Vol. 14, Part I · pages 276–280

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES258 whether it is your desire that these motions may be put simultaneously along with my motion, so that all of them may be debated together and ultimately each motion may be put to the House separately, or whether you propose to have these motions taken up before my motion, so that they may be disposed of and the ground may be cleared for my speech on the motion, which I have tabled. I might say one or two points with regard to the motions that have been made. There are certain motions which you are bound to put, I agree, unless the movers of these motions by themselves voluntarily desire not to move these motions. There are certain motions which are within your discretion, and unless you are satisfied that these motions are not dilatory motions but have behind them certain points of substance, it would not be open in accordance with the rulings which have been given by previous speakers, who have dealt with these questions, to put these motions to the House, Because the Chair must be satisfied that they are motions behind which stand substantial grounds and they are not purely dialtory. For instance, the motion that, the Bill should not be taken into consideration now, but should be taken into consideration at some later stage is one of those motions, I submit, which according to the rulings of the Chair heretofore could fall within your discretion, where you are satisfied that the reasons advanced by my honourable friends are substantial reasons, and therefore, you should put the motion to the House. For instance, the motion for recommittal is one such motion, because if you will kindly refer to these two volumes of Rulings,—I am sure you have.......... Mr. Deputy Speaker : What I propose to do is this. The Honourable Dr. B. R. Ambedkar : I should like to have your guidance in this matter. Mr. Deputy Sopeaker : I have considered this matter and the number of motions that have been tabled. So far as motions 1 and 2 are concerned, motion 1 is that the Bill as amended by the Select Committee be withdrawn. Pandit Thakur Das Bhargava (East Punjab : General): I do not propopse to move it at this stage: not that I am not entitled to move it. Mr. Deputy Speaker : Then it is not necessary to go into the question whether it is in order out of order. The second motion is ................. Pandit Thakur Das Bhargava : I am not moving it at this stage.

DR. AMBEDKAR AND THE HINDU CODE BILL 259 Mr. Deputy Speaker : Then there is the amendment by Master Nand Lal that the consideration of the Bill be postponed to the Budget Session of 1951. Master Nand Lal (East Punjab : General): I am not moving it. Mr. Deputy Speaker : These three withdrawals clear the ground. By whatever name they may be called, these three motions, substantially are for adjournment of the debate. I thought that, before the Honourable Law Minister, the mover of the Bill proceeds the movers of these motions must have risen in their seats and pressed for the taking up of these motions, because, before their motions are disposed of, the honourable mover could not be allowed to speak. Inasmuch as they were not moved, I kept quiet. Now it is clear they are withdrawn. The other motions viz, those for re-circulation or for reference to Select Committee, whatever their nature might be, they are motions which under the Rules any person is competent to make. It is a question for the House to deal with them. So far as the Select Committee motions are concerned, I must be satisfied in the first instance, about their need. Apart from that, there is a motion for recirculation with respect to which some such requirements have not been laid down, so far as I can see in any rule or rulings. Therefore, I propose at this stage to allow the mover of the Bill to make his speech and after he concludes his speech, allow the motions for Select Committee and Circulation to be moved without any speech. Then, the discussion will go on on all the motions and I will put them one after another to the House. *The Honourable Dr. B. R. Ambedkar : I am obliged for your guidance, Sir. As usual when presenting a motion for the consideration of a Bill as reported by the Select Committee it is the duty of the Chairman of the Select Committee, in the first instance, to draw the attention of the house to such changes as may have been made by the Select Committee in the original Bill which has been referred to the Select Committee. I propose to follow that procedure in the first instance. Sir, the first part of the Bill deals with marriage and divorce. So far as this part of the Bill is concerned, the Select Committee has added two clauses which relate to the restitution of conjugal rights and to judicial separation. These provisions specifically absent from the original Bill. The draftsmen of the original Bill felt themselves content by reference to the Indian Divorce Act of 1869 which contains provisions relating to the restitution of conjugal rights and judicial *C.A. (Leg.) D., Vol. II, Part II, 24th February 1949, pp. 826-43.

