Vol. 14, Part I · pages 571–575

DR. AMBEDKAR AND THE HINDU CODE BILL 553 sister” : while the Nagpur Chief Court, after an elaborate consideration of this word came to the conclusion that it is included. My submission is that in view of the above, the difficulty that exists today in the construction of the Hindu Law will not come to an end by the fact that the Hindu Code Bill is there. Shri L. Krishnaswami Bharathi: Do you mean that the conflict should be permitted to continue ? Pandit Mukut Bihari Lal Bhargava : I say that even if this Bill becomes an Act, the conflict will be there and it will be open to the High Court to interpret its different provisions in a different way. The divergent opinion and the divergent points with regard to the Hindu Law will not be resolved because it will be open to the High Courts and to the Supreme Court to give their construction on any particular provision and the conflict is bound to arise as our experience of the previous legislation shows. My respectful submission is that it is a vain and futile attempt to codify the Hindu Law and any attempt in that direction is bound to deprive Hindu Law of its mobility, its elasticity and its vitality, which by no stretch of imagination is advisable in the present circumstances. My next point is a very important one. How did the present legislation originate and did the circumstances in which it originated justify its being pursued any further ? I would respectfully invite your attention that in the year 1941 the Hindu Law Committee was appointed and it considered the question of the codification of Hindu Law by compartments and two Bills were prepared by this Committee. One was the Bill concerning the Intestate Succession of Hindus and the second was the law relating to Marriage. When these two Bills came before the Legislature there was a joint meeting of the two legislatures (at that time our Legislature was of a bi-cameral character) and it was decided that it would be better if the Hindu Law was enacted as a whole rather than by compartments, and with this object in view the present Rau Committee came into existence. Now, Sir, when a lady member addressed the House—of course a zealous enthusiast in favour of this piece of legislation—she said that this piece of legislation had been before the country for a number of years—say for 10 years, and the Rau Committee has examined thousands of witnesses and has had an extensive tour of the country. I respectfully submit that there was little truth in the declaration made by the lady because let us examine what was the quantum of evidence

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES554 that was before the Committee. And what was the weight of that little quantum of evidence ? The Rau Committee which came into existence on the 20th January 1944 drafted a Bill which was circulated to selected and distinguished lawyers for opinion. After their opinions had been received the Committee decided that the draft which they had originally prepared should be circulated throughout the country. The Bill was translated into Indian languages and about 6,000 copies were distributed. Opinions were invited on the 5th August 1944 and the opinions were to be submitted by the 31st December 1944. After the opinions had been received the Committee toured the country. I would like the House to note the extensiveness of the tour undertaken by this Committee. It visited the leading towns and cities of the provinces and as far as I remember it is not more than a dozen—Allahabad, Bombay, Calcutta, Poona, Patna, Lahore and others. This was the extensive tour of the Committee. What is the population of these few leading towns and cities as compared to the total mass of population of the country ? Can the tour undertaken by this Committee for the purpose of examination of witnesses in these cities by any means give an indication of the real feeling of the counrty on this Bill ? What was the extent of the evidence recorded ? Let us see. In all 121 witnesses and 201 associations represented by about 257 persons gave evidence. This was the total evidence taken. May I venture to ask a very pertinent question: Is this by any stretch of imagination sufficient evidence, considering the vastness of the country and considering the fact that the real India, the real Hindu India resides not in the cities but in the villages. They are agriculturists who represent 90 per cent, of the population. Can it be pretended by any stretch of imagination that the examination of witnesses by this Committee was in any way sufficient and commensurate with the vastness of the country and with the great divergences of opinion prevailing in the different provinces ? I respectfully submit that it was not. Let us further analyse the result of that evidence. My submission is that on every basic point which forms the basis of the present Code the opinion was predominently and overwhelmingly against any change. Look at for instance one basic doctrine that is propounded within the four corners of this piece of legislation—introduction of simultaneous heirship of sons, daughters, widows etc. Mr. Deputy Speaker : A widow is a simultaneous heir today under the existing law.

DR. AMBEDKAR AND THE HINDU CODE BILL 555 Shri L. Krishnaswami Bharathi: Even that he is opposing now. Perhaps he wants it to be repealed. Pandit Mukut Bihari Lal Bhargava: For the introduction of simultaneous heirship of daughter with son the witnesses number only 78 and the number of those against was 215. Regarding conversion of widow’s limited estate as a female heir into an absolute estate the opinions for were 49 and against 107. In case of divorce options for were 112 and against 119. In case of adoption and the changes that are introduced opinions for were 36 and against 38. On other points the opinions against change were overwhelmingly larger than for it. Where is the justification, I ask, for pursuing this legislation ? Some Honourable Members: No justification. Pandit Mukut Bihari Lal Bhargava: It is claimed by a number of Members of this House that public opinion is over-whelmingly in favour of this piece of legislation. Shrimati G. Durgabai: What about monogamy ? Pandit Mukut Bihari Lal Bhargava: I will come to that also at the proper stage. My submission is that if this is a democratic legislature, if this legislature claims to legislate in consonance with the predominent volume of public opinion in the country, the only course for it is to throw out this piece of legislation, because whatever public opinion there was in the country distinctly points out that it is against it. I am sorry I have not got with me the particular newspaper in which the opinion given by the Law Minister was published. It was a few days before we commenced the consideration of this measure in February and he took his stand not upon the quantum of evidence in his favour, nor upon the public opinion in his favour but upon its quality. That was an open admission by no other than the Law Minister himself that the weight of public opinion so far as number was concerned was against him. If it is a fact that a few individuals, however distinguished they may be, because they wish this legislation to be thrust upon the country, it cannot be accepted. The only criterion of public opinion is the public opinion taken by the Rau Committee. There is absolutely no other criterion upon which it is open to any Member of the House to say that public opinion is in favour of this piece of legislation and not against it. Similarly, we are receiving a number of representations from different bodies .......... Babu Ramnarayan Singh : Daily.

