Vol. 14, Part II · pages 246–250

1026 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The idea has been pressed that we should not have divorce ; that our marriages are sacramental, as Dr. Deshmukh said just now, from olden days we read in our Smritis (Parasara and Narad ) that under certain conditions divorce was accepted. In the Hindu Code today we have tried to maintain the sanctity of marriage and the welfare of the parties. The framers have provided prior remedies for avoiding the extreme step of seeking divorce and those are restitution of conjugal rights and judicial separation. Therefore, divorce is not very easy. In Baroda the Divorce Act was passed in 1937, and in the analysis taken in the year 1939 the cases of divorce and judicial separation were 42 in number. Out of these, eleven were due to cruetly ; two due to desertion and cruelty, seven due to desertion by husband ; one due to desertion by wife ; six due to cruelty and habitual drunkenness of husband and marrying a second time. These cases show that divorces are not very easy. Only under special conditions divorces are granted. Also we know that divorces are prevalent in the lower classes. Only in the upper classes this Code seeks to introduce this change. Yesterday, Dr. Mookerjee raised the cry of ‘religion in danger’. I would ask him whether beating of one’s wife is considered to be religious. A woman filed a suit in one of the courts in Madras for assault by her husband. And the learned judge gave a judgement that beating the wife is allowed in Hindu Law. So, may I ask him whether such cruel customs can be called religious ? Religion is always personal contact with God. “bZ'oj% loZHkwrkuka âís'kstqZu fr"Vfr ” [O Arjun ! God lives in the hearts of all living beings.] It is not by passing particular laws that religion can be in danger. As I said Hindu religion is a vast ocean where changes take place now and again and we have accepted these changes. That is why our structure of Hindu religion has lasted for such a long time. May I also draw your attention to the necessity of changes in Hindu structure. I would say that at present our law is one-sided. We do not give any relief to our women. We have our National Planning commission which wants to plan on the present structure. I would say that unless the social structure is changed, it is no use planning on that body which is rotten. I would in this connection like to make some suggessions for improvement in our society. In a planned society woman’s place shall be equal to that of man: equal status, equal opportunities and equal responsibilities shall be the guiding principle to regulate the status of woman, whatever the basis of society in the plan. Woman shall not be excluded from any

1027 DR. AMBEDKAR AND THE HINDU CODE BILL sphere of work, merely on the ground of her sex. Marriage shall not be a condition precedent to the enjoyment of full and equal civic status and social and economic rights by woman. May I ask whether at present the status of woman is such, so that we can plan properly in the present society. Family life and organisation and woman’s enjoyment of a share in the property are very necessary. Marriage and succession laws governing these are also necessary and that is why I feel that unless some change is made in our present Hindu Law, I do not think it would be possible to build on the structure that we find at present. The Women’s Conferences have always asked for a common Code. We are also in favour of a common Code. We are not asking that special privileges should be given to only Hindu women. We all know that at present our women are suffering and are backward. Parsi, Christian and Muslim women are far ahead of Hindu Women in this respect and that is why at present we are supporting this Hindu Code. As I said earlier, if we make this Hindu Code an ideal one, the other communities also will have no objection in accepting our Code. Dr. Deshmukh said that many women have resigned from the All-India Women’s Conference on this question. On the contrary I would say that in our Conference we have from the very beginning, asking for these changes and it was due to our request that so many pieces of legislation on marriage, right of women to property, etc., were introduced. In Bombay when Dr. Deshmukh of Bombay wanted to bring the bill on giving property rights to widows, we requested him not to hurry with this measure, but to wait so that it may include properties for daughters as well as adoption and other clauses. At that time he told us that he would like to hurry with the measure and that he would bring other reforms also. Therefore, these reforms are due for a long time and it cannot be said that we have not taken public opinion. Even this Hindu Code, as you know, is before the public for the last ten years and it is no use saying that public opinion has not been sounded. I think enough public opinion has been created and it is very wrong to say that very few women are supporting this measure. We have had many public meetings in various places and women from all over India are supporting this measure. On behalf of women I give my whole-hearted support to this Hindu Code.

