Vol. 14, Part I · pages 21–25

DR. AMBEDKAR AND THE HINDU CODE BILL 3 *HINDU C ODE The Honourable Dr. B. R. Ambedkar (Minister for Law): Sir, I move: “That the Bill to amend and codify certain branches of the Hindu Law be continued.” Mr. Speaker : Motion moved : “That the Bill to amend and codify certain branches of the Hindu Law be continued.” Mr. Naziruddin Ahmad (West Bengal: Muslim): May I know the present stage of this very important Bill ? I understand there has been a considerable amount of agitation among our Hindu friends over it and it is better we have a picture of the stage at which the Bill is at present. The Honourable Dr. B. R. Ambedkar : It was only introduced. No further stage was taken. Shri R. V. Dhulekar (U. P.: General): In the new set up we should have no Hindu Law and Muslim Law. We should have a general Law and therefore.... Mr. Speaker : Honourable Member is speaking on the merits. He will have an opportunity of saying it when the Bill comes before the House. At present the only question is whether the Bill should be continued or not continued. Shri R. V. Dhulekar : So, Sir, I oppose, it should not be continued. Mr. Speaker: The question is : “That the Bill to amend and codify certain branches of the Hindu Law be continued.” The motion was adopted. *HINDU INTERCASTE MARRIAGE REGULATING AND VALIDATING BILL Shri Mohan Lal Saksena : (U. P. : General): Sir, since the Law Minister has informed me that he proposes to make a motion for reference of the Hindu Code to a Select Committee during the present session, I do not want to move this motion. Mr. Speaker : Do I understand that the Honourable Member does not want to make a motion now, but he wishes to keep it alive? Shri Mohan Lal Saksena : Yes, Sir, In case the Law Minister does not bring in his motion, I may have to move mine. * Constituent Assembly of India (Legislative) Debates [Hereinafter called C.A. (Leg.) D.J, Vol. I, 17th November 1947, p. 41. * C.A. (Leg.) D., Vol. I, 11th February 1948, p. 599.

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES4 *HINDU MARRIAGES VALIDITY BILL Pandit Thakur Das Bhargava (East Punjab : General); Sir, I beg to move for leave to introduce a Bill to provide that marriages between Hindus, Sikhs, Jains and their different castes and sub-castes are valid. Mr. Speaker : The question is: “That leave be granted to introduce a Bill to provide that marriages between Hindus, Sikhs, Jains and their different castes and sub-castes are valid.” The motion was adopted. Pandit Thakur Das Bhargava : Sir, I introduce the Bill. *HINDU CODE * The Honourable Dr. B. R. Ambedkar (Minister for Law) : I beg to move: “That the Bill to amend and codify certain branches of the Hindu Law, be referred to a Select Committee consisting of Shri Alladi Krishnaswami Ayyar, Dr. Bakshi Tek Chand, Shri M. Anantthasayanam Ayyangar, Shrimati G. Durgabai, Shri L. Krishnaswami Bharathi, Shri U. Srinivasa Mallayya Shri Mihir Lal Chattopadhvay, Dr. P. S. Deshmukh, Shrimati Renuka Ray, Dr. P. K. Sen, Babu Ramnarayan Singh, Shri Kishorimohan Tripathi, Shrimati Ammu Swaminadhan, Pandit Balkrishna Sharma, Shri Khursheed Lal, Shri Brajeshwar Prasad, Shri B. Shiva Rao, Shri Baldeo Swarup, Shri V. C. Kesava Rao and the Mover, with instructions to report not later than the last day of the first week of the next session of the Assembly and that the number of members whose presence shall be necessary to constitute a meeting of the Committee shall be five.” Sir, it is a matter of great pity and also of great regret both for myself and I believe also for the members of the House that so important a measure as the codification of Hindu Law should have come for discussion before the House almost at the fag end of the session. We have, according to the arrangement announced by the Honourable speaker this morning, to conclude the debate on this motion by 7 O’clock from now, with an interval of half an hour. I think it my duty that within the limitations in which we are placed I should give more time to Members of the Legislature to express their views on the various points raised by this Bill and I should like to contribute my own mite to the fulfilment of this wish which I have expressed. The only way by which I could do it is to set an example by myself to make my opening speech as brief as *C.A. (Leg.) D., Vol. II, 26th February 1948, p. 1288. *C.A. (Leg.) D., Vol. IV, 9th April 1948, pp. 3628-33. 4 P.M.

