Vol. 8 · pages 266–270

241 PAKISTAN : SOCIAL STAGNATION not novel for the religion of Islam to have that provision. If we look up the older Acts of any nation, we will find that similar provision also exists in other Codes as well. For the male a severer punishment was awarded, that of death, and for females, only the punishment of imprisonment was awarded. This main provision was that because it was a sin, it was a crime, it was to be punished, and the woman was to be deprived of her status as wife. It was not only this status that she lost, but she lost all her status in society ; she was deprived of her property and civil rights as well. But we find that as early as 1850 an Act was passed here, called the Caste Disabilities Removal Act of 1850, Act XXI of 1850..... “....by this Act, the forfeiture of civil rights that could be imposed on a woman on her apostasy has been taken away. She can no longer be subjected to any forfeiture of property or her right of Inheritance or anything of the kind. The only question is that the Legislature has come to her help, it has given her a certain amount of liberty of thought, some kind of liberty of religion to adopt any faith she likes, and has removed the forfeiture clause from which she could suffer, and which was a restraint upon her changing the faith. The question is how far we are entitled after that to continue placing the restriction on her status as a wife. Her status as a wife is of some importance in society. She belongs to some family, she has got children, she has got other connections too. If she has got a liberal mind, she may not like to continue the same old religion. If she changes her religion, why should we, according to our modern ideas, inflict upon her a further penalty that she will cease to be the wife of her husband. I submit, in these days when we are advocating freedom of thought and freedom of religion, when we are advocating inter-marriages between different communities, it would be inconsistent for us to support a provision that a mere change of faith or change of religion would entail forfeiture of her rights as the wife of her husband. So, from a modern point of view, I have got no hesitation in saying that we cannot, in any way, support the contrary proposition that apostasy must be allowed to finish her relationship with her husband. But that is only one part of the argument. “ Section 32 of the Parsi Marriage and Divorce Act, 1936, is to the effect that a married woman may sue for divorce on the grounds ‘ that the defendant has ceased to be a Parsi.....’ “There are two things apparent from this. The first is, that it is a ground for dissolution, not from any religious idea or religious sentiment, because, if two years have passed after the conversion and if plaintiff does not object, then either the male or female has no right to sue for dissolution of marriage. The second thing is, that it is the plaintiff who has got the complaint that the other party has changed the religion, who has got the right of getting the marriage dissolved

242 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES ....... In addition to this Act, as regards other communities we can have an idea of the effect of conversion on marriage tie from the Native Converts’ Marriage Dissolution Act, Act XXI of 1886 ........It applies to all the communities of India, and this legislation recognises the fact that mere conversion of an Indian to Christianity would not dissolve the marriage but he will have the right of going to a law court and saying that the other party, who is not converted, must perform the marital duties in respect of him......then they are given a year’s time and the judge directs that they shall have an interview with each other in the presence of certain other persons to induce them to resume their conjugal relationship, and if they do not agree, then on the ground of desecrtion the marriage is dissolved. The marriage is dissolved no doubt, but not on the ground of change of faith......So, every community in India has got this accepted principle that conversion to another religion cannot amount to a dissolution of marriage.” Syed Gulam Bikh Nairang, another Muslim member of the Assembly and a protagonist of the Bill, was brutally frank. In support of the principle of the Bill he said* :— “ For a very long time the courts in British India have held without reservation and qualification that under all circumstances apostasy automatically and immediately puts an end to the married state without any judicial proceedings, any decree of court, or any other ceremony. That has been the position which was taken up by the Courts. Now, there are three distinct views of Hanafi jurists on the point One view which is attributed to the Bokhara jurists was adopted and even that not in its entirety but in what I may call a mutilated and maimed condition. What that Bokhara view is has been already stated by Mr. Kazmi and some other speakers. The Bokhara jurists say that marriage is dissolved by apostasy. In fact, I should be more accurate in saying—I have got authority for that—that it is, according to the Bokhara view, not dissolved but suspended. The marriage is suspended but the wife is then kept in custody or confinement till she repents and embraces Islam again, and then she is induced to marry the husband, whose marriage was only suspended and not put an end to or cancelled. The second view is that on apostasy a married Muslim woman ceases to be the wife of her husband but becomes his bond woman. One view, which is a sort of corollary to this view, is that she is not necessarily the bond woman of her ex-husband but she becomes the bond woman of the entire Muslim community and anybody can employ her as a bond woman. The third view, that of the Ulema of Samarkand and Balkh, is that the marriage tie is not affected by such apostasy and that the woman still continues to be the wife of the husband. These are the three views. A portion of the first view, the Bokhara view, was taken hold of by the Courts and rulings after rulings were based on that portion. * Legislative Assembly Debates, 1938, Vol. V. pp. 1953-55.