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES556 Pandit Mukut Bihari Lal Bhargava: …….. from different distinguished High Courts and other Civil Judges also, from Bar associations in different parts of the country. As far as I have been able to go through the opinions very few persons. I find, favour the enactment of this piece of legislation and public opinion is overwhelmingly against it. ) The next point is this. Even assuming that public opinion is not so far of a decisive character where is the necessity of pursuing this legislation in the present legislature ? As has already been pointed out, and I will not repeat the argument, but I would respectfully submit that the present legislature is to frame the Constitution as also to legislate on emergent matters about which legislation is absolutely essential. It can by no stretch of imagination be asserted that the Hindu Code Bill is a piece of legislation that the Government should not pursue this piece of legislation in the teeth of public opposition in the country. I would now proceed with the examination and scrutiny of the various provisions incorporated in this piece of legislation. As I had remarked I feel—and I feel honestly—that the fundamentals of then provisions that stand incorporated in this piece of legislation are fatal to the existence of Hindu society as envisaged by our sages and therefore it is my painful duty to oppose this measure tooth and nail provision by provision. The question arises what are the basic changes that are sought to be brought about in Hindu society through the medium of this piece of legislation and how far those contemplated changes are in consonance with Hindu ideology and Hindu ideals. My respectful submission is this Hindu Code may well be styled as Islamic Code rather than a Hindu Code. Shri A. Karunakara Menon (Madras: General): That is the reason why our friend Mr. Naziruddin Ahmad is opposing it. Pandit Mukut Bihari Lal Bhargava : Of course this remark cannot apply to me. I feel as keenly as the learned member on it. Now Sir, the main question is about the Second Part of this piece of legislation under the head Marriage and Divorce. These are incorporated in clause 5 to 51. Let us see how far the type of marriage that is envisaged in these provisions of the Bill is akin to the Hindu conception of marriage. My respectful submission is that the show of a sacramental marriage provided in clause 7 of this Bill of an absolutely different character than what is the conception and ideal of Hindu marriage. It is only a camouflage to conceal the real type of marriage that is 4 P.M.

DR. AMBEDKAR AND THE HINDU CODE BILL 557 envisaged. Otherwise the incorporation of the provision in clauses 10 and 21 would not have been there. To Hindus—and I think there cannot be any dispute on this point—there is no two opinion on the subject. Of course if we aim to dare Hindu ideals and ideologies, if we intend to say good-bye to them, then it is another matter. To a Hindu the marriage is sacramental and as such indissoluble. It is a religious bond of unity between the couple. It is not a union for such purposes which may be brought to an end at any time. It is not a contractual relationship. It is a relationship that has got some spirituality about it. By no stretch of imagination can it be brought to an end by the sweet whim and caprice of any of the parties. That is the conception of Hindu marriage. I would challenge any smriti or citation of any scripture, so far as Hindu scripture is concerned, which would negative this idea of sacramental marriage and will propound any other sort of marriage that is understood by smritis. Therefore my submission is that so far as the provision about civil marriage in this Chapter on Marriage and Divorce as incorporated in clause 10 is concerned it is absolutely foreign to Hindu law and should not find a place therein. Civil marriage has been in vogue in this country ever since 1872 when Act III of 1872 came into force. It was further amended in the year 1929. Civil marriage as envisaged by that piece of legislation must continue. But it should not find any place whatsoever in the Hindu Code. I want to ask why should civil marriage find a place in the Hindu Code. Is it in consonance with any smriti ? I ask this question because you claim that there is nothing revolutionary, nothing radical in this measure, and that in fact everything is just in accordance with Hindu conception, ideology and ideals. It is a preposterous claim which I must refute. My submission is that the incorporation of a provision like clause 10 in this Bill, which envisages marriage of a civil type, is absolutely unknown and foreign to Hindu ideals. Previously I have asserted that this form of sacramental marriage is only a comouflage for the other type of marriage and it is quite obvious if a reference is made to the provisions of clauses 7, 10 and 21. So far as clause 7 is concerned it lays the conditions for sacramental marriage. Here I respectfully invite the attention of the House to clause 6. This says that it will not be open to the parties to contract any marriage if they happen to be sapindas. If we proceed to clause 10 which lays down the requisite conditions of a valid civil marriage it omits the provision contained in sub-clause 6 of clause 7 therefrom and restricts it to the other five sub-clauses of clause 7. Thereby a