Vol. 14, Part I · pages 381–385

DR. AMBEDKAR AND THE HINDU CODE BILL 363 of this country. Therefore, I plead that those who today are opposing this Code should give it a little more thought. If they do not, it may be that Hindu society and Hindu law may be left behind, for the march onwards must go on and India is not going to go back to slavery or domination by others. * Shri V. S. Sarwate (Madhya Bharat): I would offer my congratulations to Dr. Ambedkar for his learned and lucid exposition of the Bill, becoming as it was to a professor and an advocate that he is. As regards the several provisions of the Bill, one would necessarily find himself in agreement with some and in disagreement with others. This is not the occasion to dilate much either on the points of agreement or on the points of difference. I would, in the general discussion, confine myself to certain broad principles and I would try to show that in these principles the Bill goes in a fundamentally opposite direction to the notions which have all along, in my humble opinion, been lying behind Hindu law. There has been a considerable section of Hindu society against this measure. It cannot be denied ; it cannot be concealed. Some may say that it is a cry of “Religion in danger” ; it is sentimental; it is reasonless. All the same, those who are bent upon making legislation which vitally affects a society of more than 20 crores would do well to pause, ponder and consider its substance. They should consider what is there in the Bill which makes so many people—intelligent, educated people—to be against the Bill. [At this stage, Mr. Deputy Speaker vacated the Chair, which was then occupied by Shri S. V. Khshnamoorthy Rao (one of the Panel of Chairmen) ]. I submit that there are two reasons for this. The first point that I would refer to is the change in the nature of the joint property. I would submit that the co-parcenary aspect of the joint property has certain very noble ideas behind it. The co-parcenary means that there is a community of interest, as every member of the House knows. It means that every individual has the fullest right of enjoyment but he has no individual share nor the right to alienate the property. The whole trend of modern society, the progress of thought of the society, in my opinion, is in this direction. We may condemn Communists, but Communism in its pure form, pruned of certain things, is bound to come and would come. What does Communism mean in this aspect ? As I understand it, it means “From each man according to his ability * C.A. (Leg.) D., Vol. II, Part II, 25th February 1949, pp. 929-34.

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES364 and to each man according to his necessity”. In other words, a man is to enjoy the property in his hands to the minimum. He has to divert himself of individuality. He is never to consider that he has an exclusive individual interest in the property. If this is the basic understanding and if the world of progressive thought is moving towards this direction. I believe it would be admitted that it would be wrong to go into an opposite direction. Every effort should be made to promote such an idea and to promote such institutions as foster this idea. Dr. Ambedkar in his speech showed at length the attempts which have been made so far by the Smritikars and others to fritter away this idea of co-parcenership. Assuming that this is so, the effort now should have been in the opposite direction—not to complete the process of frittering but to restore the co-parcenary property. Shri L. Krishnaswami Bharati : Impossible. Shri V. S. Sarwate : Impossible ? Yes, everything that is not attempted is avoided by saying it is “impossible.” Nothing is impossible in this world if you try. Now therefore I submit that the idea behind the co-parcenary property system is admitted. Each individual member or co-parcener has to enjoy in full the common property, though he has no exclusive individual interest in it and he cannot alienate his interest in it. So when you attempt to deal with it, this co-parcenary you should take the idea as a whole. The idea of the joint property, as conceived by Mitakshara, seems to be this : that there is right of survivorship, and that each family is a unit and not an individual. It means also that the family continues though the individuals in it pass away and whether one is a male or a female one has a right of equal enjoyment. There is equality of sex in this sense. Therefore it follows that whatever is the property of the family has to go to those persons who constitute the family. Therefore if a daughter does not constitute the family, if she is the member of another family, she would necessarily not enjoy any right in that family. It is not neglect or unfairness or want of affection for a daughter. The very idea of a joint family is this : that whosoever is the member, whether widow, male or female, as long as he or she continues to be member of the family, he or she enjoys the property of the family which nobody has a right to alienate. I would have welcomed a provision to the effect that there would he no partition of joint family property and that no person or individual of the joint family has any right to alienate the family property. That would have

