Vol. 14, Part II · pages 416–420

1196 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Shri Bhatt (Bombay): I have tabled an amendment which must have reached you. It is about custom and usage. Mr. Deputy Speaker: Well, what is it ? Shri Bhatt: It is about part (i). Mr. Deputy Speaker: But I have not got a copy. I would not like the House to be taken by surprise. At least the mover of the Bill should be given a copy of the amendment sufficiently in advance and also a copy sent to me. That is the minimum I expect. We should not be taken by surprise. Shri Bhatt: I thought you would probably have got a copy of it from the office as I got one just half an hour ago. Mr. Deputy Speaker: When was it delivered ? Shri Bhatt: This morning. Mr. Deputy Speaker: I do realise that some amendments may have to be allowed either from the Government side or the other side at the last moment. But I would suggest to hon. Members that at least the Law Minister must be given previous intimation of such amendments and a copy also sent to me. I will rigorously adopt this rule so far as new amendments are concerned. They should be agreed to by all sections of the House. Shri Bhatt: For part (i) of it I have proposed I beg to move: For part (i) of Clause 3, substitute the following : “(i) the expressions ‘custom’ and ‘usage’ signify any rule which having been in vogue for a long time, has obtained the force of law among Hindus in any local area, caste, sub-caste, tribe, community, group or family : Provided that the rule is certain and not unreasonable; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family,”. Mr. Deputy Speaker: What is the difference between this and that? Shri Bhatt: That I have taken out of it. A portion of it has been retained. That is why I have drafted this amendment in this way. Mr. Deputy Speaker : Amendment moved : For part (i) of Clause 3, substitute the following : “(i) the expressions “custom’ and ‘usage’ signify any rule which having been in vogue for a long time, has obtained the force of law among Hindus in any local area, caste, sub-caste, tribe, community, group or family : 10 A.M.

1197 DR. AMBEDKAR AND THE HINDU CODE BILL Provided that the rule is certain and not unreasonable; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.”. Shri Syamnandan Sahaya: The amendment moved by Shri R. K. Chaudhari relates to part 2 and not one. Dr. Ambedkar: It refers to the clause as it stand now. Pandit Thakur Das Bhargava : In connection with my amendment Nos. 444 and 446 I would like to make some general observations regarding custom. The sole basis for the present Code is that such customs and laws as are opposed to the principle to be enacted in the Code will be abrogated for all time. I take it that the central principle of this codification is that all various customs in all parts of the country will, as a matter of fact, be so unified by the provisions of the Act that one law shall be applicable to the whole of India for the communities concerned. I have accepted that basis as good and I am in favour of the codification, because our laws will then become certain and they will become applicable to all Hindus all over India. Apart from the unification of the customs sought to be done by the Code, there are many customs and laws which .we want to see changed. It is not only an attempt at codification. It is certainly a code in which we want all our bad customs and laws to be modified and hence in that respect it is a reform Bill also. I am in favour of the provisions of the Bill because I think they are a great advance upon the present practices and they imply reforms of a very great degree among the laws and customs now obtaining among the Hindus. But when I find Dr. Ambedkar agreeing to this or that custom coming into the Bill I feel that the essential principle on which the Code is based is being sacrificed to opportunism. I know that he is. in a great fix and I have nothing but sympathy for him. Left to himself I am sure he will not accept these customs. Left to myself I would behave in the same way and there is no difference so far as this attitude is concerned between him and myself….. Mr. Deputy Speaker : We are now on the definitions only. Such matters as sapinda, sagotra or degrees, in regard to which whether custom ought to be allowed to prevail, we will deal with them, we come to individual cases. Is it the hon. Member’s intention that the definition of Customs should go ? Pandit Thakur Das Bhargava: The definition of the word “custom” will govern the word wherever it appears in the subsequent clauses. That word will have the meaning which we assign here.

1198 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Therefore it is very necessary to understand the significance of the word “custom” and see how it affects our principles. For us to know the full meaning of the word it is neccessary that we realise how we are altering the entire provisions of the Code, when we define “customs” in the manner proposed. Mr. Deputy Speaker : The hon. Member is sufficiently an elderly Parliamentarian to know things but I want to understand things for myself. When individual items such as marriage or divorce come up we shall see what further changes have to be made in respect of that particular portion. We might say “Notwithstanding this, this shall not be allowed, etc.” We are now on the definition and let us not enlarge the scope and discuss every one of the entries and see how such and such custom will work hardship. That would mean another general discussion. Pandit Thakur Das Bhargava : I understood you Sir, even without the exposition which you have been kind enough to make. I quite see the force of the point you have made. You are here only defining customs but whatever definition is given here will apply to all those customs which are allowed in respect to certain matters. Mr. Deputy Speaker : Not necessarily. With regard to the Sikhs or some others we might say “Notwithstading, this custom shall not prevail”. Pandit Thakur Das Bhargava : What is the meaning of our saying that customs in regard to the incidents of marriage will prevail ? It means that a certain kind of rule shall prevail and that rule or principle we are defining here, whether it should be such as is opposed to public policy but all the same one which has got the force of law. Mr. Deputy Speaker : As to how custom ought to be recognised, if hon. Members want to impose restrictions it is certainly within the scope without going into the details of the various customs prevailing. Pandit Thakur Das Bhargava : I am not on details at the moment. When the occasion arises we shall see whether the custom should be allowed to prevail in respect to those matters. Here I am making only general observations and submitting to Dr. Ambedkar….. Mr. Deputy Speaker : The general observation that there shall be no customs and so forth could come at the first and second stage. Pandit Thakur Das Bhargava: I am not saying that no custom should be allowed. I am only saying that he should not be very liberal

