Vol. 14, Part II · pages 491–495

1271 DR. AMBEDKAR AND THE HINDU CODE BILL Now I would refer to another text of Hindu Law—I mean that law as it prevails at present. Yajnavalkya says : ;fLeu~ ns'ks ; vkpkjks O;ogkj% dqyfLFkfr% A rFkSo ifjikR;ks lkS AA That is to say, whatever customs, practices or family usages prevail in the country shall be preserved intact. And the Vyavastha or rule in this connection is stated thus : ;s"kka ijEijk izkIrk iwoZtSI;uqf"Brk A r ,o rSuZ iq";snq% vkpkjSuZjs iqu% AA They are not liable to censure, whose predecessors used to practise these usages. In modern language, it means that the customs are ancient and from time immemorial. And others which are not so would not be observed. So with this Vyavastha, the Hindu religion was vitalising itself and adopting itself to different regions. Now, I shall take a small illustration and show that if we entirely do away with customs by accepting this amendment what would be its effect. There are many reasons why the amendment should not be so accepted. First of all, I trust even the learned Law Minister is not conversant with all the good usages that are prevalent in this country from Cape Comorin in the south to the Himalayas in the north. Neither are the Members conversant with all of them. And even if they are, they would not be in a position either to convince the learned Doctor or to convince the other Members of the House of the utility or significance of those usages and of the importance in which those usages are held in particular parts of the country. Therefore, I tried in an amendment of mine, which was for a technical reason not accepted or not put forward, to provide a simpler device by which the local Legislature may be able to supplement this law. That, however, has gone. Therefore, I submit that because of ignorance of all the good usages in the country we should not say “save as otherwise provided in the provisions ……….”. The effect of this saving clause will be nil and part (a) of the amendment will do away with all good customs, whether they are repugnant or not to the law. According to part (b) only those laws which are inconsistent with the present law are only repealed, whereas in the case of customs, whether repugnant or otherwise, they have all been abrogated. This is a very wide provision which should be lost if it is omitted altogether. A custom is governed by all the requisite qualifications mentioned in clause 3, which the house has already passed and laws would be governed by article 254 of the Constitution.

1272 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES I shall now take one more instance. Marriage is after all a social institution, meant to satisfy a social need. If social circumstances vary to a great extent in various regions of the country, several provisions would have to be made in the law which is to be enacted. In the present Hindu Law this is achieved in two ways. There are firstly various schools of Hindu Law. There was the law of Dayabhaga and Mitakshara. The common background is the Yajanavalkya’s and Manu’s smritis. The variety was given by Dayabhaga and Mitakshara. Further there were in ferk{kjk various schools which governed different parts. There was the Mithila school, the Banaras school, the Madras school and the Maharashtra school. This was one of the ways in which variety was provided in Hindu society, which I maintain will for that reason never die. Secondly, there was the achar and on account of this the Hindu Law and religion have been progressive and satisfying the needs of all, which were this vitalising factor. It is the variety which, added to the common background, has kept the religion alive throughout the century. Invaders have come and gone, but Hinduism is still progressing. I shall now take up the question of monogamy. Irrespective of what the law givers lay down, society would adopt monogamy or other systems of marriage according to its needs. Good law givers therefore ought to provide for this varying need. One of the factors which govern the form of institution of marriage is the ratio between the males and females. If there is an equal ratio between the sexes there will be monogamy and society is bound to be happy. But if there is very great disparity between the sexes then society will have to adjust form of marriage accordingly. If females exceed the number of males then bigamy or polygamy would have to be allowed. Otherwise the result would be either adultery or increase in illegitimate children. Shri Naziurddin Ahmad: Adultery is permitted by this Bill. Shri Sarwate : I will not take notice of it. There was a common phenomenon which had been observed during the war. When in U.K. the adult male population went to the war fronts there remained behind in the country an excessive number of women and the result was a great increase in the number of illegitimate children, which has now become a very difficult qustion for solution. This phenomenon has occured in other countries also. So also if the number of men is much more than the number of women then poliandry would come

1273 DR. AMBEDKAR AND THE HINDU CODE BILL in, in one form or another. Even in that case the same result would follow, I am in favour of monogamy, both because it is a law of nature and society has enjoined it and it is in accordance with modern trends. In that respect fortunately in India the ratio between the sexes is equal but even here there are certain other factors which have to be taken into consideration. I have some figures about the ratio in the different provinces. These figures show that the ratio in Madras and Bombay is equal. Dr. Ambedkar: You are pleading for polygamy ? Shri Sarwate : Let me proceed. In Bengal and some other provinces the males are preponderating and the females are less. So if you provide only one form of marriage for all these provinces it may not do. Shri Brajeshwar Prasad (Bihar): Has my hon. friend studied the ratio between the different age groups—the males between the ages of 16 and 35 and the proportion of females between the ages of 16 and 35 ? That will throw light on the question whether there should be monogamy or polygamy. Dr. Ambedkar: He wants you to study the proportion of the different age groups among the sexes. But why do you not leave the argument to younger people ? Shri Sarwate : Every body has to do his work. Dr. Ambedkar has to do his work and I am doing mine. To proceed with my argument, it is irrelevent or unnecessary for developing my argument to show what the proportion of the males to the females in the different age groups is. I want here to show that in different tracts different conditions prevail and would have to be provided for as has been done in the prevailing Hindu Law through the different schools and through the achar. This is a case where it is absolutely necessary that variety must be provided for and it can be done only by allowing customs, customs which are ancient and are governed by public morality. I conclude with this observation, that this amendment is entirely unnecessary. Sub-clause (a) is undesirable and sub-clause (b) is unnecessary. Therefore, this clause should be entirely dropped and the amendment disallowed. *Dr. C. D. Pande (Uttar Pradesh) : I rise to speak in favour of omitting the clause which seeks to abrogate the validity of customary *P.D., Vol. XV, Part II, 22nd September 1951, pp. 3107-12.