243 PAKISTAN : SOCIAL STAGNATION “ This House is well aware that it is not only in this solitary instance that judicial error is sought to be corrected by legislation, but in many other cases, too, there have been judicial errors or conflicts of judicial opinion or uncertainties and vagueness of law. Errors of judicial view are being constantly corrected by legislation. In this particular matter there has been an error after error and a tragedy of errors. To show me those rulings is begging the question. Surely, it should be realized that it is no answer to my Bill that because the High Courts have decided against me, I have no business to come to this House and ask it to legislate this way or that way.” Having regard to the profundity of the change, the arguments urged in support of it were indeed very insubstantial. Mr. Kazmi failed to realize that if there was a difference between the divorce law relating to Parsis, Christians and Muslims, once it is established that the conversion is genuine, the Muslim law was in advance of the Parsi and the Christian law and instead of making the Muslim law retrograde, the proper thing ought to have been to make the Parsi and the Christian law progress. Mr. Nairang did not stop to inquire that, if there were different schools of thought among the Muslim jurists, whether it was not more in consonance with justice to adopt the more enlightened view which recognized the freedom of the Muslim woman and not to replace it by the barbaric one which made her a bonds-woman. Be that as it may, the legal arguments had nothing to do with the real motive underlying the change. The real motive was to put a stop to the illicit conversion of women to alien faiths, followed by immediate and hurried marriages with some one professing the faith she happened to have joined, with a view to locking her in the new community and preventing her from going back to the community to which she originally belonged. The conversion of Muslim woman to Hinduism and of Hindu woman to Islam looked at from a social and political point of view cannot but be fraught with tremendous consequences. It means a disturbance in the numerical balance between the two communities. As the disturbance was being brought about by the abduction of women, it could not be overlooked. For woman is at once the seed-bed of and the hothouse for nationalism in a degree that man can never be.* These * The part played by woman in sustaining nationalism has not been sufficiently noticed. See the observations of Renan on this point in his Essay on Nationality.

244 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES conversions of women and their subsequent marriages were therefore regarded, and rightly, as a series of depredations practised by Hindus against Muslims and by Muslims against Hindus with a view to bringing about a change in their relative numerical strength. This abominable practice of woman-lifting had become as common as cattle-lifting and, with its obvious danger to communal balance, efforts had to be made to stop it. That this was the real reason behind this legislation can be seen from the two provisions to section 4 of the Act. In proviso 1 the Hindus concede to the Musalmans that if they convert a woman who was originally a Muslim she will remain bound to her former Muslim husband notwithstanding her conversion. By proviso 2 the Muslims concede to the Hindus that if they convert a Hindu married woman and she is married to a Musalman, her marriage will be deemed to be dissolved if she renounces Islam and she will be free to return to her Hindu fold. Thus what underlies the change in law is the desire to keep the numerical balance and it is for this purpose that the rights of women were sacrificed. There are two other features of this malaise which have not been sufficiently noted. One such feature is the jealousy with which one of them looks upon any reform by the other in its social system. If the effect of such reform is to give it increase of strength for resistance, it at once creates hostility. Swami Shradhanand relates a very curious incident which well illustrates this attitude. Writing in the Liberator* his recollections, he refers to this incident. He says:— “Mr. Ranade was there .... to guide the Social Conference to which the title of ‘National’ was for the first and last time given. It was from the beginning a Hindu Conference in all walks of life. The only Mahomedan delegate who joined the National Social Conference was a Mufti Saheb of Barreily. Well! The conference began when the resolution in favour of remarriage of child-widows was moved by a Hindu delegate and by me. Sanatanist Pandits opposed it. Then the Mufti asked permission to speak. The late Baijnath told Mufti Saheb that as the resolution concerned the Hindus only, he need not speak. At this the Mufti flared up. *26th April 1926.

245 PAKISTAN : SOCIAL STAGNATION “There was no loophole left for the President and Mufti Saheb was allowed to have his say. Mufti Saheb’s argument was that as Hindu Shastras did not allow remarriage, it was a sin to press for it. Again, when the resolution about the reconversion of those who had become Christians and Musalmans came up, Mufti Saheb urged that when a man abandoned the Hindu religion he ought not to be allowed to come back.” Another illustration would be the attitued of the Muslims towards the problem of the Untouchables. The Muslims have always been looking at the Depressed Classes with a sense of longing and much of the jealousy between Hindus and Muslims arises out of the fear of the latter that the former might become stronger by assimilating the Depressed Classes. In 1909 the Muslims took the bold step of suggesting that the Depressed Classes should not be enrolled in the census as Hindus. In 1923 Mr. Mahomed Ali in his address as the President of the Congress went much beyond the position taken by the Muslims in 1909. He said:— “The quarrels about ALAMS and PIPAL trees and musical processions are truly childish ; but there is one question which can easily furnish a ground for complaint of unfriendly action if communal activities are not amicably adjusted. It is the question of the conversion of the Suppressed Classes, if Hindu society does not speedily absorb them. The Christian missionary is already busy and no one quarrels with him. But the moment some Muslim Missionary Society is organized for the same purpose there is every likelihood of an outcry in the Hindu press. It has been suggested to me by an influential and wealthy gentleman who is able to organize a Missionary Society on a large scale for the conversion of the Suppressed Classes, that it should be possible to reach a settlement with leading Hindu gentlemen and divide the country into separate areas where Hindu and Muslim missionaries could respectively work, each community preparing for each year, or longer unit of time if necessary, an estimate of the numbers it is prepared to absorb or convert. These estimates would, of course, be based on the number of workers and funds each had to spare, and tested by the actual figures of the previous period. In this way each community would be free to do the work of absorption and conversion, or rather, of reform without chances of collision with one another. I cannot say in what light my Hindu brethren will take it and I place this suggestion tentatively in all frankness and sincerity before them. All that I say for myself is that I have seen the condition of the ‘Kali Praja’ in the Baroda State and of the Gonds in the Central Provinces and I frankly confess it is a reproach to us all. If the Hindus will not absorb them into their own society, others will and must, and then the orthodox Hindu too will cease to treat them as untouchables. Conversion seems to transmute them by a strong alchemy. But does this not place a premium upon conversion ?”