Vol. 14, Part II · pages 446–450

1226 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Shri Rajagopalachari : It is a kind of adoption in Punjab. Sardar Hukam Singh : It is not power of attorney. It is made-easy. Pandit Thakur Das Bhargava : I beg to move : For part (viii) renumbered as part (xi) of clause 3, substitute the following : “(xi) ‘son’ includes an appointed heir and an adopted son whether appointed or adopted before or after the commencement of this Code but does not include an illegitimate son.” As the House probably knows, the appointment of an heir is a special custom in Punjab. Mr. Deputy Speaker : We were considering the definition of ‘son’. So far as an heir or a person who is appointed as an heir is concerned, it may be that he may be appointed as an heir for the purpose of the property. In fact, it may be a person who may be fit enough to marry the daughter of the person appointing him as the heir. Pandit Thakur Das Bhargava : By custom, he is equivalent to a son. Therefore, he cannot marry his own sister. The person who is appointed as heir carries an intimate relationship. He is just like a son for all practical purposes. Mr. Deputy Speaker : Even to the extent of coming into the prohibited degree ? Pandit Thakur Das Bhargava : Yes. He comes into that family. There are several customs with regard to appointed heirs in the territory which is now under the Commissionership of Ambala. It is just like adoption. There is absolutely no difference between adoption and the appointment of an heir. The ceremonies even are sometimes the same. The person who is appointed as heir is treated more or less as the son. He cannot marry the daughter of the appointer, because the daughter of the appointer is his sister. No person in Punjab will ever believe that the daughter of the appointing father can possibly be married to that boy. He could not marry even a cousin. He is treated just like a son. The only difference is that, so far as the eligibility of an heir is concerned, he may be a married man with sons and daughters. Dr. Ambedkar : He can also be a man with dhadi. Shri Rajagopalachari : The hon. Member will perhaps educate us in the matter—is it open, according to that custom to appoint ones own son-in-law as his son ? Pandit Thakur Das Bhargava : In that case he is called ‘ghar-javai ’.

1227 DR. AMBEDKAR AND THE HINDU CODE BILL Mr. Deputy Speaker : Corresponding to this there is a custom in the south—it is called ‘illatom adoption’. Pandit Thakur Das Bhargava : This custom is not only judicially recognised ; it is so widely prevalent that it is as good as law. It is a fully establishied custom, it has got more force, perhaps, than the ordinary law of the land. It is universally acknowledged among the Hindus, Sikhs as well as the Muslims. The relationship created thereby is not merely of gift, or mere apointment of an heir. The relationship is personal; the appointed heir is treated as a son and he lives with the father. Dr. Ambedkar : For property purposes. Pandit Thakur Das Bhargava : For property purposes as well as for relationship. He cannot marry the daughter, as an outsider does. Therefore it is not a question of merely property ; it is a question of personal relationship. Mr. Deputy Speaker : Can the son be older than the father ? Pandit Thakur Das Bhargava : He can be older, just as a nephew can be older than the person adopting. Supposing a brother adopts the son of a brother. The son of a brother may be older to him in age than the person appointing. Mr. Deputy Speaker : Is there any ceremony attached to it ? Pandit Thakur Das Bhargava : It is done in several ways. It must be made public ; so there is a registered deal in some cases. The entire family is collected and the boy is accepted as heir. In some places even the ceremony is gone through. Practically it is tantamount to adoption. Mr. Deputy Speaker : In those parts where this custom is prevalent, is there regular adoption as well ? Or is it the contention that wherever this custom of having ‘appointed heir’ prevails, regular adoption does not take place ? Pandit Thakur Das Bhargava : This is, as a matter of fact, in addition to that. Mr. Deputy Speaker : Can a man have both, an adopted son as well as an appointed heir. Pandit Thakur Das Bhargava : Even in a family, one brother may have an adopted son, while another brother may have an appointed heir. But there is no difference so far as relationsip is concerned. This custom obtains among Muslims as well.

