is not merely the Indian
law but it is also the law throughout the world. I have a copy of Holland's
Jurisprudence which also lays down that a custom in order to be followed must
be reasonable, must be continuous, must not be broken and it must be of ancient
standing. This is all that is laid down there. The question of uniformity is
regarded in Jurisprudence as absolutely essential. If once a custom is broken,
it ceases to bear the character of custom at all. This has always been regarded
so. So the mere fact that a custom is broken is enough to break the custom.
Therefore, I think the definition as it stands should be supported. So far as
judicial decision is concerned, the judicial decisions in all cases must have
been or are supposed to have been given in view of these considerations but
these are considerations which are essential, which are to be found in books of
Jurisprudence and therefore, it is far better to rely upon these essential
elements rather than rely upon judicial definitions because judicial
definitions might be coloured with regard to the difficulties of a particular
case and it is far better to rely upon well-known expressions rather than rely
upon judicial decisions. Therefore, I think that the definition in the Bill
should remain.
Shri J. R. Kapoor
: I have not been able to appreciate
the necessity of the two amendments
that have been moved by my hon. Friend, Pandit Thakur Das Bhargava,
particularly in view of his own view. His view I understand, is that the
definition of ' custom ' should be a restricted one and that various sorts of
customs in various parts of the country in different forms, in different
methods should not be allowed to prevail. That being his view, with which I am
in entire agreement, I think that if the amendments suggested by Pandit Thakur
Das Bhargava are accepted, the scope, the denotation of the word ' custom '
would be considerably extended and expanded which should not be. The one useful
thing about this Bill is that it is going to unify and consolidate the Hindu
society in some measure and therefore the less the variations in manners and
customs and in the rules applicable to Hindu society, the better it is. The
essential basis of this Code is uniformity which it will bring about and we
should not get away from that mooring and in the consideration of every clause
in this Bill, we should never lose sight of this thing.
11-00 A.M.
Once we lose sight of that, we shall be virtually giving
away the basis of this new enactment. What does Pandit Thakur Das Bhargava
suggest ? Firstly, he suggests that the word ' uniformly' should be done away
with. That would mean that a custom even if it has not been uniformly observed
should be a custom under this definition. Obviously, that extends the scope of
the definition of custom. Secondly, he suggests that the words ' opposed to
public policy ' should be deleted. That, again, means that a custom even though
it may be opposed to public policy, according to the prevalent notions of
public policy at any particular time, should have the sanctity of a custom as
defined here. That, again, would be extending the scope of custom and not
restricting it. I submit these suggestions should not be accepted. To me, it
appears that the words ' opposed to public policy ' are very necessary and
essential. Because, our society, or any society is an ever-growing society and
notions about morality, propriety and advisability of a thing change from time
to time. We should not put a stop to that desirable change. A custom which has
even been judicially recognised at any particular time, may, 10 or 20 years
thereafter appear to the society to be not a proper or desirable custom. At
that time, it should be open to society and even to the law courts to declare
that this custom, though it has had recognition in judicial pronouncements,
according to the changed conditions of society and the changed economic and
social theories which have been adopted by society, should not be recognised as
a valid custom. I therefore submit that this part, as it stands, should be
accepted.
I submit the amendment suggested by my hon. Friend Mr. Jhunjhunwala may be accepted because that appears to be a harmless thing. I beg to suggest, Sir, at this stage, if it may not be considered a late stage, to the Hon. Law Minister that the words ' or family ' in the substantive clause may be deleted. Because, to me, it appears ......
Mr. Deputy
Speaker: Where is the amendment ?
Shri J. R.
Kapoor: ......that a custom which has been in
force only in a particular family should not be given the sanctity of a valid
and recognised custom.
Dr. Deshmukh: It has already been given by the Hindu Law.
Shri J. R. Kapoor: We have in the sub-clause the words:
" signifies a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. "
Mr. Deputy
Speaker : The House is aware of that
expression. The hon. Member has tabled a number of amendments, he never thought
at any particular stage that these words should be dropped. I do not want to
allow any time to be spent on this matter.
Shri J. R.
Kapoor: I am not moving any amendment. I am
opposing this particular part of the clause. I do not think I will have any
further opportunity to suggest this. As for my not moving an amendment, I may
be permitted to confess that having been very much disappointed in finding that
none of my amendments are acceptable to the Hon. Law Minister, I thought,
rather than moving an amendment formally, I may informally suggest the thing to
him so that he may himself move an amendment to that effect. In that case, it
would be more easily acceptable to the House. Anyway, I have nothing further to
submit on this point.
Shri Shiv Charan
Lal (Uttar Pradesh) : I think all the
amendments should be negatived and the clause as it is should be accepted.
Pandit Thakur Das Bhargava, being a lawyer—I am surprised to see—says that the
words ' opposed to public policy ' should be deleted. That is a very necessary
thing. As society advances, the opinion of society carries more weight.
Anything that is against that opinion should not be acceptable even though it
may be an old custom. Pandit Thakur Das Bhargava also wants that the word '
uniformly ' should be deleted. By the word ' uniformly ' he seems to understand
uniformly for all the people. It is not so. It may be the custom of one family.
By ' uniformly,' it is meant that it is followed continuously or uniformly and
not changed. Therefore, the word ' uniformly ' is also necessary.
He says that only those customs for which there are
judicial pronouncements should be accepted. This is also wrong. There are
certain judicial pronouncements which are now not good law because public
opinion has changed. The people do not want that custom to continue. There are
certain customs which are very well-recognised, but which have never gone to
the courts and on which there are no judicial pronouncements. Therefore, I
submit, all the amendments of Pandit Thakur Das Bhargava do not stand anywhere.
In the amendment of Mr. Jhunjhunwala, he wants to add
the word varna. There are no customs
connected with any varna. All customs
are connected with caste, families, certain areas. I do riot know of any custom
or any decision of any court where a custom has been recognised as a custom of
a varna. That has never come before
any court. As to the amendment of Mr. Syamnandan Sahaya, he wants to delete the
two provisos. These provisos are the life and soul of the whole definition.
Therefore, they cannot be deleted. Therefore, Sir, I am in support of clause
(i) as it is.
Shri B. K. P.
Sinha : I think there is no force in the
amendments moved to this clause. This clause, as put in by the Hon. Law
Minister is simple and embodies the law as it is. The critics have objected to
the words " uniformity " and " public policy ". But, it has
been laid down by so many decisions and judgements of the various High Courts
that a custom to be valid must be uniformly practised. Mr. Syamnandan Sahaya
referred to some Privy Council Case in support. This contention that uniformity
was not an essential of valid custom. I could not catch him; therefore, I speak
subject to correction. There is a distinction between social and religious
customs and customs that prevail in the agriculture and trade field. So far as
society and religion are concerned, custom and usage are rather
inter-changeable terms and there is very little distinction between the two.
But, in the case of trade and agriculture, a distinction has been made between
custom and usage. Custom is noted for its antiquity; it must come down from
time immemorial. Usage is something which is in the process of growth ; it is
something new. The Privy Council case of which I know, makes a distinction only
so far as trade and agriculture are concerned. But, that is not germane or very
relevant to this question, which is a social and semi-religious question. I
have found in so many decisions uniformity is prescribed as a test of the
validity of a custom. As regards public policy, I do not know why people have
fears on this ground because I find that it has been laid down by the Privy
Council, by the Patna, Calcutta and several other High Courts that a custom
which is opposed to public policy shall not be valid. In this respect also, I
find that the Hon. Law Minister has, in his clause, embodied the law as it is.
Moreover, if we go on making an exception in favour of all sorts of customs,
what would be the basis and justification for this codification. Codification
is mainly done to introduce uniformity and certainty. If we make exceptions in
favour of customs prevailing in families, in different territories, etc., there
would be no uniform law for the whole country, and the whole object of
codification would be defeated. The second object of codification is that there
will be something handy to which everybody can refer, with certainty. If we
make exceptions in favour of customs, etc., this certainity would have gone.
Therefore from any point of view, I see no reason why this clause should not be
passed as it is, and why any amendment should be accepted.
Mr. Deputy
Speaker : I will now call upon the Hon. Law
Minister.
Babu Ranmarayan
Singh (Bihar): Sir, I have also to say
something.
Mr. Deputy
Speaker: But has not enough been said already
?
[F2]Shri Bhatt: (English translation of the Hindi Speech). I have got
an amendment.
Mr. Deputy
Speaker: Which is your amendment ? I have
disallowed it.
Shri Bhatt: You have allowed it.
Mr. Deputy
Speaker: But there is no particular charm
about it. It is only a matter of recasting the word slightly.
Shri Bhatt: That I am to explain as to why I was putting it. I am
not moving it simply for recasting of the words.
Babu Ramnarayan
Singh: I kept standing for long.
Mr. Deputy
Speaker: What should I do ?
Shri V. J. Gupta (Madras) : Sir, I do not want to make a speech, but I
want to get a doubt cleared.
Babu Ramnarayan
Singh: Your eye should have caught me.
Mr. Deputy
Speaker: It does not mean that just because a
hon. Member stands a number of times he catches my eye. I must have some
discretion in regulating the debate, and I might call upon certain Members and
not certain others. But if there is yet time, we shall see.
Dr. Ambedkar : There is only one point to be explained and ......
Shri Bhatt: You have given me time.
Mr. Deputy
Speaker : All right. I will call the Law
Minister later. But after all it is a very formal and verbal matter that is
dealt with in this amendment.
Babu Ramnarayan
Singh: No, Sir, it is important too.
Shri Bhatt : The amendment moved by me is not verbal. The thing
which I want to stress in it may possibly not be acceptable to the Hon.
Minister and he may not be inclined to change his attitude. As a matter of
fact, as a Lawyer I am not so competent as to convince him. But I want to tell
him and draw his attention to certain things lacking in the measure that is
being sponsored by him.
The first point is about the definition of ' custom and
usage ' which he has put here in an insufficient form. On reconsideration he
will himself feel inclined to reduce or add a few words to convey the complete
sense.
By ' custom and usage ' we mean traditions, conventions
and routine practices. The definition being propounded by him for it limits the
sense to four essential attributes, viz..,
continuity, uniformity, certainty and its not being opposed to public policy.
In its place I am thinking of a simpler definition which may precisely convey
the same sense. But he has talked of uniformity. What does this uniformity mean
? Different castes have their different customs. Even a single caste, spread
roughly over a thousand villages, allows various concessions and different
usages to the separate circles, and therefore even in a single caste there is a
separate sort of uniformity for separate places. There are variations.
Therefore the word uniformity would give rise to a lot of litigation and
benefit the lawyers. It may therefore be dropped as variation is inevitable.
If a community made certain variations, it being its
usage, it was likely to pay a fine of Rs. 50. But now-a-days Rs. 50 mean
nothing and cannot have affect to the desired extent and therefore if one
suggests to increase the fine to Rs. 100 you would say that uniformity is not
there. Today you change a thing which was good till yesterday, then where is
uniformity? Therefore, as regards uniformity we should agree that variations
are bound to be.
I shall quote here from Article 13 of the Constitution
to explain how the word ' law ' has been defined there:
" law includes any ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the territory of India the
force of law. "
Here ' territory of India ' does not mean that there is
going to be only one custom throughout India. There is not going to be any one
order or notification applicable throughout India. The Government of India
decides its policy for each State according to circumstances prevailing there.
I also want to tell you what is meant by ' law in force
', and this will explain what I understand from the words ' variations ' and '
uniformity ':
" ' laws in force ' include laws passed or made by
a Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding
that any such law or any part thereof may not be then in operation either at
all or in particular areas. " So, I want to suggest that the word
'uniformity' used here will make complications and nothing will be lost if it
is dropped. After all what does this ' custom ' mean ? We are educated enough
to understand that ' custom ' is an usage prevalent from the time of our
forefathers. You might quote certain thing prevalent upto yesterday, in which
you have made a change today, but, for that reason, shall we not take it as
custom and will it not affect us ? It may not affect economists, but it is not
proper. Therefore, if you want to bring the word ' custom ' and allow some
concession according to .it, it may be put in a way that people may get
something through it. ' Custom ' has been defined in the Law Dictionary as
follows: " It must have been continued, peaceable, reasonably certain man
runs not to the contrary.
" It must have been continued, peaceable,
reasonably certain, compulsory and not left to the option of every person
whether he will use it or not, and consistent with other customs, for one
custom cannot be said to be in opposition to another. " These things
should be taken into consideration. I have suggested that the word '*
continuous " was equivalent to ' having been in vogue ' This is not a
wrong word, ' in vogue ' being a comprehensive word of the English language
meaning a thing prevalent and in practice. That is why I have proposed ; '
having been in vogue for a long time ',
' it has been in practice for a long time '.
The second thing which I have put is: ' which has
obtained the force of law '. This is a simple thing and if accepted will become
a recognised convention.
The third point I have taken is about ' public policy '
or ' public morality '. I fail to understand that if conventions find place in
the proposed measure, where was the necessity for the word ' public policy ' ?
You might say that only accepted customs will be allowed at a place and not
others, then which customs will be against public policy ? What does ' public
policy ' mean ? The word might have dropped from some lawyer or judge and we
are now using it, but we should be clear about the meaning of ' public policy
'. I think there is no necessity for any such expression as ' public policy '
or ' public morality '. After all where there will be a place in law for
conventions, only there the conventions will be followed. So I do not find any
necessity for these words.
Now I want to say something about caste and sub-caste.
The words are not my own; they have been used in Articles 15 and 16 of our
Constitution. We used the word ' community ' in Clause 2 yesterday. We have not
used the word ' community ' but the word ' caste ' in the Constitution. In my
opinion the words ' castes and sub-castes ' will be more proper here in place
of the word ' community '. I do not mean that the word ' community ' may be
dropped as we have included it only yesterday, but there is no harm if these
two words are also added.
With these words I move my amendment. There is very
little likelihood of its being carried, but the Hon. Minister will please think
over it.
Babu Narayan
Singh : (English translation of the Hindi
speech). Sir, I submit that the decision arrived at by you is very nice and
acceptable to all. But sometimes you make decisions in such a haste that it
pinches us. Therefore, I entreat you not to decide in haste on the ground that
there has been sufficient debate upon the measure. I submit that I also stood
up so many times, your eye should have caught me and I should also have been
allowed to speak.
Shri V. J. Gupta
: I have a doubt to be clarified. In
the definition it is said:
" The expressions ' custom ' and ' usage ' signify a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family.
As you know in our parts marriage between a young man
and his maternal uncle's daughter is allowed in many communities. It is a
common custom though it is not uniformly or continuously observed.
Mr. Deputy
Speaker: You must read the entire chapter.
There is a special exception made.
Shri V. J. Gupta
: Further, it is said " opposed to
public policy ". A practice is called a custom when observed by all the
people of a locality. When it is observed by all people uniformly how can it be
opposed to public policy ?
Dr. Deshmukh: I want to oppose this.
Mr. Deputy
Speaker: You can vote against it.
Babu Ramnarayan
Singh: We would like to speak also on it.
Mr. Deputy
Speaker : I know Hon. Members have a right to
speak but I have looked round and I am satisfied that there has been a
sufficient debate. If the Hon. Member wants that the formality of a question
being put should be observed, let someone move it and I shall put it to the
House.
Shri Santhanam: Sir, the question be now put.
Mr. Deputy
Speaker: The question is: " That the
question be now put. " The motion was adopted.
Babu Ramnarayan
Singh : My voice was louder than their voice
!
Dr. Ambedkar: In my previous intervention I had explained already
both the position of this sub-clause in relation to clause 4 and how the
question of custom has been dealt with generally visa-vis the Code.
With regard to the exact terms which have been used to
define the expression ' custom ' I am sorry to say that it is not possible for
me to accept any of the amendments suggested. This definition, as I have said,
has been copied verbatim from judicial decisions of the highest tribunal in our
country as well as in all other countries, where custom has been judicially
defined. I do not think therefore that any ground has been made out for me to
depart from the definition proposed in the sub-clause.
Mr. Deputy
Speaker: The question is:
In clause 3, for the words " unless there is
anything repugnant in the subject or context " substitute " unless
the context otherwise requires ".
The motion was adopted.
Mr. Deputy
Speaker: The question is:
In clause 3, renumber the existing items (i), (ii),
(iii) and (iv) as items (ii), (iii), (iv) and (v) and insert the following as
item (i), namely :
" (i) ' Aliyasantana law ' means the system of law
applicable to persons who, if this Code had not been passsed, would have been
governed by the Madras Aliyasantana Act, 1949 (Madras Act IX of 1949). "
The motion was adopted.
Mr. Deputy
Speaker: With the re-numbering of the parts as
adopted by the previous amendment all the amendments relating to part (i) now
relate to the present (ii). I shall put them to the House one by one. The
question is:
In part (i) renumbered as part (ii) of clause 3, for the
words "among Hindus " substitute the words " among persons to
whom this Code applies ".
The motion was negatived.
Mr. Deputy
Speaker: The question is: In part (i)
renumbered as part (ii) omit the words " and uniformity ".
The motion was negatived.
Mr. Deputy
Speaker: The question is: In part (i)
renumbered as part (ii) of clause 3— (a) after the words " group or family
" occurring in line 4, add the following:
" or any rule which is certain not unreasonable and
has been judicially recognised as valid and binding in any local area, tribe,
community, group or family "; and (b) Omit the first proviso. The motion
was negatived.
Mr. Deputy Speaker: The
question is:
In part (i) renumbered as part (ii) after the word
" tribe " insert the word "Varna".
The motion was negatived.
Mr. Deputy
Speaker : in view of this amendment No. 413
having been negatived amendment No. 414 does not arise. The question is:
Omit the provisions to part (i) re-numbered as part (ii)
of clause 3. The motion was negatived.
Mr. Deputy
Speaker: The question is:
For part (i) renumbered as part (ii) of clause ,
substitute the following:
" (ii) the expressions ' custom ' and ' usage'
signify any rule which having been in vogue for a long time, has obtained the
force of law among Hindus in any local area, caste, sub-caste, tribe,
community, group or family:
Provided that the rule is certain and not unreasonable;
and Provided further that in the case of a rule applicable only to a family it
has not been discontinued by the family. "
The motion was negatived.
Mr. Deputy
Speaker: The question is:
" That part (i) renumbered as part (ii) of clause
3, stand part of the Bill. "
The motion was adopted.
Shri Naziruddin
Ahmad : I have amendment No 377 to part
(ii).
Dr. Ambedkar : I would very much like to make suggestion here
because that will shorten the labour. As you will see, some of the definitions
given in part (ii) not only apply to marriage and divorce but they also were
intended to apply to the other parts of the Code. In view of what has
transpired, it would be necessary for me at a subsequent stage to amend this
definition and to narrow it down to the provisions relating to marriage and
divorce. Therefore, what I was going to suggest to the House is to pass this in
a formal manner without attaching any great importance to it, because I shall
come back to it when I deal with consequential amendments and then the matter
may be dealt with at great length if they want. For the moment I am not very
particular about this definition because I see that I will have to amend it.
Mr. Deputy
Speaker: Is there any objection to allowing
this to stand over this part alone ?
Dr. Ambedkar: I have no objection.
Mr. Deputy
Speaker: In view of what has transpired, some
consequential amendments have to be made later. So, I will allow this part to
stand over.
Shri Santhanam: It will mean the whole clause standing over. But after
passing parts (viii) and (ix) the whole clause has to be put.
Mr. Deputy
Speaker: It is in the discretion of the Chair
to put the whole clause or put it part by part. As a matter of fact, I have
placed it part by part and we have already adopted two parts.
Shri Bharati: Definitions may be added at any time.
Mr. Deputy
Speaker : If the Bill is going to be
restricted in scope then what is the harm in doing so ?
Shri Naziruddin
Ahmad : My amendment is for this very
purpose, Sir.
Mr. Deputy
Speaker: The Hon. Member has thought much in
advance and the Hon. Minister is only accepting what he is saying. So, this
matter will stand over.
Shri Naziruddin
Ahmad: I have no objection.
Shri Bharati : The words " full blood " and " half
blood " do not occur in the part of the Code which we intend to pass.
Originally we had intended to pass the whole Code and these words were
necessary. Now that these words do not occur in this part we may as well drop
them.
Dr. Ambedkar: They may arise in connection with prohibited degrees, sapindaship and so on. Therefore, my
suggestion is that it might be desirable at this stage to pass the part and if
at a later stage I find it is necessary to make some amendments I will do so.
Shri Bharati : After all, these are definitions of words which must
have a reference to the words occurring in the subsequent chapters. If we do
not see these words at all in the chapters on marriage and divorce I do not see
any virtue in having the definition.
Shri Naziruddin
Ahmad: This part is amended by amendment No.
360 which is the latest version of this part. But even there terms like "
uterine blood " appear.
Dr. Ambedkar : My suggestion is that the better thing would be to
allow these definitions going through ; if subsequently we find it necessary to
change we shall change it, because, as I have already stated, I reserve the
right of bringing appropriate amendments in view of what has happened with
regard to this Code.
Mr. Deputy
Speaker: In any way, without any doubt this is
required for the chapters on marriage and divorce. And these terms are there
both in the original part and in the amended one. Now I will put part (iii) to
vote. The question is:
" That part (iii) renumbered as part (iv) of clause
3 stand part of the Bill. " The motion was adopted.
Mr. Deputy
Speaker: The question is:
In the explanation to item (iv) re-numbered as (v), for " this clause " substitute " clauses (iv) and (v)
".
The motion was adopted.
Mr. Deputy
Speaker: The question is:
" That part (iv) renumbered as part (v), as
amended, stand part of the Bill. "
The motion was adopted.
Mr. Deputy
Speaker: The question is:
In clause 3 after part (iv) renumbered as part (v), add
the following new part:
" (vi) ' Marumakkattayam law ' means the system of
law applicable to persons—
(a) who, if this code had not been passed, would have
been governed by the Madras Marumakkattayam Act, 1932 (Madras Act XXII of
1933), the Travancore Nair Act, II of 1100, the Travancore Ezhava Act, III of
1100, the Nanjindad Vellala Act, 1101, the Travancore Kshatriya Act, 1108, the
Travancore Krishnavaka-Marumakkathayee Act, 1115, the Cochin Thiyya Act, VIII
of 1107, the Cochin Nayar Act of 1113, or the Cochin Marumakkathayam Act,
XXXIII of 1113; or
(b) who belong to any community, the members of which
are largely domiciled in the State of Travancore-Cochin or Madras, and who, if
this Code had not been passed, would have been governed by any system of inheritance
in which descent is traced through the female line; but does not include the
Aliyasantana law; "
The motion was adopted.
Shri Naziruddin
Ahmad; This is subject to reconsideration.
Mr. Deputy
Speaker : No. We have passed the Aliyasantana
law.
Dr. Ambedkar: The substance may be reconsidered.
Mr. Deputy
Speaker: So far as the language is concerned,
the
Hon. Member is always at liberty to suggest any
modifications. The question is: In clause 3, after the definition of "
Marumakkattayam law " add the following new part:
" (vii) ' Nambudri law ' means the law applicable
to persons who, if this code had not been governed by the Madras Nambudri Act,
1932 (Madras Act XXI of 1933), the Cochin Nambudri Act
(XVII of 1114), or the Travancore Malayala Brahmin Act
of 1106
(Regulation III of 1106) ; " The motion was
adopted.
Mr. Deputy
Speaker; Now, we come to part (viii)—that is
the original part (v). It says ' " Part " means any Part of this Code
'— Does he want it to go in?
Dr. Ambedkar: For the moment, it is very difficult for me to say what
I want to amend or excise. I want time to consider. Later on I may change it to
'Bill' or ' Chapter '.
Mr. Deputy
Speaker : Then I will leave the origin (v) [
the present (viii) ] to stand over.
Now, I come to definition of " prescribed ".
Capt. A. P. Singh (Vindya Pradesh) : I want to add the definition of
" Kul " in the definition clause.
Mr. Deputy
Speaker: Let us finish these first. The
question is : " That part (vi) renumbered as part (ix) of clause 3 stand
part
of the Bill. " The motion was adopted.
Shri Bharati; Is it understood that the word ' Code ' may be changed?
Dr. Ambedkar; It will be appropriately changed.
Mr. Deputy
Speaker: Part (vi) relating to definition of '
prescribed ' as renumbered is accepted. Now, we come to part (vii) relating to
definition of ' related '. It is renumbered as (x). The question is : "
That part (vii), renumbered as part (x) of clause 3 stand part of the Bill.
" The motion was adopted.
Mr. Deputy
Speaker : Now we come to part (vi) of
amendment No. 5 by Dr. Ambedkar. It says—in item (viii) as renumbered, for
'any' substitute 'a'.
Dr. Ambedkar : Originally it was ' any part '. I now say ' a part '.
But you will remember that you have held over renumbered Part (viii). So, this
will also stand over.
Mr. Deputy
Speaker : Then we come to the definition of '
son '— part (viii) of the original clause.
Pandit Thakur Das
Bhargava: I have got an amendment here. It is
No. 127.
Dr. Ambedkar: It is a kind of power of attorney.
Shri
Rajagopalachari: It is a kind of adoption in Punjab.
Sardar Hukam
Singh: It is not power of attorney. It is
made-easy.
Pandit Thakur Das
Bhargava: I beg to move:
For part (viii) renumbered as part (xi) of clause 3,
substitute the following:
" (xi) ' son ' includes an appointed heir and an adopted son whether appointed or adopted before or after the commencement of this Code but does not include an illegitimate son. " As the House probably knows, the appointment of an heir is a special custom in Punjab.
Mr. Deputy
Speaker : We were considering the definition
of ' son '. So far as an heir or a person who is appointed as an heir is
concerned, it may be that he may be appointed as an heir for the purpose of the
property. In fact, it may be a person who may be fit enough to marry the
daughter of the person appointing him as the heir.
Pandit Thakur Das
Bhargava: By custom, he is equivalent to a son.
Therefore, he cannot marry his own sister. The person who is appointed as heir
carries an intimate relationship. He is just like a son for all practical
purposes.
Mr. Deputy
Speaker: Even to the extent of coming into the
prohibited degree?
