Vol. 14, Part II · pages 71–75

851 DR. AMBEDKAR AND THE HINDU CODE BILL this country. Therefore, the complaint that this Hindu Code is neither based on Hindu Law nor on any universal law is correct to a certain extent and my view is that the principles of the Civil Marriage Act which are embodied in the Act of 1872 should not have been incorporated in the Hindu Code. I would, therefore, very much like that these provisions are taken away and the Hindu Code remained only a Hindu Code. This inter-mixing of the principles of the Civil Marriage Act into the Hindu Code should not have been allowed. Now, Sir, I maintain that today we cannot have a Hindu law like the one which was propounded by our ancestors. In those days Hindus lived in an exclusive way. The impact of civilization and other religions had not begun so far as Hindus were concerned. Now in every Code, in the Muslim Law, in the Christian Law, and in the Hindu law we have got principles which are not germane to those laws alone but which as a matter of Act have been made universal by the impact of other forces. For instance in this Hindu Code we have got monogamy which is a special feature of the Christian Law. The authors of the Hindu Code want that daughters should be given a share of the property. Now this was not known to Hindu law, so far as married daughters were concerned for a very long time. Of course, there is no practice or principle which has not been experimented upon at one time or other by the Hindus. [Shrimati D urgabai in the chair ] This is a different matter. But today I think he will be a bold man who would like to say that the principles of yore be introduced in the Hindu Code. As the society progresses there is also a progress of the principles. Now if anybody wants to say that the laws of Manu should be introduced in Republican India, I think he will be a mad man. Does any one in this House want that no Shudra should be allowed to read the Shrutis ? On the contrary, I for one welcome the Code for the very reason that Dr. Ambedkar is supporting it. Now all things have changed and all values have changed. The Hindus have burnt their boats so far. Now he will be a bold man who will come and say, “ I want that the Caste system of the Hindus based, as it is, on birth should be introduced in the Hindu Code”. I will have noting to do with this Hindu Code if it is based on the caste theory. I know that so far as the original Hindu law is concerned the caste system was not based on birth. I challenge anybody in this house, or outside, if he could convince me that the Hindu Law or the system of the Hindus was based on birth. But what do we find today ? Birth

852 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES is the real basis of caste, whereas according to the strict notions of Hindu law and the Shastras, birth has no place in it whatsoever, we find that Hindu society is not what it used to be. Are we now going to introduce all those laws of Manu, for instance, that a Shudra cannot read the Shrutis etc.? Now we have finished with them. So far as the criticism goes that the Code is very bad, so bad that it should apply only to Hindus, Muslims, etc., I am very sorry I have to challenge that statement and fight it. Some of the principles which are put in the bill are exceptionally good, so good that I would like to have this Hindu Code. As I stated. I am not an opponent of every clause and word in it. I want that all the good principles, which are consistent with the principles that we have accepted in our society today, should be passed in this House. I am opposed to certain provisions and I shall have occasion to speak about them at the proper time. But as regards the statement that it is so bad that it should not apply to Hindus or Muslims, etc. I for one do not agree with that statement. I was considering the question whether it should apply to any but Hindus. Three or four motions have been made, by Mr. Sarwate, Mr. Indra Vidyavachaspati and Mr. Jaspat Roy Kapoor had something to say about it. In regard to them my submission is that, if it were possible to do so I would have myself supported those motions. But may I humbly ask the non-Hindus in the House if they like this proposal ? They do not like it. Shri J. R. Kapoor (Uttar Pradesh) : The non-Hindus have already been brought within its scope. Pandit Thakur Das Bhargava : It is entirely wrong to suggest that. So far as Muslims, Christians, Parsis and Jews are concerned, it specifically say that the law shall not apply to them. Where is my friend’s suggestion that it has already been applied to Muslims Christians, Parsis and Jews ? Shri J. R. Kapoor : I said non-Hindus excepting Muslims, Christians etc. Mr. Chairman : Let there be no interruptions. Shri R. K. Chaudhuri (Assam) : On a point of information, Madam, may I know whether the Hindu Law is not applicable even now to the Muslims, Bohras and Cutch-Memons ? Pandit Thakur Das Bhargava : My friend has anticipated me. The present Hindu Law as we understand it does apply to many classes

