Vol. 14, Part I · pages 576–580

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES558 marriage between sapindas is perfectly valid if it happens to be a civil marriage under clause 10. This is the difference or gap between the validity of the sacramental marriage and the validity of the civil marriage. What does clause 21 lay down ? It says that it is open to the parties who have entered into a sacramental marriage of the type envisaged in clause 7 later on go to the Registrar and ask him to register it as a civil marriage and the poor Registrar will have no option. What is the legal effect of these three provisions read together ? Whatever sanctity is attached to the sacramental marriage is eliminated. Mind you, one of the requisite conditions of a valid sacramental marriage is that there should be no marriage between sapindas. This condition does not exist in section 10 and the poor Registrar, inspite of the fact that the sacramental marriage was an invalid marriage because of this, has to register it as a civil marriage. Therefore, the camouflage, the curtain of a sacramental marriage is lifted here and the effect of invalidity, because it was a marriage between sapindas is circumvented by this device. I ask, is it in accordance with Hindu ideals of marriage ? Will not all persons be inclined, wherever they choose, to celebrate a marriage between sapindas ? They can do it as a sacramental marriage and subsequently go and cure the invalidity by undergoing civil marriage. We come then to provisions of Section 9. It has been stated that even the sacramental marriage must be entered into a marriage certificate register and that if it is not so entered the defaulter may be punished under the law. As regards its validity, it is very doubtful whether it will be valid or not. Of course, the Rau Bill did not go so far. The Rau Bill left it at the option of the parties to either get an entry made in the register or not. The only object with which such a provision was incorporated in the Rau Bill was to facilitate the proof of marriage. But that object has been told good-bye in the present Bill. What is stated here is that it will be open to any Provincial Government to make the registration of sacramental marriages compulsory. The provision of section 6 says that a marriage in order to be valid, must be in accordance with the provisions of the Bill. If not, then it is not a valid marriage. Therefore, the conclusion is irresistible from the reading of Sections 6,7,10 and 21 that any marriage which has not been registered by the married couple in the certificate register will be invalid. I respectfully submit, what are the legal consequences flowing from this sort of a provision ? Are they not repulsive to the very ideal of Hindu society, to the very injunctions

DR. AMBEDKAR AND THE HINDU CODE BILL 559 of the shastras which lay down that a marriage solemnly entered into is an indissoluble tie and cannot be brought to an end ? Here if the married couple was foolish enough not to get an entry made to that effect in the register, their marriage will be invalid. Coming to the next important provision in this Bill, that is, the provision regarding divorce. The question arises about past practice and we were quoted the smritis of Narad and Parasar by the Honourable the Law Minister to prove that divorce did exist in the Hindu society. I respectfully submit what has been pointed out by Mr. Dwarka Nath Mitter, the dissenting Member of the Rau Committee, before whom these very scriptures were put forward; he has interpreted them not merely on his own knoweldge of Sanskrit but upon the knowledge of learned pandits. He says that the only and the reasonable interpretation and construction of Narad and Parasar is that there can be a breaking of relationship only upto the betrothal stage, not after the actual marriage had taken place. Therefore, it is no use relying upon the smritis to establish the practice of divorce. One of the arguments advanced by the Honourable the Law Minister, and repeated by Pandit Thakur Das Bhargava, was that divorce already exists in 90 per cent of the Hindu society. Accordingly to Pandit Thakur Das Bhargava, not only in 90 per cent of the Hindu society but even in 95 per cent it exists. I would respectfully ask, if what you say is a fact, where is the necessity of enacting any piece of legislation on divorce ? You are expected to legislate for the majority and not for a hopeless minority. The divorce of the form you have introduced in this piece of legislation will make the life miserable of the 90 or 95 per cent of the Hindu society amongst whom you say divorce already prevails, because according to the provisions of the present Bill it will be incumbent upon each party to the marriage, before it can resort to divorce, to go for the dissolution of marriage before a competent Court of Law. As has been pointed out by one of the gentlemen who wrote a dissenting note to this Select Committee Resort in most of the parts of the country among the agriculturists divorce is resorted to in a very simple manner by the execution of a deed of relinquishment or in any other manner, before the panchayat of the village. You must take into consideration the effect your legislation will have upon the agriculturists who form 90 per cent of your population. What will be the effect if clause 34 is brought on the Statute Book? Every couple, every Member, every party to the marriage will be compelled to knock