Pandit Thakur Das
Bhargava : Yes. He comes into that family. There
are several customs with regard to appointed heirs in the territory which is
now under the Commissionership of Ambala. It is just like adoption. There is
absolutely no difference between adoption and the appointment of an heir. The
ceremonies even are sometimes the same. The person who is appointed as heir is
treated more or less as the son. He cannot marry the daughter of the appointer,
because the daughter of the appointer is his sister. No person in Punjab will
ever believe that the daughter of the appointing father can possibly be married
to that boy. He could not marry even a cousin. He is treated just like a son.
The only difference is that, so far as the eligibility of an heir is concerned,
he may be a married man with sons and daughters.
Dr. Ambedkar: He can also be a man with dhadi.
Shri
Rajagopalachari : The hon. Member
will perhaps educate us in the matter—is it open, according to that custom to
appoint ones own son-in-law as his son ?
Pandit Thakur Das
Bhargava : In that case he is called ' ghar-
javai.
Mr. Deputy
Speaker: Corresponding to this there is a custom
in the south—it is called ' illatom adoption '.
Pandit Thakur Das
Bhargava : This custom is not only judicially
recognised; it is so widely prevalent that it is as good as law. It is a fully
established custom, it has got more force, perhaps, than the ordinary law of
the land. It is universally acknowledged among the Hindus, Sikhs as well as the
Muslims. The relationship created thereby is not merely of gift, or mere
appointment of an heir. The relationship is personal; the appointed heir is
treated as a son and he lives with the father.
Dr. Ambedkar: For property purposes.
Pandit Thakur Das
Bhargava : For property purposes as well as for
relationship. He cannot marry the daughter, as an outsider does. Therefore it
is not a question of merely property; it is a question of personal
relationship.
Mr. Deputy
Speaker: Can the son be older than the father
?
Pandit Thakur Das
Bhargava : He can be older, just as a nephew can
be older than the person adopting. Supposing a brother adopts the son of a
brother. The son of a brother may be older to him in age than the person
appointing.
Mr. Deputy
Speaker: Is there any ceremony attached to it
?
Pandit Takur Das
Bhargava : It is done in several ways. It must
be made public ; so there is a registered deal in some cases. The entire family
is collected and the boy is accepted as heir. In some places even the ceremony
is gone through. Practically it is tantamount to adoption.
Mr. Deputy
Speaker: In those parts where this custom is
prevalent, is there regular adoption as well ? Or is it the contention that
wherever this custom of having ' appointed heir ' prevails, regular adoption
does not take place ?
Pandit Thakur Das
Bhargava: This is, as a matter of fact, in
addition to that.
Mr. Deputy
Speaker: Can a man have both, an adopted son
as well as an appointed heir.
Pandit Thakur Das
Bhargava : Even in a family, one brother may
have an adopted son, while another brother may have an appointed heir. But
there is no difference so far as relationship is concerned. This custom obtains
among Muslims as well.
Khwaja Inait
Ullah (Bihar) : In Muslim law there is no
adoption.
Pandit Thakur Das
Bhargava: I am not dealing with Muslim law ; I
am speaking of Muslim customs. Almost every Punjabi Muslim follows custom.
Mr. Deputy
Speaker : But it is so prevalent that it can be
brought under this definition.
Pandit Thakur Das
Bhargava: Nobody can doubt the validity of this
custom. You can take any treatise on customary law and you will find that the
appointment of a heir is a customary practice.
Shri Radhelal
Vyas: Is a female appointed as an heir ?
Pandit Thakur Das
Bhargava: But she cannot become a son.
Dr. Ambedkar: In view of the fact that it has been decided to confine
this Bill to marriage and divorce, the point raised by my Hon. Friend may very
well come when we are dealing with the matter of adoption. There we can discuss
this question as to whether we can include what he calls an appointed son in
the definition of adopted son. There, if he is able to satisfy that custom is a
custom which this House should permit, in view of the definition which we have
just now passed, we will consider that question. Here we are for the moment
dealing with marriage and divorce.
Pandit Thakur Das
Bhargava: But you have used the word "
son " here; otherwise there will be no need for any definition.
Dr. Ambedkar: As you know in the Chapter on Adoption, we have tried
to introduce a uniform system, we are not recognising any of the variants of
adoption. We say that adoption should be one common system throughout. We have
also said there that so far as the ceremonies of adoption are concerned, they
may be different. We do not bother about it. If the appointment of a son is
satisfactory from the point of view of the definition of adoption, namely, the
giving and the taking, the putting of the sugar in the mouth of the boy and the
performance of some sacrifice, well the particular ceremonies by which they do
it will not make the appointed son an adopted son.
Pandit Thakur Das
Bhargava: Unfortunately, I have not been able
to express myself in a way as to carry conviction to Dr. Ambedkar.
Mr. Deputy
Speaker: The point raised by Pandit Bhargava
has relevance to marriage as well.
Dr. Ambedkar: I am afraid, without a perfect understanding of the custom, I am not able to come to any
decision—the circumstances, the custom, the reasonableness or otherwise. Nor
has my friend been able to give us any clear picture. I want to apply my mind
to that subject and come to a conclusion as to whether it would be possible for
Government to accept his proposal. All of a sudden it is not possible.
12 NOON
Pandit Thakur Das
Bhargava: Let it be held over.
Dr. Ambedkar: We can add it afterwards.
Mr. Deputy
Speaker : May I suggest one course ? As it is,
there is no objection to passing this. The only attempt is to include some
other category. Therefore this may be passed now, because we are not passing
the entire clause 3. We can add one more category later. With that
understanding I will put this part to the vote of the House the question is:
" That part (viii) renumbered as part (xi) of
clause 3 stand part of the Bill. "
The motion was adopted.
Mr. Deputy
Speaker: Now we will proceed to clause 4.
Capt. A. P. Singh
: I have already requested you that one
definition should be added after part (viii). The amendment is No. 378, and is
about the definition of Kula . It may
surprise some hon. Members as to why I want that this word should be defined.
But if you see amendment No. 387, there I have said that " the parties do
not belong to the same Kula where by
custom such marriages are prohibited. " I want this word to be defined
here so that marriages may not take place within the same Kula.
Dr. Ambedkar : May I just explain the position. I am afraid that
this amendment, although it is a definition, really relates to clause
7—Essentials for a valid Dharmik marriage—where certain conditions for a valid
Dharmic marriage have been set out. My friend wants substantively to add one
more condition that the parties to a marriage should not belong to the same
Kula. If that amendment is accepted, then and then alone would a definition of
' Kula ' be necessary, although it may be argued that ' Kula ' is such a well
known term that no definition is necessary. But suppose when we are dealing with
clause 7 this matter is taken up and the House accepts the amendment, then and
there we can introduce the definition of ' Kula '. Therefore no definition of '
Kula ' is necessary now.
Capt. A. P. Singh
: My difficulty is this. Whenever any
such thing comes it is generally said " The word has not been defined
". Therefore, I wanted that " Kula " should be defined now and
let us be clear on this point. But if it can be done later I have no objection.
Mr. Deputy
Speaker : If in clause 7 this is not going to
be accepted, the definition here will become useless. But if on the other hand
it is accepted and a definition is found necessary a consequential amendment
will be made here. I am not closing the door.
Dr. Ambedkar : Or it can be done by an Explanation as to what is
meant by ' Kula '.
Mr. Deputy
Speaker: Clause 3 is not completed, or, as the
Hon. the Law Minister said, we can give it as an Explanation.
Capt. A. P.
Singh: Then it may be held over.
Mr. Deputy
Speaker: Now we shall take up clause 4.
Clause 4—(Overriding
effect of Code ).
Dr. Ambedkar : I beg to move : For clause 4,
substitute :
" 4. Overriding
effect of Code .—Save as otherwise expressly provided in this Code :—
(a) any text, rule or interpretation of Hindu law or any
custom or usage in force immediately before the commencement of this Code shall
cease to have effect with respect to any of the matters dealt with in this
Code; and
(b) any other law in force immediately before the
commencement of this Code shall cease to have effect, in so far as it is
inconsistent with any of the provisions contained in this Code. ' The purpose
of the amendment is this. As the House will see, we had originally one single
clause with no sub-clauses and the provisions of the Code relating to custom
and interpretation of law and those relating to other laws passed and in force
were put together. It was felt that it was not the desire of this Bill to
abrogate all law but only in so far as it is inconsistent with the provisions
of the Bill. I therefore, felt that the best course was to split clause 4 into
(a) and (b) leaving rule, interpretation and custom to be covered by (a) and
any law in force to be dealt with by (b) with the limitation that no law shall
be abrogated unless it was inconsistent with this Code. It is not our intention
that all laws should be abrogated by this. That is the purpose of this
amendment.
Mr. Deputy
Speaker : Amendment moved : For clause 4,
substitute:
" 4. Overriding
effect of Code.—Save as otherwise expressly provided in this Code :—-
(a) any text, rule or interpretation of Hindu Law or any
custom or usage .in force immediately before the commencement of this Code
shall cease to have effect with respect to any of the matters dealt with in
this Code; and
(b) any other law in force immediately before the
commencement of this Code shall cease to have effect, in so far as it is
inconsistent with any of the provisions contained in this Code. "
Dr. Deshmukh: I beg to move:
In the amendment proposed by Dr. Ambedkar, in part (a)
of the proposed clause 4, omit the words " or any custom or usage ".
Shall I speak on it now or afterwards ?
Mr. Deputy
Speaker : I shall first have all the
amendments that hon. Members intend moving and then allow the discussion.
Amendment moved:
In the amendment proposed by Dr. Ambedkar, in part (a) of the proposed clause 4, omit the words " or any custom or usage ".
Dr. Ambedkar: I do not understand it.
Mr. Deputy
Speaker : It is that if there is a custom it
shall continue. I take it that the object of the amendment is that
notwithstanding any of the provisions of this Code, any custom in force before
the commencement of the Code will override what is now sought to be abrogated.
Is that so ?
Dr. Deshmukh: Yes.
Mr. Deputy
Speaker: We will assume two things. Wherever
it is not provided for, the custom will prevail, there is no doubt about it.
But wherever there is some provision here, the custom will be abrogated.
Custom, where it is inconsistent, will be abrogated by the amendment. The hon.
Member wants that custom, not only where it is provided for here but also where
it is not provided for, must override the text of law. That is the position. I
will ask to reply to this later on.
Sardar Hukam
Singh: I beg to move: In clause 4, omit the
words " or any custom or usage "
Mr. Deputy
Speaker: It is the same thing.
Sardar Hukam
Singh: My suggestion is that custom
would continue in spite of this Act.
Mr. Deputy
Speaker: Amendment moved :
In clause 4, omit the words " or any custom or usage
".
Pandit Thakur Das
Bhargava: I beg to move: For clause 4,
substitute the following:
" 4, any text, rule or interpretation of Hindu Law
or any customary usage in force immediately before the commencement of this
Code shall have effect with respect to any of the matters not dealt with the
Code. " This is the positive side of the matter.
Mr. Deputy
Speaker : Whatever is not provided in this Code
shall have effect.
Dr. Ambedkar: That would be so, when we close with clause 55.
Pandit Thakur Das
Bhargava: What I say is that these things will
persist as a positive fact and there is not much difference between the two.
Mr. Deputy
Speaker : Amendment moved :
" 4. Any text, rule or interpretation of Hindu Law
or any customary usage in force immediately before the commencement of this
Code shall have effect with respect to any of the matters not dealt with in
this Code. "
Pandit Thakur Das
Bhargava : There is another amendment in my name
No. 449. I beg to move: For clause 4, substitute the following:
" 4. any custom or usage in force immediately
before the commencement of this Code shall be binding and shall override all
texts, rule or interpretation of the Hindu Law or any provision of any other
law and shall have precedence in all matters relating to marriage and divorce.
"
This is an antithesis of section 4 and this is only to
bring out into ironical relief the place what my Hon. friend Dr. Ambedkar wants
to give to ' custom ' which I personally do not approve.
Mr. Deputy
Speaker : I am trying to put down categories so
that I may insert all the amendments under a particular group. Amendment No.
128 relates to custom wherever there is no provision of law in this Bill. Then
amendment No. 449 says that notwithstanding any provisions in this Bill all the
previous custom shall stand.
Shri Santhanam: It is a direct negation of clause 4.
Mr. Deputy
Speaker: Amendment moved: For clause 4,
substitute the following:
" 4. any custom or usage in force immediately
before the commencement of this Code shall be binding and shall override all
texts, rule or interpretation of the Hindu Law or any provision of any other
law and shall have precedence in all matters relating to marriage and divorce.
"
Shri Naziruddin
Ahmad: I beg to move: For clause 4,
substitute the following:
" 4. All the texts, rules or interpretations of
Hindu Law or all customs and usages and all other laws in force immediately
before the commencement of this Act, in so far as they may be inconsistent with
this Act, shall, to the extent of the inconsistency, cease to have effect.
"
I have another amendment. Sir.
Mr. Deputy
Speaker: Is it necessary ?
Shri Naziruddin
Ahmad : That is more elaborate. I beg to move
: For clause 4, substitutes the following:
"4. All texts relating to and all rules of interpretation
of Hindu Law in the sacred books or in judicial pronouncement or superior
courts in India or of the Judicial committee of the Privy Council or in the
text books and commentaries of learned writers and authors or otherwise, and
all customs and usages in force immediately before the commencement of this
Code, in so far as they are inconsistent with this Code, shall, to the extent
of the inconsistency, cease to have effect. "
Mr. Deputy
Speaker: This is in another form.
Shri Naziruddin
Ahmad: It is in a more elaborate form,
containing more elements.
Mr. Deputy
Speaker: It is different in substance.
Shri Naziruddin
Ahmad: Though in minor details.
Mr. Deputy
Speaker: Amendments moved: For clause 4,
substitute the following:
" 4. All texts, rules or interpretations of Hindu
Law or all customs and usages and all other laws in force immediately before
the commencement of this Act, in so far as they may be inconsistent with this
Act, shall, to the extent of the inconsistency, cease to have effect. "
For clause 4, substitute the following:
" 4. all texts, rules or interpretations of Hindu
Law in the sacred books or in judicial pronouncement of superior courts in
India or of the Judicial Committee of the Privy Council or in the text books
and commentaries of learned writers and authors or otherwise, and all customs
and usages in force immediately before the commencement of this code, in so far
as they are inconsistent with this Code, shall, to the extent of the
inconsistency, cease to have effect. "
Shri Jhunjhunwala: I beg to move: To clause 4, add the following proviso:
" Provided, however, that this Code shall not
override any text, rule or interpretation of Hindu Law, or any custom or usage
or any other law in force, immediately prior to the commencement of this Code
which has the sanction of Hindu religion or any other religion to the followers
of which religion or religions this Code will apply:
Provided further that this Code shall not override such
existing text, rule or interpretation of Hindu Law, or any custom or usage or
any other law in force which has sanction of morality behind it."
Sir, then I have another amendment, No. 418.
Mr. Deputy
Speaker: Is it a repetition of No. 130?
Shri Jhunjhunwala : This is not a repetition but slightly different. I
beg to move:
In the amendment proposed by Dr. Ambedkar, to the
proposed clause 4, add the following Proviso:
" Provided that this Code shall not override such existing usage, custom and law as form part of the distinct culture of any section of the people to whom this Code applies. "
Mr. Deputy
Speaker : Who is to decide what the distinct
culture is ? Whatever may be the substance so far as any Code is concerned,
before I put it to the House, there must be some definite thing which is
enforceable in a Court of Law.
Shri Jhunjhunwala
: That is found in Article 29 of the
Constitution that different sections of society have got different culture and
that should be conserved.
Mr. Deputy Speaker: The hon. Member wants distinct culture to be
established in a court of law.
Shri
Jhunjhunwala: It is in the Constitution itself.
Mr. Deputy
Speaker: There is no definition of culture as
there is a definition of custom as it is provided for here. I am not aware if
there is any judicial interpretation of what distinct culture is up till now.
Shri
Jhunjhunwala: That is already in the Constitution.
Shri Santhanam: It must be in the directive principles.
Dr. Ambedkar : It must be somewhere in the directive principles or it
might be in the provisions relating to religion and so on.
Mr. Deputy
Speaker : amendments moved : To clause 4, add
the following Proviso:
" Provided, however, that this Code shall not
override any text, rule or interpretation of Hindu Law, or any custom or usage
or any other law in force, immediately prior to the commencement of this Code
which has the sanction of Hindu religion or any other religion or any other
religion to the followers of which religion or religions this Code will apply;
Provided further that this Code shall not override such
existing text, rule or interpretation of Hindu Law, or any custom or usage or
any other law in force which has sanction of morality behind it.
In the amendment proposed by Dr. Ambedkar, to the
proposed clause 4, add the following Proviso:
Provided that this Code shall not override such existing
usage, custom and law as form part of the distinct culture of any section of
the people to whom this Code applies. "
Shri Sarwate (Madhya Bharat): I beg to move: To clause 4, add the
following Proviso:
" Provided that the Legislature of a State may, by
legislation passed by a majority of the total number of its or their members,
provide that any of the provisions of this Act shall not apply to that State,
or shall apply to that State with such modifications, as may be included in the
legislation. "
Mr. Deputy
Speaker: How does it arise in this clause ?
Any amendment must be relevant to the clause that is on hand.
Shri Sarwate : Because this would supersede all laws which are
inconsistent. As the clause stands at present, it has the effect of superseding
all the laws which the State might have passed before.
By this amendment I wish to give them the power, if they
so wish, in future to restore them. There may be certain provisions which may
not be applicable to the State. That State, if otherwise it has the power under
the Constitution to legislate, should have the power and it should not be
precluded from further legislating on this matter owing to the effect of this
clause.
Mr. Deputy
Speaker : I do not understand what this
amendment means. This amendment at any rate, must have relation to clause 1.
Then, I think we have disposed of a similar amendment with reference to clause
2.
Dr. Ambedkar: Pandit Malaviya's amendment was more or less to the
same effect.
Mr. Deputy
Speaker : Apart from this, this is a concurrent
subject. If the local conditions and circumstances require a State Legislature
to make any law, that law has to receive the assent of the President. If it
receives the assent of the President, to that extent, the provincial law will
override or modify this law. That provision is there in the Constitution. I do
not know how far we can make a law here which will override or remove the need
for the President's assent in a concurrent subject. A provincial legislation
cannot have overriding effect unless the President's consent is there.
Indirectly, we are now trying to say that notwithstanding the need for the
President's consent under the Constitution, a provincial legislature can pass a
law even in a concurrent subject. How can you do away with the right of the
President. I think it seems to be unconstitutional.
Shri Sarwate : The provisions of the Constitution are not superseded ;
they also go along with this. If for a provincial legislation that
pre-condition is necessary, that pre-condition is attached. It does not mean
that that is taken away.
Mr. Deputy
Speaker : It does away with the wholesome
provision that there ought not to be any inconsistency between the laws passed
by the Central legislature and by the State legislature. The state legislature
could not be clothed with power, except in exceptional circumstances, to make
such laws. The President must give his consent. I do not know how we can pass
provision overriding all this. On these grounds it has already been voted upon
by the House under clause 2 ; it also militates against the provisions in the
Constitution. Is it necessary that we should take up this amendment ? Any other
amendment ?
Dr. C. D. Pande (Uttar Pradesh): I have an amendment, sir.
Mr. Deputy
Speaker: Already tabled ?
Dr. C. D. Pande : Already tabled, but not listed so far. I have got a
copy.
Dr. Ambedkar: I have not got a copy.
Dr. C. D. Pande: At least I have been supplied with one copy.
Mr. Deputy
Speaker : When was notice given ?
Dr. C. D. Pande : I gave notice in the Notice office this morning and
they have given me this copy. This has got to be moved. In any case, the office
has given this copy to me ; it may have been given to the Hon. Law Minister as
well.
Mr. Deputy
Speaker : Amendments will be pouring in
everyday in the morning. This is only the first of its kind. We had similar
amendments also. I do not propose to waive the notice for such amendments
unless the Hon. Minister sponsoring the Bill is willing to accept them.
Pandit Thakur Das
Bhargava : With your permission. Sir, I beg to
move amendment No. 420 in my name.
Mr. Deputy
Speaker: The same amendment in another form.
Pandit Thakur Das
Bhargava: There is difference. There is a small
error here; it is wrongly typed. It should be " in so far as it is
inconsistent ".
Mr. Deputy
Speaker: That has been provided for.
Pandit Thakur Das
Bhargava : That has not been provided for. The
original clause 4 says:
" Save as otherwise expressly provided in this
Code, etc. ...... " These words are not there.
Dr. Ambedkar: The words are there:
"Save as otherwise expressly provided in this Code.
"
Pandit Thakur Das
Bhargava: I say that so far as this Code goes,
any custom shall cease to have effect.
Mr. Deputy
Speaker : The matters must have been dealt with
in this Bill.
Pandit Thakur Das
Bhargava : That is not necessary. We make a
provision that custom is saved and by the force of that section, custom is
saved.
Mr. Deputy
Speaker : Let us see what the objection is in
principle. What this clause wants to do is whatever may be the custom, in so
far as it is provided for by this Bill, the provisions of this Code will have
to prevail except in so far as a specific reservation is made. What is his
objection ?
Pandit Thakur Das
Bhargava : This is an amendment to the old
clause 4. There is no question of inconsistency etc. there.
Mr. Deputy
Speaker : Only in cases where it is
inconsistent, the Law must override. If it is not, it may continue.
Pandit Thakur Das
Bhargava: This is an amendment to the original
clause 4. It is quite different from the new clause 4. If you adopt the
amendment moved by Dr. Ambedkar, then, it may be unnecessary.
Dr. Ambedkar: That is my amendment.
Pandit Thakur Das
Bhargava: I am in agreement with your
amendment; but I have given a different amendment.
Dr. Ambedkar: What is before the House is my amendment.
Pandit Thakur Das
Bhargava: The original clause 4 does not
consider the question of inconsistency at all.
Mr. Deputy
Speaker : I am not able to follow the need for
this amendment.
Shri Santhanam : He wants to restore the original wording that the
custom should be invalid to the extent of inconsistency.
Dr. Ambedkar : We have never used the word 'inconsistent ' even in
the original clause. The original clause was:
" Save as otherwise expressly provided in this
Code, any text, rule, or interpretation of Hindu Law, or any custom or usage or
any other law in force immediately prior to the commencement of this Code shall
cease to have effect as respects any of the matters dealt with in this Code.
"
It was an absolute thing with regard to law and custom.
Pandit Thakur Das
Bhargava: In clause 4 as it stood in the
original Bill, there is no reference to inconsistency. It is absolute. My
amendment seeks to amend the clause in two ways : in the first place these
words are not there : ' save as expressly provided etc. '. Secondly, the
question of inconsistency is absent in the original clause. Then all customs
and texts of Hindu Law shall prevail but to the extent of inconsistency only
they would not have effect. Otherwise whatever is provided in this Act will
have effect. With your permission. Sir, I move amendment No. 420, with this
correction. I beg to move:
For clause 4, substitute the following:
" 4. Any text, rule or interpretation of Hindu Law
and any law, custom or usage in force immediately before the commencement of
this Code shall in so far as it is inconsistent cease to have effect with
respect to the matters dealt with in the Code. "
Mr. Deputy
Speaker : Amendment moved :
"4. Any text, rule or interpretation of Hindu Law
and any law, custom or usage in force immediately before the commencement of
this Code shall in so far as it is inconsistent cease to have effect with
respect to the matters dealt with in the Code. "
Shri Syamnandan
Sahaya : I beg to move: In the amendment
proposed by Dr. Ambedkar, in part (a) of the proposed clause 4, after the words
" this Code ", where it occurs for the second time, insert the words
" in so far as it is inconsistent with any of the provisions contained in
this Code ".
Mr. Deputy
Speaker: In part (a) ?
Shri Syamnandan
Sahaya: Yes.
Mr. Deputy
Speaker: The object of the Law Minister seems
to be that once a particular matter is dealt with here, you need not go to any
other Code. But the suggestion of the amendment seems to be that it is only in
cases where the provisions are inconsistent with the provisions of the Code
that the code provisions will prevail.
Shri Syamnandan
Sahaya: That is exactly my point.
Mr. Deputy
Speaker : Amendment moved : In the amendment
proposed by Dr. Ambedkar, in part (a) of the proposed clause 4, after the words
" this Code ", where it occurs for the second time, insert the words
" in so far as it is inconsistent with any of the provisions contained in
this Code ". And so the following amendments have been moved: No. 6 of Dr.
Ambedkar, No. 450 of Dr. Deshmukh, No. 129 of Sardar Hukam Singh, Nos. 128, 420
and 449 of Pandit Thakur Das Bhargava, Nos. 380 and 419 of Shri Naziruddin
Ahmad, Nos. 130 and 418 of Shri Jhunjhunwala and No. 417 of Shri Symnandan
Sahaya.
These amendments and the clause are now thrown open for
discussion.
Dr. Deshmukh : This is a very important clause and it has assumed
greater importance because the provisions of the present law are going to be
limited only to those related to marriage and divorce. It was for that reason
that I was going to say, so far as clause 3 was concerned, that there was not
any very great need for a definition of the words " custom and usage
". Also I thought that so far as marriage and divorce were concerned,
there was the prevailing opinion that custom should not be taboo and should not
be prevented from operation to the same extent as might have been the case if
we were to include inheritance and succession in the provisions of the Code. So
I thought that since we were going to limit this now only to marriage and
divorce, insisting on defining custom and usage and also making provisions in
clause 4 were not of such great importance. Therefore, I was suggesting that
the definition also should be omitted from clause 3, so far as the wording of
the definition is concerned. I am in complete agreement with the learned Doctor,
because it is absolutely identical with the rulings on the subject and there is
not a single word there which can be objected to. In fact, if anything, it
liberalises (Shrimati Durgabai in the Chair) and widens the scope, for it
extends to anything uniformly observed for a long time and it gives recognition
even to family customs. From that point of view there is nothing objectionable
about the definition. But so far as most of the provisions in the present Bill
are concerned. I would like the Hon. Minister to view the whole thing as early
as possible from this point, namely that the provisions are now going to be
limited only to marriage and divorce. Now as he had himself admitted, there are
many things here in this Bill, many provisions which were intended specifically
to govern other provisions in a particular manner, I would like him to view
even some of the provisions to which we are going to confine ourselves from
this point of view. If he does that I think some modifications would be
necessary even in this clause which gives the overriding effect to this law as
against custom and usage as well as interpretation of Hindu law prevalent at
the moment.
