Vol. 14, Part II · pages 451–455

1231 DR. AMBEDKAR AND THE HINDU CODE BILL Mr. Deputy Speaker : Amendment moved : 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.” Dr. Deshmukh : I beg to move : In the amendment proposed by Dr. Ambedkar, in part (a) of the proposed clause 4, omit the words “or any custom or usage”. Shall I speak on it now or afterwards ? Mr. Deputy Speaker : I shall first have all the amendments that hon. Members intend moving and then allow the discussion. Amendment moved : In the amendment proposed by Dr. Ambedkar, in part (a) of the proposed clause 4, omit the words “or any custom or usage”. Dr. Ambedkar : I do not understand it. Mr. Deputy Speaker : It is that if there is a custom it shall continue. I take it that the object of the amendment is that notwithstanding any of the provisions of this Code, any custom in force before the commencement of the Code will override what is now sought to be abrogated. Is that so ? Dr. Deshmukh : Yes. Mr. Deputy Speaker : We will assume two things. Wherever it is not provided for, the custom will prevail, there is no doubt about it. But wherever there is some provision here, the custom will be abrogated. Custom, where it is inconsistent, will be abrogated by the amendment. The hon. Member wants that custom, not only where it is provided for here but also where it is not provided for, must override the text of law. That is the position. I will ask to reply to this later on. Sardar Hukam Singh : I beg to move : In clause 4, omit the words “or any custom or usage” Mr. Deputy Speaker : It is the same thing. Sardar Hukam Singh : My suggestion is that custom would continue in spite of this Act.

1232 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Mr. Deputy Speaker : Amendment moved : In clause 4, omit the words “or any custom or usage”. Pandit Thakur Das Bhargava : I beg to move : For clause 4, substitute the following : “4. any text, rule or interpretation of Hindu Law or any customary usage in force immediately before the commencement of this Code shall have effect with respect to any of the matters not dealt with the Code.” This is the positive side of the matter. Mr. Deputy Speaker : Whatever is not provided in this Code shall have effect. Dr. Ambedkar : That would be so, when we close with clause 55. Pandit Thakur Das Bhargava : What I say is that these things will persist as a positive fact and there is not much difference between the two. Mr. Deputy Speaker : Amendment moved : “4. Any text, rule or interpretation of Hindu Law or any customary usage in force immediately before the commencement of this Code shall have effect with respect to any of the matters not dealt with in this Code.” Pandit Thakur Das Bhargava : There is another amendment in my name No. 449. I beg to move : For clause 4, substitute the following : “4. any custom or usage in force immediately before the commmencement of this Code shall be binding and shall override all texts, rule or interpretation of the Hindu Law or any provision of any other law and shall have precedence in all matters relating to marriage and divorce.” This is an antithesis of section 4 and this is only to bring out into ironical relief the place what my Hon. friend Dr. Ambedkar wants to give to ‘custom’ which I personally do not approve. Mr. Deputy Speaker : I am trying to put down categories so that I may insert all the amendments under a particular group. Amendment No. 128 relates to custom wherever there is no provision of law in this Bill. Then amendment No. 449 says that notwithstanding any provisions in this Bill all the previous custom shall stand.

1233 DR. AMBEDKAR AND THE HINDU CODE BILL Shri Santhanam : It is a direct negation of clause 4. Mr. Deputy Speaker : Amendment moved : For clause 4, substitute the following : “4. any custom or usage in force immediately before the commencement of this Code shall be binding and shall override all texts, rule or interpretation of the Hindu Law or any provision of any other law and shall have precedence in all matters relating to marriage and divorce.” Shri Naziruddin Ahmad : I beg to move : For clause 4, substitute the following : “4. All the texts, rules or interpretations of Hindu Law or all customs and usages and all other laws in force immediatley before the commencement of this Act, in so far as they may be inconsistent with this Act, shall, to the extent of the inconsistency, cease to have effect.” I have another amendment, Sir. Mr. Deputy Speaker : Is it necessary ? Shri Naziruddin Ahmad : That is more elaborate. I beg to move : For clause 4, substitutes the following : “4. All texts relating to and all rules of interpretation of Hindu Law in the sacred books or in judicial pronouncement or superior courts in India or of the Judicial committee of the Privy Council or in the text books and commentaries of learned writers and authors or otherwise, and all customs and usages in force immediatley before the commencement of this Code, in so far as they are inconsistent with this Code, shall, to the extent of the inconsistency, cease to have effect.” Mr. Deputy Speaker : This is in another form. Shri Naziruddin Ahmad : It is in a more elaborate form, containing more elements. Mr. Deputy Speaker : It is different in substance. Shri Naziruddin Ahmad : Though in minor details. Mr. Deputy Speaker : Amendments moved : For clause 4, substitute the following : “4. All texts, rules or interpretations of Hindu Law or all customs and usages and all other laws in force immediately before the commencement of this Act, in so far as they may be inconsistent