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES560 at the door of the Court of Law, to go to the district court and also in appeal and till that takes place no divorce can come into effect. I submit this will not be to the advantage but to the great disadvantage of the overwhelming majority of people amongst whom you say the custom of divorce prevails. Therefore, by enacting provisions of this type you are not helping the hopeless minority of 5 per cent but you are putting to disadvantage the majority of 90 per cent. Therefore, until and unless your provisions undergo a drastic change and amendment they should not and ought not to be brought on the Statute Book. I now come to the question of adoption. Here also the learned author and the draftsmen of this Bill have ignored the fundamental conception underlying adoption in Hindu law. As far as my meagre knowledge goes, adoption is not recognised by any other law. In Muslim law it was in vogue by custom, but even that has been brought to an end by legislation. According to Hindu conception, the life of a Hindu is so inter-mixed and inter-mingled with his religious conceptions and religion that it is impossible to separate the two. Shri H. V. Kamath : Is the Honourable Minister for Law resting or meditating? The Honourable Dr. B. R. Ambedkar: I am hearing the honourable Member. Pandit Mukut Bihari Lal Bhargava: I was submitting that adoption in Hindu law rests upon religious belief which says that it is essential for the salvation of the soul of a departed man that he should have a son who may be able to give him oblations so as to make him attain moksha. So if you are going to legislate about adoption, you must keep in mind the underlying conception. Otherwise, you eliminate it. If you keep it, you keep the spirit underlying the doctrine of adoption. ( An Honourable Member: What is the spirit?’) What are the criteria you have fixed in this Bill for validity of adoption? While the Hindu law says that the eldest and the only son cannot be taken in adoption, instead of retaining that very salient principle, you want to reverse it and say that even the eldest and the only son can be adopted. ( An Honourable Member : ‘It is unfair.’) Babu Ramnarayan Singh : It is due to ignorance. Pandit Mukut Bihari Lal Bhargava : It cuts at the very root of the conception of adoption, because according to Hindu law there must be the eldest or the only son to attend to the oblations for the departed natural father.

DR. AMBEDKAR AND THE HINDU CODE BILL 561 Similarly, what are the qualifications you have laid down in this Bill for a boy to be taken in adoption ? The three conditions laid down are that his age must be below 15, he must not be married and he must be a Hindus. I would respectfully submit that by putting a provision like this, you are putting the Hindus in great trouble, because according to the well known conception and custom of Hindu society relating to adoption marriage is not a disqualification, nor is age a disqualification. Why, I ask, are you imposing these limitations ? Has your experience of the administration of law in the past convinced you that these restrictions are necessary ? As far as my meagre knowledge of law goes, there has been no case where any difficulty has arisen. In fact, law by custom has recognised the validity of the adoption of a married boy. Similarly, whatever his age may be, the adoption is valid. What are the difficulties experienced that make the change in the existing law necessary ? It cannot be disputed that when you attempt any change you must have cogent reasons; otherwise, you must recognise the existing law. Then, about the effect of adoption. You have given a good-bye to every well-established custom of Hindu law. The Rau Bill proposed that the effect of adoption would be to digest ownership of property vested within three years of the adoption. The present Bill goes further and it says that as soon as adoption takes place, there will be no, question of divesting of property. From that date half will go to the widow or the man and the other half to the boy. My respectful submission : why do you want to bring in a novel doctrine of adoption ? Where is the reason for it ? Has any difficulty arisen in the past ? Then the question of disruption of the joint Hindu family. To me it appears that a most vital and fundamental change is sought to be brought about. Why should the time-honoured institution of Joint Hindu family be an eye-sore to you ? It has been said that the joint Hindu family as it was originally conceived has been shorn of its true characteristics by a galaxy of case law. I admit. But if the institution of joint Hindu family is an institution worthy of respect then your duty is not to bring it to an end because it has been dilapidated in the days of foreign rule, but to legislate for removing the difficulties and defects that have cropped up in the joint Hindu family institution and restore it to its previous position. We should have restored it to its previous vigour. That has not been done. I have not heard a word from the Honourable the Law Minister pointing out any fatal defects

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES562 that existed in the joint family system. His only point is that true characteristics have been shown off by case-law and therefore, the institution should be put an end to. I say it is a counsel of despair. That is a view which, at least I for myself cannot support. To me this joint family institution is an institution of which any nation in the world can well be proud of. It is an institution, Sir, which anticipated the socialistic and communistic form of society, centuries before our time. It is an institution, Sir, where even the invalid and the disabled members of the family have equal right to the corpus of the family. It is an institution which ..... Sirjut Kuladhar Chaliha (Assam : General): It is not prevalent in Bengal. Pandit Mukut Bihari Lal Bhargava : Bengal, as far as my meagre knowledge goes is partly governed by Mitakshara and partly by the Dayabhaga system. An Honourable Member: No, all by Dayabhaga system. Pandit Mukut Bihari Lal Bhargava : Therefore, Sir, my point was that the axe of legislation should not have been applied by the learned Law Minister to cut at the very root of the joint family tree, if it does not rest on such firm and solid foundations as it did at the time of our ancients. Legislation should have been undertaken to protect it. In the time of the British, because we were subjected to foreign rule, and they were not at all interested in keeping in tact our time-honoured institutions. In fact, they had contempt for them. When our own national government has come into power, is it too much to expect that they should attempt to revive and restore this time-honoured institution to its previous glory rather than destroy it. I submit, Sir, by this Bill, the Hindu joint family is being shattered to pieces. What the Rau Committee proposed was not so fraught with danger as what is proposed in the provisions of this Bill. I invite attention to clauses 86 and 87 of the present Bill. The Rau Committee in clauses 1 and 2 of Part III-A only laid down that on the demise of a coparcenar in the family, the right in the property will not devolve by survivorship but will be by succession. That is intended to keep intact the coparcenary for at least one generation. Even that was not tolerated or liked by the present Select Committee and some of its members, including the Law Minister, with the result that what sections 86 and