If we pass the clause as suggested by Dr. Ambedkar's
amendment we would certainly be going further than what was, I believe,
intended. Sub-clause (a) of clause 4 reads:
" Any text, rule or interpretation of Hindu Law or
any custom or usage in force immediately before the commencement of this Code
shall cease to have effect with respect to any of the matters dealt with in
this Code. "
If it is correctly interpreted, it would mean that all
custom and usage so far as marriage and divorce are concerned will be barred,
because they are matters dealt with in this Code.
Shri J. R. Kapoor: Unless specially saved.
Dr. Deshmukh : I fully agree with the amendment notice of which has
been given by my friend Mr. Sahaya. Since you put these words here, so long as
you legislate on the subject of marriage and divorce, as far as I can
understand, it would not be possible to recognise any custom or usage.
Dr. Ambedkar: We are saving some things.
Dr. Dsehmukh: Not unless the saving is put down.
Dr. Ambedkar: The clause begins with the words " Save as
otherwise expressly provided".
Dr. Deshmukh: So far as my view of the matter is concerned, as
regards marriage and divorce, custom should have the play. We have the instance
of the Punjab, which is being governed more by custom than by specific legal
provisions.
Dr. Ambedkar: We want to raise the people of the Punjab to our standard.
Dr. Deshmukh: From that point of view I have tabled an amendment to
omit the words " any custom or usage " so that any custom or usage
which does not contravene or which answers the requirements of clause 3 should
prevail and continue. If this is not done, I am afraid, any other provisions in
the subsequent clauses will not help us. According to my understanding, if part
(a) of clause 4 is adopted as it is, even where it is the wish of the House
that custom and usage should be recognised side by side with the provisions of
the law, it will not be possible to clothe them with that recognition.
Therefore it would be best to omit the words " any custom or usage ".
Some of my friends have gone to the extent of saying that it should override
the provisions of the law everywhere, as has been suggested by Pandit Bhargava.
That would probably be something which is absolutely contrary to clause 4. It
would be tantamount not only to the omission of the clause but would be putting
it in the opposite direction.
Shri J. R.
Kapoor: It would be a negation of the Code
itself.
Dr. Deshmukh : I agree that it would be a negation of the Code. My
submission is that there would be ample room for the continuance of any
recognised customs and usages so long as we do not bar them by this enactment.
I do not think it would be correct to leave the sub-clause (a) as it is. The
original clause was to the effect that any custom or usage or any other law in
force immediately before the commencement of the Code shall cease to have
effect as respects any of the matters dealt with in this Code. From that we
have modified the position slightly, so long as we limit the law only to
marriage and divorce. I would like that usage and custom should be allowed to
prevail because it has stood the test of time, it is more convenient and less
expensive, and it is likely to be less oppressive to the people. I submit there
is everything to be said in favour of the amendment I have moved.
Sardar Hukam
Singh: I have moved my amendment whose
purport is identical with the amendment Dr. Deshmukh has moved. I entirely
associate myself with what my learned friend has just now said, but in addition
to that I have to submit certain other points. In clause 3 we have just defined
custom and usage; how we have exalted it and dignified it is apparent form the
words used:
" the expressions ' custom ' and ' usage ' singly
any rule which, having been continuously and uniformly observed for a long
time, has obtained the force of law among Hindus in any local area, tribe,
community, group or family:
Provided that the rule is certain and not unreasonable
or opposed to public policy ".
I beg to submit that when we have laid down a definition
and have restricted what actually a usage or custom is for it to be recognised,
immediately after that we deal a fatal blow to it in clause 4.
An hon. Member: There is saving.
Sardar Hukam
Singh: There is saving—everywhere, in every
clause you say, save something which is deemed proper. But I look at it the
other way. It should not mean that for every clause wherever an exception is
deemed necessary a saving clause should be added saying that such-and-such a
custom should be saved. Why not save it absolutely when it has the status of
law ? It cannot be imagined that it is so vague, so uncertain or so indefinite
that you cannot reach at it or find it out. It is not only on the lips or in
the hearts of the people in general, but I lay claim to this fact also that it
is already laid down in public documents and it cannot be changed arbitrarily.
If somebody were to say that it might lead to litigation, then I can lay the
counter-charges that even in codified laws there are always disputes, even in
registered documents and registered facts there are disputes. I might read form
Mayne:
" The Rivaj-i-Am
is a public record, prepared by a public officer in the discharge of his duties
under Government rules. The statements therein may be accepted even if
unsupported by instances. Manuals of customary law in accordance with the Rivaj-i-Am have been issued by authority
for each district."
So, those customs are not carried orally that there can
be dispute about them ; they are contained in public documents. At each
settlement they are revised and scrutinised to see that everything is correct
according to the custom that prevails. There is no danger about it. My fear is
that we have been governed so long by a very simple law. We are told that it is
now too late in the day that Punjabis should rise up and say that they are not
governed by Hindu law. Of course, that is our claim. The Punjab Laws Act,
clause 5, does define that we have been governed by customary law in preference
to the Hindu law. Everybody knows the customary law and understands it well.
Dr. Ambedkar: This is much simpler than customary law.
Sardar Hukam
Singh: We are told in one breath that we
have so long been governed by Hindu law—well and good—but in another breath we
are told that that was not the proper Hindu law. Hindu law is now rediscovered
and a Code is being brought and thrust upon us. The lawgiver says that this is
the Hindu law. Where is the guarantee that this discovery might not lead to
another after a few years and we may not be confronted with the statement that
the law then being propounded was the correct one and everybody else who went
before it had made a mistake. If it is progressiveness, we claim that our
customs are more progressive than the law which is being proposed now. If
progress is to be the criterion, then I say: don't touch us. If you wish to
move forward, we are already in advance of you. Come after us. Even in regard
to marriage and divorce, we are far in advance of you. Do not pull us back.
Laws should reflect the stage to which the society has advanced and if the
law-giver now thinks that we have advanced to this stage only now, then he is
mistaken. If it is only for the sake of bringing about uniformity, then too I
am afraid he would not succeed. The variations in the customs and usages, in
the cultures and languages, cannot be blended together in so short a time.
An appeal was made to the Sikhs yesterday that they
should forget the old days and try to become part of the nation. That is a
thing that we would cherish. We are not opposed to it. but if Dr. Ambedkar
cares to listen to me ...
Sardar B. S. Man (Punjab) : He is talking to somebody, he does not
bother to consult us. He does not bother about our opinion.
Sardar Hukam
Singh: I find he has turned to me now. We
were reminded yesterday and an appeal was addressed to us yesterday that we
should try to become part of the nation ; that we should have no tendencies to
remain separate. That was very good of him and I thank him wholeheartedly. We
are prepared to come forward and meet him more than half way but I would just
remind him, as I did yesterday, that he should begin at the Government and at
the Cabinet itself, he ought to advise the President that he should not make
discriminations when he issues orders, and I particularly referred to the
Scheduled Castes Order of 1950.
Dr. Ambedkar : I think my hon. Friend may legitimately criticise the
Government, but I think he ought not to bring in the President, because
whatever the President does he does on the advice of the Ministry and I would
be quite prepared to bear all the criticism that he wishes to direct against
me.
Mr. Chairman : I think this point has been made clear on a former
occasion when the Deputy Speaker told the House that the President's views are
not to be canvassed or criticised on the floor of the House.
Sardar Hukam
Singh : Perhaps I have not been heard. I said
that Dr. Ambedkar should ' advise ' the President. I think I am within my
rights in saying that. I am not criticising the actions of the President. I am
only requesting Dr. Ambedkar to advise the President. He has been advised by
Dr. Ambedkar and other Ministers, and I am requesting Dr. Ambedkar to advise
him. My appeal to Dr. Ambedkar is that he should beg at home.
Sardar B. S. Man: On a point of order, Madam. Some doubt has arisen in
my mind. Since the actions of the President are under the advice of the
Government, supposing that an action of the President is such that it gives
rise to a complaint in the House, particularly at this moment when the Punjab
is being governed directly by the President , is it not open to me to question
the advisability or validity of certain orders of the President which to my
mind are unjust ? In that case it will not be possible for me to question the
actions of the President as such.
Dr. Ambedkar : I am quite certain about it. Even if my hon. friend has
an occasion to criticise any of the orders that have been issued by the
President, it would not be open to him to criticise the President. He can
censure the government if he likes.
Sardar B. S. Man
: Even when the orders are issued
directly by the President? Of course, the constitutional presumption is there
that these orders are issued on the advice of the Cabinet. The situation in the
Punjab is that it is governed directly by the President. Of course the
responsibility for any orders issued by him would fall on the Cabinet, but when
the orders of the President are to be discussed, how can I refer to them except
as orders of the President ?
Mr. Chairman: The Constitution very definitely says that everything
that the President does shall be on the advice of his Council of Ministers and
that explains every act of the President.
Sardar B. S. Man
: Suppose I want to refer to the orders
made by the President in relation to Punjab, I can only refer to them as the
orders of the President, though the presumption remains that they are made by
the President on the advice of his Cabinet, I would like to have a clear ruling
from you on that point.
Mr. Chairman: I think the point has been made clear already by Dr.
Ambedkar and whatever explanation he has given applies to this category of
orders as well, to which the Hon. Member has just referred.
There are two positions: one is that the President are
not to be criticised, the other is that the President, whatever he does, does
it on the advice of his Cabinet. If these two are taken into consideration, the
conclusion will be that even though his actions are based on the advice of the
Cabinet, yet they are not to be criticised.
Sardar B. S. Man: Even if they are unconstitutional—even if they are bad
? I can always say that this advice which has been tendered to the President is
bad advice.
Mr. Chairman : We have accepted the provision in the Constitution that
the President's actions are not to be criticised.
Sardar B. S. Man: We can even move a no-confidence motion ......
Dr. Ambedkar: You can move a no-confidence motion in the
Government, not the President.
Shri Damodar
Menon (Travancore-Cochin) : Has not this
House
a right to impeach the President ?
Dr. Ambedkar: That is a separate matter altogether.
Mr. Chairman: I would, in this connection, refer the House to
clause (VI) of Rule 159 of our Rules of Procedure which
says:
" A member while speaking shall not—,
(vi) use the
President's name for the purpose of influencing the debate;"
Sardar B. S. Man: In fact, it is the Government that is using the name
of the President. When I criticise certain actions of the President, the odium
attached to them may be of the government or the advisers of the President. It
is up to the people to pass it on to wherever it belong. But when the orders
issued are of the President, criticism ought to be in the name of the President.
Because, at present in the Punjab we are being governed by the President, am I
to forego the right of criticism? It may close the door for all future time to
come. That is my point.
Mr. Chairman : My own personal feeling is that if Hon. Members are not
prevented from criticising, as they are doing it in the House, they may direct
their criticism to the government who are giving bad advice—if it is bad advice
in their opinion. If the Government is at the bottom of the President's action,
if in their opinion it is not the President who is acting but it is the
government, which is tendering bad advice, it is absolutely open to the Members
to criticise the Government on their actions without bringing the name of the
President.
Dr. Deshmukh: Can we also say that we are not criticising the
President and that we are criticising the Government?
Mr. Chairman: Therefore, where is the difficulty? When the Members
are free to criticise the actions of the Government and there is absolutely no
bar to their expressing their views frankly and openly, they need not feel or
suffer from the trouble that they are not able to bring in the name of the
President directly.
Sardar B. S. Man : We are not bringing the name of the President but the
actions of the President, as they are the actions of the Government. It is for
you to presume just as it is for me to criticise.
Mr. Chairman : I think I have made the point quite clear. If it is
in their mind that it is the Government that is at the bottom of the
President's action and that is not advising properly, if the Government is the
subject matter of the attack, they are absolutely free to attack the
Government. Nothing bars them.
Sardar Hukam
Singh : I am sorry that my appeal has been
lost in this discussion that took place over the question whether we can
criticise the President or not. But my purpose is not to criticise the
President at all. He is not to blame so far as my point is concerned. I bring
the charge directly against Dr. Ambedkar, because he made an appeal to me and
other Sikhs that we should not think in such separatist terms. But the blame
lies on the other side. He has started this game and kept us at a distance when
he was advising the President to make that order about scheduled castes. That
is my complaint. Before he makes an appeal to me that I should change my mind,
he should begin from his own sphere and remove that injustice. That was my
first point.
1 P.M.
The second point is when we submit that custom in Punjab
is much simpler and much more easily understood by the average citizen, we are
confronted with this question whether we want monogamy or not. That is not the
question. Monogamy we do want. We support and welcome it. Everybody wants
monogamy. Nobody is against it. Already public opinion is so strong that now
normally all people are for monogamy. Moreover the economic condition of the
country is such that nobody can now bear the burden of more than one wife.
There is no denying the fact that it is not possible for an ordinary man now,
except those that are placed in a privileged position like our Doctor himself,
to have a second wife. Therefore no question arises about monogamy. Even if it
comes we are not against monogamy, we welcome it. But the question is that
there are other things that will follow. There are prohibited degrees. There
are other ceremonies. So far as Punjab is concerned, our prohibited degrees are
much fewer. You are contracting it by this Bill and you will have to contract
it further. Though we are not passing the portion relating to inheritance at
this moment, it is contemplated to pass it in the near future. If you want that
the girl should have a share along with her brother, then this long list of
prohibited degrees cannot remain. Obviously we would be compelled to contract it
more and more unless you give inheritance to our cousins and sisters and others
(Interruption) like Muslims
certainly. Both the things have to go together and already in the Punjab
custom, there is a list of prohibited degrees which is recognised and permitted
by custom and if you are doing anything against that progress which you claim
you are helping to proceed, surely you are bringing us back when we have gone
so far forward. (An Hon. Member :
Leading). Yes. We are leading the whole of India.
(MR. DEPUTY SPEAKER IN THE CHAIR).
So far as the other things are concerned, a short while
ago the question arose when my esteemed friend. Pandit Thakur Das Bhargava
moved his amendment that along with the adopted son, the appointed heir should
be added, and this was opposed on the ground of certain objections and
interruptions. The adopted heir is as good as an adopted son as in any other
part of India. The only advancement or progress that is there is that no
particular ceremonies are observed. The age is not restricted and so far as
relationship is concerned, that is not restricted also.
Dr. Ambedkar: Did not we decide that we will take the case of the
adopted heir at a later stage ? I thought that the House agreed to that. When
we were discussing clause 3 on the definition of son, Pandit Thakur Das
Bhargava raised that question and I submitted to the house that this was a
matter which may be considered later on at the appropriate stage either when we
come to the conclusion ......
Mr. Deputy
Speaker: When we were in the definition.
Dr. Ambedkar: My hon. Friend is referring to the adopted son. We have
not come to that yet. I am only saying that we can save the time and get
through clause 4.
Mr. Deputy
Speaker: We agreed to put it off till Part
VII. We can discuss this at a later stage when this matter comes up.
Sardar Hukam
Singh : This interruption of the Hon.
Minister has created an apprehension in my mind that he is not following or I
am not able to make myself clear.
Dr. Ambedkar : I am following and I have caught this point that the
whole of Punjab is very progressive as against all others.
Sardar Hukam
Singh : That he has caught all right but if I
am giving the reasons and instances, he would not care to follow. I am giving
an instance where the usage or custom is so necessary and I am saying ......
Dr. Ambedkar : This part of my education will be better left out now.
I will receive it at a later stage.
Babu Ramnarayan
Singh: That you will have to learn.
Sardar Hukam
Singh : It is not only the doctor himself who
is to be educated, but there are others also. If I have to request Hon. Members
to give their vote for me, I have to convince them ......
Dr. Ambedkar: Later on.
Mr. Deputy
Speaker: What is now suggested is that this
discussion should be blocked. But in another place when the same matter was
raised in clause 3 it was suggested with regard to the definition of a son that
an adopted heir must also be a son. When we come to clause 7 where the prohibited
degrees are narrated, it may be considered whether it should be included, or an
explanation added. Let us take up this when we come to clause 7.
Sardar Hukam
Singh : I am extremely sorry that I have not
been understood. What I wanted to say was this. I am only advocating that usage
and custom should continue to override the law. In advocating that I am
explaining the utility of usage and custom, the progress that it has made over
law and why it should be retained and what differences there are between custom
and other laws. In that connection I am referring to the son; I am not trying
to define ' son ' or other people. That was my object. But, if the Doctor Saheb
says that I should not continue, I will stop.
Dr. Ambedkar : I was only saying that we may discuss this later on.
Mr. Deputy
Speaker: We may discuss that later on.
Sardar Hukam
Singh: Then, I was submitting. Sir, that so
far as custom and usage in the Punjab is concerned, it is recognised and well
understood. It has continued to override the Hindu Law as was understood by the
common man or even by lawyers and law-givers. There is no reason why, when it
has been overriding Hindu Law for such a long time, has stood the test of time,
has stood the test of scrutiny of judicial pronouncements and other tests, it
should now be abrogated because a new law has been discovered and that is being
given by another law-giver it should continue. It has been definite. It is
reasonable. It has stood the test of time and has been uniform. As I have
already submitted it is contained in public documents and can easily be
ascertained. There can be no ambiguity about it. Therefore I submit that these
word ' usage or custom ' should be omitted from this clause.
Mr. Deputy
Speaker: Pandit Thakur Das Bhargava.
Dr. Ambedkar: If I may plead. Sir, I would like this clause to be
put to the House before we disperse, if the House permits.
Some hon. Members : No, no ; this is a very contentious clause.
Mr. Deputy
Speaker: I am giving opportunity to the
Members who have moved amendments. First Dr. Deshmukh, then Sardar Hukam Singh,
and then Pandit Thakur Das Bhargava; there are then Mr. Naziruddin Ahmad and
Mr. Jhunjhunwala. I am afraid it will not be possible with the best of
intentions.
Some hon.
Members: This is a very controversial clause.
Mr. Deputy
Speaker: I think we must sit tomorrow. We
shall be sitting tomorrow also.
Some hon.
Members: Yes, yes.
Some hon.
Members: No, no.
Capt. A. P. Singh:
Tomorrow we must have a holiday.
Mr. Deputy Speaker: There is so much of work in the Order Paper. We have
not even finished clause 4. There are 55 clauses in all, in this chapter. In
these circumstances, I am afraid we will have to sit tomorrow.
Capt. A. P. Singh
: We have got to study so much about this
Bill and about so many other things. We should have some time.
Mr. Deputy
Speaker: There are no questions tomorrow. I
have no objection to sitting from 9-30. We will sit at 9-30 a.m. This will be
the only work tomorrow. Some hon.
Members: Yes.
An hon. Member: Up to ?
Mr. Deputy
Speaker: 1-15 as usual.
An hon. Member: 9-30 to 2 O'clock.
Pandit Maitra (West Bengal) : Up to 12 O'clock, Sir. We have got
other work.
Pandit Thakur Das
Bhargava : This is the most contentious clause
in the whole Bill (interruptions).
Sir, I was submitting that clause 4 is the most contentious clause in the whole
Bill. As a matter of fact while we were considering clause 2 which took so much
time of the House, the contentions were really such as appertained to clauses 4.
Human nature as we know it, loves its own customs. In societies where the
law-making power is not fully evolved the conduct of the people is governed by
customs, and custom gets fixed in the affections of the people and its seat is
deep in the hearts of people to such an extent that people love it in
preference to imposed law. Therefore, the question which is put to us when we
go out into the country is " Are our customs to be safe or not ? "a
few days ago I was in the house of one of my friends who happens to be a
Minister of the Government of India and his orderly asked me. "What are
you doing, Sir, with regard to the Hindu Code ?" I told him that the Hindu
Code Bill was being discussed and some portions of it will be passed. The very
next question that he puts me is, "Will it do away with our divorce custom
? " that was the question that he asked me. I told him, "Well, it is
likely that the divorce provision will be passed and so far as the customs were
concerned, those, customs would be recognised only if they stand a special test
and all customs would not be continued. He was not happy. He wanted that his
own custom whether it be reasonable or not, may be recognised and fully given
effect to. Sir, that is really what is in the minds of the people now. All the
same, so far as this House is concerned and so far as the representatives of
the people are concerned, we are anxious that custom should come into this law
only to a certain extent. We want that such customs as have gone very deep in
the affections of the people should be continued. So far as South India is
concerned we know that there are certain connections and manages there which
are regarded as very objectionable in North India, but they are considered
right and proper in South India. They should not be interfered with. Similarly,
Sir, there are some customs or well-established practices in other parts of
India and no person would say that they should be interfered with. In this
connection I would illustrate my point by reference to a custom that is very
widely prevalent among the agricultural classes in the Punjab and which is
going to be disturbed by some of the provisions that we are making here. There
a certain kind of marriage is performed called the Kareva marriage. If a man dies his widow is married to his younger
brother or to any person who is of the same status as a brother even though
this brother may be of the same age or younger than the woman. In some sections
she is married to the elder brother also, but that is not the practice in other
sections. Now, in that form of marriage you do not have the usual marriage
procedure, the "Sapta pada "
and all that. They just go through a customary rite and the marriage is
considered as having been performed. The final result of this practice is that
neither the property nor the woman goes out of the family and also the children
from the previous husband are properly looked after. And this custom has been
prevailing among these people from very ancient times. The upper-class Hindus
are now adopting gradually this custom of widow-marriage. This sort of widow
remarriage which is practised by the agriculturists in the Punjab is being
adopted by the upper-class Hindus also. So the custom now is that even if the
younger brother of the deceased has a wife living, he will have to marry the
widow of his elder brother and they live as husband and wife. This is
practically a case of bigamy according to the Hindu Code.
Mr. Deputy
Speaker : How ?
Pandit Thakur Das
Bhargava: The younger brother may have his wife
living and according to custom the widow of the elder brother is married to the
younger brother even though he may have a previous wife by marriage. (Interruptions).
Mr. Deputy
Speaker: There are certain customs prevalent
in particular parts which according to them are valid and not unusual. Let us
not show any kind of derision or disagreement by any visible representation
such as laughter lest we should wound their feelings. I only put the question
for the purpose of knowing the details of it so that the House may understand
the position. The hon. Member may continue his speech tomorrow.
The House then
adjourned till Half Past Nine of the Clock on Saturday, the 22nd September
1951.
[F3] HINDU CODE—contd.
Pandit Thakur Das
Bhargava : (English
translation of the Hindi speech ). Sir, an hon. Member has expressed the
desire that I should speak in Hindi. In deference to that I wish to express
myself through the medium of that language.
As I was submitting yesterday before the House, our
customs are of very heterogeneous character. They are so different from one
another that a custom considered to be good in one part of the country may be
thought of as a very reprehensible one in another. So we should proceed about
this Bill very cautiously. Yesterday I mentioned the Kareva form of marriage at which some hon. Members had laughed.
This custom is prevalent to a great extent in Punjab and Oudh and it is not a
matter of laughing. If you judge it from the point of view of high ideals of
Hindu society, it is possible that some of the hon. Members may not like the Kareva form of marriage because
according to the ancient standards the wife of the elder brother is to be
treated as mother. According to Ramayana when Lakshmana's mother gave her consent
to his going with Rama in his exile, she said:
" Ramam
Dasharatham viddhi, mam viddhi Janakatmajam; Ayodhyamatvim viddhi, gachhtat
yathasukham. "'
She asked Lakshmana to look upon Rama as his father and
Sita as herself i.e., like his mother, and think that the jungle was Ayodhya.
Such was the high ideal of our society. How many young men are prepared to go
in exile at the orders of their fathers ? How many men respect an elder brother
like a father ? Such behaviour is ideal. As far as the customs prevalent in
society are concerned, even our Shashtras have ordained that the younger
brother of the husband is Dwivar the
second, prospective husband. In many cases the Shastras have permitted men to
marry the wives of their elder brothers, after their (brothers) death. There is
nothing surprising in that. I am conversant with the customs prevalent in
Madras and other States. I toured the whole of India in the capacity of a
member of the Age of Consent Committee and enquired into the various customs.
That is why I say that we have a number of customs of different character and I
need not dwell over their intricacies. One should not inquire the feelings of a
sect, the feelings which form the basis of a particular custom. I want to
submit that there is no good reason to laugh at this Kareva system of marriage. In fact, many advantages accrue from
this system and those communities that have followed this custom for many
centuries have benefited from it to a great extent. For example, in old days
and even now in India, when a girl is married in a certain family, she becomes
a member of that family, though she is married to one individual. Whatever
share of property she gets becomes a part and parcel of that family's property.
An effort is made to retain the property and her share in the family, and after
her husband's death the responsibility of bringing up her children devolves on
the family as a whole. This is the basis of the Kareva system. By following this, she by getting married to her
husband's younger brother or his cousin continues to be a member of the family
even after her husband's death. In this way her children by her first husband
are brought up with the same love as before and are not inconvenienced in any
way. The hon. Members are aware that such popular customs have been recognised
in India. According to Section 2 of the Widow Remarriage Act, 1856, if a widow
marries again she loses all her rights in her husband's property. I would
invite the attention, specially of Hon. Dr. Ambedkar, to the fact that after
remarriage a widow loses all her rights pertaining to maintenance or to her
share in her former husband's property. The obvious reason for this is that
after remarriage, a widow becomes a member of another family. But by following Kareva system i.e. marrying her
husband's brother after his death, she retains her share in her former
husband's property. This custom is prevalent to a great extent in Jat Sikh
communities in the Punjab. When the widow continues to be a member of her
husband's family by marrying his younger brother after his death, she does not
lose her right over land.
The Minister of
Law (Dr. Ambedkar) : Would this not
be more relevant when we deal with the clause on marriage ? Now we are dealing
in a general way. I have said that whenever each clause comes, to whatever
extent it may be necessary that clause may be made subject to custom. I would
only suggest to my friend that probably his remarks would be more relevant when
we come to that part.
Mr. Deputy
Speaker: I have also been thinking of it. The
amendments he has tabled seek that only those portions of the Bill must prevail
where they are not inconsistent with custom. Then he wants certain customs to
be saved. So far as these customs—which will be saved—are concerned, they may
be more specifically referred to when
we come to the relevant portion on marriage and divorce. With reference to the
general question as to whether this should operate where there is inconsistency
or whether it should generally operate where it deals with the matter, this is
a matter which may be dealt with when we come to details.
Dr. Ambedkar: Would the difference be very great ? supposing we say
that any custom which is not inconsistent will be safe or we say " subject
", I think the effect would be the same.
Mr. Deputy
Speaker: The hon. Member need not go into the
customs in extenso. A general
indication of the custom is enough. We may dwell on the details when the
relevant clause comes up.
