Vol. 14, Part I · pages 531–535

DR. AMBEDKAR AND THE HINDU CODE BILL 513 Shri Mahavir Tyagi : It is a matter of importance, Sir. In that case it is a great change. The parties will have to be directed to the house of the Registrar instead of the House of the father-in-law. Mr. Speaker : The scope of the present discussion is with reference to changes in the substantive law as proposed by the Rao Committee and as adopted by the Select Committee. A minor detail of registration is made compulsory. So far as validity of the marriage is concerned, it is not affected at all. I do not want any discussion on that. I do not say as to whether the change is desirable or not but for present purposes a discussion on that would be outside the scope. Mr. Naziruddin Ahmad : I would like to refer to one or two sentences in that connection as well as on the final Bill. Clause 138— Power to make rules—(2) sub-clause (ii) reads: “The cases and areas in which particulars of sacramental marriages shall be compulsorily entered, and the punishment for any contravention thereof,” This provides for compulsory registration, I am coming to the question how it affects the marriage. ( An honourable Member : ‘It is in the discretion of the provincial government’) It is in the discretion of the Provincial Government no doubt. But the Government is given a new power which it may enforce. I come back again to clause 6 of the departmental Bill. It also corresponds to clause 6 of the final Bill. “No marriage between Hindus shall be recognised as valid unless it is solemnised either as a sacramental marriage or as a civil marriage in accordance with the provisions of this Part.” According to the clause in the original Bill these formalities were not required. The “provisions of this part” in the departmental Bill require compulsory rgistration of the marriage. In fact sacramental marriage and civil marriage are brought on a par with each other. In civil marriage of course registration is compulsory. The combined effect of the change of phraseology in clause 6 of the departmental Bill as well as the compulsory requirement of registration would make it appear that a marriage which is not registered—of which particulars are not entered which is made compulsory under this clause—would be an invalid marriage. No marriage shall be valid unless it is done in accordance with this Part. Shri L. Krishnaswami Bharathi : Where is it ? Mr. Naziruddin Ahmad : That is my interpretation which is submitted for the consideration of the House. In fact it may be farthest

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES514 from the mind of the honourable Law minister to effect this result. He made it quite clear in his speech that the provisions relating to marriage are not compulsory but rather optional. It may be that the effect was unintended. But whether intended or not, the effect is the same. No marriage shall be valid unless it is performed in accordance with this Part, which also carries the liability of a fine for an omission. However reluctant the house or even the author of the Bill may be to put this interpretation, it is yet a question of interpretation and it is not a question of sentiment. The point is whether this interpretation is valid. If that is so, it introduces a very important change. To provide, though indirectly that a marriage would be invalid unless it is registered would be a dangerous proposition and it would lead to wholesale breaches of the law. The registering officer may live miles away from parties living in inaccessible regions, and at this stage of the civilisation of our country, especially for the backward people, this provision would be absolutely tyrranical and meaningless. Shri L. Krishnaswami Bharathi : If you would permit me, Sir .................. Mr. Speaker : Let there be no discussion on the merits of the argument. Shri L. Krishnaswami Bharathi : Only for the purpose of clarification that I rise. Mr. Speaker : If we enter into clarification and further discussion, it would be an unending speech. The point is that the honourable Member is putting his interpretation. I have drawn his attention to the fact that, it does not affect the validity of the marriage. If he wants still to persist in that line of argument, let him do so. That will cut short the speech. Shri L. Krishnaswami Bharathi : If you would permit me, Sir, there is only one point which he may clarify. The clause begins with the words “For the purpose of facilitating the proof of any sacramental marriage ........................” Mr. Speaker : That point is quite clear to my mind. I put it to him though not in that form. I pointed out to him that this does not affect the validity of the marriage at all. Still he thinks it does. How can we go on convincing him ? Let him proceed now. That would be the shortest way of having his say before us. Otherwise we shall have to discuss with him every provision in respect of which, he is giving his inferences. When honourable members are hearing his speech in

DR. AMBEDKAR AND THE HINDU CODE BILL 515 silence, it does not mean that they are accepting his interpretation. He may proceed to the next point now. Mr. Naziruddin Ahmad : I come to clause 8 of the departmental Bill. Mr. Speaker : It would be better if the honourable member gives references to the final Bill as it is before the House and then point out the change. Otherwise I cannot follow. He is referring to three or four Bills. Mr. Naziruddin Ahmad : I have been starting from the original Bill. Of course it is clause 8 in the final Bill also. In clause 4 of Part IV of the original Bill it is said: “A sacramental marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.” In the revised draft clause 8, sub-clause (1) says : “A sacramental marriage shall not be complete and binding on the parties unless it is solemnised in accordance with such customary rites and ceremonies of either party thereto as are essential for such marriage.” Sir, I do not think it is a point of argument—this is by mistake. But the point which I wish to submit is that I do not insist on this interpretation as a necessary logical consequence but I believe it is introduced unconsciously and there is a certain amount of doubt as to the validity of the marriages. I know that the feeling of every lawyer, judge and statesman would be against the invalidity of the marriage on this ground of registration. But that is political; the approach should be entirely legal and constitutional. What is the interpretation ? If you do not perform your marriage in accordance with these new provisions the marriage will be invalid. It follows therefore, whether we agree with the justice of the provision or not, it follows to my humble mind that unless the particulars of the marriage arc entered in the register the marriage itself would be invalid. I submit that for the consideration of the House. I have already referred to the provisions in regard to the making of the entries, that the making of the entries shall be compulsory. Mr. Speaker : That he has said; he need not repeat it. Mr. Naziruddin Ahmad : Is it compulsory for the parties or for the registering officer ? Mr. Speaker : That is a matter of detail into which we need not go at present.

