Mr. Speaker: The House will proceed with the further consideration of the motion that the Bill to amend and codify certain branches of the Hindu Law, as reported by the Select Committee, be taken into consideration.
Shri Mahavir Tyagi (U. P. General) : May I know, Sir, till what time we will discuss this Bill, for there is some Government business and so we want to be sure as to how long the consideration of this Bill will take ? Now filibustering is going on at this stage and all the Members are anxious to speak and they may not get any chance to speak for two or three days. I would like to know. Sir, as to how long they are going to discuss this Bill, for the present.
Mr. Speaker : It is difficult for me to say as to how long a particular Bill is going to be discussed. It much more depends upon the Members themselves. All I can say is that excepting perhaps one day, i..e. the 4th, I think all the days in the next week are allotted to Government business; and it is a matter for Government to say as to what Bills they want to bring or not to bring before the House and it depends on the priority with which they look upon the different measures.
Shri Mahavir Tyagi : May I through you. Sir, request that the Government might be pleased to take over urgent business first and leave the consideration of this Bill to the end or let us know definitely as to which Bills are to be taken, so that we can come prepared for the next Bills. We are anxious to participate in the discussion of the other Bills.
Pandit Lakshmi Kanta Maitra (West Bengal : General) : Sir, the question raised by my honourable friend, Mr. Mahavir Tyagi has really got some importance. I quite appreciate the observation made by you just now that in such a matter the House decides how long a Bill should go on and this necessarily means that when there are a sufficient number of speakers and they want to continue for a sufficiently long time, they may continue. This is what I understand to be meaning of that observation. Of course, I quite see that it is not in the hands of the Chair to say how many days are going to be allotted. At the same time, I think, the Chair would realize how difficult it is for Members who want really to speak on this motion and debate it fully that they know at least if any more Bills are going to be taken up during this session. I was submitting yesterday at the very beginning when this motion was taken up that most of the members had the impression that this Bill was not going to be taken up again in this session. As a matter of fact when a Bill of this importance and magnitude, was to be brought again for consideration, we expected that sufficient notice would be given to the Members in time. It was not done. The whole importance of my contention arises in this way that if we are to know that this Bill will be discussed and that it will continue only up to day, we can understand, but on the other hand we are given to understand that additional days would be provided in this session, it becomes another matter. Members who want to speak for, or against it, would not be able to come and participate in the discussion. We started yesterday and many honourable Members had already left, for instance, Mr. K. M. Munshi came here to speak on this motion and he went away and there were many members who wanted to speak one way or the other on this important Bill and if the House could get to know through youit is for you to sayit is possible for you to do so that some additional days are going to be provided, that will be really helpful; otherwise, we do not know where we stand with regard to this important Bill.
Mr. Speaker: I should like to know if the honourable the Law Minister is in a position to enlighten us.
The Honourable Dr. B. R. Ambedkar (Minister of Law) : The only thing that I can say is that this Bill will be debated. What would be the next stage, I am quite unable to say, because the question of the arrangement of the business of the Government is entrusted to a Committee of the Government, which is called "the Priorities Committee ". That Committee have assigned these days to this Bill. This Committee will be meeting in the afternoon and be taking its own decision. I am unable to say anything further than that.
Pandit Lakshmi Kanta Maitra : In view of this, I would submit respectfully to the Chair that the Chair has sufficient inherent powers to see that this procedure is not adopted with regard to thus Bill unless sufficient notice is again given, to the honourable Members when this motion comes, it is certainly within your competence to say: " I am not going to allow this motion to come, because that prejudices the right of honourable Members to participate in this important debate. " That the honourable Minister cannot make up his mind, is exactly my grievance from the very beginning about the way in which the consideration of this Bill is taken up from time to time during this session. This itself has been a subject of great adverse comment on my part as well as other honourable members. Even today the honourable the Law Minister is not in a position to say if any other day is going to be or not going to be allotted for this important Bill. If that is so, I hope you will sternly turn down any proposal brought at the end of this week if a motion for consideration of the Bill is brought on a very short notice.
Mr. Speaker: Any way that question is at present hypothetical. Today we are going on with the Bill.
Pandit Mukut Bihari Lal Bhargava (Ajmer Merwara): It is obviously very unfair that the Government are not able to make up their mind even today. On 30th March you were pleased to ask the Leader of the House as to what the position was. A specific question was put by Mr. Maitra as to whether the Hindu Code was going to be taken up or not. No answer to that query was given by the Government Bench with the result that on the 31st, for the first time, we knew that the Bill was going to be taken up. Mr. Chaudhuri who wanted to participate in the debate left for Assam on the presumption that this Bill would not come before the House. It is therefore obviously unfair to the members that it should be brought up in this fashion. The Chair has ample power to protect the rights of Members.
Seth Govind Das (C. P. and Berar : General) : You will remember that on that date the Leader of the House announced that very probably we would be adjourning on the 7th April. I raised the question whether the Hindu Code Bill was going to be taken into consideration in this session or not and you. Sir, said that it was not your business to say anything in that matter and that it was for the Government to arrange their business for the House. Now, at this fag-end of the session, when many members are absent, it is not proper to proceed with a controversial Bill of this nature. I would join with the Members who have just spoken and submit that the protection of the rights and privileges of the Members of this House is your responsibility and you have that right vested in you. Therefore I would request you to say to the Government that at this fag-end of the session and without giving sufficient notice to Members it is not proper to proceed with this Bill. I would request you at least to adjourn the debate on the consideration stage of. the Bill this evening, so that this business may be taken up in the next Session of the Assembly, when we meet in the autumn.
Mr. Speaker : Just at present the question is a hypothetical one, because the Law Minister does not say that he proposes to continue the debate. The question as to when, if at all, the consideration motion is to be discussed further, (Interruption) depends, as he said, upon the decision of the priority Committee. I shall try my best to see that all equitable and reasonable demands of Members for debate are acceded to as far as it lies in my power in the House. On the question of the arrangement of Government business, I think, it is a bit too much to ask me to interfere. The Government are the best judges of priority of their business. As regards this particular Bill, I do not think anything further need come from them, in view of what is said in the House. I believe they are responsive to the feelings of Members. I do not think we need go any further into this matter. We may proceed with the motion under consideration.
Mr. Speaker: So far as Government business is concerned, it is the Government. I have nothing to do with the arrangement of business so far as priority is concerned.
Mr. Speaker : At present, it suits the honourable Members to vest it in me I think that responsibility is too great for me. I am not acquainted with all the details and the needs of the Government administration. I do not think I can interfere with their discretion to adjust their business in matters of this kind. The best way is for honourable Members to let the Government feel the pressure of their opinion. Then the things will be adjusted. All I can do is to see that a reasonable debate takes place. From that point of view I shall certainly do what I can.
Seth Govind Das : We are requesting the Government through you.
Shri Arun Chandra Guha (West Bengal : General) : We should be informed now as to when the House is going to be adjourned. If this is not done we would find it difficult to make arrangements for our business.
Mr. Speaker: As regards that; the position was made clear by me the other day. I requested the honourable the Prime Minister to give the information and he said that this may go on for a day or two. It is not possible for him also to say definitely, because there may be some urgent measure which they might wish to put through, without stifling discussion. So, that matter also rests with the Members. But I may say that we are not going to sit beyond the 9th April.
Maulana Hasrat Mohani (U.P. : Muslim) : To remove this difficulty of Dr. Ambedkar I would make a suggestion. I think that any legislative measure involving social reform should not be made part of official business, I could understand a Bill of this kind involving social reform being introduced by Shrimati durgabai or Shrimati Renuka Ray. To thrust an official Bill of this nature on an unwilling public is absolutely unreasonable. I would therefore invite my honourable friend to take courage in both hands and, realising that discretion is the better part of valour, postpone consideration of this Bill and withdraw the Official Bill leaving it to be sponsored at some future date by an ordinary Member who, in consultation with public opinion, may bring forward measures of this kind involving social reform.
Mr. Muhammad Ismail Khan (U. P. : Muslim) : As the honourable Minister told the House, the priority for this Bill has to be determined by the Cabinet Committee. Surely we are entitled to know from him whether he is going to urge for priority for this Bill or not.
Mr. Speaker: Mr. Naziruddin will finish his speech now. I do not wish to impose a time limit on speeches. He has spoken the whole of yesterday and I believe had spoken for 48 minutes on the previous occasion. The time taken in all comes to 3 hours and 28 minutes, to be more exact. I am not measuring his speech by the length of time taken. What I would like him to do is to take into consideration the fact that the present is a general motion for taking the Bill into consideration. It will not, therefore, be either in order or proper to go into the details of every clause. The honourable Member's argument, as I understood it yesterday, is that there are some substantial changes made in the Bill and that, therefore, the measure has to be considered a new or that public opinion has to be consulted in the matter. For developing that argument he need not go into each and every clause of the Bill and suggest that every change made is a substantial change. He need only point out, by way of illustration, a few instances of really substantial changes made. I think that should be enough for the purpose of his argument at the present stage. When the Bill comes up for discussion clause by clause, he will have every facility to move any amendment he likes.
[f2]Mr. Naziruddin Ahmad (West Bengal: Muslim): Sir, I am grateful to you for that suggestion. I dealt with substantial changes yesterday but today I shall confine myself to a few more substantial changes. (Interruption).
Mr. Speaker : There is one difficulty that I feel about interruptions. They distract attention from the original point and my hands are weakened in pulling up the speaker and bringing him up to the proper scope of relevancy in debate. If there are no interruptions, therefore, the matter will be shortened.
An Honourable Member: But it becomes very dull.
Mr. Speaker : Of course it gives relief from dullness but too much of it is dangerous for the House. Therefore, let there be no interruptions or side remarks because they sidetrack the issue.
Mr. Naziruddin Ahmad : I shall confine myself, Sir, to a few more substantial changes introduced by the Departmental Draft. I shall turn to part III of the original Bill and draw attention to sub-clause (2) of clause 126 of the Departmental Bill which corresponds to sub-clause (2) of clause 124 of the Final Bill. It is a new sub-clause which introduces a new principle, namely, that any transfer of property would not defeat the right of maintenance paid therefrom. In fact, maintenance has been made a statutory charge on the property. Whether good or bad, it is a new matter which has been introduced not by the Select Committee but by the Departmental Committee.
Then turning to part III-A of the original Bill which deals with succession, clauses 1 and 2 which are important substantive provisions have been entirely omitted in the Departmental Bill and of course also in the Final Bill. I will not deal with them in detail but leave them for consideration by the Honourable Minister.
Then coming to clause 131 of the Departmental Bill (clause 130 of the final Bill), sub-clause (1) which deals with maintenance is a new matter which introduces a very substantial change. Again clause 133 of the departmental Bill (clause 132 of the final Bill) lays down certain tests; they introduce an innovation of a very substantial nature. Part (b) of sub-clause (2) of this clause is an innovation which corresponds to clause 6(1) of the original Bill, part III-A.
Then parts (g) and (h) of sub-clause (1), part III-A in the original Bill are also important provisions which have been entirely omitted in the Departmental Bill and also in the final Bill. Again parts (g), (h) and (i) of clause 133 (2) of the departmental Bill are very important and are entirely new.
In part III-A the proviso to sub-clause (1) of the clause 6 in the original Bill has been omitted in the Departmental Bill rather unceremoniously. This is omission of a very important matter.
Sub-clause (2) of clause 134 of the Departmental Bill (clause 133 of the final Bill) deals with marriage expenses of an unmarried daughter. This is a new provision which was not in the original Bill.
Then I come to clause 7 of part III-A of the original Bill dealing with the maintenance of a widow residing outside the family house. This has been omitted in the departmental Bill and also in the final Bill.
Therefore in part III-A of the original Bill, there are sins of omission and commission of an important character. I refer to them because I wish to rely not only on the individual changes made but also on the cumulative effect of those changes.
Then I come to part IV of the original Bill dealing with marriage and divorce, corresponding to Part II of the departmental and final Bills. I shall deal only with the salient points. Provisions about marriage have been entirely and radically changed and require some detailed consideration. With regard to sacramental marriage the form of that marriage prevalent in Hindu society is well known. The original Bill left those forms to be applicable according to custom and social practice. There was. no provision in the original Bill for registration of a sacramental marriage as a condition of the validity of the marriage I shall try to show that the Departmental Bill has introduced, such changes. They may be unconscious but the- change to me appears to be that no marriage will be valid unless it is registered. Registration has not been made optional as in the case of Muslims, but in this ease by the Departmental Bill the optional character, of the old formalities have been interfered with and the validity has been made subject to registration; otherwise, as I shall try to show, the marriage would be invalid.
The original Bill, Part IV dealt with this subject. In clause 2 it was laid down that there shall be two forms of Hindu marriage, namely, the sacramental marriage and the civil marriage. Leaving aside the civil marriage!, with which I am not at- present concerned, " there shall be two forms of Hindu marriagesacramental marriage and civil marriage ". That is what was provided in the original Bill. The forms were left to the well-known custom and well-known requirements of Hindu marriage and provide nothing for registration. The House will be pleased to consider the corresponding provisions in the Departmental Bill. The original Bill merely said that the sacramental form of marriage will be one of the forms of marriage. Details were left to the discretion of the parties.
" Save as otherwise expressly provided herein, no marriage between Hindus shall be recognised as a valid marriage unless it is solemnised either as a sacramental marriage or as a civil marriage in accordance with the provisions of this Part"
The original provision was that marriage might be performed-in the sacramental form in the usual religious form well known to Hindu society, but in the departmental Bill it is said that no marriage shall be valid unless it is performed in accordance with this Part.
Let us consider the provisions of this Part. We come at once to another part of the Bill, namely, clause 6 of part IV of the original Bill corresponding to clause 9 of the departmental Bill as well as the final Bill. (An honourable Member:' Please note that Dr. Ambedkar is away.') Clause 9 deals with registration of sacramental marriage. In the original Bill it was stated :" For the purpose of facilitating proof of sacramental marriage, rules may be prescribed for the entering of particulars relating to such marriages in such manner as may be prescribed in the Hindu Civil Marriage Certificate book kept under section 6 of this Chapter." .
Mr. Naziruddin Ahmad : The original clause provided for rules made by the Government for the entering of particulars in a register for the purpose of facilitating proof : that is. It left the validity of marriage absolutely intact. It gave additional facility in the matter of proof that particulars of marriages might be registered in the Hindu Civil Marriage Certificate book and this could be provided by rules. This was only to facilitate proof. This was not a compulsory condition, nor any condition affecting the validity of the marriage. All that was laid down was a very usual rule, a very salutary rule, that particulars might be entered in a register and that might be prescribed in the rules. It would be only for the purposes of facilitating proof. It would not affect the validity of the marriage at all. In fact a marriage of which the particulars are not entered in this register would be perfectly valid, but registration would offer, or supply a ready-made method of proof of marriage, and a certified copy of the entry would be taken, judicial notice of by a Court of law and much evidence would be dispensed with. But in the corresponding clause in the Departmental Bill, it is like this:
(a) That particulars relating, to such marriages shall be entered in the Hindu Marriage Certificate book ....................."
In fact the compulsion is not yet complete, but only begins here. Then, Sir, we come to clause (b) of the Departmental Bill. Subclause (3) of clause 6 of the original Bill says : " The making of such an entry shall not be compulsory."
I shall ask you. Sir, to consider the corresponding language of the Departmental Bill. The original BillI shall repeat with your permissionis
" That the making of such an entry shall not be compulsory."
Mr. Naziruddin Ahmad: According to the original Bill, the making of such entries is not compulsory. That is absolutely clear. But let us consider the corresponding provision of the departmental Bill :
"The making of such entries shall be compulsory."
So the original law was that by rule particulars of marriages might be entered in a book for the purpose of facilitating proof, " but the entry shall not be compulsory". But in the revised clause in the departmental Bill, the particulars shall be entered and the making of the entries shall be compulsory in such cases.
"In making the rules under sub-section I, the Provincial Government may provide that a contravention thereof shall be punishable with fine which may extend to Rs. 100."
The position is a little vague as to whether the compulsory character attaches to the registering officer or is addressed to the party. But more of this later on.
Mr. Naziruddin Ahmad : Clause 9(2) of the Departmental Bill as well as to clause 9(2)of the final Bill. In fact it gives authority to the Provincial Government to impose a fine for not complying with it or even a vague suspicion that parties who fail to register or have them entered, will also come within the mischief of this provision. But the matter has not been left in doubt and it is clear later on.
Mr. Speaker: The validity of the marriage is not affected, in which case, where is the substantial change ? It is only a matter of detail which, it would be as well for the honourable member to speak on, when we come to clause by clause consideration of the Bill.
Shri Mahavir Tyagi : It is a matter of importance. Sir. In that case it is a great change. The parties will have to be directed to the house of the Registrar instead of the House of the father-in-law.
Mr. Speaker : The scope of the present discussion is with reference to changes in the substantive law as proposed by the Rao Committee and as adopted by the Select Committee. A minor detail of registration is made compulsory. So far as validity of the marriage is concerned, it is not affected at all. I do not want any discussion on that. I do not say as to whether the change is desirable or not but for present purposes a discussion on that would be outside the scope.
This provides for compulsory registration, I am coming to the question how it affects the marriage. (An honourable Member :' It is in the discretion of the provincial government.') It is in the discretion of the Provincial Government no doubt. But the Government is given a new power which it may enforce.
According to the clause in the original Bill these formalities were not required. The " provisions of this part " in the departmental Bill require compulsory registration of the marriage. In fact sacramental marriage and civil marriage are brought on a par with each other. In civil marriage of course registration is compulsory. The combined effect of the change of phraseology in clause 6 of the departmental Bill as well as the compulsory requirement of registration would make it appear that a marriage which is not registeredof which particulars are not entered which is made compulsory under this clausewould be an invalid marriage. No marriage shall be valid unless it is done in accordance with this Part.
Mr. Naziruddin Ahmad: That is my interpretation which is submitted for the consideration of the House. In fact it may be farthest from the mind of the honourable Law minister to effect this result. He made it quite clear in his speech that the provisions relating to marriage are not compulsory but rather optional. It may be that the effect was unintended. But whether intended or not, the effect is the same. No marriage shall be valid unless it is performed in accordance with this Part, which also carries the liability of a fine for an omission. However reluctant the house or even the author of the Bill may be to put this interpretation, it is yet a question of interpretation and it is not a question of sentiment. The point is whether this interpretation is valid. If that is so, it introduces a very important change. To provide, though indirectly that a marriage would be invalid unless it is registered would be a dangerous proposition and it would lead to wholesale breaches of the law. The registering officer may live miles away from parties living in inaccessible regions, and at this stage of the civilisation of our country, especially for the backward people, this provision would be absolutely tyrranical and meaningless.