Pandit Thakur Das
Bhargava: I realize the force of Hon. Dr.
Ambedkar's objection.
Dr. Ambedkar : I do not object. All I say is that it will be more
relevant in the other context.
Pandit Thakur Das
Bhargava : I will not dwell upon the details of
any custom. As the Hon. Deputy Speaker said all the four amendments moved by me
contradict one another. One of them is that custom should over-ride all laws
and even prevail upon the Hindu Code Bill. I gave an example of our customs in
order to impress upon this House that if we agree to the principle underlying
this amendment, we lose our stand. I do not want that my amendment, saying that
custom should override laws, be passed. It should be eliminated. I mentioned Kareva
system in order to bring out the nature of our customs. Sir, I submit that
I do not want that the House should try to keep this custom intact, I shall not
press the House for the saving of those customs which I do not consider to be
proper.
Mr. Deputy
Speaker : Would it not go against the very
spirit of the Code ? (The object of this Code is to gather the varied customs
and put them into a single Code). Hitherto, customs have not been codified. Some customs have been upheld
by the courts and if we go on making exceptions, the whole law will become
nebulous. The purpose of the Code itself will be frustrated. I think the Code
seeks to incorporate the customs which have been upheld by courts and a
presentable document is placed before the country which can be the basis for
further additions, if necessary. But it will go against the very grain of this
Bill if all the customs are exempted. Only in exceptional cases, special
provisions should be made in regard to customs. I am not ruling the hon. Member
out of order. Now that we have accepted the principle that we must codify certain matters, it follows
that any custom which is inconsistent with this law must go.
Pandit Thakur Das
Bhargava : With all respect I beg to submit that
I support each and every word of what the Hon. Deputy Speaker has said, because
it is right and it tallies with what I mean by my remarks. For many a year,
decisions have been made on the customary laws and customs of the Punjab,
decisions which are in conformity with justice, equity and good conscience.
Thousands of suits have been fought on the issue of our customs. So we should
take them as a basis and follow such customs.
Sir, you remarked that if we were to go on making
exceptions in the case of every custom we would enter a nebulous state of
things and the Code would become useless. I go a step further and submit that
we should make exceptions in the case of those prevalent customs only which are
considered to be right, such as the Kareva
system which should be allowed to remain in operation for some time. In Madras
and Bombay Acts there is a provision that customary dissolution of marriage
would remain operative wherever it is prevalent. Where such customs are
provided for, all customs should be either allowed to remain operative or be
done away with. I take codification to be an attempt at improving bad customs.
The hon. Dr. Ambedkar dose not agree with me. He wants to codify all customs. I
appeal with all sincerity that while codifying we should retain only good
things and leave out the bad ones. I am opposed to that kind of codification
which would include even bad customs. It is not our intention to perpetuate bad
customs through codification. (I want to make it clear from my amendment, that
customs should prevail. I have also proposed that universal laws and principles
should be given due importance, a scrutiny should be made with the purpose of
judging as to what is needed and all advantages and just universal laws, usages
and customs should be retained.
If we want to codify our usages and customs, (I would
like to point out that the most important of our customs is that we should not
allow divorce). But we are going to give our women the liberty of divorce,
because the Constitution and the sense of justice do not allow that women
should lack this liberty. Go ahead and give them this right but bigamy is an
established custom. It has been in vogue for many centuries and it is prevalent
in some sections of our society. After the passage of this Bill and the
enforcement of monogamy a person would not be able to marry another woman by
the Kareva system as long as his
first wife is alive.
Mr. Deputy
Speaker : The only point is this. In so far as
the Kareva custom is concerned, it
allows bigamy in particular circumstances. I think when we come to monogamy we
can deal with that. But on general principles, the hon. Member can only say
that this Code should be applied to all cases except that he may refer to some
cases here and there by way of illustration to show that they may be exempted.
Pandit Thakur Das
Bhargava: I have not touched upon any particular
custom. I want only to show what is the place of custom in this code. Only to
illustrate this, I mentioned the example.
Mr. Deputy
Speaker: I think the sponsor of the Bill feels
that he has looked into all the customs and he has included all customs that,
according to him, must have the sanction of law. Other hon. Members may feel
that certain other customs prevail and exception must be made for them in the
body of the Bill. If that is so, it should be done at the appropriate stage. At
present we are on the general provision which says that any custom that is
unwholesome and therefore inconsistent with this Code will go. Should we not
make a provision like that saying that in so far as matters regulated by this
code are concerned, such a custom shall not prevail and shall not have force ?
What is relevant therefore on this clause is the general nature of the custom
and a few illustrations here and there. Even if there be a single custom which
has to be abrogated by this Bill, such a clause is necessary. We are now going
into the root of the matter. As to whether a custom has been enjoying
uniformity, continuity or is of ancient nature—those are matters which
certainly can be looked into and if some additions are suggested by hon.
Members those can be considered.
Pandit Thakur Das
Bhargava : Had we been discussing the whole of
the Code this clause would have been absolutely necessary. But we are going to
pass only a chapter in which at every step it is provided that custom will
prevail in such and such case. That is why I mentioned an example to show that
such a custom has been prevailing for many centuries.
Mr. Deputy
Speaker: Even if there is a single
unwholesome custom relating to marriage and divorce, this clause is necessary.
For instance, the sponsor of the Bill feels that whatever might be the
exceptions, a maternal uncle marrying his niece, that is a brother marrying his
sister's daughter should not be exempted.
Dr. Ambedkar : We shall deal with that matter at the relevant
stage.
Mr. Deputy
Speaker : Let us assume that the Law Minister
feels that such a custom ought not to have the force of law, then we should
have a general clause like this here. There are customs even with respect to
marriage and divorce which have to be provided against, if they are unwholesome
or opposed to public morality, or public interest or public policy. I do not
see how you can get out of a general clause like this in some shape or form.
Pandit Thakur Das
Bhargava : Sir, if you look into the list you
will find that I have not given notice of any amendment with regard to the
omission of Clause 4. But I have mentioned it and have given an example in
order to know as to what place would we assign to custom in this general
clause. I agree with Mr. Mayne when he says that custom is the first rule of
decision.
Mr. Deputy
Speaker: The arguments are not confined to the
restrictions that have to be made so far as clause 4 is concerned.
Pandit Thakur Das
Bhargava : I beg to submit with due deference
that clauses 3 and 4, where custom is defined, overlap each other. Yesterday,
while I was discussing clause 3, Dr. Ambedkar quoted clause 4 in reply. Clauses
3 and 4 are overlapping and the mention of one leads to the mention of the
other on account of similarity of context. As Sutras and Smritis say
" Vedah
vibhinnah smrityo vibhinnah naiko muniryasya vacha pramanam, Dharmasya tatvan
nihitam guhayam mahajano yena gatah sa pantha. "
[ Sruti says
something and Smriti another. There
is no sage whose word can be taken as final. The secret of Dharma (Duty) is
very deep. Follow the path traversed by the great. ]
I submit that custom has a special place and personal
law has no meaning without custom, as is evident from clause 5 of the Punjab
Laws Act, 1872. There are many rulings to the effect that custom has a place in
personal law. I think while making personal laws we should assume custom to be
there. Sir, in the Punjab, in the last one hundred years, all suits pertaining
to agricultural communities have been assumed to be governed by agricultural
customs. In a suit between urban parties, it is assumed that it would be
governed by personal law. In fact, according to decisions of the Punjab Chief
Court (107 of 1887, 100 of 1906 and several others), it has become a sort of
law that there is no general custom except where the parties to a suit belong
to the agriculturists communities and even in that case the onus of proof of a
certain custom falls on the person who alleges it. Viewing the Hindu Code from
this point I am of opinion that there should be no undue interference in any
custom. Sir, yesterday I submitted that Hon. Dr. Ambedkar was preparing to
adopt the customary basis of divorce as provided in Madras and Bombay Acts. I
want to oppose this move. You should not spoil our divorce law by adopting that
basis as it is the first time that we are making a divorce law. You are
interfering in the social economy of upper class Indians. I am in favour of the
divorce law. I have no hesitation in saying that we should have a single
divorce law for the whole of the country. (I am with you in your efforts for
the unification of the country). I know that in Punjab, to which I belong, and
other parts of the country, about which I know something, divorce is so easy
that there is a saying—" When the parties agree, they need no decree.
" I do not want that divorce may be had just for the asking; that will be
highly unjust, there is a custom according to which the woman pays up the
amount spent by her husband and gets a divorce. I am entirely against this custom,
because this seeks to destroy our morality. I am taking up your time to voice
my opinion, Hon. Dr. Ambedkar is not listening to me and is busy with his work.
You should make a provision for some common and uniform grounds of divorce. Do
not allow any custom to interfere in the matter of grounds of divorce or we
would be in for a calamity.
I would not countenance the provisions of the Bombay and
Madras Acts. I am raising my voice against them not because I am an opponent of
the Bombay and Madras Acts for so far as bigamy is concerned, I am as much
against it as they are. The amendments of which I have given notice have only
one purpose in view, that is, I am not ready to give go-by to the good
principles that are contained in our laws relating to marriages. Dr. Ambedkar
asked for acceptance of customary basis
but every prevailing custom should not be accepted because if that were done,
as has been done in this Bill, the whole purpose of the Hindu Code Bill would
go to pieces. I want that there should only be one basis for divorce. If the
responsibility lies with the husband, he should be required to provide for her
expenses till the time of her remarriages. You will find from the Bill that
although there is no customary basis for them yet it has been found pertinent
to make many rules that are in accordance with the rules prevailing in foreign
countries. We have no quarrel with the rules of other countries. But I am
against inclusion of every custom for there are unreasonable customs also.
While customary basis has been so much command, I find three words —justice,
equity and good conscience— absent. The customs that were immoral have been
declared void by our High Courts for they were not just. If there are customs
under the refuge of which a divorce is effected under pressure and if it is so
proved, the High Courts would declare it as immoral although these customs
exist together with others. But. these very things that are not in fact based
on justice and morality want to come through the backdoor under clause 4.
Effort is being made for admittance of customs that would take out the very
life of the Hindu Code. We are in no case going to accept them. We must put an
end to these things of course. I have no objection for good and useful customs
and those that may be very deep-rooted as, for example, the South Indian custom
which you just referred, I have thus no objection to Aliyasanthanam Act which
has been incorporated in 24(a). But the customs that have harmful effects
should be given no place. The Hindu Law says that customs should be followed.
In fact, customs are for Archaic society ; but for the advanced society, that
keeps pace with the progress of the world, there are some universal principles
which the Legislature embodies in the form of Acts and they should be our
basis. This is why I emphasize that customs should not be brought in
unnecessarily. That is what my amendment seeks to do. The purpose of my
amendment No. 446 is to show at what dangerous spot would we reach if that
clause were adopted. Otherwise, I have given notice of that amendment merely
for discussion and not for acceptance. The rest of my amendments I have already
placed.
Under these circumstances I would emphatically request
Dr. Ambedkar and the House that justice should be done and nobody should be put
to unnecessary trouble. The Hon. Minister may do whatever he likes on the basis
of justice, equity and good conscience— he may leave open as much field as he
chooses on that basis. But whatever new legislation is enacted, it should be
just. Of course, customs should have their proper place there ; but bad customs
going against the fundamental principles should not be countenanced. We want to
give customs their due place. We want to respect them so far as they are
against those customs that lead us to immorality because such a custom is
antagonistic to the Hindu Shastras
and to our principles. There are, of course, differences on the application of
divorce provision but I for one support it for I want justice for women who are
meted out gross injustice these days. Poet Tulsidas had said through the mouth
of Sitaji:
Mitam
dadati hi pita mitam bhrata mitam sutah,
Amitasya to
dataram Bharatram ka no pujyet.
It means that the poor woman is economically dependent
upon the husband and for that reason she worships him. This is, however, not in
the interest of the society and is not in accordance with the principles of
justice. Tulsidasji should better not have said that Whatever respect we may
show towards Shri Ram Chandraji, or Shri Tulsidasji, I am not prepared to keep
the women in bondage any longer). This principle of divorce is based upon one's
desire and upon the sense of equality and justice. I cannot close my eyes to
the injustice that is being done to women. It is a daily occurrence now that young
men leave their wives. I would ask them where are these sisters to go ? So I
believe that divorce is a right provision. People refer to Satis. But has a man ever been a Sata ? Indeed, the principle of depriving the women of their rights
prevailed in a gone-by age all over the world. The Married Women's Property Act
was passed in England in 1883.
Shri T. N. Singh (Uttar Pradesh): What is meant by Sata?
Pandit Thakur Das
Bhargava : Do you not understand even the
meaning of Sata ? All women know what
is Sati but no man knows what Sati is.
So my submission is that we should not make provisions
on the basis of customs—bad customs surely. We should, on the other hand, take
courage to abrogate customs—those old customs that have now become out-of-date.
The Government should make legislation that should be based upon justice and
equality.
Shri Bhatt: Sir, an amendment of mine was left out due to my
mistake. If you permit, I may move it now.
Mr. Deputy
Speaker: Is it already in the list ? What is
the number ?
Shri Bhatt: No. 288 in List No. 5.
Mr. Deputy
Speaker: Why was this not moved yesterday ?
Shri Bhatt: I was not present at the right time. When I entered the
House, the speech had begun.
Mr. Deputy
Speaker: He may move it.
Shri Bhatt: I beg to move.
In the amendment proposed by the hon. Dr. Ambedkar, in
the proposed new clause 4,—
(i) in part (a), after " dealt with in this Code
" insert " after ten years from the commencement of this Code ";
and (ii) after part (b) add the Explanation
: " Explanation.—Notwithstanding anything contained in subsection (a),
for a period of ten years from the commencement of this Code, any text, rule or
any custom to usage in force, shall have effect.
[F4]Babu Ramnarayan
Singh (Bihar): (English translation of the Hindi speech). Sir, today you have
given me quite early the opportunity to speak on this dangerous subject and for
this I thank you. Yesterday and the day before I tried to catch your eye
several times and important as the subject was, I failed to get an opportunity
to speak. May I make an observation in this connection that there is no doubt
that you do full justice in your position about which nobody should have any
misgiving ......
Shri Syamnandan
Sahaya (Bihar): Nor anybody has.
Babu Ramnarayan
Singh : And, indeed, nobody has. But you have
to give your rulings with an even hand. Yesterday you were pleased to say that
there was some feeling prevalent against you and you wanted that no such
feelings be created so that there may be general satisfaction about the
working. It is but meet Sir, that thing should be done judiciously. But if
somebody worries with the thought that people should regard him infallible on
all occasions, he is likely to commit some mistakes. Therefore, I beg of you to
do your part justly as you have been doing so far. You should not labour under
the apprehension that people might think that you are not doing things rightly.
Shri Jangde (Madhya Pradesh): Please come to the subject.
Babu Ramnarayan
Singh: I should also like to say one thing
more. When I stood to speak, you in spite of the fact that no Member had
expressed that desire declared that sufficient discussion had taken place on
the subject and that the question be now put to decide upon the matter.
However, I should draw your attention to the fact that the matter is very
important.
Shri Jangde: The hon. Member must now come to the subject.
Mr. Deputy
Speaker: What I would say is it must be left
to somebody to decide whether the debate has been sufficient or not, and the
Chair takes the responsibility. I called upon the Hon. the Law Minister to
reply. It is no good referring to all those rulings when it is left to the
Speaker to decide. I have now given an opportunity to the hon. Member. That was
on the definition clause. This is clause 4. If he wants to say anything let him
say now. What is the good of saying:" You did not give me any opportunity
then " ? All that is not relevant.
Babu Ramnarayan
Singh: Sir, whatever your ruling it is
acceptable. But I am not saying anything unreasonable.
Mr. Deputy
Speaker : What is the good of wasting time
over that matter ?
Babu Ramnarayan
Singh : That is not the thing. All the
Members here have the right to speak, and the subject in discussion here is
such that it should not have been brought up at all. To me indeed any
punishment given to the Government, who have brought this measure here, and
their supporters in this regard would be reasonable. Sir, you Probably do not
know that hundreds of persons are daily arrested here outside and released ten
or twenty miles away. It is said to be a secular State. Does a secular State
give liberty to do all sorts of unreasonable things under the cover of
secularism ? This Parliament is meant to protect the rights of the people and
you are its presiding officer. These things must come to your knowledge and you
should give due consideration to them. What is it after all that police has
been posted all round and none can pass that way ? This is very bad and
absolutely unjustifiable.
This Bill abrogates all the previous texts of the Hindu
Law and all rules and interpretations given in respect of them. I am not
talking of customs. (I am simply speaking of text). Sir, you are a scholar and
are very well aware that the Vedas of
our country came to be revealed at the beginning of the world and the
establishment of the social organisation. The rules of conduct and duties of
men in our country are determined by the Vedas.
Today we have Pandit Nehru's administration whose representative. Dr. Ambedkar
wants to abrogate with a single stroke all those rules which have existed since
the beginning of the world. I Would say that all the Hon. Members should oppose
such a measure. Firstly, the Hindu Code Bill should not pass at all. But if it
has to pass, at least this portion of it, clause 4, must not pass in any case.
You know. Sir, and Dr. Ambedkar also knows very well, that Buddhism was
preached by Lord Buddha to undo the hold of the Vedas. But the Vedic
religion did not perish. Hardly a few years have passed since the advent of
Pandit Nehru's rule and Dr. Ambedkar's coming into office and the Vedic principles are sought to be
repudiated. Do they not think that such laws should not be passed ? Nobody in
the country would accept this law.
Shri Syamnandan
Sahaya : Babu Ramnarayan Singh is perfectly
right.
Babu Ramnarayan
Singh : How could they dare to say that
things that have been in existence since times immemorial, since the beginning
of the earth and the creation of the Sun and the Moon should now no more be
followed ? Wherefrom did they get this right ? Buddhism was preached to
overthrow the Vedic religion. Other
religions including Islam also came. All came and fell, but Vedic religion is still there and would
remain as such. No one can destroy it and it is an improper and absolutely
misguided effort that is being made to efface it. It gives me pain that such
things are brought in our Parliament. As our friend Thakur Das Bhargava just
said religion and the rules of good conduct were determined by the Veda and the Smriti:
Veda, Smriti,
sadacharah
Atmanstushtireva
cha,
Etachchaturvidhah
prahus-
Sakshaddharmasya
Lakshanam.
The definition of Religion is four-fold; Veda, Smriti,
Sadacharah (good conduct) and Atmatushti (self-satisfaction).
Rules of good conduct were thus fixed in accordance with
the Vedas . But simply that was not
enough. It was also to be seen that what the Vedas prescribe, what they command, should also be there in the shastras, Vedas set down the path of
religion and the Shastras supplemented
them. But that was not the end all. The rules incorporated in the Vedas and supported by Shastras should be observed in the
conduct, manners and actions of the good people. That is what was meant by the
rules of good conduct. But nobody was bound as to their observance simply for
the reason that they were laid down by the Vedas
and Dharma Shastras and also followed
by good people. In the last, he was to see how far his conscience, his
knowledge of good and bad, agreed with them. After consideration of all these
factors, his duty was to be finally determined.
10-15 A.M.
Not to speak of the Vedas
, the Shastras and good conduct;
not even was the conscience spared ; the Hon. Minister and this Government mean
that our conscience be left out and this Bill be passed : and work be done
according to it. Just think, what an injustice it means. Need I submit more,
you just look up the meaning of the word ' Law ' in the dictionary. What does
it mean, after all ? You can look up the word in the dictionary, and some of
you must have seen it already. Dr. Ambedkar is a scholar no doubt ; he must
have looked it up in the dictionary.
Dr. Ambedkar: No; I don't look it up.
Babu Ramnarayan
Singh : But he puts his scholarships aside
and is behaving in a strange way. What is Law after all ? Law today means a
supremacy, or a predominant society making a regulation with the help of a
military or police and thrusting it on the society as a whole. Sir, Law does
not mean this. Law, according to the lexicon, means :— " Law is nothing
but the will of the people expressed in terms of Law"—which, in other
words, means—whatsoever is the will of the society, is placed in the form of a
law and is called a law. These people have now gained supremacy : Police and
military are at their command, and with the help of police and military and in
the name and with the help of party discipline, they may get anything passed.
Shrimati Dixit (Madhya Pradesh): There is no party discipline.
Babu Ramnarayan
Singh : There is party discipline and you
will pass it.
Shrimati Dixit: No; it is not so.
Babu Ramnarayan
Singh: Well, what will come out of ' yes '
and ' no ‘? I know the position.
Sir, I mean to say that a lot of injustice is caused by
such a law. It is not in the interests of this country, nor do the people of
this country want it, and, therefore, this should not be passed as law. As I
told you a number of revolutions took place, great religious revolutions, but
the fundamental of the Vedas were not
changed. With one stroke of pen Dr. Ambedkar now wants the vedas an offence, and this Bill should, in no case, be passed. As
there are different texts and rules, the interpretations follow them. A number
of sages (Rishis) were born in our land. Shri Thakur Das made a mention of
them. It has been said:
Vedah vibhinnah
Smritiyo vibhinnah,
Naiko muniryasaya
vachah Pramanam,
Dharmasya tatvam
nihitam guhyam,
Mahajano, Yena
gatah Sa Pantha. "
Vedas differ and smritis
also differ. There is no sage whose word can be taken as final. The secret of
Dharma is very deep, follow the path traversed by the great.
Which means—One Veda
gives one dictum, while the other shows a difference of opinion. In Vedas there are certain things where
people can have doubts. Likewise, there are smritis
and Dhannashastras. All of them are
of the same opinion, it cannot be said so. Some Dharmashastra gives one thing, while the other gives something
else. There also is difference of opinion—" Naiko Muniyarasya Vachah Pramanam " —" There is not a
single sage whose word can be taken as final “; No such sage has born, whose
dictum could be authoritative and, hence, to be taken as complete truth, and
the rest to be discarded. Not even so. But after this those of us who make of a
mention of Manu Maharaj—some amongst them say likewise, that Dr. Ambedkar is
Manu of the day ......
Dr. Ambedkar: I have not accepted that title.
Babu Ramnaryan
Singh: do not accept, please. They say it
wrongly, as you, in fact, do not deserve it: this is not a thing to be
accepted. Those who confer this title upon you do it by way of flattery. It you
are called ' Manu ', all of us, too, would like to be called so; why you alone.
And whatever were the dictates of Manu, whatever were
his orders, were automatically followed by everybody. They were not propagated
at the point of sword. Whenever he were to sit to make a law no police and
military were kept on guard. I go to the extent and say that we should feel
ashamed that when such a subject is being discussed we are encircled and
guraded by police and military lest somebody should come and interrupt us.
Furtheremore, it has been said : " Dharamsya
Tatvam nihitam guhayam "—The secret of Dharma is very deep it is hidden in the caves. Sir, everybody
does know that these people must have thought at times that the subject of Dharma was so difficult that it could
not be understood. Its secret, which is said to be lying in some cave, is very
difficult to find out. How beautifully has, therefore, been said: " Mahajano yena gatah sa panthah '"—"
That, indeed, is the path which was followed by great men. " In such
circumstances, when Vedas say
something, Shastras uphold something
else, conduct rules ordain something else and it may become difficult to make a
right choice then what should be done ? It is, therefore, said : " Mahajano yena gatah Sa panthah "
—i.e., whatever is done by the great should be followed.
Those, who are called great in our country today, are doing and out to do such
things as are not acceptable to anybody even today. Who will accept them in the
days to come ? I beg to submit that this subject should be considered in a
definite light, and in such a way that everybody may get an opportunity to
think and have his say.
Sir, about usages and customs they say that custom
should not exist. These people are prepared to do away with customs and will
surely do away with them. They should know that the Scriptures, Vedas, Puranas were not introduced at
the point of the sword or by any kind of coercion. Those were such regulations
as were be acceptable to any body when formulated. Some give the name ' customs
' ' family-customs ' some name it as ' family conduct ' while others call them
' customs and traditions.
At a certain place in Ramayana it is said:
" Raghukul
riti sada chali ayi,
Pran jahin par vachan
na jayi. "
(Raghu Dynasty has its ever-present custom. Life it will
give, but not discard the word.)
It was a trait of the Raghu Family, yes—a tradition, a
custom: Life should not be cared for, it should even be sacrificed, but the
words given by them should in no case, go futile. What need I say today ?
Cheers to the talent of Dr. Ambedkar or the talent of this Government which
tells us not to talk of customs and to do away with truth and customs. They
say, all the customs and traditions should be done away with. This is just a
thing to be understood as to how important the customs were "Raghukul riti sada chali Ayi, Pran
Jahin par Vachan Na Jayi " Just look to it that the man who seeks to become
our Manu today, says that there should not be any custom nor traditions
whatsoever; we should do away with all of them.
Shrimati Dixit: But what is happening today ?
Babu Ramnarayan
Singh: If your will were to carry the day,
the words could happen. Now comes to question of divorce. In our country, there
are some five or six such communities which we know are not more than two to
four crores in number. For them they are making this laws so that the right of
divorce for them may be secured. In the rest 90 per cent of the society, we
know that divorce is a thing of daily routine. And, sir, how is this divorce
given ? Two, four or five of them sit together, both the contending parties
come and they break some stalk of grass ; and their mutual relations are
broken— this completed the " divorce ". Not a panny as to be incurred
on this, nor any botheration. Our Hon. Dr. Ambedkar is a well wisher of the
Untouchables and they too should know that such well-wishers should be shunned.
Now all of them will have to go to the district judge for divorce, what a lot
of expenditure and botheration will this procedure mean ? Then alone will
divorce be granted.
Shri Naziruddin
Ahmad (West Bengal) : ...... A decent work
for lawyer!
Babu Ramnarayan
Singh: Lawyers giving maintenance to
lawyers!
Pandit Thakur Das
Bhargava : The Panchayat is being empowered to register the divorce.
