Vol. 14, Part I · pages 661–665

DR. AMBEDKAR AND THE HINDU CODE BILL 643 And lastly, Sir, I may mention, if I may, a few words with regard to distant heirs. I feel that the present provisions are a great improvement upon the previous Bill. It has drawn upon certain principles of Dayabhaga and it has also brought in the other systems. And I think, so far as distant heirs are concerned, the Bill as it stands is a great improvement upon the original Bill, and if there is any defect here and there, they can be removed easily. The chapter on guardianship, maintenance, and the other chapters are conceived in a very liberal and progressive spirit, and I think they deserve the whole-hearted support of the Assembly, though it may be that here and there, they may require some modification, but that can be easily done at a later stage of these procedings. Therefore, in the full confidence that the hon. Law Minister as well as the Prime Minister will be responsive to public criticism, while taking into account the progressive tendencies of the age, I move for the second reading of the Bill and I support the motion moved by the hon. Dr. Ambedkar. *Dr. P. K. Sen (Bihar : General) : Sir, I am quite conscious that I must be brief, as there is a great pressure upon the time of the House. At the same time there are certain aspects which have been raised, even by my predecessor, my esteemed friend, Shri Alladi Krishnaswami Ayyar, which do call for some comment. He has followed the order of the Bill, as a matter of fact, and taken the law of marriage first of all. I must confess that I could not exactly follow him as to whether he gave his opinion in favour or against it. As a matter of fact he said in one part of his speech, while dealing with that section, that he had no definite opinion on the subject. So far as the law of marriage and divorce is concerned I do feel that one must be definite. There is no part of law which calls for definiteness more than the law of marriage, because, it affects not only the parties who solemnise the marriage between themselves . . . . . . Shri Alladi Krishnaswami Ayyar : Sir, I do not know if I had made myself clear. What I said was that if we had had a clean state to write on, we might do otherwise but having regard to the previous step taken by this House and the legislation undertaken, there cannot be any serious objection to the portion relating to marriage excepting in regard to one or two matters, which I mentioned in the course of my address. Dr. P. K. Sen : Except in relation to sacramental marriage. I suppose. * C. A. (Leg.) D., Vol. VI, Part II, 13th December 1949, pp. 519-27.

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES644 As I was observing we have to see that in every respect the law of marriage should be perfectly definite and explicit and there should be no ambiguity at all about it and it is for that reason I take it that the Bill contemplates that even when the marriage has taken place according to the sacramental form there may be objections raised with regard to it. It may be urged that there had been some irregularity, some omission, some particular form of ceremony not having been observed. Take, for instance, saptapadi. Everybody knows that Saptapadi is an essential factor. Not until the seven steps have been taken can the marriage be said to be valid. In fact, all manner of irregularities may be urged as objections with regard to the marriage. It is for that reason that it has been provided in the Bill that even when a marriage has been solemnised according to certain sacramental form, it is open to a party (it is only permissive) to go and have the marriage registered, so that there may be no objection raised later on with regard to its validity. This is, I submit, absolutely essential, because it is not only the two parties who solemnised the marriage between themselves who are affected but it is the next generation and the next generation, indeed, generations unborn, that are affected by it. The whole question of legitimacy depends upon it. Therefore, I submit that whatever may be the irregularity, there must be some method by means of which the legitimacy of children and their rights of inheritance may be protected and may not be left in uncertainty. There can be no difficulty whatsoever : there is some way of ascertaining what the necessary forms are which have to be observed in order to make a sacramental marriage valid. That too has been provided for in the Bill in the form, viz., that in any particular area it may be found that a particular set of ceremonies is regarded as essential to the validity of the marriage : in that event those ceremonies will be regarded as validating the marriage. Nevertheless, it may so come to pass that some of these ceremonies have been performed or it may be that the performance of those ceremonies were not exactly in the manner prescribed. In that event what is to happen? Is the married couple then to remain in the position which would make their children illegitimate in the eye of law? It is for this reason only that it has been made optional for the parties to have their marriage registered in order to get it validated. I come to the next question about public opinion and about their being a large body of the public not having been sufficiently apprised