Shri L. Krishnaswami Bharathi: Only for the purpose of clarification that I rise.
Mr. Speaker : If we enter into clarification and further discussion, it would be an unending speech. The point is that the honourable Member is putting his interpretation. I have drawn his attention to the fact that, it does not affect the validity of the marriage. If he wants still to persist in that line of argument, let him do so. That will cut short the speech.
Shri L. Krishnaswami Bharathi : If you would permit me. Sir, there is only one point which he may clarify. The clause begins with the words " For the purpose of facilitating the proof of any sacramental marriage ..................... "
Mr. Speaker : That point is quite clear to my mind. I put it to him though not in that form. I pointed out to him that this does not affect the validity of the marriage at all. Still he thinks it does. How can we go on convincing him ? Let him proceed now. That would be the shortest way of having his say before us. Otherwise we shall have to discuss with him every provision in respect of which, he is giving his inferences. When honourable members are hearing his speech in silence, it does not mean that they are accepting his interpretation. He may proceed to the next point now.
Mr. Speaker : It would be better if the honourable member gives references to the final Bill as it is before the House and then point out the change. Otherwise I cannot follow. He is referring to three or four Bills.
" A sacramental marriage shall not be complete and binding on the parties unless it is solemnised in accordance with such customary rites and ceremonies of either party thereto as are essential for such marriage."
Sir, I do not think it is a point of argumentthis is by mistake. But the point which I wish to submit is that I do not insist on this interpretation as a necessary logical consequence but I believe it is introduced unconsciously and there is a certain amount of doubt as to the validity of the marriages. I know that the feeling of every lawyer, judge and statesman would be against the invalidity of the marriage on this ground of registration. But that is political; the approach should be entirely legal and constitutional. What is the interpretation ? If you do not perform your marriage in accordance with these new provisions the marriage will be invalid. It follows therefore, whether we agree with the justice of the provision or not, it follows to my humble mind that unless the particulars of the marriage are entered in the register the marriage itself would be invalid. I submit that for the consideration of the House.
I have already referred to the provisions in regard to the making of the entries, that the making of the entries shall be compulsory.
Mr. Speaker: That he has said; he need not repeat it.
Mr. Speaker: That is a matter of detail into which we need not go at present.
Mr. Speaker: Let there be no asides.
Mr. Naziruddin Ahmad : But, Sir, I have a quick ear and this is not conducive to good debate. My learned friend who is an experienced parliamentarian should not try to discourage speeches. He should forget that he was addressing the old Council when the British were there. He should remember that he now belongs to a party which is ruling and I belong to no party at all but am an individual who is opposing.
Mr. Speaker: Let us not carry on this discussion.
Mr. Speaker : Mr. Das. The remedy is open. We can afford to be deaf on such occasions and proceed further. I also hear many whispers when the debate is going on, but I do not take any notice of them.
Mr. Naziruddin Ahmad : I now come to another partPart V of the original Bill relating to Minority and Guardianship. Clause 3 thereof has been entirely omitted in the final and departmental Bill. I need not go into the details of the clause, but this is a substantial clause which has been omitted. That is introducing a serious change. There are other unimportant changes and I will not deal with them.
I now come to the Part relating to Adoption, that is Part VI of the original Bill. Clauses I and 2 thereof have been omitted. In departmental Bill clause 55also clause 55(1) of the final Billthere is a sub-clause (3) which is new. Then again in Part VI of the original Bill sub-clause (1) of clause 19 is omitted. A new clause has been introduced with entirely different conditions. In departmental Bill clause No. 68, which also corresponds to clause 68 of the final Bill, sub-clause (1) is a new clause. And the Proviso to this sub-clause of clause 68 of both the Bills is also new. Then again sub-clause (3) of clause 19 of the original Bill with two conditions is entirely omitted in the final Bill. Sub-clause (5) of this clause again has been omitted. So also clause 21 of the original BillPart VIhas been omitted. Then again clause 25 of the original Bill in Part VI. with two sub-clauses and two other parts, is entirely omitted.
I submit that these are most important changes made by the Departmental Bill. Although it is clear that some honourable Members of the Select Committee realise that there were substantial changes introduced in the departmental Bill that may have been a later realisation in view of the guarantee that no substantial changes have been made. In fact their attention may not have been specifically drawn to it and there is a danger that all these details may not have been fully considered by them. That would not have happened if they had confined their attention to the original Bill and proceeded clause by clause or if they had sat first and given a direction to the Department to prepare.
Mr. Naziruddin Ahmad : Sir, I do not wish to repeat the grounds. In these circumstances I submit that the simple point is that this is a very substantial matter which has prejudiced the fair and full consideration of the Bill by the Select Committee.
I do not wish to cast any aspersion on the Members of the Select Committee, but without a proper comparison of the clause it would be extremely difficult for the Members of the Select Committee to follow all the changes.
We then come to the other matters in connection with this Bill. The question of inheritance is agitating the mind of the country for a long time. The position of the daughter is the most contentious provision of the Bill that I can think of. In fact, I was asked why it was that I was refusing to my Hindu sisters what I have given to my Muslim sisters. "The reply is very simple. Under the Muslim Law, the daughter has been given a share. We are not permitted to question the wisdom of that Law; that Law has got to be taken along with various other circumstances, historical, social and others which justify that. There is a kind of justice which has been tolerated and accepted by the Muslim society for 1350 years. But our Hindu sisters have tolerated their lot for about three to four thousand years under a different system. A comparison between the two systems so far as the daughter's position is concerned, would not be quite relevant. In fact, the two systems of law approach the matter from different points of view and they depend upon different historical accidents. Under the Muslim Law, the-system of inheritance was taken from the old Arabian customs. It arose out of obvious and inevitable circumstances. In Arabia there were no immovable properties, all was desert, and the properties consisted of movable. When a man died..................
Mr. Naziruddin Ahmad : The question is needless. I will ask the honourable member to read a very learned book of Von. Kremer, a German authority, on " The Orient Under the Caliphs ". That book will give the desired information. There is a translation of it by the Late Mr. Khuda Baksh. It is the only book on the subject. It has dealt the entire subject from a specialist's point of view. I will humbly ask my honourable friend to read that book for further elucidation, but I am not concerned with giving the entire details of it in the House because that is not quite relevant.
I was submitting that my learned friend's question as to there being absence of immovable property does not really arise. Arabia consisted, certainly, of immovable property also but most people had no immovable property. (Interruption). No further interruption. I have been asked by the honourable the Speaker not to mind interruptions but it is difficult to close one's ears to what is happening. An Honourable Member: Close your mouth.
Sir, in that book the whole history has been given. When a man died. He left a bedstead or some clothing or a horse or camel and things of that sort, and according to old Arabian customs they were divided among the near relatives. No trouble arose. The Quran does not give any specific share to each individual. The present system of inheritance is a growth of the old Arab custom and amended and changed by Muslim doctors, especially by that great authority on Muslim Law, Abu Hanifa and others. I need not go into that. All that I was concerned in saying was that the Muslim approach is a matter of history. Whether good or bad is not to the point, and the fact that I oppose the share of the Hindu daughter is not because I am unwilling to give my Hindu sisters what I would give to my Muslim sisters. If what is good to a Muslim depends upon ancient customs and sentiments what is good to a Hindu should also depend upon the ancient customs and sentiments of the Hindus. When the Arabs conquered the areas surrounding the Mediterranean difficulties arose because they acquired immovable property. It is a matter of history that they felt the difficulty of a large number of shareholders inheriting the property leading thus to disruption. Then it was that the system of wakf, which we now find today, was thought of. Some passages in the Holi Book were developed by Muslim divines and they tried to develop the law of wakf. That was now they wanted to counteract the evil effect of division. In India the law of wakf was further developed by Indian courts and especially by the Privy Council and this to a large extent thwarted the application of the wakf law in domestic purposes. It is well-known that Mr. Jinnah, in 1913, brought a Bill in the House and got an Act passedthe wakf Actwhich recognised the validity of certain wakfs which were regular in practice among the Muslims. This was an attempt to counteract the evil effect of infinitesimal divisions. The Muslim approach to the division of property is entirely different. The outlook of a Muslim is individualistic. In fact, the infinitesimal division induces in them separatist tendencies. Brothers do not live in the joint family for long; they quickly divide. We have seen a separatist tendency on a large scale in recent Indian history. So, the approach of a Muslim is individualistic whereas the approach of a Hindu is from the family point of view. The Hindu lives in a family. There the unit is the family and they approach the women's rights from the point of view of a family. The Muslim approach is different. In fact women in a Hindu family are not unequal to men, the question of inequality as has been pointed out does not really arise; they are equal to men in every way but each has a recognised part in the economy of the Hindu family. That is the way of approach of the question. Although I do not question the authority of this House to legislate on any matter, I question only the propriety of this House entering into this legislation without discussing and going into details of the system under which the Hindu civilisation has lived. The position of a Hindu widow should be considered from that angle and if on adequate consideration it appears that the system is rotten, it is for the Hindu society to change it. It is not for me to change it. It is up to me only to point out certain things which come to my mind as a member of the Legislature; it is not my vote that will carry; the vote of the majority will carry. I have a duty to submit certain points as they appear to me. I submit therefore that the Hindu law is not unjust to the female. It has done full justice to the female considering her as a part of the family system where she has a part to play. In fact, in this legislature we have different parts to play. There is no question of inequality or discrimination. We have all parts to play. In these circumstances I submit that the position of the Hindu women has to be considered from this point of view. The division amongst Muslims has gone too far. How the share of a daughter leads to disruption of the family is worthy of consideration. As soon as a man dies, leaving sons and daughters, the daughters at once inherit their shares. They are married and in a majority of cases they are transported to different families. In fact, inter-marriage in Muslim Law is a device to counteract infinitesimal division. There is again a provision that in case person having a share transfers the property to an outsider, the original co-sharers have been given the right to re-purchase the share on payment of the price. But as every lawyer knows, a suit for presumption is hedged in with so many legal difficulties that it hardly succeeds. The Wakf is another attempt to counteract this tendency. The share to a Muslim daughter has not conduced to the solidarity of the family property.
Mr. Tajamul Husain : I do not wish to interrupt, but as it is a case of Muslim Law, I am interested in it. I want to know from my honourable friend whether he does not approve of the inheritance as enunciated under Muslim law ?
Mr. Naziruddin Ahmad: Even then, I shall not be drawn into a controversy over this. How the Muslim family deteriorates and disintegrates, is a matter of long experience to us, as also I believe to many lawyers like yourself. When a daughter is married, for some time family amity keeps them together, but a time comes when the daughter comes to her father's house and a misunderstanding arises between the daughter and the brother's wife. Women differ on more unsubstantial matters than men. They being more sensitive differ.
Mr. Naziruddin Ahmad: It is not casting aspersions. It is analysing their character. The sentimental nature of women makes them more attractive, more interesting and more loving. If women were as hard-hearted, as strong, as rugged, as we are, life would have been impossible. In fact, it is the beauty of feminine nature that they are so different from men. It is the union of two distinct types that makes life bearable and happy. So it is not by way of disparagement that I was making this remark.
When the daughter gets offended with her sister-in-law, she goes back to her husband and says " I want my share." Then the trouble begins sooner or later. It has happened in every home. The sister's husband comes to his brother-in-law and demands a share and it is refused and then he wants to sell the share to the brother. The brother of course would not be willing or able to pay the full price demanded, so this man goes to another man in the village and sells the property for a small cash and a promise of more after the trouble is over. Then some physical demonstration of new right begins. A criminal or civil case follows. From ordinary injury to murder, from registration proceedings to partition proceedings and so on. Lawyers will be thankful if this Bill is passed, because it will give them a considerable amount of business. Litigation begins and does not end in five or ten or twenty years. Litigation after litigation follows in bewildering succession and the whole village is rent with party factions. If there are only several brothers, they can live together and manage the properties together, although their wives may quarrel with each other. Brothers hardly quarrel. In this way the Hindu joint family system goes on. There is nothing inherently different between a Muslim family and Hindu family except in this. Muslims have been habituated to think of partition and individualistic life. The Hindu is habituated to joint and corporate life. Probably, very few of my esteemed Hindu friends can visualise the real difficulty that would arise out of the daughter's share. In fact, it is never a gain to the daughter. There is a corresponding loss to counterbalance the gain. Suppose out of a litigation and a share a daughter is enriched to that extent. She goes to her husband's house and has her own sons and daughters. All that she takes from her brother, her daughter will take from her sons. Instead of considering the women individually and separately, if we consider her as part of family life, then the gain is not counterbalanced by the loss. I submit that the daughters share will introduce endless complications and litigation, quarrel and misunderstanding and what not. In fact, it is my unhappy experience that no prosperous Muslim family has lasted for three generations. This and other things make them paupers. The point is not whether the system is good or bad.
Muslims have accepted it as part of their religion and will accept it so long as the majority do not think it is bad. So far as Hindus are concerned, they have accepted their system and unless the majority are convinced that that system under which they have been thriving and been made so prominent, a system which has outlived many ravages of foreign invasions, unless they are convinced that that system is bad, there should be no interference. My point is that comparison between the Hindu sister and Muslim sister would be extremely dangerous, because their positions are not analogous and actually there are differentiating elements which arise from different histories, considerations and environments. Therefore, there is no simple analogy between the position of the Hindu sister and the Muslim sister. I think the effect of a daughter's share must be considered dispassionately in all conceivable aspects. It is not a net gain to the daughter herself. It leads to fragmentation. I would not have referred to this in detail but for the fact that on 9th April when the Bill was sent to Select Committee, I referred to this mischievous tendency and Mrs. Hansa Mehta expressed surprise that the daughter's share would lead to litigation or fragmentation of property. It is due to the fact that perhaps the mischief which we have experienced has fortunately not been experienced in the Hindu society. It is for this reason that there was a possibility of misunderstanding, and that is why I have referred to this matter. I submit. Sir, that the position of the daughter must be considered in the context of Hindu ideas and of Hindu families. Every one is affectionately disposed towards her. She is well married, and at the time of marriage various gifts are made, there is the dowry and besides that large properties too are sometimes given. And she is a welcome guest in her father's house. But if you give her a share, then the relations between the brothers and sisters will no longer be one of affection, but it will turn into one of business, one of hostile and clashing interests. In fact, love will be extinct, if the daughters' shares are allowed to penetrate the folds of Hindu society. Sir, these are some considerations which I believe should be considered dispassionately.
Mr. Speaker: Order, order.
Mr. Naziruddin Ahmad : My experience is that we have become impoverished. If Hindu society thinks that impoverishment is a virtue they are welcome to accept the system. After all we hear talks of introducing a classifess society of absolute equality. It will be the equality of poverty and indigence. But I do not complain of my system. And after all, this is not the place to discuss it. I only submit here that the whole subject must be considered deliberately by Hindu society and not merely viewed in the light of equality of brother and sister. That is too much of a slogan. We as serious legislators in this House should not be taken in by slogans. Here I have only given a slight hint on some of the aspects. There are many other matters but it is impossible for me to deal with all aspects. It may be that I have overemphasised certain minor aspects, and left out others. But these are only a few observations which may make people think and not rush on, so far as the daughters are concerned.
And now comes the question of equality. Is not the women sometimes superior to man in certain aspects ? I believe that she is in many spheres superior. She is the mistress of the house. She is the mistress of her husband's soul, his purse, his property, his inclinations, his whims, every thing is controlled by her. I submit, therefore, that the women should not consider herself as ignored, merely because she is not being given a share. In fact, her position is unassailable in the family. What woman is there who is not respected and loved in the family ? Does she require anything personal ? Docs she require anything herself, apart from the welfare of her husband, of his brothers and of her children and the children of her brothers ? That is the Hindu system. Whether it is good or bad, it is not 'for me to discuss.
Mr. Naziruddin Ahmad : It is for them to say whether it is really so rotten and so ricketyto quote Dr. Ambedkarthat it requires overhauling, that it requires breaking up and resetting, in fact whether a problem akin to that Relief and Rehabilitation has arisen in Hindu society. I feel that it is nothing of that sort. The problem is merely an intellectual upheaval. It is an abstraction of legal theory. It is an unnecessarily fine question of equality that is at the root of this division, of all this discussion and so much hostility. The whole thing is a simple affairs. Are you satisfied with your family system ? Does it give you satisfaction ? Has that system saved you from the ravages of time ?
Mr. Speaker : Order, order.
The subject before us is not the structure of society. We are discussing only certain provisions in the Hindu Code. So let us not go into too many details or go on to other questions. Otherwise I will have to ask the honourable Member to discontinue.
Mr. Naziruddin Ahmad :If you allow shares, to the daughter, there will be wholesale evasions, and lots of cases relating to wills will come up. When the father dies, there will be wills. In fact, it will lead to lots of litigation. The sons will try to retain the property in their own hands and it may be that the dying father may be prevailed upon to execute a will under duress, or wills may be manufactured. Such things do happen, in fact, these are certain matters which have got to be considered.
Then, I come to another part of the Bill, namely, marriage. In fact, with regard to monogamy. I submit that monogamy is good in theory, and good in practice also. And I also believe that numerous people would not have two wives. One is costly and troublesome enough, in fact, two wives would be a rarity. It is a rarity. I do not find two wives very common. It is extremely rare. It is only confined to very exceptional cases. Exigencies of political or economic conditions make it impossible for any one to marry two wives. But the point is whether we should try to introduce monogamy by legislation or by public opinion. There may be a tendency on the part of some men to marry two wives, not for the sake of caprice, but for the sake of having a son. According to the Hindus, a son is needed to save the father from a certain Naraka called puth. A person who saves you from Puth is called 'Puthra', the son. Otherwise the man goes to a certain hell called path. It is a religious necessity according to the Hindus to have a son and to have a son means that if the wife is barren, he tries to marry another. It has happened within my experience, and it may be within the experience of many others that a second marriage of the husband has been brought about because the first wife is barren. I have seen very happy families, where the senior wife without a child actually induced or compelled the husband to marry a second wife, and the senior wife considered herself absolutely happy with the family. A similar belief in at a son is desirable is also prevalent amongst the Indian Muslims in Bengal.
Mr. Tajamul Husain : I want to put a question for my information and for the information of other honourable Members. I understand that a Hindu father must have a son for his own salvation. Does a Hindu mother also require a son for her salvation ? If she does, she should have the right of polyandry.