DR. AMBEDKAR AND THE HINDU CODE BILL 365 been very welcome and in the right direction. That would have been according to the idea which is fundamentally behind the joint family system. It is the family which is taken as a unit of society and not an individual. Conceived from this point of view, no sister of mine need think that she has been ill treated, because she and her brother enjoy equal rights in this respect. I would therefore submit for the consideration of the Honourable Dr. Ambedkar that in such a vast country like India, nothing would be lost if there are separate experiments on social units. If it is wanted that a individual should be a unit, let that experiment be tried somewhere. If the joint family should be the unit of society let that experiment also be continued in some places. We are a sufficiently large country to have different experiments in society. Let both continue and let the persons choose the law or system they want to follow. So, instead of having one codified uniform law for the 20 crores of India, nothing would be lost if we have more than one system prevailing in this country. I may in this connection refer to one of the observations made by Dr. Ambedkar. I admire him for his erudition. I heard him with respect, because in the cause of his arguments he never descended to have a fling at somebody. His attacks were heavy, but they were straight and level. But, in the course of his remarks the other day, in the course of his otherwise lucid speech, he said that he did not know why the Brahmans of old were engaged in comprising so many as 137 Smritis and enquired whether they had no better engagement. I believe when the Honourable Minister said this, his historical perspective left him for a moment. I may remind him that these 137 Smritis were not written simultaneously. They were written in a period covering more than 250 years at the least. Thus on the average it took them about 20 years to write each Smriti. That means one for every generation. But here what happens is that during the space of one year the Honourable Doctor prepares more Smritis than one. So he need not have indulged in that unedifying observation. It was also very unnecessary for the development of his argument. Sir, I was dealing with joint family property. I submit that the basic principle of joint family property is this : that it allows restricted enjoyment. Sir, the question is often asked, what is Hindu culture; what is Hindu religion as such ? Where angels fear to trend it is difficult for others like me to rush. All the same one has sometimes to make

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES366 provisional attempts and I shall make that attempt. I think, as far as the present topic is concerned, the fundamental points which the Hindus have kept before themselves are that there should be restraint on enjoyment all along. Not encouragement of enjoyment but restraint on enjoyment was their rule and according to them, for the community of interest, the individual should lose himself. Now, applying this principle of restraint, I submit that the whole Chapter on Marriage has to be recast. In this respect it has been stated that because ninety per cent, of the people by custom have this right of divorce, what are you going to do ? It is asked, are you going to impose this custom of ninety per cent, on the remaining ten percent ? I submit an argument of this sort is a very good piece of rhetoric, but not of logic. What we have to consider and what the Honourable Doctor has to consider is not what is the custom, but what is good and what is beneficial. We have to consider what ought to be there. That has been the criterion all along and that should be the criterion. There will otherwise be anomaly. For instance, among ninety per cent. of the people there is the custom of drinking. We are certainly not for the matter of that prohibiting prohibition. It cannot be denied that there is the custom of drinking. The Honourable Dr. B. R. Ambedkar: It is not a custom. Shri V. S. Sarwate : All right, you may think so. I am at liberty to express the thinking in that way. ( An honourable Member ;: “There are not ninety per cent, drunkards.”) It is one think to call it a custom in the community and another thing to call them drunkards. That is the difference. It is no argument to say that a certain custom is there and therefore it should be continued by law. The argument should be whether it is beneficial and if we consider from this point of view, and if a certain section of the Hindu community says that marriage is indissoluble, why force them and say that there shall be a dissolution, if the parties so choose ? Argument may be advanced, that there is in this Bill no necessity, there is no compulsion, but there is an option. The option is always there. The option to a drunkard is he may or he may not go to the drinking shop. There is always the option, but he does go all the same when there is a drinking shop and a drinking shop has therefore to be closed by law. If it is to apply to a certain portion of the society, I would have welcomed it. In law of marriage, there should be monogamy. I admit it. I would go further and say that if you consider that from the point of view of restraint, there

DR. AMBEDKAR AND THE HINDU CODE BILL 367 should be no second marriage either of the women or of the men. That would have been a welcome provision, but instead of that we are going to the other extreme and providing that every marriage should be, if so chosen, liable to be dissolved. This is not desirable to my mind. No doubt Divorce was allowed by ancient Hindus at a certain point of time. It was prohibited later on whatever may have been the historical condition first. The reason appears to me is this that the unity of the family was to be kept intact. They wanted that the marriage once performed should not be dissolved so that no other woman should come in ; and that the woman who was in the family should not go away and another should not come in. That contingency should be avoided as far as possible. To my mind this was one of the reasons why a marriage was not allowed to be dissolve. Therefore, my suggestion is this: Let there be two parts in the section of’ marriage. Those who want that their marriages should be dissolved, let them marry according to civil marriage and let there be free dissolution of marriage for them according to the provisions which you make here. Let the other part be there, which may be sacramental, and in that part let there be no dissolution of marriage. This would, I think, satisfy both the parties. My humble submission is this: Why should dissolution be forced ? Shri Mahavir Tyagi : In that case they will have to decide for separation before they marry. Shri V. S. Sarwate: I believe my honourable friend has misunderstood me totally. What I say is that those males and females who want that their marriages should not be dissolved should marry according to the sacramental rights and those who wish that their marriages should in future be dissolved let them marry according to civil marriage. Mr. Tajamul Husain : Does my honourable friend mean that there should be divorce before the marriage ? Shri V. S. Sarwate: Civil marriage does not mean divorce. It neither means separation nor divorce. When I say civil marriage, it means marriage; it cannot mean divorce. Shri Mahavir Tyagi : It does not mean even marriage. Mr. Chairman : Order, order. Let the honourable member proceed with his speech. Shri V. S. Sarwate : My submission, Sir, is this : Let us get clear in our minds whether we are going to force certain things which certain