DR. AMBEDKAR AND THE HINDU CODE BILL 645 of the contents of the Bill. The question has been raised often and often here, why hurry why not wait for a year or two or three years? We have already waited long enough. Why should we not wait for another period? It is not a question of eleven years which the Hindu code has taken, nor is it a question of two years which have elapsed since. This has been mooted from the last century. The House will be pleased to recall Act III of 1872. The Special Marriage Act which was first placed before the legislature was in 1868 by Sir Henry Maine at the instance and on the initiative of Keshub Chunder Sen, Bengal’s great social reformer. As a matter of fact, to go further back, in the fifties of the last century, the Widow Re-marriage Bill was on the legislative anvil. The great Ishwar Chunder Vidyasagar was exerting a great influence on the public mind to get their support for Hindu widow remarriage. It was at that time that a remarkable petition signed by four hundred men was put up before the legislature, in which they said that although they were orthodox Hindus, they did not believe in restricting themselves to a particular caste, they believed in inter-caste marriage, they believed in monogamy, they believed in certain ceremonies being essential for the purpose of observing pure Hinduism but that they wanted to eschew other ceremonies and that, therefore, they wanted the help of the legislature to pass a comprehensive Bill, not only the Hindu Widow Remarriage Bill but a Hindu Marriage Bill, in which provision would be made for inter-caste marriage, for adult marriage and for marriage solemnised with certain ceremonies only to which they did not take exception, and not every ceremony which at that time was considered to be obligatory. This was somewhere about 1856 and it was a most representative body that put forward this petition. Among those notable public men who signed the petition were people like Peary Chand Mitter, Radha Nath Sikdar, Abhoy Charan Mullik, and Rasik Krishna Mullik. They had nothing whatever to do with the Brahmo Samaj : they were orthodox Hindus. Side by side with this organisation there were all the activities of the Brahmo Samaj going on. The Brahmos had already solemnised inter-caste marriages, because they believed that “Right was right: to follow right were wisdom in scorn of consequence.” They did not care what the law was. They said that they would break down caste notwithstanding the fact that there might be difficulties regarding legal validity. Later on they thought that this state of affairs should be removed for the sake of posterity, for the

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES646 sake of the children and it was therefore, that Sir Henry Maine introduced a Bill which ultimately emerged as the Special Marriage Act of 1872. That this Act has catered not only for the Brahmo community but for a much larger body is testified to by the fact that after the passing of the Act several amendments have been sought in order to make it applicable to other sections and in order also to obviate certain objections to particular sections of the Act. In doing so, these people at different times acted as the representatives of the conscience of the society—the minority conscience, let us say. But the minority has a conscience; and the social conscience of the minority also must be respected. In every country we find that it is the minority conscience which has always come to the help of law for the purpose of vindicating its own view. Well, Sir, today we do not know which section is in the minority and which section in the majority. But it goes without saying that in a democratic form of government all sections of people must necessarily have their consciences vindicated, and their ways of life and thought, at least so far as fundamental points are concerned, respected. In that view the question that really has to be solved by us is this : Is this Bill in any particular respect imposing itself upon the conscience of any particular section? (Babu Ramnarayan Singh : Yes) And by that will its excellence or otherwise be tested. Now, if we come to the first part of the Bill, so far as the question relating to marriage, divorce, judicial separation, guardianship, alimony, custody of children and so on, is concerned, so far as I can understand, it cannot possibly be contended that it is being thrust upon anyone. After all, it is only in those cases where you find that divorce has become absolutely unavoidable that the provision will be utilised. And there are such cases, there can be no question whatsoever about that. There are cases where continuance of the marriage bond will really lead to misery from the point of view of both parties, will lead to disintegration of the family. It is only there that divorce can possibly come on. Sjt. Rohini Kumar Chaudhuri (Assam : General) : May I ask if the subsequent marriages become happy? They become worse. Shri L. Krishnaswami Bharathi (Madras : General) : It depends upon the lady you marry! Dr. P. K. Sen : I am not going into that question because in that case it would be a matter of statistics as to how many cases have really become happy or how many cases have really become happy

DR. AMBEDKAR AND THE HINDU CODE BILL 647 or how many cases have turned out unhappy. That is not the test. The test is unavoidability. Is there anyone who can possibly say that in no circumstances should there be a separation at all? There may be circumstances imaginable where there should not be separation. It is for us to sit down with good will and mutual understanding, and discuss all these points and find out whether it is going to be compulsory upon any particular party or not. There is no compulsion at all here. It is perfectly optional. If you find that it has become impossible to carry on you can go to a court of law. The court of law will go into the matter, find out whether all the requisites of a divorce or a dissolution of marriage are present and then issue a decree nisi, or whatever it may be. But that does not necessarily mean that divorce will go on multiplying from day to day. That depends entirely on the temperament of the people. And I feel bound to say that because it has taken a particular course in America or England or in other foreign countries, in India also it should take the same course— that is an impossible conclusion. (Pandit Lakshmi Kanta Maitra: It is the same institution). I do not believe at all that in India the same result will follow. Pandit Lakshmi Kanta Maitra : Worse. An Honourable Member : Is it not time to rise for Lunch? Mr. Deputy Speaker : I think the hon. Member is likely to conclude soon. Dr. P. K. Sen : I am trying my best to conclude soon, but I have just begun. The Assembly then adjourned for Lunch till Half Past Two of the Clock. The Assembly re-assembled after Lunch at Half Past Two of the Clock, Mr. Deputy Speaker (Shri M. Ananthasayanam Ayyangar) in the Chair. Dr. P. K. Sen : Sir, when this House rose for mid-day recess, I was on the point of the permissive nature of the provisions regarding divorce and allied matters. The question that was put to me in the course of the debate was why there had been so many divorces in other countries. Shri Mahavir Tyagi (U. P. : General) : On a point of order. I find only the hon. Minister of State for Transport and Railways sitting