1199 DR. AMBEDKAR AND THE HINDU CODE BILL and allow many kinds of customs which will take away from the effect of the Bill. Then it would mean that there would be no use having this Code if in respect of every matter you allow a custom to prevail. Mr. Deputy Speaker : We are once again going into the details. It is one thing to say that hereafter no custom at all will prevail, only the law will prevail. But it is another thing to say that we have to allow certain customs. In that case when we go into the details we will find out what ought to be allowed and what customs ought not to be allowed. Pandit Thakur Das Bhargava: I am restricting the scope of customs by this definition. Supposing only those customs as have been judicially recognised are to be allowed, that would certianly restrict the scope of custom. Otherwise if we leave custom undefined when a man is faced with difficulty and produce any amount of evidence ; custom can be proved not only by instances but by opinions, by reference to texts. Therefore, I want that so far as custom is concerned its scope may be restricted. It is not that I have only taken one case and put it for the consideration of Dr. Ambedkar. I have gone further and just to show the absurdity of how he is allowing so much liberalisation of customs, I have given certain amendments to show to him and to impress upon him that he should proceed cautiously. Therefore, my amendment No. 446 says: “or any rule which is certain not unreasonable and has been judicially recognised as valid and binding in any local area, tribe, community, group or family”. I can understand that there are some customs which are growing, some which have been crystallised. As regards those which are growing, we want that they may not grow because that is the only way of having a statutory rule effective. In regard to customs which have not been judicially recognised, my own view is that we should not bring them within the scope. Either we accept that the society should accept custom as the sole rule of conduct and there should be no other rule among the Hindu community as was the case before—in that case also we will reach a stage when custom will become so stereotyped that we will attain what we want to—or, in the other case when we want to impose the rule of thumb, when we want to lay down by statute that such-and-such shall be the rule. Anyhow we will be well advised if we recognise customs which have been judicially recognised. In the definition given, it would appear there is no mention of any judicial recognition of any customs. On the contrary, the words in the first proviso are :

1200 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES “that the rule is certain and not unreasonable or opposed to public policy”. I am opposed to the wording, “opposed to public policy”. I do not know what the “public policy” is. So far as monogamy is concerned, I understand the public policy to be that the Government seems to be of the view the monogamy is a good thing for Hindus but then for rest of the community it does not apply ; as regards my Mussalman friends, many of whom I know do not like polygamy still the government is undecided and has taken shelter under the specious plea that they have not been consulted. If a thing is opposed to public policy, it is so for all. I know of a custom in the Punjab where kharva marriages are allowed. They cannot be called absolutely bigamous, but at the same time they are a different edition of bigamy because after the man dies the devar of the woman, that is the younger brother of the deceased husband, though his spouse may be living, is allowed to marry that widow ; the property remains with the family, and the lady also remains with the family. So, opposed to public policy might mean anything. It is so flexible a term that it shall vary with the length of the foot of the Law Minister, I am therefore opposed to these words. I would rather like mat any custom which has been judicially recognised, which has stood the test of time should be recognised. Mr. Deputy Speaker: Hereafter there will not be any custom. Pandit Thakur Das Bhargava : My submission is that in regard to this matter in which the Hindu Code seeks to provide, there should be no custom ; otherwise the whole purpose of the Code will disappear. You are perfectly right, Sir, when you say that in future there will be no custom on matters on which the Hindu Code provides, but in regard to other matters, so far as the Hindu Code does not relate to those matters at all ……. Mr. Deputy Speaker: What will happen if there is a particular custom which is undisputed ? It need not come to court. Only a disputed custom comes to court and is recognised or not. Any custom which is not obnoxious to public policy is recognised by the community. Merely on account of not having been recognised by a court does it lose its stand ? Pandit Thakur Das Bhargava: My submission is that if there is provision for it in the Code then it does not grow. If there is no provision then it will remain and grow, and even if you took away these words “opposed to public policy” still it will remain because it is a rule of law. If you put the words “opposed to public policy”