Mr. Speaker: We may have a fund of information outside the House. In the House, let us continue ourselves to the Hindu Code.
Mr. Naziruddin Ahmad : I submit, therefore that polygamy is not as dangerous as it is supposed to be in point of view of abstract logic and abstract legislation. It has got to be considered in a particular context. If there is a desire on the part of a Hindu husband to have a child and for that purpose to marry again, and if he cannot do so for the existence of the first wife it may lead to divorce proceedings. The provision of monogamy and the prevention of a second wife during the lifetime of the first wife or during the existence of the marriage with the first wife may lead to divorces. We must not think it to be fanciful. In fact this has happened even in European countries in our history. Napoleon Bonaparte married a loving wife, Josephine. He had no children and Napoleon wanted a heir to the throne of the vast empire which he created by his own genius and what did he do? He divorced the first wife, although his love for her was intense, but the desire for a son and the perpetuation of the family got the better of him and he married a Princess and he thought by that princely alliance with the Princess of Austria he would consolidate his power for ever and he would be happy with both. This is a historical example.
Mr. Naziruddin Ahmad : Sir, This is an example from history. If a Hindu is prevented from marrying for the purpose of a son, if he thinks that a son is necessary, and if he believes his wife would not give him the son, then he would think of some evasion. He will in many cases enter into a morganatic marriage. Can you prevent a man from entering into a morganatic marriage or to commit a technical crime in the full religious belief that what he is doing is just and proper according to his own conscience ? This would be interfering with sentiments of a people deeply immersed in religious thoughts and religious beliefs. In these exceptional cases therefore the matter should not be dealt with by legislation, but rather on public opinion. Polygamy is dwindling from within and the process must not be artificially hastened in order to create evasions. Absolute prohibition of polygamy is a defect and a practical difficulty in the way of the Bill. If a man requires a second wife, what prevents him from crossing over to Pakistan ? (Shri Muhavir Tyagi : What about a second husband ?) The second husband is also prevalent in some places. Mr. Tyagi is well aware of this. Polygamy would be prohibited in India and you will refuse to recognise it, but the man must have a son and what prevents him from bringing the married wifethe second wife married in Pakistanto his house and it may be that the first wife may be consenting. Would you then pass a law which is against deep-rooted sentiments and beliefs of the Hindus. There are serious matters to be considered. This is hardly a subject for drastic legislation going against the very principles, the fundamental ideas of the Hindus. The matter should be very carefully considered before we should indulge in a drastic law of this kind and then there is the provision of a penalty, legal punishment in case of a second marriage. I submit that we should not pass a law which would not be popular with our masses, which would inevitably lead to violations and evasions. We know the fate of the Sarda Act. The first effect of the Sarda Act was that many millions of infantile marriages were performed before the law would come into force. The first effect was to bring about the very mischief which it was the purpose of the law to prevent and then what is the story today. Supposing a man has a marriageable daughter, not up to the age standardised by the Sarda Act and suppose a suitable bridegroom is available, can you morally blame the father or the guardian if he contracts the marriage for the minor daughter ? Would it be merely indefensible simply because it may offend against the theoretic legal sense or the political sense of the man ? Current practices should not be made impossible all at once by law. Old practices are in consonance with the faiths and inclinations of the people. The sarda Act has largely failed and public opinion is so strong in this respect that there is hardly any prosecution against the alleged violation of the Sarda Act today. In fact legislation had been imposed by way of amendment and there are some difficulties in the way of a complainant. The first difficulty is that he must deposit the costs, which will be forfeited in case he loses his case and other additional difficulties are put in the way. What has happened ? Infantile marriages are still prevalent. Nobody supports infantile marriages, but it could not be stopped by criminal prosecutions or by force, unless it is supported and backed by popular sentiment. Amongst the upper educated classes infantile marriage is practically out of the question, but just look at the poor people. If unmarried girls of the poorer classes, not coming up to the marriageable age are to be left unmarried without the care and protection of a husband, it would not be a very safe thing to allow and it may be that many abuses and difficulties will arise if such girls are left without the protection of a husband. The result would be that if she is forced to wait till she attains the statutory age, a husband would not be readily available and she cannot be married readily, and this will lead to all sorts of abuses. I submit. Sir, that remembering the fate of the Sarda Act, we should also consider the idea of compulsory monogamy under all circumstances in all its rigour and without any reasonable exceptions. I think, Sir, the matter is one of serious practical consideration and not a matter of theories and slogans. I now come to the question of divorce. Divorce is not a panacea for all family unhappiness. There is hardly a man who does not have misunderstandings with his wife and there is hardly a family which does not suffer on this score. Life would be unbearable if the relation between husband and wife was all happiness. Such happiness would be no happiness. Unless happiness is punctuated by moments of unhappiness and quarrel, it will be no happiness. In fact it is these misunderstandings which are followed by re-unionvirah and milan in our societythat conduces to happiness. So, misunderstandings are some times necessary. I am addressing these remarks to all experienced men. Only lunatic would be happy all his life. If he is intelligent and has a personality there will be differences of opinion, but in the long run, the wife will prevail. Therefore if you leave the couple to live together for a time, misunderstandings will be blown away as the autumn clouds. I submit therefore that we should not hastily provide for divorce.
Now, the analogy of the Muslim custom is brought in. " A Muslim can divorce his wife, so, why should not the Hindu have the same right ? A Christian can divorce his wile; why should not the Hindu do so to ?" I may point out that the three systems are entirely different and differ radically in these matters. A Muslim is not free to divorce his wife for practical reasons. He has unrestricted right to divorce, but he has to find the necessary dower money which is usually far beyond his means, because even if it is worth only Rs. 10,000 his dower would be something like Rs. 50,000 or a lakh. It is expressly provided in the Muslim Marriage Law that dower is a check on the Muslim husband's unrestricted right of divorce. So there is a very effective practical check on every Muslim husband, however, dissatisfied he may be with his wife, against divorcing his wife. In fact this is considered to be a sufficiently deterrent condition to prevent many bold husbands from attempting a divorce. If a Hindu husband is dissatisfied with his wife, we should allow some time for the dissatisfaction to blow away. If you widen the door and make divorce easy, the result will be the parties will rush to Court and benefit the very lawyers who are anathema to a section of the House. Those who have experience of divorce proceedings in Court know what sordid details are narrated there. They are such as should not be heard by any decent man. Adultery is to be proved to the letter otherwise divorce will not be allowed. The unhappiness is so complete in divorced families that divorce is not a panacea for family unhappiness. If the Hindu wife or husband is given the right to rush to court, the effect will be that temporary misunderstandings which may be healed by lapse of time will result in lifelong unhappiness. In attempting to remedy existing problems you will only create many new problems.
If resort to Court is provided what will happen is that, the male will take advantage of this provision more than the female. It is sheer nonsense to suggest that an aggrieved woman would get relief in divorce proceedings, as it is very likely that she will be the victim herself. The husband will more often go to Court alleging this and that wrong mentioned in the Bill and get an ex-parte divorce. Those who know our society can imagine what possibility is there for a woman to go to Court and disprove the allegations made against her. Who will defend the case of a woman whom the husband wishes want only to discard ? It is the man who will more often rush to Court. Then again, the tendency to rush to Court will be accentuated if the wife is barren and there is a desire to have a son by another marriage. Now, supposing a man gets divorce against his wife, what will happen to the woman ? Where would she go ? After being divorced, she would be without a husband, and without moral and physical means of livelihood ? Who would befriend that woman ? The sponsors of the Bill ? I do not think they will come forward. Would she go to her brother ? No. Has she not antagonised the brother by taking a share of the family property for the benefit of the husband who has discarded her ? The result will be that her father's relations will be entirely apathetic to her sorrows. Then how will she maintain herself?
Mr. Naziruddin Ahmad : I did not resent it. I fully enjoyed the joke. But jokes apart, I ask seriously and again, where she is to go? Take the case of a divorced European woman. She has resources. She is educated. She can get a job. She can be a shorthand-typist. She can get a job in one of our Embassies and can get a free lift in a plane and a pay as well as allowances. Such women are absolutely free. They can make friends with strangers. They are trained and accustomed to rely on themselves.
So a civilised European woman can stand on her own legs and her position is different from that of our women, not the advanced fashionable ones but poor unfriended woman discarded by the husband and fathers' relations. It is not easy, as the Law Minister jocosely said, for a divorced woman to get a husband; even if she is willing a suitable husband is not to be readily available. So her position would be extremely difficult and such women would be the worst victims of the system of divorce. Then allegations in Court would be too serious to be thought of. Proceedings in Court in such cases are sordid in the extreme and it would be impossible for us, in the present state of our society, to allow the husband and wife to rush to Court.
Then there is another aspect. There are among tribal and other people a kind of Customary divorce which involves very simple formalities. They get divorced very cheaply and expeditiously but if they are forced to go to Court it will mean that they could not do it for financial and other reasons and divorce, which they can get easily according to their own custom, will be forbidden to them. You want to complicate matters when you want to achieve uniformity. The law may be the theoretically uniform but it will work hard against the poorer people. In the name of easy divorce people will rush to Court when time would have effected a reconciliation; domestic happiness will be shattered and the parties and society will then repent for ever. To impose this artificial law upon the simple ways of living of these poor people would be very hard; it will make things costly; every decree would have to be supported by a decision of the High Court and it would be a costly affair. Instead of all this I submit the parties should be left to themselves. To introduce divorce in this way, making the same for all classes of people in different stages of civilisation and training would be highly mischievous. It is customary for people here to quote Sanskrit slokas to support or strengthen their arguments. I will also attempt one. " Aja juddhe, krishin sradhhe, prabhate meghnrambaruh, Dampati kalahaschaiba, babflarumbhe laghukriah. " When two goats fight, they stand on their hind legs and a severe impact of the horns seems imminent, but the actual clash is very slight; when a million rishis meet for a srudh with great ceremony, only a minute quantity of food suffices the thunder clap of the morning cloud looks menacing, but it ends in no heavy rain; and marital quarrels, though seriously and menacingly begun, end in nothing serious.
In Domestic quarrels natural and social forces should be allowed to work to bring about reconciliation.
Instead of divorce you should give them time. The question of divorce is not all one way traffic. It has got to be considered from every point of view. The Honourable the Law Minister advanced a very novel argument that as 90 per cent of the people are sudras and these 90 per cent. of the people practise divorce, it is just meet and proper that the law of the majority should be made also applicable to the remaining 10 per cent. This is not legal logic. It is not acceptable. The Muslims are microscopic minority in India. Should that be a reason for converting all the Muslims into Hindus or imposing upon them the laws of the Hindus and to cremate their dead bodies, for example, according to the Hindu custom ? Or take the other example. The Hindus are in a minority in Pakistan. Would the Hindus call it justice if the Muslim law is forced upon themif according to the customs of the majority the Hindus are made to bury their dead ? Therefore, the argument of the majority is nothing.
With regard to the statement that 90 per cent of the people have their system of divorce, the Hindu of Madras, in an editorial, said that so far as Madras is concerned it is a" damn lie " or something of the sort and that it is entirely inapplicable to the Scheduled Classes or the Sudras in Madras.
May I now speak from my experience in Bengal. There are many distinguished Members from Bengal, particularly Pandit Maitra. He will correct me if I am wrong. Is it the custom amongst the 90 per cent Sudras in Bangal to............
Mr. Naziruddin Ahmad : Certainly. But that does not make it the rule of the 90 percent Sudras. Some Assam Members whisper from behind that it is. I hope Assam grows tea and also divorce ! But Bengal produces tea without divorce. I submit Sir, that the argument of the majority is based on a mistaken notion. The facts are not true. It may be that in Bombay it is very prevalent and for that reason the Honourable the Law Minister might have been impressed with the applicability of the theory in other parts of India. Therefore, the assertion that 90 per cent of the people accept divorce is not based on facts, and even if it was true, that should not be made applicable to those who do not observe that system. That argument would fail and should not be used to support the result. A system of straight divorce or an uniform divorce, though a uniform procedure and rule would produce hardship in those cases where a simple form of divorce is prevalent by custom, and would produce unhappiness and disruption in families where divorce is not prevalent. In these days of easy approach to the law Courts, it would be the wealthy classes that would seek the so-called advantages of this procedure rather than the poorer classes. Therefore, divorce, if it is to be provided, must be provided with the consent of the people. At any rate the second marriage may be permitted with the consent of the first wife under special circumstances. Polygamy is fast dying out and should not be stepped by legislation. This may lead to divorce proceedings, or a man may cross over to Pakistan or to Burma, or to Malaya or to other places and take a second wife and come back. So if society is not sufficiently advanced and educated and sufficiently alive to the need of monogamy and divorce, a provision of this nature would not be accepted by them and would lead to evasions in many cases. Court proceedings should not therefore be encouraged. Again, if divorce proceedings are frequent, it will lead to considerable amount of unhappiness.
Mr. Naziruddin Ahmad: Although a Member of the Select Committee, the honourable Member was absent from the House when this matter was argued earlier. I think the honourable Member should concern himself more with further increase in the rate on postcards than intervening in the debate in a scrappy manner. This matter has already been very elaborately argued out in the absence of the honourable Member.
Mr. Deputy Speaker: Let there be no personal remarks. One remark of such a nature always leads to another.
Mr. Naziruddin Ahmad: Removal of the Shariat Law would interfere with the existing law. The introduction of monogamy and divorce among the Hindus would be an interference with the existing law. Therein lies the difference between the two. In fact you must not readily interfere with accepted law and therefore the analogy of the Muslim law should not be applied.
Mr. Deputy Speaker: The House is not concerned with changes other than in the Bill.
Mr. Naziruddin Ahmad : The question of change is an academic question. The question of changing the law has been as old as history. In fact there are temperaments who try to make changes simply because it is a change. They would effect a change on the mere ground that it is a change. There are others who will never agree to any change because any change is a innovation. This was discussed in a classical passage by Macaulay and he said that the best brains lie near the border line, between the two extremes. So a change in the law is not to be adopted merely for its own sake. Again, a strict adherence to the old law, irrespective of all considerations would be equally bad. The position is that you must march with the times and the overriding consideration would be that you must take the people with you. I am referring to moral right. Legal right we have. We have ample legal right to break any law we like and create any law we like. That legal right is assumed. I do not question it. But what moral right have you to effect a change ..................
Mr. Naziruddin Ahmad: ............... affecting large classes of people30 croreswithout their consent ? I am not here to oppose all changes. I am here to oppose any change which is not sanctioned by public opinion. What moral right have you to introduce drastic changes without their sanction ?
Mr. Naziruddin Ahmad: You then raise a very important constitutional question. This House was elected for the purpose of drafting the constitution.........
Mr. Deputy Speaker : I am afraid so far as the constitutional issue is concerned there is already a ruling by the Chair. This is a sovereign body which can legislate on anything. If the honourable Member has other grounds he can go on.
Mr. Naziruddin Ahmad: I do not dispute the authority of the House. We have the right to destroy the Hindu society or Muslim society and blend them into something new devoid of religion. That right is never for a moment in dispute. But the question is arc the people behind this law ?
Mr. Naziruddin Ahmad: I believe they are not behind the law, they are against it. (An Honourable Member : ' They are for it') How do you know they are for it ? A matter of this gigantic magnitude should be placed before the electorate. That is the constitutional procedure. In fact the day before yesterday Mr. Osborne told us that he could not agree to add certain things unless the matters were specifically brought to the notice of the electorate and permission is given by them. In fact they cannot do any such thing. They consider themselves incapable of proceeding in a constitutional manner without the consent of the electorate. But we are so far advanced that we can afford to disregard the opinion of the electorate. In fact at one time it was argued that the dilatory method is meant to defeat the purpose. If there is any election the Hindu Code would not be passed. This session the argument has been entirely the reverse. They say that they have shown that the electorate is with us. It is with their sanction that we have brought this Bill. It is neither with their sanction nor with their consent that you have brought forward this legislation.
How did this law start ? It was framed under the authority of a foreign government which was then desperately fighting for its own existence. English power was threatened with total extinction. It was a life and death struggle for the British. It was in these times that a Home member, Sir, Reginald Maxwell appointed the Rau Committee. So the thing was conceived under the pressure of a global war when the existence of England was at stake. When the Bill was prepared it was introduced by Mr. Jogendra Nath Mandal, the Minister of Law of the Interim Government. At that time the country was being ravaged by destructive struggles, enormous loss of life and disturbance to public peace on an unprecedented scale, when the then Minister knew the temporary character of the tenure of his office, when his thoughts were already focussed on Pakistan and when he was no longer interested in the Bill, it was under those circumstances that the Bill was presented before the House. In fact Pakistan was more than a conception at that time it was already a reality. It was at that time the Bill was introduced in the Assembly..................
Mr. Deputy Speaker : I find that there arc a number of people on the wailing list. The honourable Member has already taken one and a half days. When is he likely to conclude ? Has he any idea himself ?
The Assembly then adjourned for Lunch till Half Past Two of the Clock.
Mr. Naziruddin Ahmad : Sir, when we rose before Lunch I was dealing with the question as to whether it will be proper for this House to pass this legislation. With regard to the constitutional power of this House I have no doubt that we are constitutionally competent to pass a law of this nature. The question really is whether we have the moral right, or whether it would be morally proper for us to pass this law. The whole question would be whether this House has been authorised directly or indirectly by our constituencies to agree to this law. Some honourable Members say that the people are behind the Bill. My impression is that the people are not behind the Bill. The number of objections which are already on record is great. I believe that objections are pouring into the Legislative Assembly Department and they are so numerous that they could not be classified or docketed or dealt with in any systematic manner. They are pouring in on a gigantic scale. That shows the intensity of public feeling. The question is whether we in a democratic society, in a Legislature constituted on a democratic basis, should pass the law without ascertaining the opinion of the public. As I was submitting the Bill owes its conception to an alien Government which was, at the time of its inception fighting for its own existence and was busy and otherwise occupied. The Bill was submitted to the House by a Minister of Law who was Minister of the Interim Government at a time when that Minister was contemplating a departure to Pakistan and had no interest in the Bill at all.