1228 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Khwaja Inait Ullah (Bihar) : In Muslim law there is no adoption. Pandit Thakur Das Bhargava : I am not dealing with Muslim law ; I am speaking of Muslim customs. Almost every Punjabi Muslim follows custom. Mr. Deputy Speaker : But it is so prevalent that it can be brought under this definition. Pandit Thakur Das Bhargava : Nobody can doubt the validity of this custom. You can take any treatise on customary law and you will find that the appointment of a heir is a customary practice. Shri Radhelal Vyas : Is a female appointed as an heir ? Pandit Thakur Das Bhargava : But she cannot become a son. Dr. Ambedkar : In view of the fact that it has been decided to confine this Bill to marriage and divorce, the point raised by my Hon. Friend may very well come when we are dealing with the matter of adoption. There we can discuss this question as to whether we can include what he calls an appointed son in the definition of adopted son. There, if he is able to satisfy that custom is a custom which this House should permit, in view of the definition which we have just now passed, we will consider that question. Here we are for the moment dealing with marriage and divorce. Pandit Thakur Das Bhargava : But you have used the word “son” here ; otherwise there will be no need for any definition. Dr. Ambedkar : As you know in the Chapter on Adoption, we have tried to introduce a uniform system, we are not recognising any of the variants of adoption. We say that adoption should be one common system throughout. We have also said there that so far as the ceremonies of adoption are concerned, they may be different. We do not bother about it. If the appointment of a son is satisfactory from the point of view of the deifnition of adoption, namely, the giving and the taking, the putting of the sugar in the mouth of the boy and the performance of some sacrifice, well the particular ceremonies by which they do it will not make the appointed son an adopted son. Pandit Thakur Das Bhargava : Unfortunately, I have not been able to express myself in a way as to carry conviction to Dr. Ambedkar. Mr. Deputy Speaker : The point raised by Pandit Bhargava has relevance to marriage as well. Dr. Ambedkar : I am afraid, without a perfect understanding of the custom, I am not able to come to any decision—the circumstances,

1229 DR. AMBEDKAR AND THE HINDU CODE BILL the custom, the reasonableness or otherwise. Nor has my friend been able to give us any clear picture. I want to apply my mind to that subject and come to a conclusion as to whether it would be possible for Government to accept his proposal. All of a sudden it is not possible. [12 NooN] Pandit Thakur Das Bhargava : Let it be held over. Dr. Ambedkar : We can add it afterwards. Mr. Deputy Speaker : May I suggest one course ? As it is, there is no objection to passing this. The only attempt is to include some other category. Therefore this may be passed now, because we are not passing the entire clause 3. We can add one more category later. With that understanding I will put this part to the vote of the House, the question is : “That part (viii) renumbered as part (xi) of clause 3 stand part of the Bill.” The motion was adopted. Mr. Deputy Speaker : Now we will proceed to clause 4. Capt. A. P. Singh : I have already requested you that one definition should be added after part (viii). The amendment is No. 378, and is about the definition of Kula . It may surprise some hon. Members as to why I want that this word should be defined. But if you see amendment No. 387, there I have said that “the parties do not belong to the same Kula where by custom such marriages are prohibited.” I want this word to be defined here so that marriages may not take place within the same Kula. Dr. Ambedkar : May I just explain the position. I am afraid that this amendment, although it is a definition, really relates to clause 7— Essentials for a valid Dharmik marriage—where certain conditions for a valid Dharmic marriage have been set out. My friend wants substantively to add one more condition that the parties to a marriage should not belong to the same Kula. If that amendment is accepted, then and then alone would a definition of ‘Kula’ be necessary, although it may be argued that ‘Kula’ is such a well known term that no definition is necessary. But suppose when we are dealing with clause 7 this matter is taken up and the House accepts the amendment, then and there we can intorduce the definition of ‘Kula’. Therefore no definition of ‘Kula’ is necessary now.

1230 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Capt. A. P. Singh : My difficulty is this. Whenever any such thing comes it is generally said “The word has not been defined”. Therefore, I wanted that “Kula” should be defined now and let us be clear on this point. But if it can be done later I have no objection. Mr. Deputy Speaker : If in clause 7 this is not going to be accepted, the definition here will become useless. But if on the other hand it is accepted and a definition is found necessary a consequential amendment will be made here. I am not closing the door. Dr. Ambedkar : Or it can be done by an Explanation as to what is meant by ‘Kula’. Mr. Deputy Speaker : Clause 3 is not completed, or, as the Hon. the Law Minister said, we can give it as an Explanation. Capt. A. P. Singh : Then it may be held over. Mr. Deputy Speaker : Now we shall take up clause 4. Clause 4—(Overriding effect of Code ). Dr. Ambedkar : I beg to move : For clause 4, substitute : “4. Overriding effect of Code —Save as otherwise expressly provided in this Code : — (a) any text, rule or interpretation of Hindu law or any custom or usage in force immediately before the commencement of this Code shall cease to have effect with respect to any of the matters dealt with in this Code ; and (b) any other law in force immediately before the commencement of this Code shall cease to have effect, in so far as it is inconsistent with any of the provisions contained in this Code.” The purpose of the amendment is this. As the House will see, we had originally one single clause with no sub-clauses and the provisions of the Code relating to custom and interpretation of law and those relating to other laws passed and in force were put together. It was felt that it was not the desire of this Bill to abrogate all law but only in so far as it is inconsistent with the provisions of the Bill. I therefore, felt that the best course was to split clause 4 into (a) and (b) leaving rule, interpretation and custom to be covered by (a) and any law in force to be dealt with by (b) with the limitation that no law shall be abrogated unless it was inconsistent with this Code. It is not our intention that all laws should be abrogated by this. That is the purpose of this amendment.