Babu Ramnarayan
Singh : Well, even if it is in the hands of
the Ranch, it is right to some
extent, but that too will be a Government Post. I assert that the Bill be
scheduled. Let this law go to hell and then you will see how easily the entire
system work. We have panchayats and panchas ; and in our country customs and
usages are pliable they will continue to hold good and people would accept them
automatically. If any law is formulated or any decision taken, it should be so
clear and precise as may be amiably accepted by people, and they may not think
of going against it. But the law that is being passed here, is such that people
in our country will take pride in breaking it, and will not act upon it. This
is nothing but a whim of those who today have gained power. They are
obstinacy-ridden and say that the Bill must be passed somehow. What the country
thinks, and what she needs, the Government never worry about it. What is being
spent for it here, and what, after all, is its necessity, nobody cares for it :
the Government go on spending money lavishly and thus ruin the country; go on
passing baseless and futile laws against the will of the public. I insist upon
our Rajaji and Dr. Ambedkar that the Bill be withdrawn: the country does not
want it, and the good of the country, good of us all, lies in its being
withdrawn. This simply astonishes me that such an injustice is being here where
personages like Rajaji are present. There can be nothing more shameful and
sorrowful than this.
Sir, I do not want to take more time but I want to
request you that the subject is so serious that it needs a proper debate; and
if any hon. Member wants to speak on
it, he should be permitted to do so. This Bill has created a stir in the entire
country as also in the City, and hold that the Bill should not be proceeded
with. The Government should withdraw it, and if it is not withdrawn, but
proceeded with instead discussion in a proper way be conducted and the hon.
Members be not stopped from speaking on it. I would request all the hon.
Members to understand all the pros and cons and pass it, then. They may also
bear in mind that the good of the country and the society be not impaired in
any way by this self-willed piece of legislation, and I again submit with
respect to all the hon. Members, that this clause at least be omitted.
Shri Sarwate (Madhya Bharat) : I rise to oppose the amendment of Dr.
Ambedkar because I consider part (b) of the amendment as unnecessary and
superfluous while part (a) is quite undesirable.
Dr. Ambedkar : You may abuse me as much as possible, provided you do
not take much time. I am concerned more with the time than with the abuse.
[F5] Shri Sarwate: Sir, I am not abusing him. I am only opposing his
amendment. If not interrupted, I shall take very little time.
I submit that by virtue of article 254 of the
Constitution, all laws made by the State which are repugnant to or are
inconsistent with the laws made by Parliament stand ipso facto, to that extent, inoperative. The other laws which may
possibly be referred to in this connection are laws made before this code by
the Centre. In their case the later law will precede the previous law.
Therefore, in both the cases, that is, in the case of laws made by the Centre,
they would, to that extent, to which they are inconsistent to the code be ipso facto inoperative. Therefore, I say
part (b) is unnecessary and superfluous. As regards part (a), the effect of
this amendment would be that all customs and all texts or rules or
interpretation of Hindu law and customs would be made inoperative, subject to
the saving clause at the beginning, namely, all such customs as would be saved
by being included in any of the later provisions. My submission is that this is
entirely undesirable. The Hindu religion has been living and progressing. It
has been said that it is dying and decadent. It has been compared to the
shameful life of a coward who flies away from the field of battle. I would only
submit that it is often ignored that one who fled from the battle field may
return only to vanquish those who erstwhile were the victors. It must be
remembered that the Hinuds have repelled those who were for a time, and only
for a temporary time, able to overcome them. In the last century the Marathas
in Maharashtra from where Dr. Ambedkar himself comes, and then the Sikhs in the
north were successful in achieving their independence and establishing their
kingdoms. But I need not go into past history either ancient or modem. In our
own day and before our own eyes, we have seen this accomplished. Have we
forgotten that the present Parliament of which Dr. Ambedkar is an illustrious
Member is the result of ......
Dr. Ambedkar: I have no right to be here. I have sneaked in.
Shri Sarwate: I wish he makes no confession of that nature.
This very Parliament is an illustration that the Hindus
repelled the foreigners who had dominated over them temporarily. And what was
the element or factor which gave this like or this rejuvenating characteristic
to the Hindu religion ? In my opinion, it is custom and by custom I mean such
custom as is defined and accepted by this House in clause 3—custom, which is a
rule that is certain and not unreasonable or opposed to public policy. It is
said that custom might be of a bad nature and therefore it requires to be
mentioned here. But to say so is contradiction in terms : just as contradictory
as today vandhyasut For custom is defined here as that which is not opposed to public
policy. Therefore, such customs as are opposed to public policy or morality,
they will stand, ipso facto repealed.
Those customs alone will be saved as would be good customs.
The House will realise that the sources of Hindu law
have been described as:
First of all the Srutis
and Smritis lay down the fundamental
common background. And then sadachar and swashya priyam provide for variety, that is to say the element which would suit
the various regions of the country. It has to be borne in mind that India is a
continent in extent and its population is equal almost to the population of the
U.S.S.R. in the East and to the U.S.A. in the West put together. So unless
there is variety of the law, the law would be absolutely oppressive and it
would be difficult to make it suit the various requirements of the different
regions.
Now I would refer to another text of Hindu Law—1 mean
that law as it prevails at present. Yajnavalkya says:
That is to say, whatever customs, practices or family
usages prevail in the country shall be preserved intact. And the Vyavastha or rule in this connection is
stated thus:
Sanskrit Sloka
They are not liable to censure, whose predecessors used
to practise these usages. In modem language, it means that the customs are
ancient and from time immemorial. And others which are not so would not be observed.
So with this Vyavastha,
the Hindu religion was vitalising itself and adopting itself to different
regions.
Now, I shall take a small illustration and show that if
we entirely do away with customs by accepting this amendment what would be its
effect. There are many reasons why the amendment should not be so accepted.
First of all, I trust even the learned Law Minister is not conversant with all
the good usages that are prevalent in this country from Cape Comorin in the
south to the Himalayas in the north. Neither are the Members conversant with
all of them. And even if they are, they would not be in a position either to
convince the learned Doctor or to convince the other Members of the House of
the utility or significance of those usages and of the importance in which
those usages are held in particular parts of the country. Therefore, I tried in
an amendment of mine, which was for a technical reason not accepted or not put
forward, to provide a simpler device by which the local Legislature may be able
to supplement this law. That, however, has gone. Therefore, I submit that
because of ignorance of all the good usages in the country we should not say
" save as otherwise provided in the provisions ...... ". The effect
of this saving clause will be nil and part (a) of the amendment will do away
with all good customs, whether they are repugnant or not to the law.
According to part (b) only those laws which are
inconsistent with the present law are only repealed, whereas in the case of
customs, whether repugnant or otherwise, they have all been abrogated. This is
a very wide provision which should be lost if it is omitted altogether. A
custom is governed by all the requisite qualifications mentioned in clause 3,
which the house has already passed and laws would be governed by article 254 of
the Constitution.
I shall now take one more instance. Marriage is after
all a social institution, meant to satisfy a social need. If social
circumstances vary to a great extent in various regions of the country, several
provisions would have to be made in the law which is to be enacted. In the
present Hindu Law this is achieved in two ways. There are firstly various
schools of Hindu Law. There was the law of Dayabhaga
and Mitakshara. The common background
is the Yajanavalkya's and Manu's sinritis.
The variety was given by Dayabhaga
and Mitakshara. Further there were in
various schools which governed different parts. There was the Mithila school,
the Banaras school, the Madras school and the Maharashtra school. This was one
of the ways in which variety was provided in Hindu society, which I maintain
will for that reason never die. Secondly, there was the achar and on account of
this the Hindu Law and religion have been progressive and satisfying the needs
of all, which were this vitalising factor. It is the variety which, added to
the common background, has kept the religion alive throughout the century.
Invaders have come and gone, but Hinduism is still progressing.
I shall now take up the question of monogamy.
Irrespective of what the law givers lay down, society would adopt monogamy or
other systems of marriage according to its needs. Good law givers therefore
ought to provide for this varying need. One of the factors which govern the
form of institution of marriage is the ratio between the males and females. If
there is an equal ratio between the sexes there will be monogamy and society is
bound to be happy. But if there is very great disparity between the sexes then
society will have to adjust form of marriage accordingly. If females exceed the
number of males then bigamy or polygamy would have to be allowed. Otherwise the
result would be either adultery or increase in illegitimate children.
Shri Naziurddin
Ahmad: Adultery is permitted by this Bill.
Shri Sarwate : I will not take notice of it. There was a common
phenomenon which had been observed during the war. When in U.K. the adult male
population went to the war fronts there remained behind in the country an
excessive number of women and the result was a great increase in the number of
illegitimate children, which has now become a very difficult question for
solution. This phenomenon has occurred in other countries also. So also if the
number of men is much more than the number of women then polyandry would come
in, in one form or another. Even in that case the same result would follow. I
am in favour of monogamy, both because it is a law of nature and society has
enjoined it and it is in accordance with modem trends. In that respect
fortunately in India the ratio between the sexes is equal but even here there
are certain other factors which have to be taken into consideration. I have
some figures about the ratio in the different provinces. These figures show
that the ratio in Madras and Bombay is equal.
Dr. Ambedkar: You are pleading for polygamy ?
Shri Sarwate : Let me proceed. In Bengal and some other provinces
the males are preponderating and the females are less. So if you provide only
one form of marriage for all these provinces it may not do.
Shri Brajeshwar
Prasad (Bihar) : Has my hon. friend studied
the ratio between the different age groups—the males between the ages of 16 and
35 and the proportion of females between the ages of 16 and 35 ? That will
throw light on the question whether there should be monogamy or polygamy.
Dr. Ambedkar: He wants you to study the proportion of the different
age groups among the sexes. But why do you not leave the argument to younger
people ?
Shri Sarwate : Every body has to do his work. Dr. Ambedkar has to do
his work and I am doing mine.
To proceed with my argument, it is irrelevant or
unnecessary for developing my argument to show what the proportion of the males
to the females in the different age groups is. I want here to show that in
different tracts different conditions prevail and would have to be provided for
as has been done in the prevailing Hindu Law through the different schools and
through the achar. This is a case
where it is absolutely necessary that variety must be provided for and it can
be done only by allowing customs, customs which are ancient and are governed by
public morality.
I conclude with this observation, that this amendment is
entirely unnecessary. Sub-clause (a) is undesirable and sub-clause (b) is
unnecessary. Therefore, this clause should be entirely dropped and the
amendment disallowed.
[F6] Dr. C. D. Pande (Uttar Pradesh): I rise to speak in favour of omitting
the clause which seeks to abrogate the validity of customary law. I think this
clause enlarges the scope of the Hindu Code. Let me go briefly into the genesis
of the Hindu Code Bill. What was the necessity of this Bill ? If you know the
background you will know how absurd it is to maintain this clause in this Code.
The genesis of the Hindu Code Bill is that there was a constant demand, and
there was a feeling in the minds of the leaders of the Hindu society, that
there must be a law to be in conformity with the civilised concept of human society.
There are only two things for which a case has been made out conclusively and
we stand for them: one is acceptance of monogamy, imperatively and without
exception: the other thing is that those who seek divorce in certain cases of
hardship should be able to get it, that there should be no difficulty in that
process of separation, annulment or divorce. These are the only two things for
which a case has been made out and I do not see if any similar case has been
made out for the abrogation of the validity of customary law. Have you ever
heard of a single representation or of a single meeting of the people who are
governed by customary law, that this law should be changed, that it should be
brought in conformity with the strict law of Manu ? Or, have you heard that
they are tired of their customary law and they want to come within the orbit of
Manu's law ? No : I have not heard of one single representation or of one
single meeting, either in the Press or on the platform, demanding that. There
has been a constant demand for improvement in the law as far as monogamy goes,
and also as far as divorce goes. People say there is a slur on our name in
foreign countries. Well, that may be so; for that we have now accepted the
principle of monogamy and of divorce. But I do not like that in the garb of
making changes in the Hindu law you should introduce things which are
absolutely detrimental to the interest of more than 80 per cent of the people
of this land. If you analyse the population of this country, how many people,
will you find, governed by Manu's law ? Only a handful of Brahmans, Kshatriyas
and Vaishyas. But even they are governed by local laws as well and local laws
have got an overriding position over Hindu law. Hindu law was originally not a
textual law but a customary law and it was codified by Manu, Yajnavalkya and
others in course of time.
Difficulty was experienced by the Legislature of India
in the course of the last 100 years in these matters, and they made certain
laws about specific drawbacks which were thus removed. Now the demand has
arisen for change with respect to monogamy and divorce. We concede it, but how
do you presume that there is a desire for change so far as customary law is
concerned ? What is customary law ? It is a natural law, it is a dynamic law,
it is a growing law, it has got the force of the needs of the time ; if you do
not allow that growth, that dynamic character in the society you will become
rigid, you will be doing harm to the Hindu society just as Manu's law has done
harm, according to you in the course of the last 3,000 years. Do you want that this should be perpetrated in the
vast sections of the society which is not governed by that law ? This House
stands for the principles of monogamy and divorce. Now in the progressive age
you want to create hardships in the matter of those very things in respect of
which you want to give facilities ? it is absolutely inconceivable to me that
you desire to do so. It will be a retrograde step.
11 A.M.
There is another reason for customary law being
maintained. It will be impossible for the State to maintain adequate number of
judicial officers and magistrate to deal with cases of divorce or judicial
separation. (An hon. Member :
Government have enough money.) They do not have enough money even to maintain
magistrates to try ordinary cases, which are pending for several months
together. You have no idea as to how many more magistrates will be needed. Even
if you have money and you are bent upon doing it, do you know the hardship
involved ? The cost may be ignored, but the hardship cannot be ignored, because
in this country unfortunately whenever a citizen comes into contact with
Government machinery he is subjected to vexations at every step. I myself have
been a functionary of the Government and I have a clear idea of these things. I
had some influence, but if I were an ordinary non-official and I went to a
court of law, I know how much attention I would receive. An ordinary citizen
finds it difficult even to get a ration card. Do you think it will be easy to
get a divorce certificate in a court of law for a person who is ignorant and
poor ?
Pandit M. B.
Bhargava (Ajmer) : Courts will be more
efficient hereafter.
Dr. C. D. Pande: Things should be accepted as they are. You cannot
expect to improve things all of a sudden. There is no justification for
creating hardships. Why do you want to abrogate the customary law ? Have you
received any representation for the abrogation of customary law ? Why do you
insist on it ? Why do you insist on creating difficulties ?
Shri A. C. Shukla (Madhya Pradesh) : Because it is against public
morality.
Dr. C. D. Pande : Let not morality be governed by law ? If you have any
illusion that you can govern people's morality by law, you are mistaken.
Shri Lakshmanan (Tranvancore-Cochin) : He is not addressing the Chair.
He is addressing individual Members as ' you '.
Dr. C. D. Pande: I am sorry. It is a manner of address to say ' you '. '
You ' does not mean an individual Member. It means the Legislators here.
Mr. Deputy
Speaker: No interruptions please.
Dr. C. D. Pande: I do not mind the interruptions, because the case that
I am putting before you is sustained by the will of the people outside. I know
the people. I know their difficulties. I know the prevalence of the customs.
The difficulties that will be created will be enormous. You have not got the
machinery to deal with the cases. The cases may be in far off places where
there will be no Government machinery. People manage their affairs in an
automatic manner. There is an automatic adjustment in social affairs. That
automatic adjustment of the society will be disturbed. You wish to take upon
yourself a responsibility for which you are not prepared. Moreover it is
uncalled for. There is no justification for it. No case has been made out for
the abrogation of customary law. A case has been made out for making divorce
easier, not for restricting the scope of divorce. Why do you want to enact
legislation which is not in consonance with the likings of the people and which
goes against the very spirit of this Code ? This Code seeks to confer divorce
and you want to restrict divorce. If this contention has any validity, then I
submit the Law Minister will consider the matter carefully and sympathetically.
[F7] Shri Oraon :
(English translation of the Hindi speech
) Sir, I had not to speak much about this Hindu Code Bill; but we are now
confronted with a situation which compels me to speak something. I mean to say
that Scheduled Tribes and Abroiginals are neither Hindu nor Muslim nor
Christian. They are without any religion. First they were not included in this
Bill nor did they want themselves to be dragged into it. But now I find that we
too are being dragged into this Bill. I want to say that the divorces which
take place amidst our Community, perhaps do not take place in any part of the
world. We know that not less than 80 or 85 per cent divorces take place before
any child is born as a result of the marriage. If some action is to be taken
there or a divorce is to take place, we shall be handicapped in getting the
case recorded with a Panch. It is
said that the case will have to be recorded in our own Panchayats. The Mukhia of
that place will go to the court and apply. If either of the two—man or woman,
who come for divorce, do not agree to his decision, the case will proceed
further and move to the court. We know how many divorces take place. Not even
in 18 months will the cases registered in only twelve months be decided.
Dragging us into the Hindu Code Bill, therefore, is not only injustice but our
virtual death. I would request the learned doctor, therefore, to exclude us
from it.
Next, whatever we see in the Hindu Code Bill, is both good and bad. May be, people living in the cities may not know this, but we are villagers and come across people of all types. All of them are against it. In this state of affairs we see that on the part of the members of the Parliament, the representatives of people as they are, this will not be a right course of action nor will it be right on the part of the Government to pass this Bill. It is, therefore, I must say that this Bill should not be passed unless new elections are held.
[F8]Shri Jangde : (English translation
of the Hindi speech ). Sir, I have been listening to the speeches of the
Hon. Members for the last four or five days. From their speeches it appears to
me that clauses are not being considered, but that general discussion has
started.
I wish to recount the objections raised by the hon.
Members against this Marriage and Divorce Bill and I consider it my duty to
reply to them.
Just now Shri C. D. Pande said that a loose custom of
marriage and divorce prevalent among 90 per cent of the people should be left
intact. He also asked why should the Dwij
communities, among which this divorce custom does not obtain, be compelled to
adopt it.
Pandit M. B.
Bhargava: He did not say this.
Shri Syamnandan
Sahaya : This was not said. Why are you unjust
to him?
Shri Jangde : He said that this matrimonial code, which is going to
be passed, would greatly lengthen the procedure of marriage etc. and would
create many difficulties for the village people.
Babu Ramnarayan
Singh: He came only to give a sermon to us.
He did not speak; on any clause in particular.
Babu Ramnarayan
Singh: You deserve it.
Shri Jangde: I have been doing work of social reform among these 90
per cent of the people and I know them thoroughly. I know their marriage and
divorce customs very well. The people who are speaking on their behalf do not
know them. They speak only to place obstructions in the progress of this Bill.
It has been said that easy divorce is a very good thing. I want to tell you
sir, that the custom of divorce among the Shudras
has become so old and useless that it is being highly misused. Today the honour
of our mothers and sisters is at stake on account of this. They are sold in
Calcutta and Bombay and they embrace other faiths. Today among the Shudras a woman does not enjoy even as much
respect as a cow does. A cow is sold only once, but women are sold many times.
The custom now prevailing among them has become the custom of the high-handed
and is no longer the custom of the poor. You say that if this custom is
abolished, people will have to incur much expenditure in the Law Court, but I
cannot help praising the wisdom of Dr. Ambedkar who has suggested the remedy
that the decisions of the Panch of
the caste shall not be binding until the sanction of the Government is
obtained. Today what we do is to marry, perform the custom of Saptapadi, and to sell her (the wife)
after two or three days. People become ready to sell and divorce her. In this
case, what is the meaning of sacramental marriage and Saptapadi ? The old customs have become rotten. You want to
maintain them. You want to keep them in the name of Hindu religion. But I want
to tell you that 90 percent people of Hindu society are becoming opposed to
them. Women are not shown any respect. They are labouring under difficulties.
You say that we regard them as Devis and
Saubhagya Lakshmi, but this is all
wrongly put by you.
Just now some hon. Members said that they did not want
divorce for the Dwijas and why should
they be compelled to adopt it. This is the opinion of many of the hon. Members.
You want to place the lion and the cow in the same category. Should the hunter
and his prey be placed together ? Do you want to unite the East and the West ?
They can never meet. On the one hand you say that there should be no divorce
among the Dwijas, on the other, you
say that loose divorce should be maintained among the Shudras. This anomaly is leading to a fall in our moral and human
standards. The Hindu Code has been drafted to remove this extreme kind of
discrimination and to bring the Dwijas
and Shudras from Cape Comorin right
upto Kashmir together. You want to spread the awakening among the Hindus. I say
that the Hindu Code Bill would be a great help in this direction. You do not
want to show the same sense of moral values which has been shown by Dr.
Ambedkar in drafting this Bill. In this connection I wish to say that if there
can be any means of bringing the Dwijas
and the Shudras together, it can only
be the Hindu Code Bill. You say that it should be applied only to those who
want it, and those who do not want it should not be compelled to adopt it and
none should be forced to adopt monogamy and divorce. In my opinion propaganda
has been done in the wrong manner is this connection. Government have no money
and they do not want to do propaganda in this respect. Not the supporters, but
the opponents of the Hindu Code are doing forceful propaganda. Once I heard
that Karpatriji said in a speech that it could even make marriage between
father and daughter possible. Similarly other false propaganda is being done.
It is said that it would lead to marriages between brothers and sisters and the
Hindu religion is going to pieces. I say that the diseases which have crept
into Hindu religion are being sought to be removed by treatment. This is the
aim of the Hindu Code. Such a propaganda is being done in this connection. You
say that you do not want divorce, but on the other hand, you want that it
should be introduced for us. Among the Dwijas
a married woman who becomes a widow, cannot be re-married in any case but men
can marry a hundred times if they like. This is no justice. Just as Rama
married once ......
Mr. Deputy
Speaker: You leave Rama aside.
Shri Bhatt: He should be allowed.
Shri Jangde : I was speaking of the evil custom prevailing among the Shudras. We want to change it. Every
person can marry five or six women. In no home are women married according to Saptapadi are found. They go away with
the high-handed persons. By changing their women repeatedly they incur much
expenditure. More than half of their property is spent in marrying these women.
Is it justice that a woman married to a man should go to another ? This Bill in
which you see the end of the Hindu religion has been introduced to remove these
evils. Therefore, without taking more time I would like to submit that if you
want to see the renaissance of the Hindu religion, if you want to maintain it
and bring the Dwijas and the Shudras together, the amendment in
respect of Marriage and Divorce clauses of the Hindu Code Bill should be
accepted.
[F9] Shri T. N. Singh
: (English translation of the Hindi
speech ). Sir, I am deliberately speaking in Hindi, because some of the
hon. Members and particularly shri Oraon, by speaking on the Hindu Code Bill in
Hindi, have in a way asked us to do the same. We have one thing specially in
mind while discussing this particular clause 4. Dr. Ambedkar has certainly
tried to take a place in the galaxy of Manu. Parasher and Yajnavalkya by
following in their footsteps, but I believe that it is an unjustified effort on
his part because our traditions have gradually evolved according to the
dictates of time and circumstances. They are formed on the basis of collective
wisdom and experience. Therefore, the wisdom of any particular individual
cannot affect them. What I mean to say is that we cannot violate our traditions
so simply and so easily. We perhaps do not even know all of these traditions. I
would challenge Dr. Ambedkar, our Minister of Law, to state how many traditions
of ours, which he wants to destroy completely through this Hindu Code, are
there in this vast country of ours, in the Bharatvarsh. How far is it proper
for him to say that these traditions which he perhaps does not know of should
be completely destroyed ? Therefore, you can make efforts to follow Parashar or
Yajnavalkya or any other lawgiver (Smritikar
) but, for god's sake, do not make this wanton assault on these traditions.
Sir, I would like to tell you that a good many
traditions are being followed by innumerable people in every comer of our
country. They are perhaps being followed on a higher level of morality that
what was obtained by Manu, Parashar or any other Smritikar. Can anybody today say that in that section of our
country to which our Shri Theble Oraon has the Honour of belonging, many
things, many traditions, many laws are not such as are highly superior to our
laws ? In my view this divorce (perhaps there is no one word of it in Hindi). (An hon. Member : Vivah-Vichheda.) You
may say Vivah vichheda, but it is not
one word anyway, the rules in force there in this regard are far superior to
the rules in our Code or rules found anywhere, in England, in America or
elsewhere. In our opinion it is not proper to curtail them or to boast that
this Code or this measure is better and should replace them. Therefore I would
appeal to our Government, to our Hon. Minister of Law that it is improper for
us, being ignorant of the traditions, to deal with all these traditions in this
manner. Secondly, it is not wise to destroy completely these traditions and
specially when they do not go against any rule or Bill. I have heard that in
some cases in some parts, these customs and traditions are being given their
due place. But no amendments have come before us in regard to them.
An Hon. Member : Amendments regarding marriage have come.
Shri T. N. Singh: But amendments regarding other things have not come,
perhaps they are about to come. I welcome them. But at the same time I would
submit that it is not correct to make laws for them in a sweeping manner with a
view to eradicate them. That is why I oppose this measure particularly. If you
were to read this clause, it will be found that the words ' any other laws in
force ' have been added to the clause now framed i.e. any other law or Act
which is inconsistent with it would also be repealed and would not be
applicable. In that case, would it not be proper if you also said in regard to
these traditions that the inconsistent things would not be applied and any
custom or tradition going against any of its principles or basic aims would not
be applicable. If so, it would have been understandable. But to say that no
tradition would apply is not fair and I believe that it is essential to change
or amend it carefully. I do agree that many of our traditions are inconsistent
and are perhaps not according to the times. According to some of the current
traditions, an aged man of 60 or 70 can also marry. But it is regretted that
this is not incongruous with the Hindu Code. What I mean to say is that if you
have to axe any tradition, axe such traditions.
Shri A. C.
Shukla: Those regarding dowry.
Shri T. N. Singh: Yes, there are many others, like widow remarriage etc.
You made scores of laws regarding them and did many things, but did we succeed
through them ? That is why I say that every tradition should be thoroughly
studied. I am opposed to removing all of them. I do not mean that none of our
traditions is wrong.
Shri A. C. Shukla
: May I ask a question ? How will you
determine that a particular tradition is good or bad ? If 75 percent people of
a community want a custom to be retained, should their view be accepted, and
should the customary law, as stated by Shri Jangde, be reformed ? Everybody
wants reform of the bad customs. Therefore, let us know how it should be
determined.
Shri T. N. Singh : The question put by Shri Shukla is very simple. It is
not you or I who reform the traditions. It is done by the whole society, the
whole community, according to the dictates of the time and it can never be said
that all traditions have remained unchanged. All of them have undergone
changes. But I say that when we apply our individual judgment as against our
collective wisdom, it becomes our duty to study them fully. That is all I have
to say. I do not say that no customs should be changed, but we should change
them with our collective wisdom. We have the right to do so in this manner, but
we should not do it through legislation. This is what I want to say.
Shri A. C. Shukla: How ?