Mr. Naziruddin Ahmad : Now the present Bill was continued by the Honourable Minister, Dr. Ambedkar, when India was very much occupied with a large number of serious problems. It is evident, as it appears from the admission of the Minister of Law himself, that the present Bill was merely continued without any adequate thought. It was only when it was sent to a Select Committee that it occurred to the Minister of Law that the Bill had not been properly drafted, that it required amendmentswhether substantial or not is a different matter, but it required amendments all through. So he himself set down to redraft the whole Bill. In fact the product of that Committee is a book called " The Hindu Code " which-is almost exactly the same as the present revised Bill, and it purports to be "a Bill to amend and codify certain branches of the Hindu law " by " Dr. B. R. Ambedkar, Minister of Law ". So what was a Bill submitted by Mr. Jogendra Nath Mandal was informally transformed into a Bill by Dr. Ambedkar. The point I was driving at is this that the Bill not at any time received any consideration or any adequate consideration before the Government first tried to sponsor it. In fact as soon as it was apparent that the Bill was not properly drafted, that it required to be re-written wholesale and that it required to be changed in a large number of particulars, that was the moment to withdraw the Bill. But without withdrawing it the Minister of Law made numerous changes and presented a new Bill. This shows that the Bill was never considered in detail. If it is a fact that even the Government had to change its mind to make serious alterations in the body of the Bill it shows that the Government with its enormous resources were unable to accept itmuch less has the country accepted it.
Now, Sir, the present Constituent Assembly was elected for a specific purpose.
Mr. Speaker : I do not know whether he said this.
Mr. Naziruddin Ahmad : I had hardly begun it. This House was not elected for the purpose of passing this legislation.
Mr. Naziruddin Ahmad : Let me develop my point. The question is whether we had been authorised in this direction. In fact the authority of this House is based upon an indirect election; there was no direct election.
Mr. Speaker : I leave it to the honourable Member, if he has said it because I do not know.
Mr. Naziruddin Ahmad : Sir. I want to elaborate it.
Mr. Speaker : Then, of course, no elaboration is necessary. He may go to the next point.
Mr. Naziruddin Ahmad : We rose at that time for Lunch.
Mr. Speaker : The point seems to be very clear and it does not require any elaboration that this House was not elected by direct election, (hat the election has been indirect, that it was elected for a specific purpose, namely of making a Constitution, and therefore it should not go into this kind of legislation at this stagethat is the point. It hardly requires any elaboration. If it is the idea of the honourable Member to carry on for a long time. I shall be unable to support him.
Mr. Speaker : Whether a particular Member asserts or denies a particular thing, it has no effect so far as the real fact goes. If he has authority he has, if he has not. Mere assertion by one Member in one way or the other really does not make any difference. He may just state his point without going into detail.
Mr. Speaker : It is obvious.
Mr. Naziruddin Ahmad : No, Sir, To Mr. Bharathi it is not obvious.
Mr. Speaker : The honourable Member need not care to convince one Member who refuse to be convinced. He is addressing the whole House. He should know the House consists of Members, who have some level of understanding.
Mr. Naziruddin Ahmad : You would be pleased, therefore, to consider that we have no moral authority to pass the law. In fact, the Government framed a Bill and then sent it out for circulation. I refer to appendix II at page 41 of the second Hindu Law Committee Report. " The Bill as framed by the Rau Committee was sent for circulation and the Bill was sent to large number of public bodies and individuals of weight and authority and their opinion was sought ". It is made absolutely clear in the notification dated 5th August 1944 that the Hindu Law Committee intend to revise the draft in the light of public opinion as elicited by them in writing and orally. This is very important and should supply a key to unravelling the present matter. The Bill was submitted for public opinion and it was clearly stated therein that the Bill would be revised in accordance with public opinion. What was the public opinion. The public opinion at one stage of the matter is contained in the, " Written Statement submitted to the Hindu Law Committee, volumes I and II ". I believed this opinion has never been adequately considered by the Members of the House or it was never considered by many Members of the House. When these opinions were received they were analysed and then oral evidence was also invited and a large number of witnesses were examined. That is to be found in the " oral evidence tendered to the Hindu Law Committee dated 1945 ". These volumes, if analysed and carefully read, would show that public opinion which was consulted was very preponderatingly against the Hindu Code. Therefore, it follows that the Hindu Law Committee proceeded to adhere to there own views and revised the Bill here and there not in accordance with public opinion, but in spite of it. The effect of this evidence has been carefully analysed in the dissentient note by D. N. Milter, the ex-Judge of the Calcutta High Court who was also a Member. In fact, he had written an elaborate minute of dissent. I do not wish to go over this matter, but he has analysed this opinion under different headings, namely whether we should have codification or not, whether the marriage law should be changed, whether there should be divorce and so forth. He has analysed the opinions and the evidence, for and against under each head, and I submit his report deserves careful consideration at the hands of the House. The opinions are again classified according to Provinces as according to subjects. With regard to the effect of the evidence, according to Dr. D. N. Mitter the opinion on each point is preponderatingly against the Bill for codification, for divorce proceedings and for other matters. The opinion of the public was directly against the codification. These opinions and evidence are preponderatingly against the principles of the Bill. The Hindu Law Committee Report is only a majority report. It was definitely opposed by Dr. D. N. Milter but the other Members thought it fit to stick to their original Bill amended in slight respects here and there, not according to public opinion, but according to their own ideas. I therefore submit that the Bill has been framed in direct defiance of public opinion. That is the basis upon which my argument stands. Though Mr. Krishnaswami Bharathi said that the public opinion is behind the Bill, I venture to submit that public opinion is against it.
I submit, therefore, that public opinion has not been properly consulted as a democratic Government ought to do. In fact, this Bill is a negation of democracy and it is conceived under circumstances which no longer prevail today. A full-fledged democracy is now in operation and public opinion should be taken into account and followed in giving effect to legislative proposals. I submit therefore, that so far as written opinion goes it is against the Bill, but what about the unwritten opinion ? We have a large number of protests lodged in your own office and we hear of proceedings of large number of meetings. In fact, we had meetings in the very heart of this city. The meetings were largely attended and many honourable Members and also the Honourable Minister for Law were invited. Some Members attended but the Minister for Law did not.
Babu Ramnarayan Singh : He did not have the courage to attend. Mr. Naziruddin Ahmad : He did not think it necessary to attend, because it seems to me that public opinion is not the criterion or his guide so far as this Bill is concerned. In fact. Dr. D. N. Mitter gave a clear analysis of the opinion. The Honourable Minister for Law said that he would quote an earlier of Dr. D. N. Mitter to contradict him.
Mr. Naziruddin Ahmad : That he would quote an earlier writing of Dr. D. N. Mitter to contradict his present report. We have his earlier writing as well as his later writing and I have considered both.
Mr. Naziruddin Ahmad : Later writing is in the report.
Mr. Naziruddin Ahmad : The question is what was his earlier writing and what was his present writing and is there any change and if so what. He had long ago written a pamphlet.
Mr. Naziruddin Ahmad : A book.
Mr. Naziruddin Ahmad : You will have it in the Library.
The Honourable Dr. B. R. Ambedkar : I should like to know that my friend has ascertained the facts before he refers to them. If it is a pamphlet I should be very much surprised. The book is a book of 700 pages, somewhere about that.
Mr. Naziruddin Ahmad : The most important thing is not the size, but the view expressed therein.
Mr. Naziruddin Ahmad : The view expressed therein was that the rights of Hindu women should be better safeguarded and given better rights. I cannot repeat everything to the honourable Minister because I do not like to trouble the House and I do not like to speak louder than what, I am doing. In the present opinion he has opposed the Bill and the Honourable Minister evidently had his earlier writing in view and that is taken advantage of by the majority Members. I submit that the reason for the change of opinion has been given by Dr. D. N. Mitter himself. If change of opinion is a crime, blind adherence to an opinion, although it is proved to be wrong, is a worse crime than change of opinion based on reason. Dr. Mitter clearly expressed an opinion in favour of giving more rights to women. I have read the passage in Appendix II that the Government gave an undertaking to the people that the Bill will be re-shaped in accordance with public opinion. That was the thing that trouble Dr. Mitter. In fact, he found that his individual opinion was far ahead of public opinion in India which was definitely against it. So he has referred to this passage in the notification declaring the intention of Government to change the law in accordance with public opinion. Dr. Mitter was faced with a volume of opinion against the Bill and he changed his opinion. This is a legislation which affected the whole country and it was this reason which induced him to go against the Bill, because this is the public opinion. There is no illogicality in giving up one's personal opinion in deference to public opinion. I believe the Honourable Minister and other Ministers too have their personal opinions, but they have to subordinate them for the collective good. We have often heard Ministers speaking against their personal conviction. This is neither improper nor wrong. It is perfectly natural. Here Dr. D. N. Mitter had accepted a position of great public responsibility with the express object of ascertaining public opinion and changing and re-shaping the Bill in accordance therewith. I ask : is there anything improper if Dr. D. N. Mitter changed his opinion ? He accepted a job, and what was it ? To ascertain public opinion, and public opinion was against the Bill. He himself was present when the evidence was taken and there is one passage in the report on oral evidence which is very significant which has been specifically referred to. When the Committee was in Lahore and was sitting...
Mr. Naziruddin Ahmad : It was in 1945 in connection with this enquiry. They went to Lahore and a large number of ladies came and absolutely blocked the progress of evidence. They said, " We do not want it. It is not to our benefit. It is against our idea."
Mr. Naziruddin Ahmad : In fact, the situation was so grave, that this gentleman when he was faced with the sad spectacle of thousands of ladies opposing the Bill, he could not proceed and it was difficult to repress them and their sentiment and so further evidence was absolutely stopped. This is what he has referred to. If he is guilty of inconsistency, he is certainly to be credited with some amount of honesty.
Babu Ramnarayan Singh : Hear, hear. Mr. Naziruddin Ahmad : Does consistency lie in sticking to one's opinion although it is proved wrong ? This is inconsistency. This is doggedness. This is neither good nor fair. This gentleman when found that not only male opinion but female opinion was absolutely against him, he said he was also against it. Would it be fair or proper on anybody's part to quote that stray personal opinion of his ? If so, one could quote writings and speeches of the honourable Minister himself against him. This would not be fair. Every writing and speech has to be taken in the context. It may often happen that we have to act in public capacity and therefore, for that purpose, we have to sink our personal opinion. So Dr. Mitter acted patriotically and courageously in giving up his personal opinion in deference to the opinion of the public. In this Dr. Mitter performed a patriotic and obvious duty, and no blame should be attached to it. On the other hand, the other respected Members, what did they do? I do not wish to be hard upon them, but they all of them, though they promised that the Bill would be considered in the light of public opinion, they stuck to their own opinion, and actually taunted Dr. Milter for having changed his opinion. Is it to be. Sir, that we should never change our opinions ? If that be so, then mankind would cease to be rational. We have got to change our opinions.
Mr. Speaker: Order, order. May I tell the honourable Member that on each point he need not necessarily go into the general principles and all the details. He may just invite attention to the point and then go to the next point; because if he carries on like thishe has now gone on for nearly two daysthere will be no end to this discussion.
And I do not propose to allow him to go on in this manner. He must bring his remarks to a close within a reasonable time, and I think another fifteen minutes would be quite reasonable.
Mr. Naziruddin Ahmad : Next I want to emphasise the fact that we are a democratic body. We are working as a democratic body. We cannot say that democracy is unfit for our society. It is democracy that has brought us into being. That democracy was sufficient to wrest power from the British Government. That democracy is sufficient to empower us to frame our Constitution. And I say that democracy would be intelligent and competent enough to understand its own interests in the matter of the Hindu Law. Therefore there should be no shirking, no by-passing, no flouting of public opinion. Where is the harm in ascertaining public opinion ? In fact, the Bill, I submit, has been mutilated. It has been interpolated upon. I do not mean to say there has been dishonest interpolations, but honest interpolations, but they are not the less interpolations. There have been interpolations in the Biblehonest interpolations. There are great authorities pointing out that fact. So, I say, there are interpolations in the Bill. The Bill, however, was presented to the Select Committee with the guarantee that there was no serious change, and that some changes made had been noted by the Members. Yet, is it possible, or practicable, Sir, for any one unaided to note all the changes ? In fact, all these changes, it is impossible to take note of. And there fore, the Select Committee was told, and they were asked to take it, that the Departmental Bill was merely a reproduction of the original Bill, and that no substantial changes had been made, and therefore, they failed to note and consider the changes. That is not their fault. In these circumstances, the Select Committee, although they tried their best, unconsciously, I submit, they must have omitted to note many important changes, on account of the guarantee. And then. Sir, if that is so, if there are so many changes, and when these changes are substantial, then the guarantee given by the majority of the Select Committee that the Bill was not so changed as to require re-publication is only the usual guarantee. They said that the Bill had not been so altered as to require, under Standing Order 41(5), any re-publication and that the Bill be passed as amended by the Select Committee. This is only the usual stock certificate. I ask in all seriousness, is it contented, in the light of the disclosures of changes made that the Bill has not been substantially altered ? On the original Bill we have not got public opinion, and what public opinion we procured, was against it. We have, therefore, got to ascertain public opinion. And then, the Bill was sent to the various Provincial Governments for opinion. The opinions of the various Governments have not even been referred to in the House. They are collected and circulated to the Members. I shall, however, confine myself to the opinion of the Government of Bengal. I assert without fear of contradiction that in Bengal the opposition is the greatest. You propose to abolish the Mitakshra system of inheritance and do honour to Bengal by accepting their theory of family life. In Bengal you have the greatest objection.
Mr. Naziruddin Ahmad: Of course, from everywhere there is objection, but the greatest objection is from Bengal. It is the most persistent, and so very authoritative. The whole of Bengal, including some educated and cultured ladies think that the Bill is not wanted there. In fact, many ladies like the wife of the late Sir Asutosh Mookerjee, the mother of Dr. Mookerjee, here, lady Ranu Mookerjee, wife of Mr. B.N. Mookerjee, and a host of other ladies have opposed this move.
Mr. Naziruddin Ahmad : I have to respect the request of the Chair to finish soon. I cannot give my honourable friend preference over the request of the Chair. Sir, the names are there in the report. My honourable friend's request to name them shows that he has not read the report. It is a pity that this volume of opinion has not been read. It is a pity that the Department has not supplied the report to all. It is a pity that private Members have to undergo all the labour and expense to collect the information and to supply the House with the information. But the names are on record, and it is useless for any member to ask questions about facts which are on the record. It is a pity that I have got to refer to this matter.
Well, Sir, I was submitting that there is lot of opposition in Bengal. There are live High Court judges of the Calcutta High Courtand one of them now adorns the Federal Court and they are against it. Their opinion is to be found in the Report also, and it is referred to in Dr. Miner's report. Then there are ex-Judges of the Calcutta High Court. One of them is Mr. N. C. Chatterjee, and he is now a Judge of the High Court, and he was against it. The Hindu Mahasabha was then under the Presidentship of Dr. Shyama Prasad Mookerjee and it opposed the Bill, evidently, with the consent of the President, Dr. Mookerjee on a major matter like this. And then there is Dr. R. B. Paul, a distinguished jurist of continental fame, and he has opposed it. Their opinions are before us. In fact, in the face of all this opinion in Bengal, I am surprised that a Member from Bengal should have asked for names.
An Honourable Member: It is dictatorship.
Mr. Naziruddin Ahmad: Yes, it is sheer dictatorship. There is the fear that if it is sent to the public before the elections, possibly it will lead to complications. But do you know what complications will come up if you pass it before the elections ? The illiterate people will get furious. This Bill will dislocate their lives. It is not easy for them to change their lives all at once under the dictator's command. Even in Russia, Lenin did not go so quickly or remorselessly as we seem to be going here, in utter disregard of public opinion. There is in Russia a desire and a pretence to respect public opinion. But here there is no such things. It is sheer dictatorship born of fear that if the Bill goes to the public it will be rejected. I find it is asserted that the public are in favour of it. If so, why not be public arm you with the authority to pass the law ? Sir, it is injurious to the Hindus in general; it is injurious to the ladies in the larger interests and it is injurious to the public at large, and it is no use forcing your opinion upon an unwilling public. Had it not been a matter of personal interest any one is entitled to enforce his opinion, but having come here as the Minister of Law in a democratic Government and basing their authority on public opinion, is it fair and proper for them to flout that public opinion and to bypass it, to circumvent it or avoid it ? It is a devious method, a circuitous course which is not warranted by any system of democratic Government. Why should you not go to the people if the law is favoured by them? Are the people so backward in their ideas that they will not be able to determine what is good or bad for them ? The question is not what is good in the abstract, but what is good in the circumstances, and that depends on local conditions. There are certain practices which are considered to be good and there are others which are not and you make every body uniform; you are trying to make all the people uniform. The Honourable Minister for Law should try to make everybody as intelligent and as forceful as he is. Why should you stop at inequality; inequality is not bad. It is nature that there should be inequality in diversity. India is a big continental countries and it has developed according to its own genius and each province has a distinct culture of its own and why should you by one stroke of the pen remove all this and make the law the same ? In fact, the great Hindu law-givers, they were extremely...
Mr. Naziruddin Ahmad: They had tolerance and they did not enforce their law by force. A study of Manu Smriti will show that he never enforced his law. He said that the law should be enforced subject to the custom of the locality. That will be found by any one who has read it and therefore, the Hindu law givers did not like the law should be uniform. Their method of propagation of their law and their civilisation was not by force, but rather by persuasion and they allowed free scope1 speak with authority, having read the whole thing; they allowed their law to spread on their own merit, not by their force. Local custom plays not only an important part now, but played an important part in the time of Manu and that is the reason why law is different today. It is an organic method according to local circumstances that leads to this difference of opinion. In fact differences are not bad. It is not a small country; it is a big country with all the attributes of a continent and this diversity as a matter of fact should not be done away with without adequate and careful thought.
Sir, Mr. Kamath compared the present Bill to a new Smriti, Dr. Ambedkar's 138th Smriti. I think this is not a Smriti at all, the Smriti proceeds from the srutis. There is a pretence to agree with the principles of these srutis. This is a Bill which is not a smriti but a new Veda, (Pandit Lakshmi Kanta Maitra: ' It is vismriti !'). It is Vismriti i.e., forgetfulness of the past. All sacred laws and customs, rules, laws, decisions, principles of the Privy Council are brushed aside by one stroke of the pen by Dr. Ambedkar himself in defiance of the report of the Rau Committee. Everthing is gone. It is Vismriti as Pandit Maitra with good humour suggests. It is vismritiabsolute forgetfulness. It is a new Veda, There are four Vedas, the Sama Veda, Rig Veda, the Yajur Veda and Atharva Veda. I think the new Veda should be called Dr. Amba Veda and this is the fifth veda in utter defiance and disregard of all the four Vedas which it supersedes. Sir, I thank you.