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES260 separation. The original draftsmen of the Bill felt that a reference in this Bill to the Indian Divorce Act would be quite sufficient to invoke these two provisions which were contained in the Indian Divorce Act and consequently it was not necessary expressly to mention these two matters in the Code. The select Committee felt otherwise. The select Committee felt that as this was going to be a complete Code of Hindu Law, it was wrong to leave the code incomplete, and so to say, legislate by reference. They therefore thought that, instead of leaving this matter to be invoked by reference to the Indian Divorce Act, it would be desirable to embody in the Code itself the provisions contained in the Indian Divorce Act relating to these matters and consequently the part dealing with marriage and divorce has been expanded by the Select Committee by the addition of the clauses relating to these two matters. The House will see that there is no change as a matter of fact between the original Bill and the Bill as drafted by the Select Committee. AH that is done is that what was done by reference to the Indian Divorce Act has been done expressly and positively by the inclusion in the Code of specific sections relating to these matters. With regard to adoption, the Select Committee has introduced a few new changes. The first change that they have made is that when a father is disqualified by reason of the fact that he had changed his religion and ceased to be a Hindu, the mother has been given the right to give a boy in adoption. In other words, change of religion by the father from Hinduism to some other religion has been introduced as disqualification in the matter of the right to give in adoption. Consequenly, a mother in those circumstances has been empowered to give a boy in adoption. Similarly, if a widow was there and there was a boy, that boy certainly could be given in adoption by the mother when the father was not living. There again, a disability has been introduced to the effect that if the widow ceased to be a Hindu, she would lose her right of giving the boy in adoption, which she would otherwise have. Another change which has been made by the Select Committee is with regard to the different modes of taking a boy in adoption. Hitherto, as the House knows, there are various forms of adoption. The main form of adoption which is recognised by the Smritis is what is known as the Dattaka form of adoption. In addition to the Dattaka form of adoption, there have prevailed in the various parts of India, customary forms of adoption such as Godha Adoption, Kritrima Adoption, Dwyamushyayana Adoption. The Select Committee felt that

DR. AMBEDKAR AND THE HINDU CODE BILL 261 as they were codifying the law, it is desirable not to allow any room for customs to grow, because the effect of customs being permitted would be to eat into the Code and make the Code after certain time null and void. Therefore, the Select Committee decided that if anybody wants to adopt under this Code, nobody can make any adoption except in accordance with the provisions of this Code, and Dattaka shall be the only form and no other. Then, Sir, we come to the question of the right of the adopted boy to divest the persons in whom property has been invested before the adoption takes place. As every member of this House, who is aware of the provisions of the Hindu Law, will know, under the existing Hindu law, it is permissible to a boy who has been adopted, no matter at what stage he has been adopted— he may have been adopted forty years after the death of the father—time makes no change at all in his rights—to file a suit to set aside any alienation or transfer of property made by the widow who has adopted him. Any amount of litigation goes on on this particular point. In fact, if anyone were to examine the total amount of litigation among the Hindus on the various points of Hindu law, I am sure they will find that litigation on the question of divesting the property by the adopted boy would be the largest volume. It is therefore desirable that this matter should be settled once and for all. The Rau committee adopted the procedure of dividing adoption into two categories— adoption made three years before the death of the father and the coming into operation of the Code: and adoption made after the Code. They laid down that a boy, if he was adopted three years before the death of the adoptive father would be entitled to the original rights which an adopted son had under the Hindu Code. But if he were adopted three years after he would not be entitled to set aside alienation. The second thing that happened as a result of adoption under the Hindu Law was that he completely divested the widowed mother who made the adoption, with the result that the entire corpus of the property passed into the hands of the adopted boy, who, in a certain sense was a stranger, and notwithstanding the notional change that he entered into the family of the adopted father, he practically continued his affiliations with the members of the natural family. The result was that after the adoption had taken place, instead of the adopting mother getting any kind of security for hereself as a result of adoption which a natural mother would get from a natural son, she found that this new adopted boy ran away with the property and left the mother with

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES262 noting but the right of maintenance. We thought that that was not a desirable state of affairs from the point of view of giving security to women, and consequently certain changes were made. The original distinction that was adopted in the Rau Committee was deleted and a provision was made that the rights of the adopted son shall accrue to him not form the date of the death of his adopting father but shall accrue to him form the date of his adoption, so that any alienation that may have been made prior to his adoption were beyond his reach, were unchallengeable by him. The second provision that we have made was that the adopted son shall not as a result of adoption deprive the adopting mother completely of her right of property. What the Bill says in its altered form is that only one half of the property of the widow will go to the adopted son. The other half, notwithstanding the fact that the widow has adopted will continue to be in the possession and enjoyment of the adopting mother. The result is that the Committee has permitted adoption which the Hindu community feels is a necessary thing for the purpose of perpetuating the family. But at the same time we have taken care to see that the adoption does not beggar the mother altogether. Mr. Deputy Speaker : Is not that the result under the Deshmukh Act? The Honourable Dr. B. R. Ambedkar: No. As I say, she gets only the maintenance. Mr. Deputy Speaker: She gets half the share of the property. The Honourable Dr. B. R. Ambedkar : As soon as the adoption takes place all that passes to the son. Shri Prabhu Dayal Himatsingka (West Bengal : General): Accord ing to the 1937 Act she is a co-heir with the son. Shri L. Krishnaswami Bharathi (Madras : General): The son comes later on. The Honourable Dr. B. R. Ambedkar : That may be so. Now I am coming to minority and guardianship. Here there are only two changes made by the Select Committee in this part of the Bill. The first change is that the power of the Hindu father as a natural guardian of his minor son has been taken away if he renounces the world or ceases to be a Hindu. The original law was that the father was the natural guardian and no matter what change took place in his condition either by his religion or in any other way, he still continued to be the guardian of his minor son. The Committee felt that as this was