Shri T. N. Singh: Many of the traditions which you regard as bad get
changed by the pressure of public opinion. Many others change according to the
dictates of time. It is said that at one time when a child was born in Sparta,
it was thrown away. If it could survive one day and one night, it was brought
back and given a lease of life. This is correct. There was a special necessity
for that tradition at that time. These traditions change with the times as the
needs of society change.
Dr. Ambedkar: You are arguing a bad case.
Shri T. N. Singh
: I do not understand this. When I
believe that you are making a vain effort, you might think that I am supporting
a bad case. The thing is that you do not have full knowledge of our traditions.
Only after studying them completely you might change them and those traditions
which are very good, whether they are sustained by this Code or not
should......
Shri A. C.
Shukla: Are they recorded ?
Shri T. N. Singh
: We live in this country and know
them. It is, therefore, improper to axe these good traditions and I would like
that either this clause should be removed altogether or it should be adjusted
in the next clause. It should be considered after that. that would be proper.
To pass it just now in this form is not proper.
[F10]Ch. Ranbir Singh
(Punjab): (English translation of the Hindi speech ) I have risen to support amendments No. 420 proposed by Pandit Thakur Das
Bhargava and No. 288 of Shri Bhatt. Shri Bhatt by his amendment means that if
some customs or usages clash with the Hindu code Bill, then that clash should
not be regarded in the' light that the custom is abolished, but it should be
allowed to continue for ten years and after that period it should be regarded
as finished. Amendment No. 420 by Pandit Thakur Das Bhargava means that those
customs which are in accordance with the Hindu Code Bill should be regarded as
abolished ; and those customs which are left, their power or their legality
should be retained. Whatever has been said by my learned friend Shri Pande, I
agree to that and this thing is right and very much heartening. The real
purpose of the Hindu Code Bill was considered to be that this Bill was being
brought forward to introduce some reforms in the country to remove the
prevailing social evils from the society and to bring about some changes in it.
How many people would be affected by it has to be taken into consideration and
as he said I regard the imposition of this Hindu Code Bill from the backdoor
upon those people of this country who were free from it up till now, as an act
of abuse of power.
Shri A. C. Shukla : Even if they do not want it they must have it.
Ch. Ranbir Singh
: Shri Shukla has not understood the
meaning of the word imposition used by me, or he has not heard it properly. If
he says that the imposition which I have said is wrong then perhaps I would
like to know from him whether he can quote any example in which any person from
the Punjab, may he be a Hindu or a Sikh or a Muslim, has ever raised his voice
that their customary law should be abolished and in place of that they should
have the law of Manu, or of Yajnavalkya or of anybody else.
Shri A. C. Shukla : When they will become educated they would demand
that.
Ch. Ranbir Singh: Perhaps Shri Shukla does not know how dynamic
personalities have born in our Punjab who have challenged the authorities of
our country, although, I do not support them but this is an historical fact
that during the recent years nobody had been able to defeat a Congress
candidate in the Hindu majority areas, but in the Punjab there was a
constituency in Haryana, which is a Hindu majority area, in which Ch. Chottu
Ram had defeated a Congress candidate.
Dr. Ambedkar: Ch. Chottu Ram was a great friend of Hindus.
Ch. Ranbir Singh
: In case the Hon. Dr. Ambedkar has got
any document or any other proof about it, I am ready to accept that. But as far
as his objective is concerned I am not opposed to that. I am a supporter of
monogamy and I want that in some special circumstances arrangement for divorce
should also be made so that when some difficulty is felt on both sides, by the
man as well as by the woman in living together, a way must be found out to save
them from that difficulty. But along with it I cannot help saying that this
attempt is nothing but an act of abuse of power, because we should have applied
this Hindu Code Bill to those only who wanted to be governed by it.
Since this question of Hindu Code Bill has come before
this House, it has taken several months and many a day has been spent upon it,
I tried hard to snatch some minutes so that I might express my views about it,
but unfortunately I could not get a chance. Unfortunately, when Sardar Man
spoke about it, instead of coming to the right thing he got himself entangled
in the labyrinth of the Sikh religion, perhaps he might have thought that in
this way his point would be more forceful or there might have been some other
reason. However, I think that this question is not related so Sikhism alone,
this is a question pertaining to the customary laws of the whole of the Punjab.
I want to bring to the notice of the Hon. Dr. Ambedkar that even in such a time
when such Brahmanic rules and regulations with regard to the living customs of
the country and the society were being enforced rigidly, viz., one could not go in a particular direction on Mondays or on
Tuesdays or on Saturdays, the martial race of the Jats in the Punjab, to which
I and the Hon. Sardar Baldev Singh belong, did not yield to the Brahmanic rules
and it has not done so even now. I want to submit that really in our society
there is no likelihood of any appreciable opposition to the two provisions
relating to monogamy and divorce, and I am not personally against them, but I
am opposed to the method and manner which you are resorting to. And the manner
or the backdoor method through which it has developed is not a proper one. This
is not because I regard myself a Non-Hindu but I do feel that we have never
been governed by the Hindu code and it has never been enforced with regard to
us. I doubt your intentions that you can govern by the backdoor policy those
whom you could not enslave mentally. I disagree with you to a great extent with
regard to the rules and regulations which you are enacting in respect of
marriage and divorce without caring for the prevailing customs. I want to state
with respect to this that many reformers of society have done a great many
reforms in the Hindu Society with regard to the widow's plight but I want to
point out that a young widow has remained an unknown thing to our society from
times immemorial. Our society does not know the name of a young widow, because
it is a custom in our community that when the husband of a woman dies, then
after a year of his death the brothers and parents of the widow and the
relations of her late husband meet together and in spite of the shyness, as is
common everywhere in our Hindu society, and against her formal wish, that she
would herself bear the distress that has befallen her, and in spite of her
refusal, she is told that this is not possible. It may be said that her ideal
is good, but how many people are there who can follow such a high ideal ? The
people of our society doubt whether such a lofty ideal which you are going to establish
in our society would not create any evil in our society. Therefore, you should
recognise our simple custom of remarriage and not invalidate it. So I wanted to
support the proposition laid down by Shri Bhatt. Now I mention the reasons for
that.
On the one hand where your rules and regulations wanted
to reduce the troubles of our womenfolk, and they have reduced them to a great
extent, on the other hand their troubles have been increased manifold. And that
is because you have given them a sort of right to marry wherever they want. In
the ordinary way, if no extraordinary trouble arises it would easily become a
custom that they could remarry, but why do you lay down this restriction ?
Generally people are not bigamous of their own will but they are forced by
circumstances. If a brother dies, his brother has to concede to the custom of
bigamy against his wishes.
Shrimati Dixit : I want to ask you a question. There is a woman, who has
got four or six children, there is her husband's brother's wife, she also has
got four or six children. If they are made to live together would not the
co-wifely feeling create trouble between them? Is it not unjustifiable on
principle to force a woman to marry another man against her wishes ?
Sardar Hukam
Singh (Punjab): By the will of god.
Ch. Ranbir Singh
: If you mean remarriage by that, I
would say no: remarriage is possible only when it is regularly sanctioned by
society, but there are many women who cannot express their desire. After
thirteen or fourteen days of his wife's death a man may express it, but the
women cannot do so due to the peculiar set-up of our society such a thing is
impossible, and ample time is required to change that.
But if she meant this that if there is a brother, who
has got two or three children and a wife and he has a brother who is about to
die, and he also has got two or three children and his wife, that they are made
to live together it would create difficulties and trouble would arise. If she
wants to know about that, I am coming to that point also. I confess it and
everybody in our society would confess it that nobody resorts to bigamy
willingly and that the woman is also helpless, because she loves her children
and she cannot leave the two or three orphans, for where could they find
shelter. She cannot say that she wants to remarry and the other members of the
household also cannot leave the children, then the question arises whether she
should take her children with her. But this is a custom in our society and I
think, you may enact any law but you cannot change it. This is not a matter of
joke. They themselves could change it but you cannot change it today.
There is another custom in our society. It is their
belief that even the most foolish man belonging to a particular family would
not allow his children to go to another family and if a man tries to do so very
severe punishment has been prescribed for him in our community. Even if you say
that our community is backward and it is very difficult to improve it, the
result of such an action among us is still murder. If you want that the number
of murders and assassinations should increase in our society, the Punjab is
already notorious for murders and assassinations, for many people are hanged
there for such murders etc.—if you want to increase their number you are at
liberty to impose any rules and regulations on them immediately. But if you
want to decrease the number of murders and assassinations and the sentences of
death, I would request you to accept the amendment of Shri Bhatt or of Shri
Bhargava.
So I was saying that either a woman, if she loves her
children, will be forced to live as a widow for the rest of her life, as has
never been done in her community before, or, if she does not love her children,
she might take them stealthily to some other place at night and if she meets
some daring person who says that he would see how others could harm him the
result would be that either she would become a widow again or her husband would
be hanged. But, in any case, she would not remain a fortunate wife, though this
is a big and a terrifying thing, but it is a fact.
Then there is the question of sagotra marriage. How many men and women live in the cities ? I
want to state my own reactions about this Hindu Code Bill. In this house the
majority of members come from the urban areas. Those who were born and brought
up in the cities confine their thoughts to the rules and regulations and
manners and customs of the cities. They think there is a vast difference between
town life and village life, they have got no experience about it. I give a
simple example. For instance, take the case of a city. If a woman there does
not want to marry nobody would object. But if in a village a girl attains about
the sixteen of age, not any does distress befall her parent but that girl is
persecuted too. Everybody comes to the father and says. " why do you not
arrange for the marriage of your girl ? " The girl might be bitterly
opposed to marriage but she cannot avoid marriage. She is forced to do so ;
this theory might be good or bad but this is a fact. From this very example you
can differentiate between the mode of life in a town and that of a village and
see how much difference is there between them; and still you want to enact a
common law for both. My friend Shir Jangde spoke so forcefully. He spoke for
others but I suspect Shri Jangde has become a townsman or has gone to their
side. He is coming to appreciate the urban way of life. He wants to tell his
own tale and not that of the people of his own place. So I was submitting that
when there is so much difference between the two modes of life, there is such a
vast difference between their social conditions, and you want to enact a law
which will be applicable to all irrespective of their customs and usages, it
would be a great injustice to them.
There is another point I would like to touch upon in
this connection and that is with regard to sagotra
marriage. Unlike the customs obtaining among us in Punjab, here we find that
most of the girls are usually married locally. Taking the case of Delhi itself,
it will be seen that girls from one part of the city are married in the other
part of the city. Even in the small towns having a population of say ten
thousand they are married likewise. Under the circumstances, they are not
conversant with the customs regarding marriage prevailing among us. In keeping
with the custom obtaining among us, I cannot get my son married among my own
sub caste which is spread over as many as 24 villages situated within a radius
of no less than ten miles. It is not that he cannot be married in only those 24
villages, even the villages numbering about 30 to 40 where the families of his
mother's sub caste are settled are ruled out for the purpose of such matrimony.
Things do not end here. I cannot get my son married to a girl from any of the
thirty to forty villages, where people of my mother's sub caste live. That is
to say, I cannot find a bride for my son from amongst a hundred neighbouring
villages or so.
Shri A. C.
Shukla: Is it a healthy practice or otherwise
?
Ch. Ranbir Singh : I never laid any claim to this effect. It is none of
my intention to annoy him in the way the Hon. Doctor did. Unlike him I cannot
dare utter anything unpleasant things. In contrast with the big personality of
the Hon. Dr. Ambedkar I am but a humble Member.
Shri Radhelal Vyas (Madhya Bharat): But you are also Jat.
Ch. Ranbir Singh
: Of course, I am but not a Sikh Jat
like Sardar Bhopinder Singh Man. I do not want to enter into any controversy—
and thereby cause offence to 'any one—as to whether our custom is better or
other's or whether or not this measure is of any use. What I want is simply to
apprise you of our customs which ; for instance, prevent me from getting my son
married in about as many as one hundred to one hundred twenty villages. How
under such a state of affairs, can those women residing in small towns or even
in big cities, be supposed to have any real estimate of the extent of hardships
and difficulties which we are subjected to while facing such issues, because
for them marriage is no more than a mere routine affair that could be performed
from one mohalla to the other?
Pandit Thakur Das
Bhargava: There is no difference between Hindu
Law and your law in so far as this matter is concerned.
Ch. Ranbir Singh : There may not be any difference in the laws but the
developments do vary. According to our customs we cannot establish matrimonial
connections among some certain gotras.
None can dare go against such a custom. Even the most backward person— under
the present social structure such a man is bound to be treated as such,
although in future he may be called progressive—cannot possibly take such a
step. In fact none has got so much courage, so to say. But what you are doing
today is, if I may say so, simply enabling such a man, by law, to take such a
step.
Shri A. C.
Shukla: What is it that the hon. Member wants
?
Ch. Ranbir Singh : I am not going to say what I want. I would, on the
other hand, only want to apprise the House of the various customs prevailing.
That is why I am pleading for Shri Bhatt's amendment to be accepted. Let
developments be closely watched during the next ten years, the truth will
express itself in the right manner. If our course of action would be correct
you would, I am sure, change over to our side or, otherwise, we would do the
same thing.
So I was referring to the fact that even in the present
days sagotra marriages are not being
performed. But there is no denying the fact that rules and regulations have
great force on their back. Supposing a man with the help of this law seeks to
get married in the same village or among the same gotra, what would be the possible consequences ? He is likely to
meet the same fate as I have described earlier. It is not that I want to
exaggerate things in any way, but, all the same, let me point out what I
consider to be a serious drawback in our present day society. Supposing any
member of my family gets married in such a manner, nobody would care to
ascertain my view in the matter. If my brother commits any wrong of this type,
it may be that I may also be murdered simply because I happen to be his
brother, regardless of the fact whether my views are in his favour or
otherwise. None is going to ask me to explain my view point. Such is the sorry
state of affairs in our community. Indeed how strange it looks that they judge
the doings of one brother from those of the others ! Here, in your society,
three brothers can hold three different views— one can be a Communist, the
second a Socialist and the third Congressite. To be more precise, if a man here
is a member of the Bharatiya Jan Sangh, it is open to his brother to join any
other party, But things at our end are quite the reverse. If any one member of
a certain family there joins Congress, the entire family would be automatically
deemed to be Congressite regardless of the fact whether it be so or not. Such
is the condition of our community. Now, it is for you to call it whatever you
like—progress or otherwise. I, for one, under such circumstances, stand for
monogamy in our society. In a country like ours; especially in a community
which I belong to namely Jats, monogamy is particularly essential, for among us
the number of boys is more than girls. A man have two wives only by encroaching
upon the share of any one of his fellow beings. Under the practice of monogamy,
comparatively larger number of men would be provided with wives which is
otherwise not possible. It is just possible there may be such regions in this country
where the number of women is more than men. (English
translation concluded).
Sardar B. S. Man (Punjab): In Madras they have.
Ch. Ranbir Singh : But the difficulty is that a Hindu Jat of our side is
not so broad-minded as to go as far as Madras; a Sikh Jat may go. I for one
consider monogamy to be a step in the right direction ; but the difficulty is
that our society has not yet so advanced, or shall I say, degenerated, so as to
agree to the practice of sagotra
marriage. Let it be postponed for ten years, after that this issue may. be
taken afresh for consideration, if by that time the society succeeds in
reaching that height of advancement, which would clear the field for such
steps, we would accept it ; otherwise it would keep on pending. We do not, of
course, approve of the practice of what we call forced bigamy, but, all the
same, the practice continues in our society, though it is not so common. Give
us ten years' time during which we may make efforts to do away with such a
practice.
In the end once again I take this opportunity to submit
to the Hon. Dr. Ambedkar that although, I am a whole-hearted supporter of this
measure. I would like him to accept either Shri Bhatt's amendment or amendment
No. 420 moved by Shri Bhargava.
Shri Sivan Pillay (Travancore-Cochin): Sir, let the question be now put.
Captain A. P.
Singh (Vindhya Pradesh) : No, Sir. At least
those who have moved amendment may be given an opportunity to speak.
Sardar B. S. Man: Yes, Sir. This is a very important point.
Mr. Deputy
Speaker : I shall call Mr. Jhunjhunwala and
after him Shri Bhatt. They have tabled amendments.
Shri Syanmandan
Sahaya : Sir, I have also tabled amendments.
Mr. Deputy
Speaker: I shall call them in this order, and
then I shall consider any other name.
12 NOON
[F11] Shri
Jhunjhunwala (Bihar) : (English translation of the Hindi speech ). All my three amendments
are in consonance with the Constitution. My first amendment provides that if
this Code contains anything against any religion, no clause of this Bill shall
override the provisions of the existing law; the second amendment provides that
if this Code contains anything against morality, the Bill shall not override the
provisions of any existing law, or any custom or usage in force; and the third
provides that if this Code contains anything against the culture of any section
of the people, the Bill shall not override the existing law.
Sir, when I had moved the third amendment, you had asked
as to what would be the form and definition of the word ' culture '. Yesterday,
in this connection, I had wrongly quoted Article 129 of the Constitution
empowering every section of people to have a culture of its own and to conserve
the same. In fact it is Article 29 and not Article 129—which reads: —
"29. (1) Any section of the citizens residing in
the territory of India or any part thereof having a distinct language, script
or culture of its own shall have the right to conserve the same. " That is
why I have put in the word ' culture ' here. The Hindu code, in keeping with
the Constitution, cannot contain anything whatsoever that would deprive any
section of people, or any community of its right to preserve its own religion
or culture. I shall deal with my amendments later on. It will be recalled here
that you had given a ruling to the effect that one should take the opportunity
to deal with any other amendment or clause while speaking on his own amendment,
or otherwise he would not be allowed to do so afterwards. It is because of this
that I purpose to take this clause first and the amendments later on. Moreover,
that would be more convenient to me.
Sir, when the Hindu Code Bill, which is now sought to be
passed under another title, namely ' Marriage and Divorce Bill ', was placed
before the House, it was said to have contained two main things. It is argued
in this behalf that this Hindu Code Bill, or say. Marriage and Divorce
Amendment Bill, is sought to be passed in view of the two main objectives which
it aims at. In the first place, the measure is stated to be progressive ; and
secondly, it is described as a legislation that would go a long way to provide
women with their due rights hitherto denied to them. Men have so far been very unjust
to women and it is with a view to eradicating this evil that this legislation
is sought to be enacted. Now, let us see whether or not this measure is
progressive. The Hon. Minister of Law did not give any definition of the word '
progressive' that might distinguish between things which are progressive and
those which are not. It was stated from this side that the Hindu religion was
one of a very long standing and was based on true scientific principles which
alone are responsible for its survival so far despite so may atrocities
committed on it. Replying to this suggestion the Hon. Law Minister was please
to state that it was Lord Buddha who had disclosed the true path of the
religion. The Buddha, Dr. Ambedkar said, could not tolerate to see women being subjected to men's continuous oppression
and having no rights whatsoever. It made Buddha's heart bleed to see men having
more rights than women and committing all sorts of atrocities on them.
It was this treatment of discrimination against one sex,
the Hon. Law Minister went on to say, that led Lord Buddha to preach equality
among men and women. By quoting the Hon. Doctor here I simply want to impress
that the Bill in question is stated to have been brought forward in accordance
with the Buddha's teachings. Lord Buddha, a great figure as he was, was
undoubtedly religious-minded. Let us, therefore, closely study as to what was
the real object which he aimed at. Here I am reminded Sir, of a couplet of Sant
Jnaneshwar, a renowned Maharashtriyan poet, the actual words of which I do not
quite recollect at the moment but it means something like this : A frog
accompanied by a bee entered a tank where there were lotus flowers blooming on
the water. The bee sat on the lotus and sucked its honey; it carried away with
it honey and fine smell. But the frog which had accompanied the bee to the tank
could only bring some mud and dirt.
SARDAR HUKAM SINGH IN THE CHAIR
Sir, the Buddha preached that the more we are able to
subdue our evil desires, the better it is, for it would only help us to serve
the society and then humanity as a whole in a better way. This was the
highlight of his teachings. But, Sir, it is something extremely astonishing and
painful too, that our Law Minister could not find any such suggestion in his
teachings. What he could make out was that since men had had right of polygamy,
women too must have the right to divorce in order that the effects of the
former could be neutralised. I would request you sir, as also the hon. Members
here, just to see what type of equality is sought to be given by this Bill.
Dr. Ambedkar : Is this all relevant on clause 4 ? Let us have some
regard for relevancy. We could not altogether abandon the rule of relevancy.
Pandit M. B.
Bhargava : Relevancy is not the sole monopoly
of the Law Minister.
Mr. Chairman: I would request hon. Members to leave this question to
me. The Hon. Minister has asked me to decide it.
Pandit M. B.
Bhargava : But he himself pronounced the
judgement—he did not refer it to you.
Dr. Ambedkar: Relevancy ought to be also your monopoly— not only
mine.
Pandit M. B.
Bhargava: It is yours ......
Mr. Chairman: There should not be any cross-questions and answers. I
would again request Hon. Members to have greater restraint on themselves. I
would ask the Hon. member who is speaking that he should be more relevant in
his speech.
Shri Jhunjhunwala: I was quite relevant in pointing out on to where the
equality exists and where it is that we should give equal right to the women.
My friend Shri Thakur Das Bhargava observed .........
Mr. Chairman : I must tell him that that is not the real issue at
the moment, that is whether equality should exist or not. He may refer to
customs and other things, but equality is not the direct issue at this moment.
We should have regard to that.
Shri
Jhunjhunwala: May I explain to you sir, as to how
these things relate to the real issue. I had in the beginning submitted that
the Hon. Minister of Law had advocated two main points in support of this
measure. Firstly, he described this Bill as a progressive measure, and
secondly, he stated that this Bill sought to put women, who had not got equal
rights, on equal footing with men. And now this clause 4 provides that the
provisions of the Bill shall override all other things. As I said before, I
shall first deal with this clause. In my opinion the measure itself is of no
use when it does not go to fulfil either of the two things that are advocated
in its support. Hence I am just trying to convince the Law Minister that the
measure he has put before the House is absurd altogether and does not conform
with the two main points which he has advocated. As a matter of fact, the
measure ought not to have come at all. That is the point which I wanted the
House to take note of. I may, with your permission Sir, make a few more
observations in this connection and they would clear the whole thing, for
otherwise the argument itself would become meaningless. I would, therefore,
like you to appreciate the fact that this measure is neither progressive nor does
it seek to provide women with their due rights as was advocated when the Bill
was brought forward. If the clause relating to property had been taken. I could
understand it because so far as property is concerned, our women have not got
equal rights, they are suffering great hardships on this account and are
subjected to innumerable atrocities. I am sorry Shrimati Durgabai is not here
at the moment; she was kind enough to narrate some heart-rending tales with regard to women in Madras thereby
causing much pain to all of us here. The question will be dealt with at length
while taking up the property clause. If in reality the Law Minister was very
serious about our women's betterment, he should have taken up property clause
first, because we cannot possibly help women take their proper place in society
unless their economic condition is well improved and they are made absolutely
free in that sphere. Hence, I cannot understand why that clause is not taken
first. It is none of my intention to criticise his motives, but, all the same,
I cannot but say that his real object is apparently different from what he is
advocating. By bringing forward this measure he seems to be intending to
exterminate the Hindu religion, Hindu society and the Hindu customs and usage, thereby
bringing moral degradation of the Hindu society. His aim seems to be no other
than this. By taking the property clause first and thereby seeing that women's
economic conditions are improved, we could have given them some solid relief.
Many an Hon. Members pleaded for this but there was our Law Minister constantly
nodding his head in disapproval. He perhaps does not like us to take the credit
of doing something for our women which would help them and redress their
grievances.
I was just referring to my friend Shri Bhargava's view
that divorce was a thing which he did not like and as a matter of fact very few
persons have supported it. The reason is that it is not a good thing. I may
just give you an idea as to what would happen if divorce is enforced. Daily the
youths of our country would read in the papers that so many cases of divorce
took place that day and that such and such person divorced his or her partner.
The newspaper published in my friend Shri Brij Kishore's village in Bihar and
also that which Shri Syamnandan Sahaya is going to bring out, would report such
cases and they would read them. Out of all persons, Shri Brij Kishore seems to
have seen greatest advantages in divorce. He would read these reports very
enthusiastically. I am rather sorry that he is not here at this time otherwise
he could know what madness he was indulging in while talking like that.
Sir, I was submitting what my friend Pandit Thakur Das
Bhargava said that divorce was not a good thing. But he stated the reasons why
he favoured the idea. He said that in the clause relating to divorce a
provision was being made to make it optional. According to him it was a very
important provision. He said that it was only an enabling clause. But I would submit that a number of
enabling clauses have been passed here. The Hon. Minister of Industry and the
Hon. Minister of Commerce have often taken refuge under this ' enabling clause
'. They have said the same thing about Coca-Cola. They say if it is being
manufactured, let it be; it is only an enabling clause. Similarly there is this
enabling clause related to divorce. I would like to ask one thing from Pandit
Thakur Das Bhargava. Suppose there are two sons of a father and one of them has
married three wives. Now the other fellow goes and tells his father that if his
brother could marry three and spend so much, then what should he do.
Dr. Ambedkar: He may marry four.
Shri Jhunjhunwala
: The father replied that he could
marry five. So, according to Pandit Thakur Das's theory, if a son marries three
wives, the other should marry five. Why after all he should lag behind ? This
is the right he wants to give. But our friend Shri Syamnandan. Sahaya is a
staunch baniya. What would he say ?
He would say that if he has married three wives, he should immediately be
turned out.
Mr. Chairman : I would request the hon. Member to discuss the subject
of marriages when the question of monogamy is taken up. We are now discussing
customs and rules and it would be better if he confines himself on matters
relating to this subject only.
Pandit Thakur Das
Bhargava : He means to suggest that one son
would divorce three wives and the other five.
Shri Jhunjhunwala : Sir, I would abide by your ruling and strictly follow
it, but as I submitted in the beginning ......
Mr. Chairman: He can certainly speak on this clause.
Shri
Jhunjhunwala: I was speaking on the marriage
clause.
Mr. Chairman: Not on the marriage clause. Clause 4 is under
discussion.
