Vol. 14, Part I · pages 741–745

DR. AMBEDKAR AND THE HINDU CODE BILL 723 of all property obtained by inheritance by partition, by seizure (that is by adverse possession)” and so on. That is to say, the property inherited by the woman from her husband or from her father or anybody else ought to be her full absolute property and nobody can control it. This was the law laid down by Vijnaneshwar in the 11th Century. That had continued to be law until the British came. Another commentator of the Banaras school N. S. Viramatadhira repeats it. Nilakantha, the author of Mayukha which is the leading authority in the Bombay Province, particularly in Gujarat and the Island of Bombay again repeats it. Except in Bengal in every other Province, that was the law until the British came. When the British came they said. “Well, let us examine the original texts of Mitakshara”. They said it was a commentary upon Yajnavalkya. Yajnavalkya used certain specific notes and used the word adi and adi is interpreted by Vijnaneshwar in this manner. That was the position. A great deal of struggle went on. Of course some Courts struggled, particularly Madras, for a number of years. But ultimately the Privy Council said, “Well we must do it”, though it was quite contrary to the rule which the Privy Council itself had laid down that if there was a difference between the Smritikar and the commentary we must follow the commentator. That was the rule they laid down, but somehow or other they departed from it here. So, I say, go back to the Vedic position with regard to the position of a daughter’s and a husband’s family, and go back to the position of Mitakshara. Tear off all this mass of judicial literature which has arisen in this country during all this period and go back to what was the law up to the eighteenth century. If you do these two things, I tell my friends, the supporters of the Bill and those who want to reform, that you will be getting much more. If the woman becomes a co-parcener in a husband’s family. You don’t disturb the joint family; the sons may continue. There may be good things in it, there may be bad things, but let it crumble away and die its natural death later on. But give the woman a right in her husband’s property, the same right as the son or the husband has. There may be some further points to be considered as to how this property is to go after her death and so on, but these are details into which I won’t enter. I will ask Hon. Members to give this matter the most serious consideration and then to see whether this is not a scheme which is not much better. With regard to the unmarried daughter, I see no reason whatsoever why she should not get a full share along with the brothers in the father’s property, because no dowry has been given to her and she

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES724 should not be made dependent. Some of my friends have been painting glowing pictures of the love which the brother has for the sister and how they take great efforts for the marriage of the sister. Quite true some people do it, many do it, but we know of cases also to the contrary where the brothers, particularly the brother’s wife corners the whole thing and very little is left by way of dowry to the sister particularly if she is going into a family which is not very strong and has not got much influence in the village. So, we must make provision for that also. May I say that there is considerable authority in the Shastras also for that. Some say her share should be one -fourth, some say equal, some say it should be one-half. I am not for half. Following the Mohammedan law : she must be given full. Shri B. L. Sondhi (East Punjab : General): For how long will the unmarried girl continue to enjoy the property? Dr. Bakhshi Tek Chand : Once property is vested, it vests and there is no question of divesting it. After all it won’t create much disturbance in the family. We must make some provision; we can see that adjustments are made later on. A word regarding the Chapter relating to marriage and the Chapter on divorce. My objection to this portion of the Bill is a very simple one. The first part of the Chapter deals with monogamy and I am a wholehearted supporter of the provision that every Hindu should marry once only and not more than that. The majority of our people do that. Shri H. V. Kamath : Once or not at all. Dr. Bakhshi Tek Chand : All the arguments that there is no son etc., are of no use. Where is the guarantee that if you marry three wives one after another, one of them will produce a son? It is all a matter of chance. Therefore that is an argument which does not appeal to me in the least. As a matter of fact and as a matter of practice the large majority of Hindus have only one wife and I see no reason why that provision should not be put in here. Shri Lakshminaran Sahu : In Utkal there is an excess of three lakhs of women. If you start talking of one for one, I should like to know where would you provide for the three lakh extras ? Dr. Bakhshi Tek Chand : Here again religion has been brought in. In Baroda, in 1931 the Monogamy and Divorce Bill was passed by a legislature 95 per cent of the members of which were Hindus, under the aegis of a Maharaja who was an orthodox Hindu. For nineteen