1028 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES * The Minister of Works, Production and Supply (Shri Gadgil) : I heard the speech of my hon. friend Dr. Syama Prasad Mookerjee with great attention. I should say that it was not entirely unhelpful. He said two things which appealed to me. One was that in the matter of social reform we should carry public opinion to the largest possible extent. Secondly he said that this was not a matter of politics, this was a matter in which every citizen of this country was interested irrespective of his or her political views. Because of these two things, I am somewhat optimistic and I am certain that if we are able to create in this House an atmosphere of give and take and of compromise we will be able to put on the statute book something about which individually and collectively we may be proud of. Dr. Syama Prasad Mookerjee praised the Hindu culture and called it dynamic. I share that view. It is because Hindu culture has the genius of adaptation to circumstances, it is because that it is responsive to new trends that it has survived and it has been the pride and glory of us all. Today there is a greater need for the leaders of thought to consider how we shall attempt to progress further and how we shall bring the law in line with public morality. The old ways may not be effective in the modern times and therefore it behoves us that we must also have to resort to modern methods. There is no dispute about the fact that there are certain evils; although I am a good Hindu and I will yield to none in my admiration for Hindu culture, still I am not blind to the faults which have crept in our life as a community. By adopting a Constitution with the objective of equality of status and social justice, we have taken a great responsibility. We want to inaugurate a society in which there will be perfect equality. If that is the objective, then surely that cannot be achieed by following old methods of shouting old slogans. We have established political equality by adopting the system of adult franchise. We want to secure social justice and remove as far a possible economic inequalities by erecting certain economic institutions which will secure a better standard of life for those who are down-trodden, by securing opportunities for the expansion of the personality of every citizen. And that is only possible in my humble view, by nationalising at least the means of production and securing an adequate standard of wages, controlling profits, and if at all private effort is to be given any place in the economic system by laying down that it shall be under the *P.D., Vol. XV, Part II, 18th September 1951, pp. 2754-68.

1029 DR. AMBEDKAR AND THE HINDU CODE BILL regulation and control of the State. In other words, by legislation we are trying to secure social justice and trying to remove economic inequality. If by legislation we have secured political equality, if by legislation we are attempting to secure economic equality or at least to remove economic inequalities, it is only logical that by the same process, namely by legislation, we must try to secure social equality. My friend Dr. Syama Prasad Mookerjee stated that by codifying the Hindu Law you are shutting out altogether those sources of Hindu Law which have been functioning from ages and which has secured the means of progress so far. I agree that the sources of Hindu Law are smritis, shrutis, sadachara, and one’s own conscience. All that is true. But all that was good and valid enough when the political constitution or the political set-up of the country was different from what it is now. Even in the West it was considered that a change in the law could be effected either by legislation or by legal fiction which meant that the law apparently remained the same but in practice it underwent a change and by custom. Even in the West the modern tendency is to depend mostly or substantially upon legislation in effecting the necessary changes which will make the law to be in conformity with public morality. Law always follows public morality. Public opinion goes ahead and progresses because that is the life in the community, not being static or stagnant, continually progresses, continually proceeds, because the law of life. Therefore the legislation comes behind. But there should not be such a big hiatus between the two so as to endanger the happiness of the community. It is therefore the duty of every thoughtful citizen, of every person who has the interest of the community at heart to see that the time-lag between the two is as short as possible. Now, it is no good depending always upon the second method, namely of legal fiction, and allowing the judiciary to strain the meaning of plain words and asking them to try to bring the law in conformity with the prevailing opinion in the community. The third method, namely that of custom, is, I should say, a misfit in modern circumstances. After all, custom was good when the legal power of the State was not adequate, was not sufficiently developed in order to enforce what was thought to be just and proper and what was thought to be in the best interests of the community. Now, in the modern world to talk of custom prevailing over law is a sort of anomaly. If the custom is prevalent on such an extensive scale I have not the

1030 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES slightest doubt that legislators will initiate the legislation and the custom will be incorporated and dignified into a rule of law. That being so I am unable to understand the argument of my hon. friend Dr. Syama Prasad Mookerjee that we are doing something revolurionary and in such a manner that the normal sources of law which were available will be completely closed. It is not so. Whatever we have inherited we have so to say, instead of putting our inheritance into a number of banks consolidated the inheritance and put it in some bank which has the prestige and strenth of a Reserve Bank, namely legislation. That is what we have done. In fact in the present Code as it is now before this House what is really done is that we are practically coordinating what is in existence—the present law—to the extent of eighty per cent. There is no doubt an element of progress to some extent. I will even concede that there is an element which to some extent goes in advance of public opinion. But I want to ask one question to the Members of this House. Is it or is it not our duty not merely to think in terms of the needs of the persent moment but to think in advance of our society, as we visualise or as we desire that it ought to be ? If planning is good in the economic sphere why should it be bad in the social sphere ? We are anxious that our society should be such. If that is the ideal on which we are agreed and on the assumption that we are . agreed—because we have adopted it as one of the objectives in our Constitution—then we have to consider how we shall manage to take our society to that destination. Can we follow a policy of laissez-faire in this sphere or shall we think ahead, think in advance just have our target and gradually, through the mechanism of law, which in due course, become part and parcel of the community’s life and arrive at the destination according to the schedule ? Shri R. K. Chaudhari (Assam) : That is questionable. Shri Gadgil : If we leave it to non-official effort I have no doubt that in course of time, may be two generations hence, things will become as we desire now. But by that time public opinion would have advanced much more. In other words we will never be able to cut the time element between the growing public opinion and the legislation. I therefore say that if there is any element of advance thinking in this Code it is justifiable, and I would say that it is an act of wisdom. Now the opposition to this Bill has been from several points of view. There are people who do not like any interference by the Legislature in these matters. There are people who think that the Parliament, or the