1234 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES with this Act, shall, to the extent of the inconsistency, cease to have effect.” For clause 4, substitute the following : “4. all texts, rules or interpretations of Hindu Law in the sacred books or in judicial pronouncement of superior courts in India or of the Judicial Committee of the Privy Council or in the text books and commentaries of learned writers and authors or otherwise, and all customs and usages in force immediatley before the commencement of this code, in so far as they are inconsistent with this Code, shall, to the extent of the inconsistency, cease to have effect.” Shri Jhunjhunwala : I beg to move : To clause 4, add the following proviso : “Provided, however, that this Code shall not override any text, rule or interpretation of Hindu Law, or any custom or usage or any other law in force, immediately prior to the commencement of this Code which has the sanction of Hindu religion or any other religion to the followers of which religion or religions this Code will apply : Provided further that this Code shall not override such existing text, rule or interpretation of Hindu Law, or any custom or usage or any other law in force which has sanction of morality behind it.” Sir, then I have another amendment, No. 418. Mr. Deputy Speaker : Is it a repetition of No. 130? Shri Jhunjhunwala : This is not a repetition but slightly different. I beg to move : In the amendment proposed by Dr. Ambedkar, to the proposed clause 4, add the following Proviso : “Provided that this Code shall not override such existing usage, custom and law as form part of the distinct culture of any section of the people to whom this Code applies.” Mr. Deputy Speaker : Who is to decide what the distinct culture is ? Whatever may be the substance so far as any Code is concerned, before I put it to the House, there must be some definite thing which is enforceable in a Court of Law. Shri Jhunjhunwala : That is found in Article 29 of the Constitution that different sections of society have got different culture and that should be conserved.

1235 DR. AMBEDKAR AND THE HINDU CODE BILL Mr. Deputy Speaker : The hon. Member wants distinct culture to be established in a court of law. Shri Jhunjhunwala : It is in the Constitution itself. Mr. Deputy Speaker : There is no definition of culture as there is a definition of custom as it is provided for here. I am not aware if there is any judicial interpretation of what distinct culture is up till now. Shri Jhunjhunwala : That is already in the Constitution. Shri Santhanam : It must be in the directive principles. Dr. Ambedkar : It must be somewhere in the directive principles or it might be in the provisions relating to religion and so on. Mr. Deputy Speaker : amendments moved : To clause 4, add the following Proviso : “Provided, however, that this Code shall not override any text, rule or interpretation of Hindu Law, or any custom or usage or any other law in force, immediately prior to the commencement of this Code which has the sanction of Hindu religion or any other religion or any other religion to the followers of which religion or religions this Code will apply ; Provided further that this Code shall not override such existing text, rule or interpretation of Hindu Law, or any custom or usage or any other law in force which has sanction of morality behind it. In the amendment proposed by Dr. Ambedkar, to the proposed clause 4, add the following Proviso : Provided that this Code shall not override such existing usage, custom and law as form part of the distinct culture of any section of the people to whom this Code applies.” Shri Sarwate (Madhya Bharat) : I beg to move : To clause 4, add the following Proviso : “Provided that the Legislature of a State may, by legislation passed by a majority of the total number of its or their members, provide that any of the provisions of this Act shall not apply to that State, or shall apply to that State with such modifications, as may be included in the legislation.” Mr. Deputy Speaker : How does it arise in this clause ? Any amendment must be relevant to the clause that is on hand. Shri Sarwate : Because this would supersede all laws which are inconsistent. As the clause stands at present, it has the effect of superseding all the laws which the State might have passed before.