Vol. 14, Part II · pages 231–235

1011 DR. AMBEDKAR AND THE HINDU CODE BILL Shri B. K. P. Sinha : Probably my friend Mr. Syamnandan Sahaya referred to Dr. Jayakar, the politician. I am referring to Dr. Jayakar, the scholar. Shri Syamnandan Sahaya : Do you mean that politicians are not scholars ? Shri B. K. P. Sinha : They are. And then Dr. Jayakar goes on to say in his foreword: “He observes that in modern times facilities of transit and interchange have enormously increased and various causes, appropriate to the times have compelled people of different races and religions to live together in territories governed by different systems of law. These new factors naturally tend to complicate problems of human life in the sphere of their legal relationships. Rules framed to regulate municipal and purely local set of circumstances prove inadequate or even out of place to deal with such problems arising out of the introduction and presence of foreign elements within the territory. The development of a Body of Rules to cover these new sets of circumstances is alreay overdue.” *Dr. Deshmukh : I am afraid probably my hon. Friends who welcomed my getting up to speak by saying “hear, hear” may be disappointed at what I am going to say today. Shri R. K. Chaudhari : Have you changed your mind ? Dr. Deshmukh : To a certain extent, probably, yes. An hon. Member : Wise men always do that. Dr. Deshmukh : I have been member of the Select Committee and I have appended a note of dissent to the Committee’s report. But that covers only four points. That note of dissent itself shows that appart from those four points, I am in general agreement with the many provisions proposed to the Bill. At the same time. I always felt that the time had not come when it was possible to revise, with some other and different ideals in front of us, the whole structure of the Hindu society and to change it radically. Ours is a vast country and the Hindu community is extremely large and numerous. We are also highly uneducated and absolutey, illiterate. From that point of view if you wish to change the basis of the Hindu society to any violent or great extent, the people who are not capable of understanding the changes are likely to suffer considerably. From that point of view I thought that *P.D., Vol. XV, Part II, 17th September 1951, pp. 2732-38.

1012 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES the reforms so far as the Hindu Law is concerned should be as and when required and whenever a certain situation demands them, and only when the public opinion was ready and well-informed and was capable of following all the modifications in the social structure which we desire to bring in then alone we should attempt a thing of that nature. Therefore, I hold that the Hindu Law even when codified will not help us unless it is your desire to remodel the whole Hindu society for which the time, I submit, has not yet arrived. The Hindu law as laid down by the Smritis and as interpreted by the High Courts and the Privy Council is fairly well crystallised ; there may be certain differences of opinion ; there is a possibility of conflicts in interpretations but they are understandable and we have had this experience of these 150 years and this has not led to any great suffering or any great hardship.... Shri Lakshmanan (Travancore-Cochin) : On a point of order, are we at the general discussion or discussion on clause 2 ? Mr. Chairman : He is in order. Dr. Deshmukh : My remarks are really relevant so far as the discussion on this clause is concerned. What I was going to point out was that if we were going to remodel the society and change the whole law so as to suit modern times in an ideal manner that would be something far different from what we are attempting here. Even in what we are attempting at the present moment, I do not think that the Hindu Code represents a complete remodelling of the Hindu society. We are after all codifying what exists although with some changes. Because at the present moment and in this modern age, if we really want to follow modern ideas, I do not know whether the conception of any private property is going to survive very long. What is the use therefore of discussing the property law and debating whether it is according to the Mitakshra or the Dayabhaga or we are going to introduce the principle of primogeniture or something else. I personally feel that so long as we have the Hindu laws by which we are governed at the present time, and so long as it is a fairly well understood law, which the whole population and the whole Hindu community understands, the time has not come when we should attempt a radical and whole-sale alteration of the law which governs the society. Because, that is likely to create more trouble than we have at the present moment. At the same time, I have always advocated and I am in favour of removing those difficulties, those harrassments and those persecutions which exist and because of which, there is human sufferring. So far as these things are