Sardar B. S. Man
: On a point of information. While
discussing the present clause and
while moving certain amendments to the effect that from its effect certain
customs may be excluded, we have to place our case by showing that those
customs should be excluded for valid reasons. In that case, I suppose we are
entitled to refer to the customs that are at variance with the Hindu Code and
thus base our case that customs which have a long history, which have been
recognised as such and which are not repugnant to public policy and thus which
have the force of law should be permitted. In that respect, I beg to say that
it is perfectly within the rights of Members to refer to the customs even in
detail.
Mr. Chairman: It has already been laid down that as far as particular
customs are concerned, they might be taken up when the particular clauses are
under discussion. So far as the relevancy about this general clause is
concerned, you can discuss in a general way and say that such and such a custom
is very old and it has been uniformly observed. You can say that much about the
status of a custom, but if we were to take up all the customs and discuss them
there will be no end to. There are the relevant clauses and when they are taken
up each particular custom can be discussed. That would be the better place. I
do not bar this discussion. I am only requesting the Hon. Member and suggesting
to him that that would be the more proper place. Here, he can discuss in a
general way.
Shri Jhunjhunwala
: Sir, I will speak according to your
ruling. But I would like to submit that I could not get an opportunity to speak
on clause 2, although the Hon. Speaker ruled that, as in the case of clause 2.
Members could speak practically on all matters while discussing clause 4. Only
the clause relating to property, could not be discussed. I am pointing out to
the House the advantages and disadvantages of the provisions relating to
divorce and marriage. I think I was never irrelevant. Anyway, I would now abide
by your ruling, and briefly submit my viewpoint. I now come to my amendments.
Babu Ramnarayan
Singh: Very good.
Dr. Ambedkar: Take your seat now.
Shri Jhunjhunwala: I will take my seat, you kindly withdraw this Code and
relieve the Hindu Community of it.
Dr. Ambedkar: Please sit down.
Shri
Jhunjhunwala: You leave and I will sit down.
Dr. Ambedkar: Take your seat, or I will go.
Shri
Jhunjhunwala: You go, and I will also sit.
Mr. Chairman: I would ask the Hon. Member to continue his speech.
Shri Jhunjhunwala: I am coming to my speech but the Law Minister, who is
a responsible person, is indulging in unnecessary interruptions. He wants that
this thing should be talked over and Government's money be spent somehow. He is
not so anxious to grant equal rights to women but he is more keen to see that
Government's money is spent somehow so that people outside might know that the
Law Minister is not idle.
Mr. Chairman : May I request the Hon. Member that he should proceed
with his speech instead of answering these questions.
Shri Jhunjhunwala : Sir, I am prepared to abide by your orders. But when
any Hon. Member interrupts, it becomes difficult to proceed further and it also
takes more time to come to the speech proper.
Dr. Ambedkar: Do not get nervous, they are your comrades.
Shri Jhunjhunwala : Comrades also desert sometimes. I have had I a number
of comrades like you. You have been professing yourself to be a champion of
women's cause, but ultimately deserted them. Sir, I am continuing with my
speech but the Hon. Minister interrupts.
Sardar B. S. Man
: Will it not be discourteous to the
Hon. Law Minister to ignore the interruptions and not to reply to it ?
Shri Jhunjhunwala
: Then there is another point which I
would like to submit. Pandit Thakur Das Bhargava said that if anything is
suggested that might lead to some harm and if anybody is doing a wrong thing,
then how far is it proper to ask others also to do the same thing ? How far is
it wise to ask women to do wrong to men if the latter are behaving in that
manner ? That is what I am going to point out.
Then we have to see whether this thing is progressive or
not. Our Hon. Minister of Home Affairs, Shri Rajaji is not here at present. He
made some remark while referring the Press Bill to Select Committee. He said
that an article or a caricature about him (I do not exactly remember what it
was) appeared in some paper. When he saw it, he found it most revolting and at
the same time very obscene. He did not know why it was published and felt it
very much. But he said when he saw the newspapers of the present day, he felt
there was nothing special in that paper which should have offended him (Interruptions). My hon. Friends are
trying to interrupt me.
Mr. Chairman:
If you address the Chair perhaps you will not feel that inconvenience.
Shri
Jhunjhunwala: I am accustomed to look all round
while speaking.
So, he said that it was quite insignificant. As compared
to the articles and caricatures that appear in the present day press, that
thing did not seem to be obscene at all. He said he felt it unnecessarily. The
newspapers force us to see and read those things that we do not like to see,
and young men and women of the country read them. God knows what influence
those things might be leaving on our youths.
Now, I wanted to ask at that time whether these articles
etc. that appear in our press are progressive. These are far more obscene than
that which you thought to be quite vulgar. Then, are they progressive and if
they are progressive do they prove beneficial for us ? So, I wanted to point
out that our Law Minister who is the Manu of Kaliyug ......
Shri Syamnandan
Sahaya:
Not the Manu of Kaliyug but
Kaliyugi Manu.
Shri Jhunjhunwala
: We are living in Kaliyug hence I called him the Manu of Kaliyug. Our Hon. Minister Shri Gadgil who considers himself to be
an outcast Brahmin and thinks he is a Pandit
has given him this title. All that I mean to say is that he is the Manu of this
age. I wanted to know whether the purpose of this progressive measure is to
uplift our society or to degrade and demoralize it. I could have understood the
whole thing if he had convinced me before I had moved my amendments that the
measure was progressive in such and such manner. He only said that it was
progressive and that women should be given equal rights. He has denied those
rights to them that they needed most and which could have benefited them very
much. The right which he is giving to them is that of divorce. So, I was trying
to point out whether this is really progressive. I say this can never be
progressive. If a person does something wrong, it is not wise that I should
also repeat the same thing for that reason. On the other hand, such legislation
should be made whereby the person doing a wrong thing might be forbidden to do
it in future. It should not be that the other person may also be asked to
follow him.
That was about this clause. Now, I would move my
amendments and fully express my views on them. I have already read them out and
so I would not read them again. This will take more time.
Shri Syamnandan
Sahaya : How would we understand and vote
upon them.
Mr. Chairman: Has he already read them ?
Shri Jhunjhunwala: Yes Sir, I have read them.
Mr. Chairman : Then there is no necessity of reading them again.
Shri Syamnandan
Sahaya : We have to vote upon them. You must
read them.
Shri
Jhunjhunwala: My first amendment is that if
anything in the Code is against the Hindu, Sikh, Jain or Buddhist religions or
against Marumakkattayam and Aliyasanthanam laws, then it shall not apply to
them.
Dr. Ambedkar: It shall apply only to the marwaris.
Shri Jhunjhunwala : Had it not applied to the marwaris, even then I would not have sat. This code is dangerously
harmful to the society and the country.
Mr. Chairman: The Hon. Member should continue.
Shri Jhunjhunwala : The Hon. Minister is interrupting and casting
aspersions. Our Constitution provides for equal rights. Why do you not allow me
to reply to his remarks ?
Mr. Chairman : I am also asking him not to interrupt, the Hon. Member
may go on.
Shri Jhunjhunwala : You turn towards him and then say, so that he may
hear.
Mr. Chairman : I have acquired this habit from the Hon. Member. I
would ask the Hon. Minister not to interrupt.
Shri Jhunjhunwala
: Now in this connection, I would like
to read before the House Article 25 of the Constitution. I would request the
Hon. Members to listen patiently:
" 25. (1) Subject to public order, morality and
health and to the other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to profess practice and
propagate religion. "
(2) Nothing in this article shall affect the operation
of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial,
political or other secular activity which may be associated with religious
practice;"
Babu Ramnarayan
Singh: Kindly translate it into Hindi.
Shri Jhunjhunwala
: You engage a teacher for that. Then
there is :
" (b) providing for social welfare and reform or
the throwing open of Hindu religious institutions of a public character to all
classes and sections of Hindus."
After that there is explanation which I need not read.
So I submit to the Chair and the Hon. Members of this House that the purpose of
my amendments is that when you make an effort to introduce reforms, you have no
right to touch our Dharmshastms. But
you can bring in any measure if it does not conflict with our shastras and our religion. My amendment
relates to the following:
" any text, rule, or interpretation of Hindu law,
or any custom or usage or any other law in force immediately prior to the
commencement of this Code shall cease to have effect as respects any of the
matters dealt with in this Code. "
" Any other law in force immediately before the
commencement of this Code shall cease to have effect in so far as it is
inconsistent with the provisions of this Code. "
I want to submit that I have no objection to this
legislation. It is all right but if there is anything which is against any
religion, Hindu, Sikh or Jain then it would not apply to it. Shir Naziruddin
Ahmad: And Muslims? Shri Jhunjhunwala: Muslims do not come in the purview of
this Bill. Then, in the next amendment, there is morality in place of religion.
You cannot provide for anything in the law which has its effect on the morality
of the people and which leads to their moral degeneration. This is what I have
to say. This amendment should be added. We have been given this right under the
Constitution. If this amendment is not accepted, I would think that our
Government is slandering and vilifying our religion. They should not do it.
My third amendment is based on Article 29, wherein the following has been said about culture:
"29. (1) Any section of the citizens residing in
the territory of India or any part thereof having a distinct language, script
or culture of its own shall have the right to conserve the same. " My
submission is that if this code affects or comes in conflict with our culture
or the culture of Hindus, Sikhs, Jains or the culture of any section of the
Hindus, then again it shall not be applicable under those circumstances.
[Mr. Deputy Speaker in
the Chair ]
Therefore, while moving these three amendments before
the House,. I would urge the Hon. Members to accept my amendments first and
then pass the clause. In the first instance I would ask them, not to pass the
clause at all but if they pass it my amendments should also be accepted along
with it. I would not take any more time now and finish.
(English translation concluded).
All Hon. Member: Closure, Sir.
Shri Bharati: I move that the question be now put.
Several Hon.
Members: No; no.
Mr. Deputy
Speaker: The hon. Members will kindly take
their seats. I will put the question to the House.
Shri Naziruddin
Ahmad: Before that. Sir, I beg to state
that we have submitted amendments. We have a right to speak on them. We have
something to say upon them. The merits of our amendments should be discussed.
Mr. Deputy
Speaker: I agree.
Shri Syamnandan
Sahaya: One more submission Sir. You had
just now announced that after Mr. Jhunjhunwala, Mr. Bhatt would speak and that
after that, you would decide as to what should happen.
Mr. Deputy
Speaker: I least expected that the Hon.
Member Mr. Jhunjhunwala would take up so much time. His amendment is a very
small one. He has taken too much time. I thought that within that time two Hon.
Members might speak. We have had a discussion on this particular clause since
yesterday. So far as this clause is concerned, if it had stood alone, I would
not have come to any conclusion. We have discussed this to a large extent on
the definition clause, what custom is, what its ingredients are, and so on.
Taking both of them together, I feel that there has been sufficient discussion
on this. Therefore, I shall put the motion to the House. Let the House accept
it or reject it.
Shri Bhatt: There is an amendment in my name also.
Shri Syamnandan
Sahaya : As Mr. Naziruddin Ahmad stated, we
have tabled amendments. We wanted to speak on clause 2 also. After all, even if
you pass this clause today, this matter is not finished. There are 50 or 55
clauses to be gone through. Therefore, I wish to make this submission. This is
a very important clause because it is here that we lay down that the texts will
not be taken into consideration. It is a matter of very primary importance. It
will be another matter if we are dealing with clauses about procedural matter, clauses
laying down the procedure for marriage and divorce. You may accept a closure or
proceed comparatively quickly. But the question whether the texts should be
abrogated, whether custom should be abrogated, that is a very vital matter.
Therefore, I will again submit most respectfully this. If you are going to
finish the Bill today and the Act is going to be passed, then, it is a
different matter and we will submit to the closure. That is not the case and
therefore we should allow time to the movers of the amendments.
Mr. Deputy
Speaker: How can you say that ?
Shri Syamnandan
Sahaya: We have to go through 55 clauses. So
far as this clause is concerned, you should allow some more discussion. I think
in this matter I have the opinion of a good number of Members on my side.
Pandit Thakur Das
Bhargava : May I submit in all humility. Sir,
that sometimes when amendments are moved in this House by a large number of
members and the real intention of the mover is to get a chance to speak, the
situation is quite different. When, on a Bill particular amendments are given,
I beg of you kindly to see if the amendment is one of substance. Then, the
person moving the amendments should be allowed to speak ordinarily.
Shri Bharati: It is left to the discretion of the Chair.
Pandit Malaviya (Uttar Pradesh): There are still many people who wish
to speak on this point, and even though the House may pass the thing, I feel
that in a matter of this nature, the least that we can do is to listen to them
and then come to any decision. I feel therefore, that we should allow people an
opportunity to speak. And indeed, if there is an opportunity, I myself would
like to say something about this clause. I hope, sir, we will have the
opportunity at least to have our say. The House may not agree with our view;
but I feel it will be tyranny if we are not allowed an opportunity even to have
our say. There might have been a good deal of discussion on any point, but that
does not mean that we should not give an opportunity to those who have not been
able to have their say. Therefore, I humbly request that you may kindly allow
the discussion on this to go on.
Shri Bharati : Sir, it is absolutely within your discretion to decide,
after taking into consideration the totality of the circumstances. We cannot
.........
Shri Syamnandan
Sahaya : I can only appeal to the Chair that
since there are many who have yet to ......
Dr. Ambedkar: There has been sufficient debate already and (Interruptions ) Sir, I would like to
submit that in deciding whether closure should be applied or not, the issue is
not whether every Member who wants to speak has spoken. The issue is whether
there has been sufficient discussion or not.
Shri Syamnadan
Sahaya : But every Member who ought to speak
should have been allowed to speak. And, sir, you yourself said that you would
allow me to move my amendment to make this provision consistent with the
clause.
Pandit Malaviya: While a Member is actually in the midst of his speech,
I think, the question is even a little different from what it is when normally
the question for closure is put. There is some difference.
Mr. Deputy
Speaker: But no Member is now speaking.
Pandit Malaviya : This is a matter of sufficient importance. You will
find that those who want to speak have not spoken on this point at all. For
instance, I have not spoken a word on this point.
Mr. Deputy
Speaker : Hon. members must remember this
point— and it has also been referred to by the Hon. Law Minister—that it is not
as if every Member who wants to speak on an amendment or a motion, should be
given an opportunity.
Shri Naziruddin
Ahmad: But those who have given amendments?
Mr. Deputy
Speaker : Then every Hon. Member will submit an
amendment so that he may be allowed to speak. That cannot be the criterion. The
Chair can be expected to weigh the pros and cons and come to the conclusion
whether there has been sufficient debate or not on a particular viewpoint. It
may be that the particular Hon. Member who has tabled the amendment has not
pressed it ; but some other Hon. Member may have done it, perhaps much more
eloquently and forcibly.
Shri Naziruddin
Ahmad: No, sir.
Mr. Deputy
Speaker: It is a question to be judged by a
third person, and I feel that there has been sufficient discussion over this
matter.
Shri Syamnandan
Sahaya : The points raised in these amendments
are different. It is a quite different matter if the same type of amendments
are discussed together. But there are particular aspects of these amendments
which have not been pressed and those aspects must be considered. That is one
submission as this. We are to decide here and now and once and for all, that
texts, customs and usages will be given the go-by. Therefore, the importance of
this clause is far more than that of any other that you might discuss in the
whole of this Bill.
Mr. Deputy
Speaker: Now that this point has been raised.
I would like to ask the Hon. Law Minister whether in view of what has been
said, it is possible to use the word " inconsistent " in both the
parts.
Dr. Ambedkar : That is another matter. I do not propose to make the
change and if you will give me a chance. I will explain why.
Pandit Malaviya : Sir, now that the Leader of the House is
here, can we make an appeal to him ?
Mr. Deputy
Speaker: No. I feel that there has been
sufficient discussion.
- The question is:
" That the question be now put. "
The House divided: Ayes, 63: Notes, 34.
Division No. 3. Ayes 12-54 p.m.
Alagesan, Shri
Das, Shri B. K. Guha,
Shri G. S.
Ambedkar, Dr. Das, Shri Ram Dhani Hasan, Shri M. A.
Ansari, Shri
Devi Singh, Dr.
Hazarika, Shri J. N. Baldev Singh, Sardar . Durgabai,
Shrimati Hazarika, Shri M.
Barman, Shri Gadgil, Shri Himatsinghji,
Major
Bharati, Shri Ghalib, Shri General
Borooah, Shri Gandhi, Shri Feroz Iyyunni,
Shri Brajeshwar Prasad, Shri Ghose, Shri
S. M.Jagjivan Ram, Shri Chaudhuri, Shrimati
Ghule, Shri Jain, Shri A. P. Kaimala. Gopalaswami, Shri
Jajoo, Shri
Jangde, Shri Moidu Moulavi Satish Chandra, Shri
Jayashri, Shrimati Nehru, Shri Jawaharlal Sharma, Pandit
Kanaka Sabai, Shri Obaidullah, Shri Chandra.
Kesar, Dr. Pant, Shri D. D. Shi Charan
Lal, Shri Krishnamachari, Shri Pillay, Shri Shivan Shukla, Shri S,
N.
T. T. Poonacha, Shri Sidhva Shri
Kunzru, Pandit Pustake,
Shri Subbiah, Shri Lakshmanan, Shri Raj Bahadur,
Shri Subramaniam, Dr. V. Mirza, Shri Venkataraman,
NOTES
|
Achint Ram, Lala |
Indra Vidyavachaspathi |
Sahaya, Shri Shyam Nandan |
|
Bhargava, Pandit M. B. |
Pathi Shri |
Nandan |
|
Bhargava, Pandit |
Jhunjhunwala, Shri |
Shah, Prof. K. T. |
|
Thakur Das |
Maitra, Pandit |
Sharma, Pandit |
|
Bhatt, Shri |
Malaviya, Pandit |
Balkrishna |
|
Chandrika Ram |
Man, Sardar B. S. |
Shukia, Shri A. C. |
|
Das, Shri Nandkishore |
Naziruddin Ahmad, Shri |
Singh, Capt. A. P. |
|
Das, Shri Sarangdhar |
Oraon, Shri |
Snatak, Shri |
|
Das, Shri S. N. |
Pannalal Bansilal, Shri |
Sondhi, Shri |
|
Dholakia, Shri |
Ramnarayan Singh,
Babu |
Tek Chand, Dr. |
|
Gupta, Shri V. J. |
Ranbir Singh Ch. |
Vaidya, Shri V. B. |
|
Hukam Singh, Sardar |
Raut, Shri |
Yashwant Rai, Prof. |
[F12] Dr. Ambedkar:
I have already explained, when I intervened earlier, as to what exactly is the
position of custom under clause 4 which is the subject matter of discussion. At
that time I explained that so far as clause 4 is concerned, it does not say
that no custom shall be recognised. My amendment to clause 4 is " Save as
otherwise expressly provided in this Code ", which means that if
Parliament agrees to save any particular custom from the operation of any
particular clause it is still open to Parliament to do so. Therefore, it is
quite wrong on the part of Members of Parliament who have dilated on the
question of custom to suggest that this clause is so worded as not to leave any
room or place for custom. All that has been said that this Code is trying to
abrogate custom altogether is to my mind based upon a complete
misunderstanding. As I have already said, it is still open to members of
Parliament who are interested in a particular custom to raise that question
under the appropriate clause of this Bill when it will be open to discussion
and I shall be able to express my opinion whether lamina position to accept
that custom or I am not in a position to accept that custom. Therefore, that
position is perfectly safeguarded even if clause 4 is passed in the form in
which I have suggested it should be passed.
The only other point to which I wish to make reference
is the point made by my friend coming from one of the tribes, Mr. Theble
Oragon. It seems to me that he has not read the provisions of clause 2 which
this House has already passed. Sub-clause (2) of clause 2 says to what persons it shall not apply. To that there is a proviso. My submission is
that in the case of persons who belong to certain tribes which are not
altogether Hinduised completely—so that with regard to them we could say that
the Hindu Law as such applies to them in the same way as it applies to those
who are in fact and in law, de jure and
de facto, Hindus—it is only those parts of the Hindu Law which they have
adopted that will be regarded as applicable to them and not the whole of the Code.
Consequently there need be no fear in the minds of members of those communities
which are still in a tribal condition and which follow different ways and
different modes and different laws with regard to their marriage and divorce.
They are still safeguarded except that if it is proved that they have adopted
any particular part of the Hindu Law, it is only to that extent that they will
be governed by this Code and not otherwise. My submission is that we have taken
every precaution by adding the proviso to sub clause (2) not to impose the
whole of the Hindu Law which will be enacted in Part II upon them. They have
still the freedom to go their way except to the extent which has been provided
in this proviso.
One other point to which I would like to make a passing
reference is the point made by my friend Dr. Pande and my friend Mr. T. N.
Singh. They have said, I believe in almost unequivocal terms, that customs,
which exist today, must be safeguarded and nothing should be done to abrogate
them. My friend. Dr. Pande, I believe, is a young graduate; I do not wish to
say a raw but a young graduate from the University who probably has yet to
study what the institution of Parliament means...
An hon. Member: He is a professor and a secretary.
Dr. Ambedkar: I am very sorry, but he is still ignorant on certain
aspects. People talk about customs in the country. Well, why have customs
grown? Why do the Smritikaras allow
custom to continue? I think the answer to that question is to be found in the
fact that so far as this country is concerned, there never was such a thing as
a Parliament representing the people, coming here and legislating about their
social relationship; there never has been such a thing at all. (Interruption). I do not know whether we
are better or not. The reason, and the principal reason, why custom has been
allowed to govern the life of the people in this country and in a manner much
more rigorous than is to be found in any other part of the world ......
Shri Syamnandan
Sahaya: If I am not mistaken the common law in
England still prevails although there has been a Parliament for ages.
Dr. Ambedkar : I know that he is much more informed on certain
subjects than I am.
Shri Syamnandan
Sahaya : Dr. Ambedkar, I have never accepted
that you are omniscient and that you have all the knowledge. It may be that in
certain matters I may have better information......
Dr. Ambedkar: I agree that you are. My point is that in view of the
fact ......
Shri Bhatt : I would like to remind the Hon. Dr. as to where from we
got the word parishad and how the
word Rajya-parishad has come into
being.
Dr. Ambedkar: That parishad
is another thing.
Shri Bhatt: That Parishad
is another thing.
Shri Bhatt: That was nothing but a form of Parishad.
Dr. Ambedkar : Parishad is
only a Council ; it is not a Parliament. It has never been. What other way was
left open to the people to regulate their life except to make their own custom,
because there was no Parliament, there was no Legislature and nothing of the
kind ? But when we have got a Parliament, the function of which is to make law,
the question that we have to consider and very seriously consider is whether we
are going to allow the people as such who are outside the Parliament to have a
parallel authority to make their customary laws and the Parliament should have
no right to interfere in them. I think, that is a very serious question that we
have to consider. It is quite one thing to say that where custom have grown and
they are valid customs, in the way in which a valid custom has been defined in
clause 2 of this Bill, they should be retained. That is a very different
question. But to say that nowhere custom should be altered, amended, changed is
really to abrogate the authority of Parliament and I am very doubtful that any
such proposition would be accepted by Parliament and that is a matter about
which I have considerable doubt and I also go further and say whether
Parliament could continue to be that necessary and useful instrument for
changing the ways of life for which it has been designed, if the proposition
which had been supported by Messrs. Pande and T. N. Singh was accepted, that
Parliament should have no jurisdiction with regard to customary laws......
Mr.. Deputy
Speaker: Will the Hon. Law Minister take a long time?
Dr. Ambedkar : I am just closing.
Shri Naziruddin
Ahmad : All our points have not been dealt by
the Hon. Minister. What becomes of those amendments which we have moved? Would
they be expunged ......
Shri T. N. Singh : On a point of personal explanation. The Hon. Law
Minister says that I urged that each and every one of the customs should be
scrupulously observed. I think that he did not probably understand my Hindi
......
Dr. Ambedkar: It is quite possible.
Shri T. N. Singh: What I said was that all customs should not be lightly
abrogated by a law. What I want ......
Dr. Ambedkar: On that point, I am in agreement.
Shri T. N. Singh:
I want to ask if the Hon. Law Minister
has got any detailed list of the customs prevalent in the country. In the
ignorance of all the customs of the country to say that all customs shall not
be applicable, is not proper. That is exactly what I said.
Dr. C. D. Pande: One thing has been said. Sir ......
Dr. Ambedkar: You can come to my room and say that.
Dr. C. D. Pande : Dr. Ambedkar has said this in Parliament and I wish it
should be clarified in Parliament. I did not say that Parliament had no
authority to make laws for the customary things. I appealed to Parliament not
to touch their laws. That is a quite different position than what the Law
Minister makes out.
Mr. Deputy
Speaker : I shall put the clause and the amendments in this order.
Shri Syamnandan
Sahaya: Before you put them. Sir I submit it
is 1-15 already. As I said, this is a very vital clause where the texts,
customs and usages are being abrogated. Therefore, we desire to divide on the
amendments that have been moved. It will take a long time. Therefore, I submit
that the actual motion may be put on another day whatever it. Some hon. Members:
Yes, yes. Some hon. Members: No, no.
Dr. Ambedkar: It will not take more than five minutes.
Some hon.
Members: No, no.
Capt. A. P. Singh :
There are so many amendments ; it will take four hours (Interruption ).
Mr. Deputy
Speaker: Order, order. What is going to be
gained ......
Shri Sondhi (Punjab): There may be division. Sir.
Shri Naziruddin
Ahmad : We will ask for division at every
stage. We want to go by justice and not by arbitrary rules.
Mr. Deputy
Speaker: The Hon. Member may be certain that justice will be rendered. But,
the question is, the House had accepted the closure; the debate is over; the
Hon. Law Minister has replied.
Pandit Malaviya: The House would have accepted the closure if you had
put it five minutes after the debate began. It is the tyranny of the majority
that is being forced on us (Interruption
).
Shrimati Durgabai (Madras): It is the tyranny of the minority over the
majority: not the tyranny of the majority.
Shri Naziruddin
Ahmad: Tyranny of women.
The Minister of
State for Transport and Railways (Shri Santhanam) : The hon. Member should withdraw his word ; I think it is contempt of
Parliament.
Some Hon. Members: No, no, no contempt.
Mr. Deputy
Speaker: Let us not be too sentimental over
these matters. After all. Parliament has to go by language and no doubt, it
must be moderate. There are in all about eleven amendments.
Shri Syamnandan
Sahaya: It will take an hour at least.