DR. AMBEDKAR AND THE HINDU CODE BILL 5 I can possibly make. I regret it very much to have been required to come to that decision because this Bill is of such a vast character that if one were to expound it fully and thoroughly, and to explain its provisions as against the background of the existing Hindu Law, I have not the slightest doubt that such an effort would take not less than four or five hours. But that is impossible, and the House therefore, will forgive me if I confine myself to placing before it the most salient points which mark a departure from the existing law as we know it today. Sir, this Bill, the aim of which is to codify the rules of Hindu Law which are scattered in innumerable decisions of the High Courts and of the Privy Council, which form a bewildering motley to the common man and give rise to constant litigation, seeks to codify the law relating to seven different matters. Firstly, it seeks to codify the law relating to the rights of property of a deceased Hindu who has died intestate without making a will, both female and male. Secondly, it prescribes a somewhat altered form of the order of succession among the different heirs to the property of a deceased dying intestate. The next topic it deals with is the law of maintenance, marriage, divorce, adoption, minority and guardianship. The House will see what is the ambit and the periphery of this Bill. To begin with the question of inheritance. Under this head the Bill enacts a new principle, at least for certain parts of British India. As many members who are lawyers in this House will know, so far as inheritance is concerned, the Hindus are governed by two different systems of law. One system is known as Mitakashara and the other is known as Dayabhag. The two systems have a fundamental difference. According to Mitakshara, the property of a Hindu is not his individual property. It is property which belongs to what is called a coparcenary, which consists of father, son, grandson and great grandson. All these people have a birth-right in that property and the property on the death of anyone member of this coparcenary passes by what is called survivorship to the members who remain behind, and does not pass to the heirs of the deceased. The Hindu Code contained in this Bill adopts the Dayabhag rule, under which the property is held by the heir as his personal property with an absolute right to dispose it of either by gift or by will or any other manner that he chooses.

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES6 That is one fundamental change which this Bill seeks to make. In other words, it universalises the law of inheritance by extending the Dayabhag rule to the territory in which the rule of the Mitakshara now operates. Coming to the question of the order of succession among the heirs, there is also fundamental difference of a general character between the rule of the Mitakshara and the rule of the Dayabhag. Under the Mitakshara rule the agnates of a deceased are preferred to his cognates; under the Dayabhag rule the basis of heirship is blood relationship to the deceased and not the relationship based on cognatic or agnatic relationship. That is one change that the Bill makes; in other words, here also it adopts the rule of the Dayabhag in preference to the rule of the Mitakshara. In addition to this general change in the order of succession to a deceased Hindu, the Bill also seeks to make four changes. One change is that the widow, the daughter, the widow of a pre-deceased son, all are given the same rank as the son in the matter of inheritance. In addition to that, the daughter also is given a share in her father’s property; her share is prescribed as half of that of the son. Here again, I should like to point out that the only new change which this Bill seeks to make, so far as the female heirs are concerned is confined to daughter; the other female heirs have already been recognised by the Hindu Women’s Right to Property Act of 1937. Therefore, so far as that part of the Bill is concerned, there is really no change in the Bill at all; the Bill merely carries the provisions contained in the Act to which I have made reference. The second change which the Bill makes so far as the female heirs are concerned is that the number of female heirs recognised now is much larger than under either the Mitakshara or the Dayabhag. The third change made by the (Bill is this that under the old law, whether the Mitakshara or the Dayabhag, a discrimination was made among female heirs, as to whether a particular female was rich or poor in circumstances at the death of the testator, whether she was married or unmarried, or whether she was with issue or without issue. All these consideration which led to discrimination in the female heirs are now abolished by this Bill. A woman who has a right to inherit

DR. AMBEDKAR AND THE HINDU CODE BILL 7 gets it by reason of the fact that she is declared to be an heir irrespective of any other considerations. The last change that is made relates to the rule of inheritance in the Dayabhag. Under the Dayabhag the father succeeds before in preference to the mother; under the present Bill the position is altered so that the mother comes before the father. So much for the order of succession of heirs to a deceased male Hindu. I now come to the provisions in the Bill which relates to intestate succession to females. As Members of the House who are familiar with Hindu Law will know, under the existing law the property held by a Hindu female falls into two categories; one is called her stridhan, and the other is called “woman’s property”. Taking first the question of stridhan, under the existing law stridhan falls into several categories; it is not one single category, and the order of succession to the stridhan of a female under the existing law varies according to the category of the stridhan; one category of stridhan has a different law of succession than another category and these rules are alike both as to Mitakshara as they are to the Dayabhag. So far as stridhan is concerned the present Bill makes two changes. The one change it makes is that it consolidates the different categories of stridhan into one single category of property and lays down a uniform rule of succession; there is no variety of heirs to the stridhan in accordance with the different categories of the stridhan—all stridhan is one and there is one rule of succession. The second change which the Bill seeks to make with regard to the heirs is that the son also is now given a right to inherit the stridhan and he is given half the share which the daughter takes. Members will realise that in formulating this Bill and making changes in rules of succession, it is provided that while the daughter is getting half the share in the father’s property, the son is also getting half the share in the mother’s property so that in a certain sense the Bill seeks to maintain an equality of position between the son and the daughter. Coming to the question of the “woman’s estate”, as members of the House will know under the Hindu Law where a woman inherits properly she gets only what is called a ‘life estate’ She can enjoy the income of the property, but she cannot deal with the corpus of the property except for legal necessity; the property must pass after