[f3] Pandit Mukut Bihari Lal Bhargava : Mr. Speaker, Sir, we have been discussing the Hindu Code Bill from yesterday. We had discussed it in February also. Before I proceed to discuss the merits of this measure, which is admittedly of a highly controversial nature, which aims at the utter demolition of the structure of Hindu society. I would like to put on record my emphatic protest against the way in which the Government is pursuing this measure of vital importance, a matter of life and death to the Hindu Society. It is well known that this Bill was rushed through in the legislature almost on the last day, that is on the 9th of April 1948, when it was not discussed even to the extent that a very ordinary measure is usually discussed in this House. Further, in this session, we find that instead of giving consistent consideration to this matter the Government on the plea of want of time due to the Budget session, wishes to rush this Bill through this House. I would ask respectfully, though humbly, is it fair to the House that a measure of this vital importance, an equal of which, I submit, has never been on the anvil of this legislature since its inception should be rushed through in this manner ? However, it is for the Government to decide and I feel it my duty to sound a note of warning to the Government that it should pause and consider as to what is the haste and hurry about this matter, and why in preference to a number of very important and emergent measures, this Bill is being rushed through. I would ask what will happen to the Hindu society if the Hindu society could survive the onslaught of centuries of foreign aggression and foreign rule ? Will it die out of existence if this measure is not brought on the statute book ? I submit, Sir, this unusual haste and hurry is due to the fact which was hinted by my learned friend Mr. Naziruddin Ahmad, that my honourable friend, the Law Minister is now sure that the public opinion of Hindus is behind the measure. I take courage even to submit. Sir, that the weight of public opinion is against the measure. What is the criterion to judge whether the public opinion is in favour of this measure or against it ? The only criterion that can possibly be applied to is: What is the weight of opinion that has been on record ? I should submit in all humility that the weight of opinion that was sounded by the Rau Committee was predominantly against every section of this measure. Consequently, Sir, without any fresh sounding of public opinion, it would be presumptuous on the part of any person, including the Law Minister, to claim that this measure has the support of public opinion in the country.
The question arises where is the necessity and what is the utility of the codification of Hindu law ? Who demands the codification of Hindu law ? We know, codification is essential only in two conditions. If on a particular point there is a serious conflict of judicial opinion, it becomes essential for the legislature to intervene and clarify the ambiguity. This is one condition. The other condition is that public opinion wants to have a change in the law. These are the only two conditions which could justify the attempt at codification of Hindu law. In this particular case, I would submit that neither of the conditions exist. So far as the main principles of the Hindu law are concerned., I venture to submit that they are well understood and well settled. In many text-books of Hindu law the principles of it as deducible from Smritis and nibandhas as orally interpreted and construed by the judicial courts in India, have been published. It will be quite obvious that on every intricate point of Hindu law there have been clear interpretations. It has been pointed out by the Law Minister, in his speech while moving for the consideration of this Bill, that Hindu society or the joint families as was originally conceived in Hindu law, have by judicial opinions been shorn of their characteristics. But does this afford any justification for this Code ? The judicial opinion of the Privy Council and of the High Courts have by now laid down the principles which are not open to any doubt at this stage. Whether it may be the powers of the karta or manager of a joint Hindu family when he happens to be a non-father, whether it may be the powers and functions of a manager of a joint Hindu family as father, his rights and powers stand well defined in Hindu law. The disputed doctrine of the pious obligation which for some time was the subject matter of serious conflict of opinion between the different High Courts and the Privy Council has also been settled. And we know what are the duties of the son and we know the extent of his liability for the debts of his father. Similarly in the spheres of marriage, etc. the Hindu law is quite definite. The question then arises, is there any opinion and overwhelming public opinion in the country which requires the Government to codify the Hindu law ? My respectful submission is that there exists none and there is no justification for this attempt at codification of Hindu law.
So far as the history of codification goes, this is not the first time that an attempt has been made. I would respectfully invite the attention of the House to the various efforts that have been made during the British rule for the codification of Hindu law and submit that on each such occasion the matter was deferred and for very cogent and sound reason. As early as 1833, a Commission was appointed by Royal Charter. In the year 1853 a Law Commission was appointed. The reports of these Commissions published in the year 1856 turned down the proposal for the codification of Hindu law on the ground that it would be a vain attempt and that it would stunt the growth and development of Hindu law. Similarly, in the year 1861 and again in 1921 the Secretary of State for India in the former case and the Governor-General of India with the sanction of the Secretary of State in the latter case appointed Law Commissions. Their decision on the point of codification was identical with the findings of the Law Commissions. On 23rd March 1921, one distinguished Member of this House tabled a non-official resolution requiring the appointment of a Commission for the purposes of codifying Hindu Law. When that motion was debated in this House the Department of Law was in the hands of a very distinguished scholar on Hindu Law and a jurist of eminence, I mean Dr. Tej Bhadur Sapru. The motion whether codification was essential or not, was necessary or not, would be to the good of Hindu society or not, was hotly debated. I would respectfully invite the attention of the House and of the Honourable the Law Minister to the reply given on behalf of Government by Sir T. B. Sapru who was himself an authority on Hindu Law. He pointed out that the codification of laws of the personal laws of the community was not an easy matter, that it was a stupendous task and one which would entail the best energies of the best legal talents for centuries. He invited the attention of the House to the German Code which was drafted and codified after 50 years of labour, from 1834 to 1896 and to the fact no less than three Commissions drafted the Code. He pointed out that it was not until 1896 that the final form of the German Code was reduced to writing and after a continuous hard struggle for and against codification between the two sections of eminent German jurists represented on the one hand by Savogry and on the other by Thebaut and that even then it took no less than 4 years. Thus, it was only in 1900 that the Code drafted after almost 50 years of continuous labour was sanctioned by the Imperial German Government. Similarly, Sir, the Swiss Code in the continent of Europe as well as the other Codes were the result of continuous efforts for a number of years by the best legal talents of the country. Compare those territories and their condition with the conditions of India and the ancient history of India and the continuous streams of law that have been flowing into the development of Hindu law from ancient times upto the present time. I would submit that it will be a vain effort to codify the Hindu law. It will be futile to attempt codification of the personal laws of the Hindus. What is the source of this law I would respectfully ask. It is obviously not human in the sense that no human power ever attempted to promulgate Hindu law. The sanction behind the law was not of a sovereign power but a moral sanction of learning and the result of meditation of the sages. It is difficult to trace its origin; the smritikars 138 as they are said to bedid not purport to create the laws. They based their smritis on the Vedas and we know the Rig Veda is the oldest book in the world. Even Vigneshwar and Jimuta Vahana, the learned authors of the two main treatises which have held sway in India, did not attempt to codify the Hindu law or create new law for society; they only based their commentaries upon the smiritis. And during the long years of British and Muslim rule what has been done is simply an interpretation of the well known principles of Hindu Law. Now why should there be any codification of Hindu Law ? If the German and Swiss nationswhich are no insignificant compared to Indiatook 50 or 60 years to bring about a satisfactory code to control their relations, why should we in India, where the origin and source of Hindu law are shrouded in mystery, try to codify the law ? We are told that it is sought to introduce uniformity in this land of diversities ; the other reason advanced is that women in Hindu society have been subjected to age-long oppression and tyranny at the hands of men from which they have to be relieved. With regard to uniformity I submit that it has not been achieved in this present measure and cannot be achieved at all.
Even in regard to the law of succession, in cases where the rule of primogeniture exists by custom or in case of grants or inams they have said that the rules of succession as laid down in this measure would not apply. Similarly in clause 7 although marriage between sapindas has been prohibited, it is said that it will be subject to local custom and so allowed where it prevails by custom. So the ghost of uniformity which haunts the draftsman of the measure is still there, and the so called freedom from slavery of women ends in nothing. I submit that those who want to deal with Hindu law and the place of women in Hindu society should look at the question not through Western glasses but through the glasses of our own civilisation. We must know how our own law-givers approached these very difficult and intricate questions. The views prevailing in eastern and western countries on these questions are diagonally opposite. Our life, we believe, has connection with our past life and will have connection with our future life; and therefore the rules of law will stand on a special footing. That is why our sages approached these questions from the point of view of the well-being of Hindu society as a whole. And in attempting to frame our law we have to keep in view the ideals that motivated our law givers in framing the law in a particular manner. Unless we can do that we cannot appreciate its value.
Sir, I would not mind if the Law Minister had honestly declared that this measure stands on its own merits, moulded on his ideas of Hindu society as it now exists. But what has pained me is that he asserts that its provisions are in consonance with the accepted principles of Hindu Law. It is well known that Satan can quote the Bible. I submit that every provision of this measurewhether in relation to marriage or divorce, adoption or inheritance goes against the fundamental principles of Hindu law. Then the result that I envisage is not a very happy one. In fact every House in Hindu society will be converted into a hell in which there will be a quarrel between the brother and sister, between the husband and the wife and between the children and their father. The very fundamentals of Hindu society are sought to be demolished by this law. It is a question of vital concern and there must be a plebiscite on it or a referendum to find out whether public opinion in the country is in favour of this measure or against it.
I was submitting that there was no necessity for the codification of Hindu Law. The question then arises whether the uniformity that is sought to be achieved by the enactment of this law will be achieved if it is brought into force ? What is our experience of the statutory law ? The Government of India in the year 1923 appointed a Civil Justice Committee and that Committee after going through the various statutes made a recommendation that the Transfer of Property Act, the Contract Act, and the Law of Evidence should be modified and their revision should be taken in hand by the Legislature at an early stage. Has the Legislature found time for it ? What is the result ? The result is that the law is being administered in accordance with the provisions, which according to the authority itself; has outlived the utility for which they brought it into existence. That will be the condition if the Hindu Code is brought on the Statute Book and is made a rigid code upon which the rights of the people will depend. The Hindu law will lose its vitality, its elasticity, its adaptability to the prevailing conditions and will be reduced to immobile rigidity. May I know whether the object of reducing conflicts and of fighting differences of opinion will be achieved by the codification of Hindu Law ? I dare to suggest it will not and our experience of the various pieces of legislation leads one to support my conclusion.
Take for instance, the Hindu Law Remarriage Act which was enacted in 1871. Now, Sir, it is a very simple piece of legislation but has there been an unanimity of opinion in respect of the construction of the various provisions of that Act ?
Pandit Mukut Bihari Lal Bhargava : I hope my friend will have the patience to hear me. We must learn tolerance and patience for opposite opinions. My point was that mere bringing in of an enactment does not lead to uniformity or to the resolution of a conflict of opinion. Even in the interpretation and the construction of the provisions of this Hindu Widow Remarriage Act of 1872, we find that there is a serious conflict of opinion between different High Courts about the construction of section 2. The question arises whether a woman who remarries according to customary law loses her rights in the property of her husband. This is the point, and we have the opinion of the Allahabad High Court and Oudh Chief Courts to the effect that merely because she remarries according to custom she does not lose her right in her previous husband's property. The other High Court has taken the other view. Similarly, in this Act there has been a serious conflict of opinion upon the interpretation of the simple word " sister ". Some High Courts say that the word " sister " does not include a " half sister " : while the Nagpur Chief Court, after an elaborate consideration of this word came to the conclusion that it is included. My submission is that in view of the above, the difficulty that exists today in the construction of the Hindu Law will not come to an end by the fact that the Hindu Code Bill is there.
Pandit Mukut Bihari Lal Bhargava : I say that even if this Bill becomes an Act, the conflict will be there and it will be open to the High Court to interpret its different provisions in a different way. The divergent opinion and the divergent points with regard to the Hindu Law will not be resolved because it will be open to the High Courts and to the Supreme Court to give their construction on any particular provision and the conflict is bound to arise as our experience of the previous legislation shows. My respectful submission is that it is a vain and futile attempt to codify the Hindu Law and any attempt in that direction is bound to deprive Hindu Law of its mobility, its elasticity and its vitality, which by no stretch of imagination is advisable in the present circumstances.
My next point is a very important one. How did the present legislation originate and did the circumstances in which it originated justify its being pursued any further ? I would respectfully invite your attention that in the year 1941 the Hindu Law Committee was appointed and it considered the question of the codification of Hindu Law by compartments and two Bills were prepared by this Committee. One was the Bill concerning the Intestate Succession of Hindus and the second was the law relating to Marriage. When these two Bills came before the Legislature there was a joint meeting of the two legislatures (at that time our Legislature was of a bi-cameral character) and it was decided that it would be better if the Hindu Law was enacted as a whole rather than by compartments, and with this object in view the present Rau Committee came into existence.
Now, Sir, when a lady member addressed the House of course a zealous enthusiast in favour of this piece of legislationshe said that this piece of legislation had been before the country for a number of yearssay for 10 years, and the Rau Committee has examined thousands of witnesses and has had an extensive tour of the country. I respectfully submit that there was little truth in the declaration made by the lady because let us examine what was the quantum of evidence that was before the Committee. And what was the weight of that little quantum of evidence ? The Rau Committee which came into existence on the 20th January 1944 drafted a Bill which was circulated to selected and distinguished lawyers for opinion. After their opinions had been received the Committee decided that the draft which they had originally prepared should be circulated throughout the country. The Bill was translated into Indian languages and about 6,000 copies were distributed. Opinions were invited on the 5th August 1944 and the opinions were to be submitted by the 31st December 1944. After the opinions had been received the Committee toured the country. I would like the House to note the extensiveness of the tour undertaken by this Committee. It visited the leading towns and cities of the provinces and as far as I remember it is not more than a dozenAllahabad, Bombay, Calcutta, Poona, Patna, Lahore and others. This was the extensive tour of the Committee. What is the population of these few leading towns and cities as compared to the total mass of population of the country? Can the tour undertaken by this Committee for the purpose of examination of witnesses in these cities by any means give an indication of the real feeling of the country on this Bill ?
What was the extent of the evidence recorded ? Let us see. In all 121 witnesses and 201 associations represented by about 257 persons gave evidence. This was the total evidence taken. May I venture to ask a very pertinent question: Is this by any stretch of imagination sufficient evidence, considering the vastness of the country and considering the fact that the real India, the real Hindu India resides not in the cities but in the villages. They are agriculturists who represent 90 per cent. of the population. Can it be pretended by any stretch of imagination that the examination of witnesses by this Committee was in any way sufficient and commensurate with the vastness of the country and with the great divergences of opinion prevailing in the different provinces ? I respectfully submit that it was not.
Let us further analyse the result of that evidence. My submission is that on every basic point which forms the basis of the present Code the opinion was predominantly and overwhelmingly against any change. Look at for instance one basic doctrine that is propounded within the four corners of this piece of legislationintroduction of simultaneous heirship of sons, daughters, widows etc.
Mr. Deputy Speaker : A widow is a simultaneous heir today under the existing law.
Pandit Mukut Bihari Lal Bhargava: For the introduction of simultaneous heirship of daughter with son the witnesses number only 78 and the number of those against was 215. Regarding conversion of widow's limited estate as a female heir into an absolute estate the opinions for were 49 and against 107. In case of divorce options for were 112 and against 119. In case of adoption and the changes that are introduced opinions for were 36 and against 38. On other points the opinions against change were overwhelmingly larger than for it. Where is the justification, I ask, for pursuing this legislation ?
Some Honourable Members: No justification.
Pandit Mukut Bihari Lal Bhargava: I will come to that also at the proper stage. My submission is that if this is a democratic legislature, if this legislature claims to legislate in consonance with the predominant volume of public opinion in the country, the only course for it is to throw out this piece of legislation, because whatever public opinion there was in the country distinctly points out that it is against it. I am sorry I have not got with me the particular newspaper in which the opinion given by the Law Minister was published. lt was a few days before we commenced the consideration of this measure in February and he took his stand not upon the quantum of evidence in his favour, nor upon the public opinion in his favour but upon its quality. That was an open admission by no other than the Law Minister himself that the weight of public opinion so far as number was concerned was against him. If it is a fact that a few individuals, however distinguished they may be, because they wish this legislation to be thrust upon the country, it cannot be accepted. The only criterion of public opinion is the public opinion taken by the Rau Committee. There is absolutely no other criterion upon which it is open to any Member of the House to say that public opinion is in favour of this piece of legislation and not against it. Similarly, we are receiving a number of representations from different bodies ......
Pandit Mukut Bihari Lal Bhargava: ...... from different distinguished High Courts and other Civil Judges also, from Bar associations in different parts of the country. As far as I have been able to go through the opinions very few persons. I find, favour the enactment of this piece of legislation and public opinion is overwhelmingly against it.
The next point is this. Even assuming that public opinion is not so far of a decisive character where is the necessity of pursuing this legislation in the present legislature ? As has already been pointed out and I will not repeat the argument, but I would respectfully submit that the present legislature is to frame the Constitution as also to legislate on emergent matters about which legislation is absolutely essential. It can by no stretch of imagination be asserted that the Hindu Code Bill is a piece of legislation that the Government should not pursue this piece of legislation in the teeth of public opposition in the country.
I would now proceed with the examination and scrutiny of the various provisions incorporated in this piece of legislation. As I had remarked I feeland I feel honestly that the fundamentals of then provisions that stand incorporated in this piece of legislation are fatal to the existence of Hindu society as envisaged by our sages and therefore it is my painful duty to oppose this measure tooth and nail provision by provision. The question arises what are the basic changes that are sought to be brought about in Hindu society through the medium of this piece of legislation and how far those contemplated changes are in consonance with Hindu ideology and Hindu ideals. My respectful submission is this Hindu Code may well be styled as Islamic Code rather than a Hindu Code.
Pandit Mukut Bihari Lal Bhargava : Of course this remark cannot apply to me. I feel as keenly as the learned member on it. Now Sir, the main question is about the Second Part of this piece of legislation under the head Marriage and Divorce. These are incorporated in clause 5 to 51. Let us see how far the type of marriage that is envisaged in these provisions of the Bill is akin to the Hindu conception of marriage. My respectful submission is that the show of a sacramental marriage provided in clause 7 of this Bill of an absolutely different character than what is the conception and ideal of Hindu marriage. It is only a camouflage to conceal the real type of marriage that is envisaged. Otherwise the incorporation of the provision in clauses 10 and 21 would not have been there. To Hindusand I think there cannot be any dispute on this pointthere is no two opinion on the subject. Of course if we aim to dare Hindu ideals and ideologies, if we intend to say good-bye to them, then it is another matter. To a Hindu the marriage is sacramental and as such indissoluble. It is a religious bond of unity between the couple. It is not a union for such purposes which may be brought to an end at any time. It is not a contractual relationship. It is a relationship that has got some spirituality about it. By no stretch of imagination can it be brought to an end by the sweet whim and caprice of any of the parties. That is the conception of Hindu marriage. I would challenge any smriti or citation of any scripture, so far as Hindu scripture is concerned, which would negative this idea of sacramental marriage and will propound any other sort of marriage that is understood by smritis. Therefore my submission is that so far as the provision about civil marriage in this Chapter on Marriage and Divorce as incorporated in clause l0 is concerned it is absolutely foreign to Hindu law and should not find a place therein. Civil marriage has been in vogue in this country ever since 1872 when Act III of 1872 came into force. It was further amended in the year 1929. Civil marriage as envisaged by that piece of legislation must continue. But it should not find any place whatsoever in the Hindu Code. I want to ask why should civil marriage find a place in the Hindu Code. Is it in consonance with any smriti ? I ask this question because you claim that there is nothing revolutionary, nothing radical in this measure, and that in fact everything is just in accordance with Hindu conception, ideology and ideals. It is a preposterous claim which I must refute. My submission is that the incorporation of a provision like clause 10 in this Bill, which envisages marriage of a civil type, is absolutely unknown and foreign to Hindu ideals. Previously I have asserted that this form of sacramental marriage is only a comouflage for the other type of marriage and it is quite obvious if a reference is made to the provisions of clauses 7, 10 and 21.