Mr. Deputy
Speaker: In view of what has happened, I
thought we could get through these amendments quickly.
Some hon. Members: No, no.
The House then
adjourned till half Past Eight of the Clock on Monday, the 24th September,
1951.
Clause 4.—(Overriding
effect of Code ).
[F13] The Minister of
Law (Dr. Ambedkar) : May I submit.
Sir, that my motion with respect to clause 4 of the Hindu Code, which was held
over, may be put and then the other business may be taken up ?
Mr. Deputy
Speaker : The Hon. Minister wants preference
to be given to that Bill with respect to that part of it. The other day the
discussion and reply on the clause was over, but just as I was about to put it
to the House Hon. Members said it might take a long time and as it was 1-15
p.m. we had to adjourn. We will now finish it. I will now put the amendment of
Pandit Thakur Das Bhargava. The question is: That for clause 4, the following
be substituted:
" 4. Any text rule or interpretation of Hindu Law
or any customary usage in force immediately before the commencement of this
Code shall have effect with respect to any of the matters not dealt with in
this Code. " The motion was negatived.
Mr. Deputy
Speaker : Now we come to amendment No. 449.
Pandit Thakur Das Bhargava
(Punjab) : I beg to withdraw it. The amendment was, by leave, withdrawn.
Mr. Deputy
Speaker: The question is: That in the
amendment proposed by the Hon. Dr. Ambedkar, in part (a) of the proposed clause
4, the words " or any custom or usage " be omitted.
The motion was negatived
Mr. Deputy
Speaker: The question is:
That in the amendment proposed by the Hon. Dr. Ambedkar,
in the proposed new clause 4,—
(i) in part (a), after the words " dealt with in
this Code " the words " after ten years from the commencement of this
code " be inserted ; and (ii) after part (b) the following Explanation be added:
" Explanation.—Notwithstanding
anything contained in subsection (a),
for a period of ten years from the commencement of this Code, any text, rule or
any custom or usage in force, shall have effect. "
The motion was negatived.
Mr. Deputy
Speaker: The question is:
That in the amendment proposed by the Hon. Dr. Ambedkar,
in part (a) of the proposed clause 4, after the words ' this Code ", where
they occur for the second time, the words " in so far as it is
inconsistent with any of the provisions contained in this code " be
inserted.
The motion was negatived.
Mr. Deputy
Speaker: We pass on to the next amendment now.
The question is:
That in the amendment proposed by the Hon. Dr. Ambedkar,
to the proposed clause 4, the following proviso be added:
" Provided that this Code shall not override such
existing usage, custom and law as form part of the distinct culture of any
section of the people to whom this Code applies. "
The motion was negatived.
Mr. Deputy
Speaker : The next amendment is 380. The
question is: That for clause 4, the following be substituted:
" 4. All texts, rules or interpretations of Hindu
Law or all customs and usages and all other law in force immediately before the
commencement of this Act, in so far as they may be inconsistent with this Act,
shall, to the extent of the inconsistency, cease to have effect. "
The motion was negatived.
Mr. Deputy
Speaker: The question is: That for clause 4, the following be substituted:
" 4. All texts relating to, and all rules of interpretation
of Hindu Law in the sacred books or in judicial pronouncement of superior
courts in India or of the Judicial Committee of the Privy Council or in the
text books and commentaries of learned writers and authors or otherwise, and
all customs and usages in force immediately before the commencement of this
Code, in so far as they are inconsistent with this code, shall, to the extent
of the inconsistency, cease to have effect. "
The motion was negatived.
Mr. Deputy
Speaker: The next one is 420.
Pandit Thakur Das
Bhargava: I beg to, withdraw it.
The amendment was, be leave, withdrawn.
Mr. Deputy
Speaker : The amendment No. 129 by Sardar
Hukam Singh is barred. Now 130. The question is: That to clause 4, the
following proviso be added:
" Provided, however, that this Code shall not
override any text, rule or interpretation of Hindu Law, or any custom or usage
or any other law in force immediately prior to the commencement of this Code
which has the sanction of Hindu religion or any other religion to the followers
of which religion or religions this Code will apply:
Provided further that this Code shall not override such
existing text, rule or interpretation of Hindu Law, or any custom or usage or
any other law in force which has sanction of morality behind it. "
The motion was negative.
Mr. Deputy
Speaker : I shall now put Dr. Ambedkar’s
amendment No. 6. The question is: for clause 4, substitute :
" 4. Overriding
effect of Code. —Save as otherwise expressly provided in this Code :—
(a) any text, rule or interpretation of Hindu Law or any
custom or usage in force immediately before the commencement of this Code shall
cease to have effect with respect to any of the matters dealt with in this
Code; and
(b) any other law in force immediately before the
commencement of this Code shall cease to have effect, in so far as it is
inconsistent with any of the
provisions contained in this Code. "
The motion was adopted.
Mr. Deputy
Speaker: The question is: " That clause
4, as amended, stand part of the bill. "
The motion was adopted.
Clause 4, as amended, was added to the Bill.
Mr. Deputy
Speaker: The House will now proceed with
other legislative business.
Pandit Maitra (West Bengal) : What about, the further clauses ?
Mr. Deputy
Speaker: The other business is on the order
paper. After that is disposed of, this will be taken up.
Annexure I
Dr. B. R.
Ambedkar in explanation of his
RESIGNATION
The House I am sure knows, unofficially if not officially, that I have ceased to be a Member of the Cabinet. I tendered my resignation on Thursday the 27th September to the Prime Minister and asked him to relieve me immediately. The Prime Minister was good enough to accept the same on the very next day. If I have continued to be a Minister after Friday the 28th, it is because the Prime Minister had requested me to continue till the end of the Session—a request to which I was, in obedience to constitutional convention, bound to assent.
Our Rules of Procedure permit a Minister who has
resigned his office, to make a personal statement in explanation of his
resignation, Many members of Cabinet have resigned during my tenure of office.
There has been however no uniform practice in the matter of Ministers who have
resigned making a statement. Some have gone without making a statement and
others have gone after making a statement. For a few days I was hesitant what
course to follow. After taking all circumstances into consideration I came to
the conclusion that the making of a statement was not merely necessary, but it
was a duty which a member who has resigned owes to the House.
The House has no opportunity to know how the Cabinet
works from within, whether there is harmony or whether there is a conflict, for
the simple reason that there is a joint responsibility under which a member who
is in a minority is not entitled to disclose his differences. Consequently the
House continues to think that there is no conflict among members of Cabinet
even when as a matter of fact a conflict exists. It is, therefore, a duty of a
retiring Minister to make a statement informing the House why he wants to go
and why he is not able to continue to take further joint responsibility.
Secondly, if a Minister goes without making a statement, people may
suspect that there is something wrong with the conduct of the Minister, either
in his public capacity or in his private capacity. No Minister should, I think,
leave room for such suspicion and the only safe way out is a statement.
Thirdly we have our
newspapers. They have their age-old bias in favour of some and against others.
Their judgements are seldom based on merits. Wherever they find an empty space,
they are prone to fill the vacuum by supplying grounds for resignation which
are not the real grounds but which put those whom they favour in a better light
and those not in their favour in a bad light. Some such thing I see has
happened even in my case.
It is for these reasons that I decided to make a
statement before going out.
It is now 4 years, I month and 26 days since I was called by the Prime Minister to accept the office of Law Minister in his Cabinet. The offer came as a great surprise to me. I was in the opposite camp and had already been condemned as unworthy of association when the interim Government was formed in August 1946. I was left to speculate as to what could have happened to bring about this change in the attitude of the Prime Minister. I had my doubts. I did not know how I could carry on with those who had never been my friends. I had doubts as to whether I could, as a Law Member, maintain the standard of legal knowledge and acumen which had been maintained by those who had preceded me as Law Ministers of the Government of India. But I kept my doubts at rest and accepted the offer of the Prime Minister on the ground that I should not deny my co-operation when it was asked for in the building up of our nation. The quality of my performance as a Member of the Cabinet and as Law Minister, I must leave it to others to judge.
I will now refer to matters
which have led me to sever my connection with my colleagues.
The urge to go has been growing from long past due to variety of reasons.
I will first refer to matters purely of a personal
character and which are the least of the grounds which have led me to tender my
resignation. As a result of my being a member of the Viceroy's Executive
Council, I knew the Law Ministry to be administratively of no importance. It
gave no opportunity for shaping the policy of the Government of India. We used
to call it an empty soap box only good for old lawyers to play with. When the
Prime Minister made me the offer, I told him that besides being a lawyer by my
education and experience, I was competent to run any administrative Department
and that in the old Viceroy's Executive Council I held two administrative
portfolios, that of Labour and C.P.W.D., where a
great deal of planning projects were dealt with by me and would like to have
some administrative portfolio. The Prime Minister agreed and said he would give
me in addition to Law the Planning Department which, he said, he was intending
to create. Unfortunately the Planning Department came very late in the day and
when it did come I was left out. During my time, there have been many transfers
of portfolios from one Minister to another. I thought I might be considered for
any one of them. But I have always been left out of consideration. Many
Ministers have been given two or three portfolios so that they have been
overburdened. Others like me have been wanting more work. I have not even been
considered for holding a portfolio temporarily when a Minister in charge has
gone abroad for a few days. It is difficult to understand what is the principle
underlying the distribution of Government work among Ministers which the Prime
Minister follows. Is it capacity? Is it trust? Is it friendship? Is it pliability? I
was not even appointed to be a member of main Committees of the Cabinet such as
the Foreign Affairs Committee or the Defence Committee. When the Economic
Affairs Committee was formed, I expected, in view of the fact that I was
primarily a student of Economics and Finance, to be appointed to this
Committee. But I was left out. I was appointed to it by the Cabinet, when the
Prime Minister had gone to England. But when he returned, in one of his many
essays in the reconstruction of the Cabinet, he left me out. In a subsequent
reconstruction my name was added to the Committee, but that was as a result of
my protest.
The Prime Minister, I am sure, will agree that I have
never complained to him in this connection. I have never been a party to the
game of power politics inside the Cabinet or the game of snatching portfolios
which goes on when there is a vacancy. I believe in service, service in the
post which the Prime Minister, who as the head of the Cabinet, thought fit to
assign to me. It would have, however, been quite unhuman for me not to have
felt that a wrong was being done to me.
I will now refer to another
matter that had made me dissatisfied with the Government. It relates to the treatment
accorded to the Backward Classes and the Scheduled Castes. I was very sorry
that the Constitution did not embody any safeguards for the Backward Classes.
It was left to be done by the Executive Government on the basis of the
recommendations of a Commission to be appointed by the President. More than a
year has elapsed since we passed the Constitution. But the Government has not
even thought of appointing the Commission. The year 1946 during which I was out
of office, was a year of great anxiety to me and to the leading members of the
Scheduled Castes. The British had resided from the commitments they had made in
the matter of constitutional safeguards for the Scheduled Castes and the
Scheduled Castes had no knowing as to what the Constituent Assembly would do in
that behalf. In this period of anxiety I had prepared a report*[f14] on the condition
of the Scheduled Castes for submission to the United Nations. But I did not
submit it. I felt that it would be better to wait until the Constituent
Assembly and the future Parliament was given a chance to deal with the matter.
The provisions made in the Constitution for safeguarding the position of the
Scheduled Castes were not to my satisfaction. However, I accepted them for what
they were worth, hoping that the Government will show some determination to
make them effective. What is the position of the Scheduled Castes today? So far
as I see, it is the same as before. The same old tyranny, the same old
oppression, the same old discrimination which existed before, exists now, and
perhaps in a worst form. I can refer to hundreds of cases where people from the
Scheduled Castes round about Delhi and adjoining places have come to me with
their tales of woes against the Caste Hindus and against the Police who have
refused to register their complaints and render them any help. I have been
wondering whether there is any other parallel in the world to the condition of
the Scheduled Castes in India. I cannot find any. And yet why is no relief granted
to the Scheduled Castes? Compare the concern the Government shows over
safeguarding the Muslims. The Prime Minister's whole time and attention is
devoted for the protection of the Muslims. I yield to none, not even to the
Prime Minister, in my desire to give the Muslims of India the utmost protection
wherever and whenever they stand in need of it. But what I want to know is, are
the Muslims the only people who need protection? Are the Scheduled Castes, the
Scheduled Tribes and the Indian Christians not in need of protection? What
concern has he shown for these communities? So far
as I know, none and yet these are the communities which need far more care and
attention than the Muslims.
I could not contain within myself the indignation I have
felt over the neglect of the Scheduled Castes by the Government and on one
occasion I gave vent to my feelings at a public meeting of the Scheduled
Castes. A question was asked, from the Hon'ble the
Home Minister, whether my charge that the Scheduled Castes had not benefited by the rule which guaranteed to them
12 1/2, per cent representation was true. In answer
to the question the Hon'ble
the Home Minister was pleased to say that my charge was baseless. Subsequently
for some reason—it may be for satisfying the qualms of his conscience—he, I am
informed, sent round a circular to the various Departments of the Government of
India asking them to report how many Scheduled Caste candidates had been
recently recruited in Government service. I am informed that most Departments said
in reply ' NIL ' or
nearly nil. If my information is correct, I need make no commentary on the
answer given by the Hon'ble
the Home Minister.
From my early childhood I have dedicated myself to the upliftment of the Scheduled Castes among whom I was born.
It is not that there were no temptations in my way. If I had considered my own
interests, I could have been anything I wanted to be and if I had joined the
Congress I would have reached to the highest place in that organisation. But as
I said, I had dedicated myself to the upliftment of the Scheduled Castes and I
have followed the adage which says that it is better to be narrow-minded if you
wish to be enthusiastic about a cause which you wish to accomplish. You can
therefore, well imagine what pain it has caused me to see that the cause of the
Scheduled Castes has been relegated to the limbo of nothing.
The third matter which has given me cause, not merely
for dissatisfaction but for actual anxiety and even worry, is the foreign
policy of the country. Any one, who has followed the course of our foreign
policy and along with it the attitude of other countries towards India, could
not fail to realise the sudden change that has taken place in their attitude
towards us. On 15th of August 1947 when we began our life as an independent
country, there was no country which wished us ill. Every country in the world
was our friend. Today, after four years, all our friends have deserted us. We
have no friends left. We have alienated ourselves. We are pursuing a lonely
furrow with no one even to second our resolutions in the U.N.O. When I think of our foreign policy, I am
reminded of what Bismark and Bernard Shaw have
said. Bismark has said that " politics is not a game of realising the ideal.
Politics is the game of the possible. "
Bernard Shaw not very long ago said that good ideals are good but one must not
forget that it is often dangerous to be too good. Our foreign policy is in
complete opposition to these words of wisdom uttered by two of the world's
greatest men.
How dangerous it has been to us this policy of doing the
impossible and of being too good is illustrated by the great drain on our
resources made by our military expenditure, by the difficulty of getting food
for our starving millions and by difficulty of getting aid for the
industrialisation of our country.
Out of 350 crores of rupees
of revenue we raise annually, we spend about Rs.
180 crores of rupees on the Army. It is a colossal expenditure which has hardly
any parallel. This colossal expenditure is the direct result of our foreign
policy. We have to foot the whole of our Bill for our defence ourselves because
we have no friends on which we can depend for help in any emergency that may
arise. I have been wondering whether this is the right sort of foreign policy.
Our quarrel with Pakistan is a part of our foreign
policy about which I feel deeply dissatisfied. There are two grounds which have
disturbed our relations with Pakistan—one is Kashmir and the other is the
condition of our people in East Bengal. I felt that we should be more deeply
concerned with East Bengal where the condition of our people seems from all the
newspapers intolerable than with Kashmir. Notwithstanding this we have been
staking our all on the Kashmir issue. Even then I feel that we have been
fighting on an unreal issue. The issue on which we are fighting most of the
time is, who is in the right and who is in the wrong.
The real issue to my mind is not who is in the right but what is right. Taking
that to be the main question, my view has always been that the right solution
is to partition Kashmir. Give the Hindu and Buddhist part
to India and the Muslim part to Pakistan as we did in the case of India. We are
really not concerned with the Muslim part of Kashmir. It is a matter between
the Muslims of Kashmir and Pakistan. They may decide the issue as they like. Or
if you like, divide it into three parts; the
Cease-fire zone, the Valley and the Jammu-Ladhak
Region and have a plebiscite only in the Valley. What I am afraid of is that in
the proposed plebiscite, which is to be an overall plebiscite, the Hindus and Buddhists of Kashmir are likely to be dragged into
Pakistan against their wishes and we may have to face the same problems as we
are facing today in East Bengal.
I will now refer to the Fourth matter which has a good
deal to do with my resignation. The Cabinet has become a merely recording and
registration office of decisions already arrived at by Committees. As I have
said, the Cabinet now works by Committees.
There is a Defence Committee. There is a Foreign Committee. All important
matters relating to Foreign affairs are dealt with by it. All matters relating
to Defence are disposed of by the Defence Committee. The same members of the
Cabinet are appointed by them. I am not a member of either of these Committees.
They work behind an iron curtain. Others who are not members have only to take
joint responsibility without any opportunity of taking part in the shaping of policy. This is an impossible position.
I will now deal with a matter which has led me finally
to come to the decision that I should resign. It is the treatment which was
accorded to the Hindu Code. The Bill was introduced in this House on the 11th
April 1947. After a life of four years, it was killed and died unwept and
unsung, after 4 clauses of it were passed. While it was before the House, it
lived by fits and starts. For full one year the
Government did not feel it necessary to refer it to a Select Committee. It was
referred to the Select Committee on 9th April
1948. The Report was presented to the House on 12th
August 1948. The motion for the consideration of the Report was made by me on
31st August 1948. It was merely for making the motion that the Bill was kept on
the Agenda. The discussion of the motion was not allowed to take place until
the February Session of the year
1949. Even then it was not allowed to have a continuous
discussion. It was distributed over 10 months, 4 days in February, I day in
March and 2 days in April 1949. After this, one day was given to the Bill in
December 1949, namely the 19th December on which day the House adopted my
motion that the Bill as reported by the Select Committee be taken into
consideration. No time was given to the Bill in the year 1950. Next time the
Bill came before the House was on 5th February 1951 when the clause by clause
consideration of the Bill was taken. Only three days 5th, 6th and 7th of
February were given to the Bill and left there to rot.
This being the last Session of the present Parliament,
Cabinet had to consider whether the Hindu Code Bill should be got through
before this Parliament ended or whether it should be left over to the new
Parliament. The Cabinet unanimously decided that it should be put through in
this Parliament. So the Bill was put on the Agenda and was taken up on the 17th
September 1951 for further clause by clause
consideration. As the discussion was going on the Prime Minister put forth a
new proposal, namely, that the Bill as a whole may not be got through within
the time available and that it was desirable to get a part of it enacted into
law rather than allow the whole of it to go to waste. It was a great wrench to me. But I agreed, for, as the proverb says " it is better to save a part when the whole is
likely to be lost". The Prime Minister suggested that we should select the
Marriage and Divorce part. The Bill in its truncated "form
went on. After two or three days of discussion of the Bill the Prime Minister
came up with another proposal. This time his proposal was to drop the whole
Bill even the Marriage and Divorce portion. This came to me as a great shock—a
bolt from the blue. I was stunned and could not say anything. I am not prepared
to accept that the dropping of this truncated Bill was due to want of time. I
am sure that the truncated Bill was dropped because other and more powerful
members of the Cabinet wanted precedence for their Bills. I am unable to
understand how the Benaras and Aligarh University Bills, how the Press Bill could
have been given precedence over the Hindu Code even in its attenuated form? It
is not that there was no law on the Statute Book to govern the Aligarh
University or the Benaras University. It is not that these Universities would
have gone to wreck and ruins if the Bills had not been passed in this session.
It is not that the Press Bill was urgent. There is already a law on the Statute
Book and the Bill could have waited. I got the impression that the Prime
Minister, although sincere, had not the earnestness and determination required
to get the Hindu Code Bill through.
In regard to this Bill I have been made to go through
the greatest mental torture. The aid of Party Machinery was denied to me. The
Prime Minister gave freedom of Vote, an unusual thing in the history of the
Party. I did not mind it. But I expected two things. I expected a party whip as
to time limit on speeches and instruction to the Chief Whip to move closure
when sufficient debate had taken place. A whip on
time limit on speeches would have got the Bill
through. When freedom of voting was given there could have been no objection to
have given a whip for time limit on speeches. But such a whip was never issued.
The conduct of the Minister for Parliamentary Affairs,
who is also the Chief Whip of the Party in connection with the Hindu Code, to
say the least, has been most extraordinary. He has been the deadliest opponent
of the Code and has never been present to aid me by moving a closure motion.
For days and hours filibustering has gone on a single clause. But the Chief
Whip, whose duty it is to economise Government time and push on Government Business, has been
systematically absent when the Hindu Code has been under consideration in the
House. I have never seen a case of a Chief Whip so disloyal to the Prime
Minister and a Prime Minister so loyal to a disloyal Whip.
Notwithstanding this unconstitutional behaviour, the
Chief Whip is really a darling of the Prime Minister. For notwithstanding his
disloyalty he got a promotion in the Party organisation. It is impossible to
carry on in such circumstances.
It has been said that the Bill had to be dropped because
the opposition was strong. How strong was the opposition? This Bill has been
discussed several times in the Party and was carried to division by the
opponents. Every time the opponents were routed. The last time when the Bill
was taken up in the Party Meeting, out of 120 only 20 were found to be against
it. When the Bill was taken in the Party for discussion, 44 clauses were passed
in about 3 1/2 hours time. This shows how much opposition there was to the Bill
within the Party. In the House itself there have
been divisions on three clauses of the Bill—2, 3 and 4. Every time there has
been a overwhelming majority in favour even on clause 4 which is the soul of
the Hindu Code.
I was therefore, quite unable to accept the Prime
Minister's decision to abandon the Bill on the ground of time. I have been
obliged to give this elaborate explanation for my resignation because some
people have suggested that I am going because of my illness. I wish to
repudiate any such suggestion. I am the last man to abandon my duty because of
illness.
It may be said that my resignation is out of time and
that if I was dissatisfied with the Foreign Policy
of the Government and the treatment accorded to Backward Classes and the
Scheduled Castes I should have gone earlier. The charge may sound as true. But
I had reasons which held me back. In the first place, most of the time I have
been a member of the Cabinet, I have been busy with the framing of the Constitution.
It absorbed all my attention till 26th January 1950 and thereafter I was
concerned with the Peoples' Representation Bill and the Delimitation Orders. I
had hardly any time to attend to our Foreign Affairs. I did not think it right
to go away leaving this work unfinished.
In the second place, I thought it necessary to stay on,
for the sake of the Hindu Code. In the opinion of some it may be wrong for me
to have held on for the sake of the Hindu Code. I took a different view. The
Hindu Code was the greatest social reform measure ever undertaken by the
Legislature in this country. No law passed by the Indian Legislature in the
past or likely to be passed in the future can be compared to it in point of its
significance.
To leave inequality between class and class, between sex and sex which is the soul of Hindu Society untouched and to go on passing legislation relating to economic problems is to make a farce of our Constitution and to build a palace on a dung heap. This is the significance I attached to the Hindu Code. It is for its sake that I stayed on notwithstanding my differences. So if I have committed a wrong it is in the hope of doing some good. Had I no ground for such a hope connection to refer only to three of the statements made by the Prime Minister on the floor of the House, for overcoming the obstructionist tactics of the opponents? I would like in this n 28th November, 1949 the Prime Minister gave the following assurance. He said:
" What is more, the Government is committed to this thing (Hindu Code). It
is going through with it."
***
" Government would proceed with that. It is for this House to accept a
measure, but if a Government takes an important measure and the House rejects
it, the House rejects that Government and the Government goes and another
Government comes in its place. It should be clearly understood that this is one
of the important measures to which the Government attaches importance and on
which it will stand or fall."
Again on 19th December 1949, the Prime Minister said :
" I do not wish the House to think in the slightest degree that we
consider that this Hindu Code Bill is not of importance, because we do attach
the greatest importance to it, as I said, not because of any particular clause
or anything, but because of the basic approach to this vast problem in
problems, economic and social. We have achieved political freedom in this
country, political independence. That is a stage in
the' journey, and there are other stages, economic,
social and other and if society is to advance, there must be this integrated
advance on all fronts."
On the 26th September 1951 the Prime Minister said:
It is not necessary for me to assure the House of the
desire of Government to proceed with this measure in so far as we can proceed
with it within possibilities, and so far as we are concerned we consider this
matter as adjourned till such time as the next opportunity—1 hope it will be in
this Parliaments—offers
itself.
This was after the Prime Minister had announced the
dropping of the Bill. Who could not have believed in these pronouncements of
the Prime Minster? If I did not think that there could be a difference between
the promises and performances of the Prime Minister the fault is certainly not
mine. My exit from the Cabinet may not be a matter of much concern to anybody
in this country. But I must be true to myself and that I can be only by going
out. Before I do so I wish to thank my colleagues for the kindness and courtesy
they have shown to me during my membership of the Cabinet. While I am not
resigning my membership of Parliament I also wish to express my gratitude to
Members of Parliament for having shown great tolerance towards me.
New Delhi,
[F1]P.D., Vol. XV, Part II, 21st September 1951, pp.
2974-3008,
[F2]P.D.,
Vol. XV, Part II, 21st September 1951, pp. 3014-54.
[F3]P.D., Vol. XV, Part II, 22nd September 1951, pp.
3072-82.
[F4]P.D.,
Vol. XV, Part II, 22nd September 1951, pp. 3095-3112.
[F5]P.D., Vol. XV, Part II, 22nd September 1951, pp.
3103-7.
[F6]P.D.,
Vol. XV, Part II, 22nd September 1951, pp. 3107-12.
[F7]P.D.,
Vol. XV, Part II, 22nd September 1951, pp. 3112-13.
[F8]P.D.,
Vol. XV, Part II, 22nd September 1951, pp. 3117-20.
[F9]P.D.,
Vol. XV, Part II, 22nd September 1951, pp. 3126-28.
[F10]P.D.,
Vol. XV, Part II, 22nd September 1951, pp. 3142-50.
[F11]P.D.,
Vol. 15, Part II, 22nd September 1951, pp. 3168-88.
[F12]P.D.,
Vol. XV, Part II, 22nd September 1951, pp. 3183-88.
[F13]P.D., Vol. XV, Part II, 25th September 1951, pp.
3278-3301