1274 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES law. I think this clause enlarges the scope of the Hindu Code. Let me go briefly into the genesis of the Hindu Code Bill. What was the necessity of this Bil ? If you know the background you will know how absurd it is to maintain this clause in this Code. The genesis of the Hindu Code Bill is that there was a constant demand, and there was a feeling in the minds of the leaders of the Hindu society, that there must be a law to be in conformity with the civilised concept of human society. There are only two things for which a case has been made out conclusively and we stand for them : one is acceptance of monogamy, imperatively and without exception: the other thing is that those who seek divorce in certain cases of hardship should be able to get it, that there should be no difficulty in that process of separation, annulment or divorce. These are the only two things for which a case has been made out and I do not see if any similar case has been made out for the abrogation of the validity of customary law. Have you ever heard of a single representaton or of a single meeting of the people who are governed by customary law, that this law should be changed, that it should be brought in conformity with the strict law of Manu ? Or, have you heard that they are tired of their customary law and they want to come within the orbit of Manu’s law ? No : I have not heard of one single reprsentation or of one single meeting, either in the Press or on the platform, demanding that. There has been a constant demand for improvement in the law as far as monogamy goes, and also as far as divorce goes. People say there is a slur on our name in foreign countries. Well, that may be so; for that we have now accepted the prinicple of monogamy and of divorce. But I do not like that in the garb of making changes in the Hindu law you should introduce things which are absolutely detrimental to the interest of more than 80 per cent of the people of this land. If you analyse the population of this country, how many people, will you find, governed by Manu’s law ? Only a handful of Brahmans, Kshatriyas and Vaishyas. But even they are governed by local laws as well and local laws have got an overriding position over Hindu law. Hindu law was originally not a textual law but a customary law and it was codified by Manu, Yajnavalkya and others in course of time. Difficulty was experienced by the Legislature of India in the course of the last 100 years in these matters, and they made certain laws about specific drawbacks which were thus removed. Now the demand has arisen for change with respect to monogamy and divorce. We

1275 DR. AMBEDKAR AND THE HINDU CODE BILL concede it, but how do you presume that there is a desire for change so far as customary law is concerned ? What is customary law ? It is a natural law, it is a dynamic law, it is a growing law, it has got the force of the needs of the time ; if you do not allow that growth, that dynamic character in the society you will become rigid, you will be doing harm to the Hindu society just as Manu’s law has done harm, according to you in the course of the last 3,000 years. Do you want that this should be perpetrated in the vast sections of the society which is not governed by that law ? This House stands for the principles of monogamy and divorce. Now in the progressive age you want to create hardships in the matter of those very things in respect of which you want to give facilities ? it is absolutely inconceivable to me that you desire to do so. It will be a retrograde step. There is another reason for customary law being maintained. It will be impossible for the State to maintain adequates number of judicial officers and magistrate to deal with cases of divorce or judicial separation. (An hon. Member: Government have enough money.) They do not have enough money even to maintain magistrates to try ordinary cases, which are pending for several months together. You have no idea as to how many more magistrates will be needed. Even if you have money and you are bent upon doing it, do you know the hardship involved ? The cost may be ignored, but the hardship cannot be ignored, because in this country unfortunately whenever a citizen comes into contact with Government machinery he is subjected to vexations at every step. I myself have been a functionary of the Government and I have a clear idea of these things. I had some influence, but if I were an ordinary non-official and I went to a court of law, I know how much attention I would receive. An ordinary citizen finds it difficult even to get a ration card. Do you think it will be easy to get a divorce certificate in a court of law for a person who is ignorant and poor ? Pandit M. B. Bhargava (Ajmer): Courts will be more efficient hereafter. Dr. C. D. Pande : Things should be accepted as they are. You cannot expect to improve things all of a sudden. There is no justification for creating hardships. Why do you want to abrogate the customary law ? Have you received any representation for the abrogation of customary law ? Why do you insist on it ? Why do you insist on creating difficulties ? Shri A. C. Shukla (Madhya Pradesh) : Because it is against public morality. 11 a.m.