So far as clause 7 is concerned it lays the conditions for sacramental marriage. Here I respectfully invite the attention of the House to clause 6. This says that it will not be open to the parties to contract any marriage if they happen to be sapindas. If we proceed to clause 10 which lays down the requisite conditions of a valid civil marriage it omits the provision contained in sub-clause 6 of clause 7 therefrom and restricts it to the other five sub-clauses of clause 7. Thereby a marriage between sapindas is perfectly valid if it happens to be a civil marriage under clause 10. This is the difference or gap between the validity of the sacramental marriage and the validity of the civil marriage. What does clause 21 lay down? It says that it is open to the parties who have entered into a sacramental marriage of the type envisaged in clause 7 later on' go to the Registrar and ask him to register it as a civil marriage and the poor Registrar will have no option. What is the legal effect of these three provisions read together ? Whatever sanctity is attached to the sacramental marriage is eliminated. Mind you, one of the requisite conditions of a valid sacramental marriage is that there should be no marriage between sapindas. This condition does not exist in section 10 and the poor Registrar, inspite of the fact that the sacramental marriage was an invalid marriage because of this, has to register it as a civil marriage. Therefore, the camouflage, the curtain of a sacramental marriage is lifted here and the effect of invalidity, because it was a marriage between sapindas is circumvented by this device. I ask, is it in accordance with Hindu ideals of marriage ? Will not all persons be inclined, wherever they choose, to celebrate a marriage between sapindas ? They can do it as a sacramental marriage and subsequently go and cure the invalidity by undergoing civil marriage.
We come then to provisions of Section 9. It has been stated that even the sacramental marriage must be entered into a marriage certificate register and that if it is not so entered the defaulter may be punished under the law. As regards its validity, it is very doubtful whether it will be valid or not. Of course, the Rau Bill did not go so far. The Rau Bill left it at the option of the parties to either get an entry made in the register or not. The only object with which such a provision was incorporated in the Rau Bill was to facilitate the proof of marriage. But that object has been told good-bye in the present Bill. What is stated here is that it will be open to any Provincial Government to make the registration of sacramental marriages compulsory. The provision of section 6 says that a marriage in order to be valid, must be in accordance with the provisions of the Bill. If not, then it is not a valid marriage. Therefore, the conclusion is irresistible from the reading of Sections 6,7, 10 and 21 that any marriage which has not been registered by the married couple in the certificate register will be invalid. I respectfully submit, what are the legal consequences flowing from this sort of a provision ? Are they not repulsive to the very ideal of Hindu society, to the very injunctions of the shastras which lay down that a marriage solemnly entered into is an indissoluble tie and cannot be brought to an end ? Here if the married couple was foolish enough not to get an entry made to that effect in the register, their marriage will be invalid.
Coming to the next important provision in this Bill, that is, the provision regarding divorce. The question arises about past practice and we were quoted the smritis of Narad and Parasar by the Honourable the Law Minister to prove that divorce did exist in the Hindu society. I respectfully submit what has been pointed out by Mr. Dwarka Nath Mitter, the dissenting Member of the Rau Committee, before whom these very scriptures were put forward; he has interpreted them not merely on his own knowledge of Sanskrit but upon the knowledge of learned pandits. He says that the only and the reasonable interpretation and construction of Narad and Parasar is that there can be a breaking of relationship only upto the betrothal stage, not after the actual marriage had taken place. Therefore, ii is no use relying upon the smritis to establish the practice of divorce.
One of the arguments advanced by the Honourable the Law Minister, and repeated by Pandit Thakur Das Bhargava, was that divorce already exists in 90 per cent of the Hindu society. Accordingly to Pandit Thakur Das Bhargava, not only in 90 per cent of the Hindu society but even in 95 per cent it exists. I would respectfully ask, if what you say is a fact, where is the necessity of enacting any piece of legislation on divorce ? You are expected to legislate for the majority and not for a hopeless minority. The divorce of the form you have introduced in this piece of legislation will make the life miserable of the 90 or 95 per cent of the Hindu society amongst whom you say divorce already prevails, because according to the provisions of the present Bill it will be incumbent upon each party to the marriage, before it can resort to divorce, to go for the dissolution of marriage before a competent Court of Law. As has been pointed out by one of the gentlemen who wrote a dissenting note to this Select Committee Resort in most of the parts of the country among the agriculturists divorce is resorted to in a very simple manner by the execution of a deed of relinquishment or in any other manner, before the panchayat of the village. You must take into consideration the effect your legislation will have upon the agriculturists who form 90 per cent of your population. What will be the effect if clause 34 is brought on the Statute Book? Every couple, every Member, every party to the marriage will be compelled to knock at the door of the Court of Law, to go to the district court and also in appeal and till that takes place no divorce can come into effect. I submit this will not be to the advantage but to the great disadvantage of the overwhelming majority of people amongst whom you say the custom of divorce prevails. Therefore, by enacting provisions of this type you are not helping the hopeless minority of 5 per cent but you are putting to disadvantage the majority of 90 per cent. Therefore, until and unless your provisions undergo a drastic, change and amendment they should not and ought not to be brought on the Statute Book. I now come to the question of adoption. Here also the learned author and the draftsmen of this Bill have ignored the fundamental conception underlying adoption in Hindu law. As far as my meagre knowledge goes, adoption is not recognised by any other law. In Muslim law it was in vogue by custom, but even that has been brought to an end by legislation. According to Hindu conception, the life of a Hindu is so inter-mixed and inter-mingled with his religious conceptions and religion that it is impossible to separate the two.
Pandit Mukut Bihari Lal Bhargava: I was submitting that adoption in Hindu law rests upon religious belief which says that it is essential for the salvation of the soul of a departed man that he should have a son who may be able to give him oblations so as to make him attain moksha. So if you are going to legislate about adoption, you must keep in mind the underlying conception. Otherwise, you eliminate it. If you keep it, you keep the spirit underlying the doctrine of adoption. (An Honourable Member : ' What is the spirit?') What are the criteria you have fixed in this Bill for validity of adoption? While the Hindu law says that the eldest and the only son cannot be taken in adoption, instead of retaining that very salient principle, you want to reverse it and say that even the eldest and the only son can be adopted. (An Honourable Member: ' It is unfair. ')
Pandit Mukut Bihari Lal Bhargava: It cuts at the very root of the conception of adoption, because according to Hindu law there must be the eldest or the only son to attend to the oblations for the departed natural father.
Similarly, what are the qualifications you have laid down in this Bill for a boy to be taken in adoption ? The three conditions laid down are that his age must be below 15, he must not be married and he must be a Hindus. I would respectfully submit that by putting a provision like this, you are putting the Hindus in great trouble, because according to the well known conception and custom of Hindu society relating to adoption marriage is not a disqualification, nor is age a disqualification. Why, I ask, are you imposing these limitations ? Has your experience of the administration of law in the past convinced you that these restrictions are necessary ? As far as my meagre knowledge of law goes, there has been no case where any difficulty has arisen. In fact, law by custom has recognised the validity of the adoption of a married boy. Similarly, whatever his age may be, the adoption is valid. What are the difficulties experienced that make the change in the existing law necessary ? It cannot be disputed that when you attempt any change you must have cogent reasons; otherwise, you must recognise the existing law.
Then, about the effect of adoption. You have given a good-bye to every well-established custom of Hindu law. The Rau Bill proposed that the effect of adoption would be to digest ownership of property vested within three years of the adoption. The present Bill goes further and it says that as soon as adoption takes place, there will be no question of divesting of property. From that date half will go to the widow or the man and the other half to the boy. My respectful submission : why do you want to bring in a novel doctrine of adoption ? Where is the reason for it ? Has any difficulty arisen in the past ?
Then the question of disruption of the joint Hindu family. To me it appears that a most vital and fundamental change is sought to be brought about. Why should the time-honoured institution of Joint Hindu family be an eye-sore to you ? It has been said that the joint Hindu family as it was originally conceived has been shorn of its true characteristics by a galaxy of case law. I admit. But if the institution of joint Hindu family is an institution worthy of respect then your duty is not to bring it to an end because it has been dilapidated in the days of foreign rule, but to legislate for removing the difficulties and defects that have cropped up in the joint Hindu family institution and restore it to its previous position. We should have restored it to its previous vigour. That has not been done. I have not heard a word from the Honourable the Law Minister pointing out any fatal defects that existed in the joint family system. His only point is that true characteristics have been shown off by case-law and therefore, the institution should be put an end to. I say it is a counsel of despair. That is a view which, at least I for myself cannot support. To me this joint family institution is an institution of which any nation in the world can well be proud of. It is an institution, Sir, which anticipated the socialistic and communistic form of society, centuries before our time. It is an institution. Sir, where even the invalid and the disabled members of the family have equal right to the corpus of the family. It is an institution which.........
Pandit Mukut Bihari Lal Bhargava : Therefore, Sir, my point was that the axe of legislation should not have been applied by the learned Law Minister to cut at the very root of the joint family tree, if it does not rest on such firm and solid foundations as it did at the time of our ancients. Legislation should have been undertaken to protect it. In the time of the British, because we were subjected to foreign rule, and they were not at all interested in keeping in tact our time-honoured institutions. In fact, they had contempt for them. When our own national government has come into power, is it too much to expect that they should attempt to revive and restore this time-honoured institution to its previous glory rather than destroy it. I submit, Sir, by this Bill, the Hindu joint family is being shattered to pieces. What the Rau Committee proposed was not so fraught with danger as what is proposed in the provisions of this Bill. I invite attention to clauses 86 and 87 of the present Bill. The Rau Committee in clauses I and 2 of Part III-A only laid down that on the demise of a coparcenar in the family, the right in the property will not devolve by survivorship but will be by succession. That is intended to keep intact the coparcenary for at least one generation. Even that was not tolerated or liked by the present Select Committee and some of its members, including the Law Minister, with the result that what sections 86 and 87 lay down is that there will be automatic disruption of every joint family existing in India, simultaneous with the enforcement of this Act.
Pandit Mukut Bihari Lal Bhargava : The Bill provides in clauses 86 and 87 that no court of law will take cognizance of any claim on the basis of birth. On the day this Bill comes into force, and further, that every joint family will be deemed to have disrupted so that joint tenancy would be converted into tenancy in common, simultaneous with this legislation. But I ask, why do you want this? Is there any uncertainty in the law to-day, in the existing Hindu Joint Family Law ? I respectfully submit there is none. Everybody knows what is meant by coparcenary and what are the incidents of coparcenary property. Why do you want it to be partitioned? My respectful submission is that this is against what was provided even by the Rau Committee. And public opinion, scanty as it was, was taken not upon the Bill as it exists today, but upon the Bill as was drafted by the Rau Committee. Therefore there is absolutely no information why a point of such vital change in the structure of the Bill has been brought about.
Now, what are the advantages of a joint Hindu family? What are the advantages of having coparcenary property ? I submit that .........
Pandit Mukut Bihari Lal Bhargava: Of course, there are disadvantages, if everybody wants to go on living in a selfish way, entirely for oneself, without any regard to their relatives. But if you look at society in the way in which the Smritis wanted us to, we should renounce something for others also, for the other members also, to sacrifice something to make the family, a joint family then there is no disadvantage. There is every advantage and no disadvantage. My submission is that it cannot possibly be accepted by every Hindu family.
Pandit Mukut Bihari Lal Bhargava: You are dealing with a population of 300 millionsof 30 croresand a population that is extending from Kashmir to Cape Comorin, a population that extends from Gujarat to the farthest end of the country. And you want to disrupt the status of the joint family system, and that will affect overwhelmingly vast population. Therefore, you must think thrice before doing such a thing as will disrupt such a vast population. In this legislation you want to disrupt the family. If it is decrepit, if it is dilapidated, if it is, as one of the Members said, in such a condition that we need not even shed tears about it, let it die a natural death. Why should you apply the axe of destruction and bring about its end ?
Then Sir, I proceed to the question of inheritance. Now, here I have got the greatest grievance. As my friend Mr. Naziruddin Ahmad said, the Ran Committee Bill was substituted by a departmental committee Bill and in this departmental Bill innovations were introduced. Clause 94 lays down that property will be excluded from the rules of succession laid down in this Bill. It is in the original Rau Bill it was that every piece of Agricultural property will not be governed by the rules of Succession laid down there, because under the Government of India Act it is not within the purview and jurisdiction of the Central Government. The Rau Bill did not say that there will be any exception in the case of the Centrally Administrated Areas, which are under the direct control and supervision of the Government of India
Now, Sir, in the departmental Bill the words " in the Governors provinces " were introduced with the result that every agriculturist in my province of Ajmer-Merwara as also in the provinces of Delhi and Coorg, which are the Centrally Administrated areas and even the agricultural property situated in these provinces will be governed by the rules of succession laid down here. Look at the anomaly that is sought to be perpetrated by this piece of legislation. The law that will govern the bulk of property will be absolutely different in the Governors Provinces, while it will be just the contrary in the Centrally Administrated areas. Is it the uniformity which is aimed at by this unique piece of legislation ? Whether this will be in consonance with the ideal of uniformity or it is the opposite of it. May I respectfully ask ? My submission is that all the rules of Succession that you have laid down in the provisions of the Bill if they are applied to the agricultural property in my provinceand I can speak with some knowledge of my own province and the people inhabiting my province-I submit the law will be obeyed more in infringement than otherwise, because the rules of succession that you have laid down are so contrary to the established usage and custom of the people, that they will not accept them as a rule governing them, even at the risk of their lives. What are the rules of succession that you have incorporated in this Part VII, Chapter 2 and Schedule VII? Are they in accordance with the accepted principles of Hindu law either as propounded by Mitakshara or by Dayabhaga and where is the indication of it ? What is the basis you have taken for inheritance ? You say it is ' natural love and affection'. So far as propinquity and consanguinity is concerned in the case of inheritance, one of the fundamental principles of Hindu Law is violated. One of the fundamental principles of succession in the Hindu law is that it depends upon the capacity and the liability of the descendants to offer shraddhas to their parents. This is the fundamental capacity which has to be taken into any law of inheritance. Of course, the view was that we are not going to care for Hindu Law; that is a different matter; then delete the word ' Hindu ' from there, I have no objection, but if you are to incorporate the fundamentals of Hindu Law, the first thing that you have to take into consideration in the principles of inheritance, is the capacity and the liability of the descendants to offer shraddhas to their ancestors, and this is the basis of the Dayabhaga.
Pandit Mukut Bihari Lal Bhargava : What is the reason for the promulgation of this novel Rule of succession ? Brother and brother's son has been relegated to a very, very inferior position. Brother and brother's son comes after daughter's daughter, daughter's son, son's daughter. Is it in accordance with the accepted principles of Hindu Law ? Is it likely to bring peace to the family ? (Many voices : ' No, no.'). Will it not disrupt the family ? Will it not create perpetual disturbance, discord in the members of the family ? This is inconceivable. According to the Hindu society even today, though it has been the subject of outrage for centuries, even today there is love and affection between brother and brother. When I make certain observations, I keep the agricultural population in view. You go to any village and you will find that 9 out of the 10 families live jointly.
The brother is living with brother. He is not separate and as soon as you give the right of inheritance to daughter's daughter, to daughter's son in preference to the brother or the brother's son my respectful submission is that the society will not tolerate or even if it tolerates, the peace and quiet that exists today will disappear in no time. Therefore, you have to be very wise before laying any novel rules of succession so contrary, so repugnant to the accepted principles of Hindu law.
Now, I come. Sir to the doctrine of bringing daughter in the category of simultaneous heir with son.
Pandit Mukut Bihari Lal Bhargava : Now, Sir, it has been argued that the daughter had a specific share in the inheritance of her father according to the scriptures and the reliance is placed upon Manu and Yajnavalkya, but my cursory knowledge of these Hindu law texts is that whatever share is allotted is in the case of an unmarried daughter and we have no objection at all, even today to allot any share to an unmarried daughter. The question arises even today, what is the position ? Can anybody deny that ? Not one daughter among thousands remains unmarried. The daughter is given, according to the status of the family, the best education and is treated on the same footing as the sons. When her marriage takes place she is given a dowry according to the status of the family. On marriage her relationship to the brothers is not cut off. As far as my experience goes, she is invited for every function in the family and on occasions of marriage in her parent's family a quota is assigned to her according to custom. Can anyone say that resort to a court of law will bring peace and tranquillity in the home ? Such a step will only aggravate the situation and the provisions in the Bill for resort to court are there to our utter shame. We do not want that our daughters and sisters should go to a court of law. It was never contemplated by our sages that they should seek the help of the law. The position assigned to our daughters in the family is of such a unique character that it is difficult to find a parallel to it anywhere. Even after marriage, as I was saying, the daughter has a definite share in the family budget for festive occasions. The question was asked, whether she can go to a court of law to enforce her rights ? Sir, if in a family the father or the brother of a girl is unmindful of his duties to her, he is looked down upon by the community. According to the well-established custom, every daughter of a family must be present at the time of her brother's marriage. I may tell honourable Members that there is particular ceremony which must be performed by the sister and her husband before the bride and the bridegroom can enter the house. These are time-honoured customs. We give the daughters a definite position. What will you gain by giving her a share in the family property ? One of the justifications for this reform is that there must be absolute equality between a son and a daughter. May I know is there any equality in fact ? Is it not a sham equality that you are going to assign to the daughter ? The conditions are absolutely different. The daughter has to go in due course to a different family. The son has not to go. These are the conditions inherent in the situation. Therefore, whatever law you make must be suited to the conditions and not in violation of them. If you make a law in violation of these conditions, the society will go to pieces.
