Vol. 14, Part II · pages 471–475

1251 DR. AMBEDKAR AND THE HINDU CODE BILL our divorce custom ? “that was the question that he asked me. I told him, “Well, it is likely that the divorce provision will be passed and so far as the customs were concerned, those, customs would be recognised only if they stand a special test and all customs would not be continued. He was not happy. He wanted that his own custom whether it be reasoanable or not, may be recognised and fully given effect to. Sir, that is really what is in the minds of the people now. All the same, so far as this House is concerned and so far as the representatives of the people are concerned, we are anxious that custom should come into this law only to a certain extent. We want that such customs as have gone very deep in the affections of the people should be continued. So far as South India is concerned we know that there are certain connections and manages there which are regarded as very objectionable in North India, but they are considered right and proper in South India. They should not be interfered with. Similarly, Sir, there are some customs or well-established practices in other parts of India and no person would say that they should be interferred with. In this connection I would illustrate my point by reference to a custom that is very widely prevalent among the agricultural classes in the Punjab and which is going to be disturbed by some of the provisions that we are making here. There a certain kind of marrage is performed called the Kareva marriage. If a man dies his wodow is married to his younger brother or to any person who is of the same status as a brother even though this brother may be of the same age or younger than the woman. In some sections she is married to the elder brother also, but that is not the practice in other sections. Now, in that form of marriage you do not have the usual marriage procedure, the “Sapta pada” and all that. They just go through a customary rite and the marriage is considered as having been performed. The final result of this practice is that neither the property nor the woman goes out of the family and also the children from the previous husband are properly looked after. And this custom has been prevailing among these people from very ancient times. The upper-class Hindus are now adopting gradually this custom of widow-marriage. This sort of widow remarriage which is practised by the agriculturists in the Punjab is being adopted by the upperclass Hindus also. So the custom now is that even if the younger brother of the deceased has a wife living, he will have to marry the widow of his elder brother and they live as husband and wife. This is practically a case of bigamy according to the Hindu Code.

1252 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Mr. Deputy Speaker : How ? Pandit Thakur Das Bhargava: The younger brother may have his wife living and according to custom the widow of the elder brother is married to the younger brother even though he may have a previous wife by marriage. ( Interruptions). Mr. Deputy Speaker: There are certain customs prevalent in particular parts which accroding to them are valid and not unusual. Let us not show any kind of derision or disagreement by any visible representation such as laughter lest we should wound their feelings. I only put the question for the purpose of knowing the details of it so that the House may understand the position. The hon. Member may continue his speech tomorrow. The House then adjourned till Half Past Nine of the Clock on Saturday, the 22nd September, 1951.

1253 DR. AMBEDKAR AND THE HINDU CODE BILL * HINDU CODE— contd. *Pandit Thakur Das Bhargava : (English translation of the Hindi speech). Sir, an hon. Member has expressed the desire that I should speak in Hindi. In deference to that I wish to express myself through the medium of that language. As I was submitting yesterday before the House, our customs are of very heterogeneous character. They are so different from one another that a custom considered to be good in one part of the country may be thought of as a very reprehensible one in another. So we should proceed about this Bill very cautiously. Yesterday I mentioned the Kareva form of marriage at which some hon. Members had laughed. This custom is prevalent to a great extent in Punjab and Oudh and it is not a matter of laughing. If you judge it from the point of view of high ideals of Hindu society, it is possible that some of the hon. Members may not like the Kareva form of marriage because according to the ancient standards the wife of the elder brother is to be treated as mother. According to Ramayana when Lakshmana’s mother gave her consent to his going with Rama in his exile, she said : “Ramam Dasharatham viddhi, mam viddhi Janakatmajam; Ayodhyamatvim viddhi, gachhtat yathasukham. ” She asked Lakshmana to look upon Rama as his father and Sita as herself i.e., like his mother, and think that the jungle was Ayodhya. Such was the high ideal of our society. How many young men are prepared to go in exile at the orders of their fathers ? How many men respect an elder brother like a father ? Such behaviour is ideal. As far as the customs prevalent in society are concerned, even our Shashtras have ordained that the younger brother of the husband is Dwivar the second, prospective husband. In many cases the Shastras have permitted men to marry the wives of their elder brothers, after their (brothers) death. There is nothing surprising in that. I am conversant with the customs prevalent in Madras and other States. I toured the whole of India in the capacity of a member of the Age of Consent Committee and enquired into the various customs. That is why I say that we have a number of customs of different character and I need not dwell over their intricacies. One should not inquire the feelings of a sect, the feelings which form the basis of a particular custom. I want to submit that there is no good reason to laugh at this Kareva system of marriage. In fact, many advantages accrue from *P.D., Vol. XV, Part II, 22nd September 1951, pp. 3072-82.