853 DR. AMBEDKAR AND THE HINDU CODE BILL of persons. It does apply to persons who do not call themselves Hindus. And so long they have never objected to it. So far as Sikhs, Jains, Buddhists are concerned, it is the Hindu Law which is applied to them. And it has been applied to them from times immemorial, from the time that the British Government was established. They have always been using it. Even Muslims have been using it. (An hon. Member : You are excluding them). We are not going to exclude them. This Hindu Code, according to clause 2, shall apply to all persons who are not Muslims, Christians, Parsi or Jews. So far as Muslims are concerned and so far as their law is concerned we have not changed anything and we have not made any law for them. We do not want to say that their customs as altered by the Hindu Law do not exist. For instance take the Punjab. We were not bound by the Hindu Law as such, I am speaking of the villages of the Punjab. So far as the cities are concerned, many Hindus and Muslims are governed by the Hindu and Muslim Law. But so far as the rest of the Punjab is concerned we were guided or dominated, or we were governed, by custom. Custom was the first rule of decision in the Punjab so far as Hindus, Muslims and Sikhs were concerned. Even today it is custom which governs us. May I with your permission, Madam, just read out the Preliminary Section of the Punjab Customary Law by Rattigan ? it says : “Custom in this Province is the first rule of decision in all questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, any religious usage or institution, or alluvion and diluvion .” In regard to the Customary Law of the Punjab, all the Hindus, Muslims and Sikhs in the village areas were bound by the Customary Law which practically was the same for all. And it has furnished a very good basis for the Civil Code because the customs were the same, the result was that we were wedded to the agnatic theory of succession and all the customs flowed from that. It is difficult for the Punjabis to accept the principle of inheritance of married daughters because the agnatic theory is there. In fact it prevailed in Assam also before Assam came into the domain of the Bengal High Court. If we find out what was the source of custom, all the principles and notions of Hindu Law which prevailed throughout the country were

854 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES the source from which this custom grew in the Punjab and in other parts. Not that custom is an exclusive feature of the Punjab only : in various parts of India custom has to a very great extent altered the original Hindu Law. Shri R. K. Chaudhuri : I am sorry to interrupt. But may I ask whether the Customary Law in the Punjab will over ride the clear provisions of the Hindu Law, or what will be the position of the Punjab later, that is, after this Bill is passed ? Pandit Thakur Das Bhargava : So far as the Punjab Law is concerned, I have given the source of law, i.e., section 5 of the Punjab Laws Act. I have just read from section 1 from the preliminary observations of Rattigan which is based on the Regulation of 1825 and section 5 of the Act of 1872, so far as Punjab is concerned. This is the present Law of the Punjab unless it is altered by this Hindu Code. This was my difficulty when I gave an amendment to that effect: leave the Punjabees if they want to be governed by their own custom. I have given an amendment in regard to clause 1 to the effect that Punjab should be excluded from the operation. The reason is that from days immemorial we have been governed by custom and we want to stick to that custom because that custom is the mixture of the Hindu Law as well as other notions of Civil Law. I may be excused if I just divert for a minute to the present mentality of the Hindus, as a whole. I want to see a Hindu in this country who can say that he is a Hindu according to the old notions of Hinduism. The present mentality of the educated Hindus of this country is a sort of electicism. They are followers of Arya Samaj, Brahmo Samaj, some people have in the background of their minds or in the inner sub-conscience, certain conceptions which we have imbibed from Muslims, Christians and from other religions and we educated Hindus—I can speak for myself and some of my friends— want to have a sort of electicism. We take the best out of every religion and begin to think that this is the right thing and that this is Hinduism. Perhaps this may be true of the rest of the world also. Where is a true Christian to day who believes in the teachings of the Bible ? I can quote from the Muhammadan Law also. Where is the true Muhammadan to be found ? We know that the Prophet of Muhammadans married a girl who was below the age of 14. When the Sarda Act was passed, if hon. Members of this House remember very well, Mr. Mohemad Ali performed a marriage in the Queen’s Garden just

855 DR. AMBEDKAR AND THE HINDU CODE BILL to contravene the provisions of the Sarda Act because people wrote that the Sarda Act had made an inroad on the Muslim religion by taking away the liberty of marrying a minor. Those persons who have prejudices about religions may say whatever they like but to-day at the present moment, there is no orthodox Hinduism, no orthodox Muhammadanism and no orthodox Christianity. This is the bare truth and therefore, I am not surprised if Dr. Ambedkar has brought in a Bill which is consistent with the present times. Many of these provisions look new to those who are absolutely orthodox but at the same time, we must recognize that we have progressed too much on the lines of modern civilization and we cannot go back. If they want to bring back all those ideas of the past which have been practically given up by society in general, they are mistaken. As a matter of fact, Dr. Ambedkar has made an unconscious attempt…………… Shri R. K. Chaudhuri : We are getting more and more confused by what the hon. Member is saying. I want to make it clear whether the hon. Member wants that the present Hindu Code should go to amend the Punjab Customary Law and whether in the Punjab Customary law bigamy is banned or not. If bigamy is not banned and if as the hon. Member wants to have the Punjab to be excluded from the operation of the Hindu Code, may I know his views about bigamous marriage ? Mr. Chairman : The hon. Member should know that he has already made his point clear and the hon. Member who is now speaking may be allowed to have his say and he need not be interrupted from time to time. Pandit Thakur Das Bhargava : I am very glad that my hon. Friend has put a question to me. So far as bigamy is concerned. I have made my position absolutely clear when some time back I introduced a Bill in this House. That bill is designed to enforce monogamy in the whole of India even as regards Muslims, Hindus, Christians and everybody and including the Punjab. I want that so far as this Customary law is concerned, if there are any such customs which agree with the accepted ideals of society and humanity as a whole or a major part of that society, then those ideals we should adopt. I want that there should be no bigamy in the Punjab or elsewhere. This is my humble reply. So far as the general question that he has put is concerned whether this Hindu Code should modify a custom or not, I am of the opinion that so far as our custom is concerned, I want to stick to it in the Punjab, and we want to go on with that custom.