DR. AMBEDKAR AND THE HINDU CODE BILL 725 years that Bill has been in force. Can we say that Hinduism in Baroda has come to an end because of that Bill? In Bombay Mrs. Munshi’s Bill was passed in 1946 and became a part of the law of the land. In Madras, last year, the Madras Legislature passed a similar Bill. Thus, we have got practically the whole of South India where monogamy is a law of the land. Hinduism there has not been destroyed. All our Madras friends are as strong and as kicking as they ever were. Therefore, I consider this provision is a very salutary one and must be maintained. Shri Gokulbhai Daulatram Bhatt : If you, Sir, permit I should like to ask one or two questions for information sake. Mr. Deputy Speaker : He does not give in. Shri Gokulbhai Daulatram Bhatt : Whatever you have said about monogamy is quite true but what I want to ask is whether a man is permitted to remarry in the life time of his first wife if she consents to such marriage? Dr. Bakhshi Tek Chand : I am very glad, our respectable brother Gokulbhaiji has put that question. I say that you can get a woman’s consent in any way you like. I have seen notorious cases of that. In one case there was an old man and an old woman. A very learned pandit, an astrologer was brought in and after performing all the pujahs he said to the woman. “Your husband is going to die during the course of the next three months; the only remedy against that is that he should remarry and if he marries again he will have a son” and all that. And that old lady, thinking that this great calamity was coming upon her, gave her consent, Now of course, there is not only one woman but five women in that house. (Interruption.) Mr. Deputy Speaker : Order, order. The Hon. Member has been anxious to sit down for the past half an hour but on account of the frequent questions he has to go on. Dr. Bakhshi Tek Chand : I come to the last point, the question of divorce. One of the great mistakes which have been made in this Bill is to make the provisions for the dissolution of civil marriages similar to the provisions for the dissolution of sacramental marriages. In this respect, the Bill as now reported by the Select Committee differs from the Bill which was orginally framed by Sir B. N. Rau’s Committee in 1944 and then revised by him in 1945. What I say is so far as civil marriage is concerned you maintain the present law which gives the same rights as the Bill gives. But do not try to introduce

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES726 provision for conversion of sacramental marriage into civil marriage. Sacrament is a sacrament. As has been originally suggested and as has been permitted by some of our old Smritikars, the rule of divorce should be limited within the narrowest possible bounds. With regard to this B. N. Rau’s position was this. Impotency at the time of the marriage which has continued up to the date of divorce. This is a condition to which no reasonable person can object. Then the person may have been an idiot and the fact may have been concealed. This is a second physical thing, which cannot be quarrelled with. In addition to these two conditions, you can allow divorce when a person changes religion. A Hindu may become a Muslim and marry. Under the fiction in the Hindu law, law that the marriage is indissoluble and the sacrament still continues, the wife is helpless. On what principle can you do that when the husband has changed his religion and gone to another and married wives according to his new religion? Shri Mahavir Tyagi : Would it not result in this that whenever a divorce is needed instead of undergoing the routine legal proceedings, people will change their religion? Dr. Bakhshi Tek Chand : No, they won’t change their religion. In addition to the above conditions, you can add desertion of the woman for a certain period; call it five years, six years or seven years. These conditions are, I submit, nothing new. They were known to our ancient Smritikars. I feel that divorce should be limited to these three or four cases. Have we not seen cases in which the husband after marrying has abandoned his wife? Have these unfortunate women no remedy? They should have a remedy. But I would limit it to these three or four conditions. But do not introduce litigation. If it is a case of providing adultery, evidence can be faked. Some sort of collusive evidence can be produced and the charge proved. But I do want to introduce that in a sacramental marriage. My submission as in my minute of dissent is that the chapter relating to marriage and divorce should be recast. We have two kinds of Hindu marriages: the civil and the sacramental. In the one, you know the conditions under which it can be dissolved. In the other, you can have all your new modern ideas. I would ask the supporters of this Bill to give their serious consideration to it and see whether it improves the position of women. If my suggestions are accepted, it will make the present Bill much

DR. AMBEDKAR AND THE HINDU CODE BILL 727 better and women will rise to the full stature of their womanhood. They will have full right to property. It will give them emancipation on the economic side. Under the new Constitution there is adult franchise. We have women Ministers in charge of different branches of Administration. We cannot limit the right of woman, the mistress of the house and say that she would be entitled only to maintenance but not other rights. That would be a gross injustice. It would be contrary to our ancient Laws. What was introduced in between might have suited the particular circumstances and conditions of those days, but they are all outworm. They are not part of the Hindu religion and should be done away with. We should get rid of this jungle growth and go back to Vedic conceptions. These are briefly my submissions and I would ask everybody to give them their serious consideration. The Honourable Shri K. Santhanam (Minister of State for Transport and Railways) : May I ask one question in clarification? Supposing a woman becomes a co-parcener in her husband’s family ... will her share be part of the husband’s share or will it be separate? Dr. Bakhshi Tek Chand : So long as they are joint, it will be joint ownership of the whole family just as you and your sons are co-parceners in the property; but if there is a division, then she will become independent. It is a new addition just as a son. It is very simple. An Honourable Member : Sir, the question may now be put. Some Honourable Members : No. no. Maulana Hasrat Mohani (U. P. : Muslim): I will take only five minutes. Some Honourable Members : rose — Mr. Deputy Speaker : Order, order. Will all Members kindly take their seats? I find a large number of Members interested in speaking, but as I said yesterday, if we go on at this rate, we may have no time even if we sit for a month or two months. There is no tendency on the part of Members to limit their speeches. This Hindu Code covers not only Hindus, Hindu law of marriage and customs but it applies to Jains and Sikhs also. It does not apply to Muslims, Christians and Parsis. (interruption). An Honourable Member : There are clauses which affect other people also. Mr. Deputy Speaker : Hon. Members know fully well that when the Speaker is on his legs, no Member should get up. I need not remind