1254 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES this system and those communities that have followed this custom for many centuries have benefited from it to a great extent. For example, in old days and even now in India, when a girl is married in a certain family, she becomes a member of that family, though she is married to one individual. Whatever share of property she gets becomes a part and parcel of that family’s property. An effort is made to retain the property and her share in the family, and after her husband’s death the responsibility of bringing up her children devolves on the family as a whole. This is the basis of the Kareva system. By following this, she by getting married to her husband’s younger brother or his cousin continues to be a member of the family even after her husband’s death. In this way her children by her first husband are brought up with the same love as before and are not inconvenienced in any way. The hon. Members are aware that such popular customs have been recognised in India. According to Section 2 of the Widow Remarriage Act, 1856, if a widow marries again she loses all her rights in her husband’s property. I would invite the attention, specially of Hon. Dr. Ambedkar, to the fact that after remarriage a widow loses all her rights pertaining to maintenance or to her share in her former husband’s property. The obvious reason for this is that after remarriage, a widow becomes a member of another family. But by following Kareva system i.e. marrying her husband’s brother after his death, she retains her share in her former husband’s property. This custom is prevalent to a great extent in Jat Sikh communities in the Punjab. When the widow continues to be a member of her husband’s family by marrying his younger brother after his death, she does not lose her right over land. The Minister of Law (Dr. Ambedkar): Would this not be more relevant when we deal with the clause on marriage ? Now we are dealing in a general way. I have said that whenever each clause comes, to whatever extent it may be necessary that clause may be made subject to custom. I would only suggest to my friend that probably his remarks would be more relevant when we come to that part. Mr. Deputy Speaker : I have also been thinking of it. The amendments he has tabled seek that only those portions of the Bill must prevail where they are not inconsistent with custom, Then he wants certain customs to be saved. So far as these customs—which will be saved—are concerned, they may be more specifically referred to when we come to the relevant portion on marriage and divorce. With reference to the general question as to whether this should operate

1255 DR. AMBEDKAR AND THE HINDU CODE BILL where there is inconsistency or whether it should generally operate where it deals with the matter, this is a matter which may be dealt with when we come to details. Dr. Ambedkar: Would the difference be very great ? supposing we say that any custom which is not inconsistent will be safe or we say “subject”, I think the effect would be the same. Mr. Deputy Speaker : The hon. Member need not go into the customs in extenso. A general indication of the custom is enough. We may dwell on the details when the relevant clause comes up. Pandit Thakur Das Bhargava: I realize the force of Hon. Dr. Ambedkar’s objection. Dr. Ambedkar : I do not object. All I say is that it will be more relevant in the other context. Pandit Thakur Das Bhargava : I will not dwell upon the details of any custom. As the Hon. Deputy Speaker said all the four amendments moved by me contradict one another. One of them is that custom should over-ride all laws and even prevail upon the Hindu Code Bill. I gave an example of our customs in order to impress upon this House that if we agree to the principle underlying this amendment, we lose our stand. I do not want that my amendment, saying that custom should override laws, be passed. It should be eliminated. I mentioned Kareva system in order to bring out the nature of our customs. Sir, I submit that I do not want that the House should try to keep this custom intact, I shall not press the House for the saving of those customs which I do not consider to be proper. Mr. Deputy Speaker : Would it not go against the very spirit of the Code ? (The object of this Code is to gather the varied customs and put them into a single Code). Hitherto, customs have not been codified. Some customs have been upheld by the courts and if we go on making exceptions, the whole law will become nebulous. The purpose of the Code itself will be frustrated. I think the Code seeks to incorporate the customs which have been upheld by courts and a presentable document is placed before the country which can be the basis for further additions, if necessary. But it will go against the very grain of this Bill if all the customs are exempted. Only in exceptional cases, special provisions should be made in regard to customs. I am not ruling the hon. Member out of order. Now that we have accepted the principle that we must codify certain matters, it follows that any custom which is inconsistent with this law must go.