1013 DR. AMBEDKAR AND THE HINDU CODE BILL concerned, I think it should be the endeavour of every Member of Parliament to support the Bill; wherever it is found that our social structure is likely to suffer, and where it has led to a good deal of inconvenience and trouble, those reforms ought to be taken up and there should be no compromise with any orthodoxy. 1.00 p.m. Shri Kamath : While we would like to hear the hon. Member, there was a half-hour discussion to be taken up at one o’clock .... Mr. Chairman : That has been postponed. Shri Kamath : We have had no notice. Mr. Chairman : It has been struck out here: Dr. Deshmukh : So far as removal of difficulties and hardships is concerned, I am prepared to go even farther than the sponsors of the Bill. The prohibition of polygamy and introduction and enforcement of monogamy are extremely desirable reforms. I also agree that it is time that the Hindu society provided for divorce under the law. There maybe some restrictions imposed ; but I do not think it is possible to shut our eyes to the instances and facts which come to our notice. It maybe a thing which my orthodox and sanatani friends may dislike. Of course, many of them dislike any change whatever. Unfortunately that is the position. Here, I must clear a misunderstanding. I have been regarded by some sanatani friends as a staunch opponent of the Bill on all points and in every respect. It is therefore that I have prefaced my remaks with the remarks that my hon. friend Pandit Mukut Bihari Lal Bhargava will probably not welcome what I was going to say today. The provisions should, however, be confined to these two aspects. Further, I would like some provision by which we can better the conditions of our widows. I have seen a great number of instances where they are undergoing inhuman suffering. So far as widows’ rights to property are concerned, we have had amending Bills. We have passed certain laws. But, to my knowledge, they have not benefited those for whom they were intended. I would like to persuade the hon. Members of the House that we should make some provision so far as they are concerned. Shri Bharati : We are not discussing that now. Dr. Deshmukh : I do not know if any announcement has been made in the House whether we are going to leave out of consideration those other sections and confine ourselves to only these things viz., marriage and divorce. Because I was not here, I do not know what decision has been taken.

1014 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Shri Bharati : We are not likely to take them up. Mr. Chairman : Let the hon. Member go on. Dr. Deshmukh : If it is intended that we should confine ourselves only to the passing of a law that one person can at one time have only one wife, I would not very much object. But, as has been pointed out by my hon. Friend Dr. Syama Prasad Mookerjee, much ado is being made about a thing which is dying out by itself. The present struggle for existence and the economic forces at play are themselves bringing about the desired change. Therefore, although it is a necessary reform, I do not think it is something that some people may be prepared to die for. So far as divorce is concerned, I think there is much to be said in favour of divorce. At the earliest possible moment, this provision ought to be made. As has been pointed out by many Members, this is only a permissible reform, merely making provisions for divorces—the mere presence of the provision does not mean that every one will take advantage of it and get a divorce. What is the present position ? There are certain States— Baroda for instance, where divorce is allowed. And many who cannot agree between themselves or for other reasons who cannot get on, merely go and stay at Baroda for some time and obtain some sort of certificate that they are residents there and in this way get their purpose fulfilled. Wherever a married couple cannot get on together, may be for any reason, may be because one of them is suffering from a bad disease or there may be many other factors which cause a deterioration of their relationship they should be able to separate. It is human to expect under modern conditions that this freedom should be made available to them and it should be possible for an individual to get a divorce and separate. From that point of view, I submit that the provisions so far as divorce is concerned, are desirable. But on one point I vehemently disagree with Dr. Ambedkar and that is with regard to not recognising the customary divorce. He wants that all divorce cases must... Shri R. K. Chaudhari : I want to get a point cleared. Does the hon. member advocate divorce of scramental marriages and also at the same time the continuance of sacramental marriages ? Dr. Deshmukh : I do not think there will be any difficulty. Even now a good many sacramental marriages get dissolved. That happens in various communities and under the Hindu law. And who is going to say that marriage under the so-called backward communities, which really are more advanced than others are not sacramental marriages ?

1015 DR. AMBEDKAR AND THE HINDU CODE BILL They are and they are recognised by custom and their divorce systems are also recognised by customs and by the caste panchayats. But the Hon. Minister wants that all these cases must go through an involved method where lawyers will be necessary and all sorts of evidences will have to be taken and the whole thing will prove to be a hardship to these people. Dr. Ambedkar : Let there be customary marriage also. Dr. Deshmukh : If the provisions of the Bill are limited to the removal of the defects now present and we do not go further than that, then I would be prepared to support and I will not say that since you are not going to make it applicable to everybody in India therefore it should not be made applicable to Hindus also. I had raised that point as a major issue, because I felt that if it was intended that the whole of the Hindu society should be radically changed, then there was no reason why we should not make all the provisions of the measure applicable to all the people living in India. But since this is intended as a sort of a reform and the scope of it is confined specifically to certain sections. I have no quarrel so far as this point of view is concerned. Dr. Mookerjee undoubtedly went too far in asking that it should be left to the option of people. If that be the course that we adopt, then even the simplest possible reform demanded by society would be impossible. I do not know why he took that view though he has been very reasonable on most other points. This smacked a bit of a no-changer. He was prepared to support the divorce provisions if monogamy is made applicable to all the communities living in India. Although it looks plausible, it smacks more of obstructionist tactics than helping the passage of the Code. I for one stand even for radical reform which will not create confusion in the Hindu society. These provisions are not such as are likely to create confusion, because everybody need not resort to divorce or take advantage of the provision. There are inumerable cases where both man and wife suffer and desire that separation would be ideal. For such cases we make provisions by which separation would be allowed and I do not think it should be anybody’s business to come in their way merely on the ground that in the remote past we regarded marriage as a sacrament and not as a contract. As I have already said even sacramental marriages could be dissolved according to custom. After all recognition of sacramental marriage is recognition of customary marriage, because it is governed only by custom. There are many different forms of marriage. In some