Now, what is the percentage of property owners in Hindu society today ? It is a very relevant question because, according to the existing custom not only the father has the moral obligation to arrange for the marriage of his daughter, but even the brother, whether he inherits any property or not, thinks it his moral duty to arrange for the marriage of his sister in the absence of his father.
Pandit Mukut Bihari Lal Bhargava : The honourable Member is talking of a share while I am talking of a family without property. What will become of the sister in such a family ? You may go to any village or town. You will find cases where the father is dead and the unmarried sister is living with her brother. This brother thinks it his moral duty to arrange for the marriage of his sister and he even borrows money for this purpose. Unless and until he has discharged that sacred trust he never thinks of himself.
The Assembly then adjourned till a Quarter to Eleven of the Clock on Monday, the 4th April, 1949.
Mr. Deputy Speaker: We will now proceed to the further consideration of the Bill to amend and codify certain branches of Hindu Law, as reported by the Select Committee. Shri Mukut Bihari Lal Bhargava will resume his speech.
Shri R. K. Sidhva (C. P. and Berar : General) : Before we proceed to the further consideration of this Bill, we would like to know what is going to be the programme in regard to it. Will it go on indefinitely ? I would request that by common consent some time-limit may be fixed on the speeches of members so that as many members as may be possible to be accommodated may participate in the discussion.
Mr. Deputy Speaker: I may inform the House that this is an official Bill and they have provided for two days. The Speaker has not concern with it.
Pandit Mukut Bihari Lal Bhargava (Ajmer-Merwara): Sir, I have to resume my unfinished speech on the Hindu Code. But before I do that. Sir, I have respectfully to draw your attention to the declaration that was made by the Hon. Prime Minister on the opening day of this momentous session.
Sir, the Hon. Prime Minister was pleased to characterise this measure as a piece of simple and essential legislation. I respectfully protect that the measure that is for consideration before the House is not a simple one. I may also be permitted to point out that some of the opposers of this Bill have been accused by the Hon. Prime Minister of adopting delaying tactics. Those are well conversant with this Assembly and the proceedings that have taken place here will readily recognise that this measure has not at all been sufficiently discussed this vital measure which affects the life and death, as I would say, of the Hindu society has been on the anvil of this legislature for only a very short time. If you refer to previous occasions when social legislation like the Sharda Act and the Hindu Women's Rights to Property Act was brought before this legislature, you would find what an amount of controversy they raised. Compared to those Bills, this Bill is enormously of great importance. It affects the entire structure of Hindu society. This Bill, Sir, if placed on the Statute Bookpeople may differ with me, the Hon. Prime Minister may differ from me, but I do feel sowill result in the utter extinction of the Hindu society, not in the sense that thirty million Hindus will cease to exist, but that the distinctive features and characteristics of the Hindu society will cease to continue.
This is not a simple measure. But the fact is that this Bill aims at the utter demolition of the entire structure and fabric of Hindu society. It aims at changing the law of marriage, the law divorce, the law of adoption, law relating to minority and guardianship, the Law of the Hindu joint family, the law of succession and everything that constitute and what remains of the features of Hindu society. The very foundations not only of one pillar but of all the pillars on which the Hindu society rests, are shaken. Therefore, Sir, it is but neat and proper that we as legislators, we who are the guardians of the interests of the people should discharge our duty to the best of our ability and see how far the measure that we are considering is wanted by public opinion in the country. To characterise this measure as a simple piece of legislation is, I respectfully submit, not fair.
My further submission is that if it is not proper to characterise it as a simple piece of legislation, it is still more unbefitting to characterise it as an essential measure. What is the need, I respectfully ask, for this measure ? What will happen if this Bill is deferred and not brought on the Statute Book till the new legislature, the sovereign Parliament to be elected in free India on adult franchise is elected ? Is there any malady from which the Hindu society is so vitally suffering that if a few months pass without this Bill being placed on the Statute Book, the whole society will crumble ? I submit that in no sense of the term is it essential. We can very well afford to wait for one or two years more. The Hindu society which had successfully stood the test of centuries, the clash of many civilisations, the clash of foreign aggression and had been subjected for centuries to political subjugation can very well survive without this piece of legislation for a year or two more.
Shri S. Nagappa (Madras : General) : Sir, on a point of order. The hon. Member is casting aspersions on the House when he said that this house is not competent to deal with this matter and that we should wait till a new house is elected.
Mr. Deputy Speaker: There is no point of order in what Mr. Nagappa has said.
Pandit Mukut Bihari Lal Bhargava: Sir, in spite of the interruption of my hon. Friend, I must assert that this house as at present constituted, is thoroughly incompetent to deal with a measure of this vital nature. The question is . . .
Mr. Tajamul Husain (Bihar: Muslim) : On a point of order. Sir. It has been decided by the Chair that this house is competent to deal with this Bill. After that ruling, can any hon. Member question whether this House is competent or not ?
Mr. Deputy Speaker : There is no harm. It is a ruling of the Speaker that this House is competent to deal with this Bill, and according to this. Bill is being pursued. If the hon. Member wants to raise other questions, or raise other reasons, other than legal technicalities, it is open to him to do so. But I would advise the hon. Member that this point has been raised by almost every one of the previous speakers and it has almost become stale.
Pandit Mukut Bihari Lal Bhargava : Sir, it is only the interruption of my friend here that provoked me to make that remark, I do not question the constitutional power of the Legislature to pass this vital measure. But the question is one of propriety. Can you usurp the functions of a full-fledged legislature, can this House which was specially brought into existence for the particular purpose of drafting the Constitution of India, do that? Therefore, I submit apart from the constitutional aspect of the question, apart from the point of legal power of this Legislature, it is a question of propriety, and propriety is of immense importance. And I feel that I have the right to assert, in spite of the interruption of my learned friend and those with him, that this House must think thrice before dealing with a measure of this vital importance. And my submission is that this measure is not essential and this Government need not have a declaration of a nature to make this question an issue of confidence before the House. The question has to be dealt with a calm mind, and we have to take into consideration the devastating effect that this measure will have upon the entire structure and fabric of Hindu society.
Now, coming to my speech from the stage I left it, I was dealing with the question of innovation that has been introduced in this piece of legislation, namely, the bringing in of a daughter in the rank and file of simultaneous heir with the son. My respectful submission was and is, that this innovation is wholly uncalled for, and that this innovation will demolish the entire structure of Hindu society. Let me ask, how this is possible. What is the real state of Hindu society ? The difference between man and woman, the difference between the son and daughter, this is inherent in the very situation. The son has to remain all through his life, from his inception to his death, with the family in which he has taken birth. The daughter has to go a stranger's family. What are the consequences resulting from this inherent situation ? The Hindu law givers, the persons who gave us the scriptures, were they so degraded, were they so opposed to the fair sex that they did it only with a view to inflict an inequality or an injustice ? I respectfully submit that this is a wrong reading of the entire scriptures and the Hindu Law. In fact, if the right of inheritance to the patrimony is given to the daughter, I shudder to think of the consequences. The Hon. Dr. Ambedkar, the Law Minister, in his speech remarked, if a Hindu has twelve sons and one daughter, and if on his death his property could be divided into twelve shares, what heaven will fall if instead of twelve it is divided into thirteen shares ? I respectfully ask the Hon. Law Minister to take the opposite case, where a person has got one son and twelve daughters. What will happen in that case ?
Pandit Mukut Bihari Lal Bhargava: Is a family house to be divided into thirteen shares ? Sir, think of rural India, do not think of urban India, with people living in palaces, but think of rural India where a family has got a very small house. If on the death of the father, his house is divided into thirteen portions, and the twelve sons-in-law are to be accommodated in that house, what will happen ? And Sir, under the law as it is proposed to be made, it is open to the daughter to marry any person she likes, even if she takes courage to enter into marital contract with a non-Hindu she has no bar, and that is not a disqualification for inheritance. What will be the result ? The result will be that every house, and every family will be reduced to a family of feuds in which there will be quarrels and worse still murders too. Therefore, Sir, I respectfully submit that when you are making a law you are not to take into consideration only a concrete example of the character to which the attention of the House has been drawn by the Hon. Law Minister, but you have to take into consideration every imaginable case, and it is on that footing that you have to frame the law.
Why this inferiority complex about the status of the daughter in Hindu society ? I protest against its very implication. In fact, the daughter in Hindu society has got a very exalted and elevated position. Her marriage into a stranger's family does not cut of her connections with the natural family of the father. On every occasion, on occasions of births, deaths, marriages and other occasions she has to come and perform certain essential ceremonies, and on those occasions the Hindu family has to make presents to the daughter. The daughter's relations with her natural family continues all along. If she gives birth to a child, her brothers have to give her presents. Sir, I may further venture to assert that on the occasion of every marriage in the sister's family, the marriage of a male or female child, the brothers have to make presents. Presents are so essential on every occasion. That being so how can it be said. Sir, that the daughter does not get anything from the property ? My submission is that the whole mental outlook with which this question is approached is diagonally wrong, if you consider it from the criterion of Hindu civilisation and Hindu ideals and ideas. Of course, if your criterion is not indigenous, if it is not Hindu, not Indian, but anti-Indian and anti-Hindu then of course, you must take the opposite view.
Now let us consider what is the result of giving a share to the daughter in the family patrimony. You can see the Muslim family. The inevitable result of giving this share in the patrimony would be that marriages between cousins will be absolutely common, and sooner or later marriages even within prohibited degrees will come into existence, whether you like it or not. This is what the inevitable consequence would be. If you trace the history of the daughter's share in patrimony, in so many countries, in Egypt, in Greece, in Rome or under Islamic law, you will come to the conclusion, and the only conclusion, that if a share is to be given, then, you must necessarily widen the scope of the right to contract a marriage with first cousins. So far as the Hindu point of view is concerned, that would be a calamity which no Hindu family can tolerate.
I now proceed to the other point. Do you think, that by providing in this piece of legislation that a daughter has an equal share with the son, you will be carrying out what you intend to do, that is to say, you will be conferring any rights to property on the daughter? I respectfully submit. Sir, that it is not. On the other hand, you will be letting loose and creating scope for so many evils. Under the law as it is incorporated in the Hindu Code, it will be open for any father to make a gift inter vivos in favour of any of his sons, or to dispose of the entire property by a testament. Is there any bar to this, I ask, If there is no bar, then, unless and until the society is prepared to give an equal share to the daughter, the only result of this legislation would be testamentary disposition or gift inter vivos of the entire property by the father to the sons. As a lawyer, I have some experience of courts; there are other friends here who have full experience of courts. Is it not a fact that in every ten cases of testament and codicil, nine cases go to the court and give rise to very prolonged litigation? Not only questions regarding the disposing capacity, but questions about the testator being a free agent in executing the will and codicil are raised; complicated questions about the construction and the interpretation of the different clauses of a complicated document like a testament are raised : not in one court, but right up to the highest court, the Privy Council. If that is the situation, may I ask how you will be able to safeguard the interests of the daughter. My respectful submission is that you will not be safeguarding the interests of the daughter by making this disastrous piece of law, but you will be doing her a positive harm which it will be difficult for you to undo. The very psychological approach of a Hindu family will change. As soon as it is provided in the law that a daughter has a share in the patrimony, the brother will think himself absolutely relieved of the duty of maintaining his sister and providing for the marriage expenses. What is the condition of the Hindu families today ? What is the percentage of the families that have got immovable properties ? My submission is, it cannot be more than forty per cent. What will become of the rest of the 60 per cent. of the families, I shudder to think. What will be the result in the case of these 60 per cent. of the families governed by the Mitakshara law., who have no property at all ? Because by law the sister is made equivalent to the brother, the brother who feels a burden and responsibility to bring up the sister up to the time of her marriage and conduct the marriage, to give her dowry, to give her everything, that sincere brother will feel relieved of his responsibility. That would be the result, and the only result, of this disastrous provision, without any corresponding benefit to the daughter. Therefore, my respectful submission is, not on the ground that the daughter is not equal to the son, nor because of any prejudice against the fair sex, but in the interests of the daughter herself, that this provision should not be enacted. Of course the daughter has got other means to safeguard her interests. They can get valuable rights in the property of their husband, in the property of their father-in-law.
Pandit Mukut Bihari Lal Bhargava : If that is already given than, there is absolutely no necessity to give her a share in the patrimony. Even as I understand the law, a right of a limited character has been given; you can certainly widen that and give the daughter a right equal to that of her husband in her father-in-law's property. That is a very good suggestion which we can consider.
Now, Sir, I come to the other important change in this revolutionary piece of legislation : I mean the disruption of the joint family status. A very important feature is that under section 86 of this Bill, no court of law will hereafter be entitled to take cognisance of the right by birth. I shudder to think of the evil consequences flowing from this provision. It is said that Bengal, and Assam are already governed by the Dayabhaga system of law which does not recognise the joint family status, under which every family member occupies a position of equality. Does it mean that this system should be extended to the whole of India ? If five crores of people are governed by this system, and twenty crores by the other system, is there any justification of law for extending the law of the five crores to the other twenty crores ? I say this is absolutely wrong. My submission is that the right of acquisition by birth is a valuable right of a Hindu son. It is a right which provides against the prodigality and spend-thrift character of the father. It is this valuable right that has saved the properties of so many thousands of Hindu families. It is this right that is being done away with by this disastrous piece of legislation, in section 86. Not only this; section 87 provides that every joint family will have a compulsory disruption on the coming into effect of this unique piece of legislation. Why should there be a compulsory partition ? My submission is that these provisions are not of a simple character; they are of a revolutionary and radical character and there is absolutely no reason why changes of this enormous character should come into existence.
Then I come to the very important provision, incorporated in the Bill about what is known as dissolution of marriage. The clause that deals with this is clause 30. It lays down the grounds upon which dissolution can take place. The other clause relevant is clause 33 which lays down the grounds upon which judicial separation can be claimed by a party to a marriage. Then, there are provisions for the declaration of a marriage as void or viodable. These are absolutely novel provisions so far the Hindu Law and Hindu society is concerned. In fact these provisions of law and the other provisions of law incorporated in this Bill have created a paradise for lawyers. For declaring a marriage void the matter can be taken to a court of law. For getting a marriage dissolved the parties can go to a court of law. For seeking a judicial separation they can go to a court of law. What are the lessons learnt from the cases of dissolution of marriage in so many European countries. It is indeed surprising and astounding that the experience of western countries and the experience of America and England where in every six marriages there is a case of one marriage dissolution, has not given any lesson to us. We have not had this position in our society at any stage of our society and why should we introduce compulsorily the resort to a court of law. Clause 34 provides that every dissolution of marriage can only be through the medium of District Courts and it also provides that every case of dissolution must automatically go to High Court for confirmation under clause 44. I ask whether it is not opening a door for lawyers to prosper. Should any piece of legislation set the ball rolling for more litigation in the society ? My submission, therefore, is that the provisions for judicial separation and for dissolution of marriage as incorporated in clauses 30 and 33 are not only opposed to accepted ideals of Hindu Society, they are diagonally opposed to our civilization and culture. They are directly contradictory to the sacramental marriage because it is not a contractual relationship that can be brought to an end by the whim and caprice of any of the parties but it is sacred bond of union which has its root in the past and which will have its effect in the future. That is the conception of Hindu marriage. These provisions of judicial separation or dissolution of marriage are diagonally opposed to what is our conception of marriage and still when the western countries which have been habituated to this sort of marriage relations divorce and everythingwhen they are feeling tired of it, when the sanest of their thinkers are thinking of this system as ruinous to society, it is indeed a wonder that we are trying to imitate it. My submission therefore is that you should be very careful.. What are the grounds of judicial separation ? A case of adultery. The law says that the marital relations can be brought to an end by judicial separation or by dissolution of marriage. The germs are there before the couple and I would respectfully draw the attention of the House whether it is not a fact that if there is a quarrelnaturally there is bound to be quarrel in families so many timesif these provisions exist in the bill, they will give an incentive to the couple at any time of quarrel or even family scuffle to seek the remedy of the court and Sir, it is very cheap because the charge of adultery can be brought by a woman against her husband or a husband against a woman very easily and there are interested persons everywhere to disrupt the families. Result would be for very flimsy reasons there will be cases of divorce. It therefore will be ruinous to Hindu society. Our society has survived the onslaught of so many centuries and has successfully stood in the world as the ideal form of institution notwithstanding the onslaughts because of the 'inherent system of pativratabhakti. These provisions do not even help those communities which are by custom taking resort to divorce. They create a great obstacle and compel them to go to court. It is opposed to our culture and civilisation and our accepted ideals of ideal marriage life. One argument has been repeated often viz., there is nothing radical or revolutionary about this measure, and the provisions regarding marriage and divorce are of a permissive and enabling character. If that is so, why not scrap all these provisions from clause 5 to 51 and make one clause in the Bill that every Hindu shall be competent to marry any person he likes because that will be only an enabling provision. He can very well, at his own risk, marry his own sister. Therefore it is no use providing such a comprehensive bill with so many sections. Why not scrap them and provide one general section and it will be a model of simplicity as also a model of the civilisation and the stage through which we are passing. My submission therefore is these provisions from a Hindu oriental point of view are simply repulsive and could not be incorporated and cannot be tolerated in a bill of this nature.
I come to the next point. Under the provisions of this bill, clause 91 is the relevant clauseevery property that comes to a female either by inheritance from father or from father-in-law or from any other source will be her absolute property and the rules of devolution of female property are provided in clauses 106 to 109. These provisions are also not conducive to the attainment of peace in family life, and are of a disastrous character. Here again every provision is opposed to the accepted conception of Hindu ideal and you will find that the property which a female inherits and which according to clause 91 will be the absolute property of the female will descend in the order also prescribed under clauses 106 to 109. That is, the first persons to inherit will be the husband and children equally. If there is no husband or children, then who are the persons under the Bill who will be entitled to inherit the property. There are mother, father and husband's relations. May I ask humbly and respectfully every honourable Member of this house whether there is any father or mother in this land of Hindus who will relish property from his or her daughter?
Shri L. Krishnaswami Bharathi: I come from South of India.
Pandit Mukut Bihari Lal Bhargava : In India no father or mother will ever think of receiving anything from the daughter.
Pandit Mukut Bihari Lal Bhargava: It is so in the whole of Northern India. I cannot speak with authority about South India. But so far as Northern India is concerned the very idea is repulsive. Of course there is an exception to this rule among those who count money and property over every thing else. To them dharma is no matter of their concern. But I am not talking of those exceptions : I am talking of the ordinary father or mother in Northern India. Their souls will revolt at the thought of accepting anything from their daughter. In kanya dan when a father and mother sitting together give their daughter to the bridegroom as also dowry and ornaments, after that in our part of the country, the mother or father will not even take water in the house of the daughter.