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES516 Mr. Naziruddin Ahmad : All right, Sir. (Interruption). Mr. Speaker : Let there be no asides. Mr. Naziruddin Ahmad : But, Sir, I have a quick ear and this is not conducive to good debate. My learned friend who is an experienced parliamentarian should not try to discourage speeches. He should forget that he was addressing the old Council when the British were there. He should remember that he now belongs to a party which is ruling and I belong to no party at all but am an individual who is opposing. Mr. Speaker : Let us not carry on this discussion. Shri B. Das (Orissa : General): Do you want us to keep our mouths shut ? Mr. Speaker : Mr. Das. The remedy is open. We can afford to be deaf on such occasions and proceed further. I also hear many whispers when the debate is going on, but I do not take any notice of them. Mr. Naziruddin Ahmad : Sir, you are in a more fortunate position. Mr. Speaker : Let us now proceed. What is the next substantial point ? Mr. Naziruddin Ahmad : I now come to another part—Part V of the original Bill relating to Minority and Guardianship. Clause 3 thereof has been entirely omitted in the final and departmental Bill. I need not go into the details of the clause, but this is a substantial clause which has been omitted. That is introducing a serious change. There are other unimportant changes and I will not deal with them. I now come to the Part relating to Adoption, that is Part VI of the original Bill. Clauses 1 and 2 thereof have been omitted. In departmental Bill clause 55—also clause 55(1) of the final Bill—there is a sub-clause (3) which is new. Then again in Part VI of the original Bill sub-clause (1) of clause 19 is omitted. A new clause has been introduced with entirely different conditions. In departmental Bill clause No. 68, which also corresponds to clause 68 of the final Bill, sub-clause (1) is a new clause. And the Proviso to this sub-clause of clause 68 of both the Bills is also new. Then again sub-clause (3) of clause 19 of the original Bill with two conditions is entirely ommitted in the final Bill. Sub-clause (5) of this clause again has been omitted. So also clause 21 of the original Bill—Part VI—has been omitted. Then again clause 25 of the original Bill in Part VI. with two sub-clauses and two other parts, is entirely omitted.

DR. AMBEDKAR AND THE HINDU CODE BILL 517 I submit that these are most important changes made by the Departmental Bill. Although it is clear that some honourable Members of the Select Committee realise that there were substantial changes introduced in the departmental Bill that may have been a later realisation in view of the guarantee that no substantial changes have been made. In fact their attention may not have been specifically drawn to it and there is a danger that all these details may not have been fully considered by them. That would not have happened if they had confined their attention to the original Bill and proceeded clause by clause or if they had sat first and given a direction to the Department to prepare. Mr. Speaker : The honourable Member is again covering the same ground; he has covered it yesterday. Mr. Naziruddin Ahmad : Sir, I do not wish to repeat the grounds. In these circumstances I submit that the simple point is that this is a very substantial matter which has prejudiced the fair and full consideration of the Bill by the Select Committee. I do not wish to cast any aspersion on the Members of the Select Committee, but without a proper comparison of the clause it would be extremely difficult for the Members of the Select Committee to follow all the changes. We then come to the other matters in connection with this Bill. The question of inheritence is agitating the mind of the country for a long time. The position of the daughter is the most contentious provision of the Bill that I can think of. In fact, I was asked why it was that I was refusing to my Hindu sisters what I have given to my Muslim sisters. The reply is very simple. Under the Muslim Law, the daughter has been given a share. We are not permitted to question the wisdom of that Law; that Law has got to be taken along with various other circumstances, historical, social and others which justify that. There is a kind of justice which has been tolerated and accepted by the Muslim society for 1350 years. But our Hindu sisters have tolerated their lot for about three to four thousand years under a different system. A comparison between the two systems so far as the daughter’s position is concerned, would not be quite relevant. In fact, the two systems of law approach the matter from different points of view and they depend upon different historical accidents. Under the Muslim Law, the system of inheritance was taken from the old Arabian customs. It arose out of obvious and inevitable circumstances. In Arabia there were no