Shri L. Krishnaswami Bharathi : It is not so bad in our part of the country.
Pandit Mukut Bihari Lal Bhargava: That might be a custom or usage prevalent in your part of the country but in my part of the country, an overwhelming majority will be opposed to the idea. They cannot even imagine receiving any inheritance from the daughter. Therefore the entire fabric of the rules of devolution is based on anti-Hindu ideals. If Mr. Bharathi takes the trouble to go into the rural parts in my part of the country he will be surprised to find, let alone the father or mother, even the inhabitants of a village will not drink water in another village into which the daughter of their village is married.
Pandit Mukut Bihari Lal Bhargava: Under the rules of devolution after the father and mother who are the persons entitled to inherit the property of the female ? If it provides that that will go to the husband's relations, it is repulsive and it will create family feuds. Why should property go to the husband's relations, if it has come to the daughter from the father ? That is why our law-givers have made several categories of stridhana which will accrue to different categories of people. You are not competent to understand the higher motives of our law-givers who made those salient provisions and you want to sacrifice their ideals at the alter of simplicity. According to our accepted notions of stridhan, if the property has come from the side of the father it is the father's relations that are entitled to it. Why should not a provision of this character be incorporated in sections 106 to 109. That would be more acceptable to Hindu ideology .
I now come to the other provisions of the Bill. On the day the Code comes into force, the joint tenancy will be deemed to have been converted into tenancy-in-common. The Bill makes a provision in clause 115 that it is open to every heir to go to a court of law and claim partition of the family property. Is this provision conducive to the preservation and maintenance of peace in the family ? After the death of the father, the daughter, the son, the widow of a pre-deceased son, etc., will rush to a court of law and claim partition as required by section 115. This will be like the Islamic law, entirely repugnant to Hindu ideology and cannot be tolerated in a Bill of this kind.
It is claimed that this Code will resolve conflicts of opinion, that it is an exhaustive piece of legislation providing remedy for every malady in Hindu dharma. Are there not any omissions in the Bill and until they are filled in, will it not shatter the Hindu society ?
Under clauses 88 and 89, you abrogate the doctrine of Pious Obligation. Under clause 89 you provide that the family members will be entitled to pay the duties existing on the joint family. What provision have you made when the father dies ? Who is to bear the funeral expenses or make provision for shradhas, or the other charitable objects connected with such occasions. Once this Code is brought on the Statute Book will there not be fight and feud between the different heirs ? On the death of a father every son and daughter will be go absorbed in assimilating the wealth of the father that they will forget their duty to perform the shradhas, which are essential for any self-respecting family. There is absolutely no provision in this regard in this Bill.
Does the Code provide for the Hindu joint family ? In Hindu Law there is a distinction between co-parcenary property and joint family property. What is the number of families in India carrying on business ? Is there any provision within the four comers of the Bill for that ? How will succession take place in joint family business ?
You claim exhaustiveness for this Code. Have you made any provision for an adopted son? Under clauses 52 to 54 every Hindu male on attaining the age of 18 is entitled to adopt a son with the consent of his wife. After adoption if the father gets his own son what will be the son's rights in the patrimony ? Does your Code present any solution of this problem ? Our Hindu law-givers or smritikaras make ample provision for different parts of the country. What is the position of a son born after adoption of a son by the father ?
In Dayabhaga he gets one-half: under Mitakshara he gets one-third; in the Bombay Presidency he gets one-fourth. Have you made any provision here ? If not, will it not create confusion and confusion of a worse character ? Have you made provision for partition of the joint family property and so many other things which are an essential, and complicated, branch of Hindu Law ? My respectful submission therefore is that this will create problems and questions which it will be very difficult to answer.
Then the question arises what will be the rights and duties of a son who has no share in the joint family property. Under the present circumstances, a son by birth has got rights in the property and that is a shield behind which he can stand for his maintenance, education and other things. You may point out to me the provisions of clauses 126 and 128 of your Bill which lay down that it will be the duty of every husband to maintain his wife, and the wife may claim separate maintenance from him on certain grounds as those of illness like leprosy etc. There again is the door for litigation and a paradise for lawyers. And in clause 128, you will say, you have provided for the maintenance of children and aged parents. But by providing for maintenance under clauses 126 and 128, are you effectively safeguarding their rights ? My submission is you are not. You are placing them in a worse position than what they occupy under the present Hindu Law. Under the present Hindu Law a son has an inherent right to maintenance out of the family property, and if the father or manager or karta of the family is so undutiful as not to look to his interests he has his remedy in a court of law. He can even claim partition. Every student of Hindu Law knows that while a minor has very restricted rights to claim partition in Hindu Law, if the father or the manager or karta of the family abuses his power to the detriment and prejudice of the minor, he has the legal remedy open to him and he can proceed in a court of law to enforce his right to partition. That is a valuable right and you are taking away that valuable right.
Similarly you say that in clause 126 you have provided for the maintenance of the wife and in clause 128 you have provided for the maintenance of children and aged parents. If a husband happens to be penniless, if he cannot earn, if he has got nothing to support himself, how can he support his wife ? Therefore I submit that this pseudo right conceded to the wife is only a sham and a paper right. In the present Hindu Law every wife, every female has a valuable right of residence and of maintenance and she can enforce the right through a court of law if the manager or the karta abuses the right.
Pandit Mukut Bihari Lal Bhargava : I am talking of joint family property. The matter will be different if you decide by a piece of legislation that every piece of property is to disappear and there should be socialisation arid nationalisation of every property. But, keeping intact the institution of joint family you are depriving the minors, the widows and the females of their valuable rights which exist under the present Hindu law. In the name of equality which is sham and paper equality you are perpetrating a wrong which it will be very difficult to remedy. My submission therefore is that judging from every point of view this piece of legislation is not only opposed to the accepted principles of Hindu Law but is liable to create such confusion in Hindu Society which it will be very difficult to overcome or remedy.
Sir, before I conclude I have to sum up what I stated on the 2nd of April and now. I said that there is absolutely no necessity and no desirability of the codification of Hindu Law. It is neither necessary nor desirable. It is not wanted by judicial opinion in the country. There is no conflict of authority of such a series character as to warrant the interference of a Legislature. There is no public demand for a measure of this character. The quntum of evidence upon which the Rau Committee relied was analysed by me in my speech on the 2nd of April and I pointed out that the overwhelming weight of opinion in the evidence recorded by the Rao Committee was opposed to every innovation and change that is incorporated in the Rao Committee Bill which has been further aggravated in the present Hindu Code Bill as it has emerged out of the Select Committee. On every point, on the question of divorce, on the question of sacramental cum civil marriage, making sacramental marriage liable to be converted into civil marriage at one's sweet will under clause 21, there was opposition, and opposition from every quarter. From every quarter the overwhelming weight of opinion was against the ending of the joint family status. Therefore, on every crucial point, the overwhelming opinion was against the Rao Committee Bill. Even now in the opinions that are pouring in from the various quarters in the country, from judicial quarters, from bar associations, from other citizens, there is a unanimity of opinion that a measure of this subversive type is not at all required under the present circumstances. Therefore I had submitted, and I repeat it today, that codification of the Hindu Law is neither desirable nor necessary.
I have pointed out that the marriage provisions contained in the Bill are a misnomer for marriage. It is in fact introducing the principles of Islamic and Christian marriages into the Hindu Code under the garb of sacramental marriage. It will be a sham. It will be shameful for any Hindu to go into a marriage of this character which is liable to be changed at one's sweet will into a civil marriage. This cannot be tolerated.
Pandit Mukut Bihari Lal Bhargava: I have already met your argument, an argument that is often repeated on the floor of this House and outside, that this is an enabling measure, a permissive measure. If that is so, scrap off everything and have one omnibus clause in the Bill that everybody is competent to marry anybody. That will meet the requirements. Why do you make a fetish of the sacramental marriage ? The sacramental marriage of the character you have provided in the Bill is nothing but a mockery, an insult to the time-honoured institution of sacramental marriage. It is only a misnomer to deceive the people, to convince them that there is no departure from the established practice. It is a hoax that is sought to be perpetrated on the Hindu society. No self-respecting Hindu can possibly tolerate this state of affairs.
Better do away with these provisions commencing from clause 5 to 52. They are wholly opposed to Hindu ideology, to Hindu culture and to Hindu civilisation. That is my submission in respect of the marriage provisions. As regards the divorce clauses I had already made my submission. About adoption, I had said and I repeat it today that the very conception of adoption is a creation of Hindu law, and if you cannot in this modem age, on account of what you call your advanced views, subscribe to that ideal of adoption, then do away with adoption altogether but don't provide for a hotch-potch adoption of the nature you have done. According to the provisions of the Bill, every person, every Hindu, can be adopted as a son. There is no restriction of Gotra, there is no restriction of caste, there is no restriction of the status, and it is left to the person concerned to adopt any person. Those, who are well conversant with the codes of Hindu law, very well know how the adoption of a stranger in the family has been the source of litigation. There are well-established, customs and usages having behind them the sanctity and authority of judicial pronouncements whereby only a member of a family of the same Gotra can be adopted. All those usages, all those well-established customs are very easily given the go-by; without even thinking of the disastrous consequences this step is being taken. I shudder to think of the very terrible consequences that are bound to follow from a provision of this character. Better do away with the institution of adoption altogether rather than provide for adoption of this kind. In fact, I may be permitted to remarkand I do so with full responsibilitythat the sponsors of this Bill had an inherent abhorrence, an inherent hatred against everything related to Hindu culture, and that is why we find provisions of this character being included without appreciating or finding out what were the motives of the Hindu law-givers in providing for adoption. The sole purpose of adoption under the Hindu Law is that a person may have a son to administer to his spiritual needs, to offer oblations on his death. That is the sole purpose of the conception of adoption but by making a provision that any Tom, Dick and Harry can be adopted you are cutting at the very root of that conception. Do not therefore, make such a provision. Better do away with adoption. It doesn't exist in so many societies. Where is the necessity to perpetuate it if you are so averse to it ? But then do not make a mockery of the conception of adoption.
Sir, I shall submit that every provision in this Bill has got a stigma which is anti-Hindu and therefore cannot be acceptable to any Hindu. To me this Bill is an insidious effort on the part of its sponsors to take the Hindus out of their Indian moorings and to launch them on foreign waters of Arabia and Jerusalem. Where is the necessity for this Hindu Code ? Why don't you extend the provisions of the Indian Succession Act of 1925 by a stroke of the pen to the entire Hindu community ? By this very convenient and simplified methodand we are very much enamoured of simple legislationit will be very easy to provide for the entire Hindu society.
Before I conclude, I think it is my duty, and an honest duty, to sound a note of warning. You very well know that the Hindu law is a law not piloted from outside. It is not an imposition from above, it is not the creation of a sovereign power, it is not the result of a ukase of any king or of any legislature. That is the greatest merit about it. It is a spontaneous development from centuries past. The texts of the Smritis and The Nibhandhaka have not created the laws; they have only explained and elucidated the accepted principles of Hindu Law, but those principles as readable from the texts have never been the governing force of the Hindu society. The governing force of the Hindu society has been a consistently developing usage and custom governing the different sections of the society. That development was spontaneous. In fact, looking at it from a realistic point of view, the Hindu society is a working legislature in continuous session not of the few selected persons as this House is but a legislature of the entire community, that modifies and moulds its law according to its requirements. That is the supreme beauty of Hindu Law. And that you are distorting, that you are deforming by this piece of legislation by taking from it vitality, elasticity, mobility, spontaneity and adaptability to the ever-changing circumstances of the society. Sir, I, as an humble Member of this House, have a duty to say that you must be very careful before you tamper with it. It is a law that has come into existence as a result of centuries of development and before you tamper with its time-honoured institutions, customs and usages, you should keep one thing in mind. The India of ours does not reside in urban towns like Allahabad and Delhi. The real India lives in the five lakhs of villages. The life of the villagers is so intimately interwoven with the texture of their society that whatever modifications you might make by this piece of legislation, they will resist to the limit of their might before you take away from them the time-honoured usage and customs to which they have been submitting as a matter of course for centuries. Without doing any benefit to the Hindu Society, you will be opening the door for a few disgruntled persons who want to take advantage of this innovated piece of legislation.
Pandit Mukut Bihari Lal Bhargava : I have not referred to any Members of this House. My hon. friend should have the patience and the tolerance to hear the opposite views. My submission is that you cannot put a brake to this spontaneous growth and development of Hindu law by this piece of legislation and if you pass it, you will be spoiling the beauty of Hindu law rather than adding to it. This piece of legislation is so disastrous in its character and so destructive in its nature that it is difficult to imagine the bringing of a constructive approach to bear upon it. The Hon. Prime Minister and Leader of the House suggested the other day that we should meet in a formal or informal committee to devise a compromise upon which the orthodox and unorthodox sections can agree. I join issue with him. But I feel that the Bill has been conceived with a mental outlook and psychology which is wholly repugnant and unacceptable to Hindu ideology. Consequently, in spite of our sincere efforts to arrive at a constructive approach of this measure, it will be very difficult to do so. The safest course for the Government to adopt is to withhold this measure and wait for a more opportune time for a legislature elected on adult franchise with a mandate from the electorate to change the entire structure of the Hindu society. Until and unless there is such a mandate, I submit, and I question and question with vehemence the propriety of this legislature to deal with a measure of this vital importance to the Hindu society.
With these words. Sir, I resume my seat.
Shri Loknath Misra (Orissa: General): On a point of order. Although I do not desire to oppose the consideration of this Bill, I think its consideration is totally barred and bolted by the very Constitution which we have recently passed. Of course, it may be argued that it has not yet come into force. But we are quite sure that we are not going to pass this Bill this time and by the time the Bill is passed the Constitution must have come into force. If you will permit me, I will detail my reasons for saying that this Bill is against the Constitution.
Mr. Deputy Speaker : I have heard the point of order sufficiently. The new Constitution has not yet been implemented. It has not come into force. I do not propose to give any ruling on the question as to whether it will stand in the way of this Bill being passed into law if it comes into force. Under the present Constitution, this House is thoroughly competent to get on with this Bill.
Shri T. T. Krishnamachari (Madras : General) : In view of the importance of this measure and the fact that the number of people who want to speak is large, would the Chair consider the desirability of using its discretion and imposing a time-limit ?
Mr. Deputy Speaker: Order, order.
Mr. Deputy Speaker : Mr. Sidhva raised another point. He wanted to know if this House would continue the discussion tomorrow and what length of time has been allotted. It is an official Bill and it is, for Government to allot the number of days, I replied. The position is that the Speaker can only say whether debate on a particular Bill has been sufficient or not. So far as this Bill is concerned, hon. Members are fully aware that no time-limit can be imposed. (Hear, hear).
Hon. Member will kindly wait and see. The general discussion on this Bill was begun so early as 24th February 1949. It continued on the 25th, 26th, 28th, 1st March, 1st April and 2nd April. One hon. Member took six hours and eight minutes. We spent in all 6 days, 9 hours and 20 minutes. All the same, only 14 hon. Members have spoken so far. The last speaker who has just concluded. Pandit Mukut Bihari Lal Bhargava, started at 3-15 p.m. on 2-4-49 and went on till 5 that dayone and a three-quarter hours. Today he went on from 11-50 to 12-57. At this rate, we will have to sit nearly a year if all hon. Members are to have a chance to speak. Many of the points which have been made in the speeches are all very enlightening. I say nothing against the speeches. But, I have received a large number of requests from hon. Members for opportunities to speak.
Mr. Deputy Speaker: Light from every side is coming, but if we proceed at this rate, light from many sides would not come.
Therefore, I would request hon. Members to limit their speeches, as far as possible, to half an hour. On all Resolutions fifteen minutes are placed at the disposal of hon. Members and they are able to put their cases perfectly well within that time. I have given twice as much time. But I do not insist upon it. It is simply my suggestion to the House. Otherwise, if a closure is applied tomorrow, possibly by that time a number of Members may have spoken and sometimes wittingly or unwittingly if the House is in favour of closure, it has to be accepted. I am giving a warning in advance.
The Honourable Shri K. Santhanam (Minister of State for Transport and Railways) : I only want to say that I hope to finish before the time-limit fixed by you. I hope you will permit me to proceed in the afternoon.
Mr. Deputy Speaker : It ought not to be said ahead. I am leaving it to hon. Members to decide, so that all Members may have equal opportunities. Normally, half an hour is the time-limit I suggest. If the House agrees.
Some Honourable Members : Agreed.
Shri Lakshminarayan Sahu (Orissa : General) : Sir, I would like to know if priority for speaking will be given to those Members who are willing to restrict their speches to only five, seven or ten minutes.
Mr. Deputy Speaker : Therefore, if I have to accept that suggestion, I hope hon. Members will also indicate in their letters to me how many minutes they are likely to take and I will ring the bell as soon as that minute is over.
Pandit Lakshmi Kanta Maitra: Before you adjourn, I want to say just one thing. You said just now that it will be perfectly open to Members to move closure. But according to all parliamentary procedure, it is open to the Speaker to say whether there has been sufficient debate or not and whether the closure is justified or not that is a well established practice and you also reiterated that you follow that. In view of that statement, do you say beforehand, even today, that you will have to accept closure tomorrow?
The Assembly then adjourned for Lunch till Half Past two of the Clock.
The Honourable Shri K. Santhanam: Sir, I rise to offer my whole-hearted support to the Hindu Code as it has emerged from the Select Committee. Sir, I have been watching the progress of this law-making from its earliest beginnings. I had the privilege of tendering evidence before the Rau Committee and since it has emerged from that Committee it has undergone many changes and, in my view, steady improvement.
Sir, I feel that this Hindu Code is merely a continuation, in the social sphere, of the great Constitution we have completed the other day in our capacity as a constitution-making body. Sir, what are the basic factors of that Constitution ? It is based on the unification, on the integration and on the strengthening of India as one political entity. Similarly this Bill is based on the principles of unification, integration and strengthening of the Hindu community. Sir, unless the Hindu community is unified, integrated and strengthened, I do not see how the great Constitution we have made can be successfully worked.
The Honourable Shri K. Santhanam : The idea that politically you can be well-advanced, that in the field of economics you can preach socialism, but yet be a believer in social stagnation is wholly incompatible and unrealistic. India has to move on all fronts, or not at all and I think the change and reform in the social sphere is as indispensable as our progress in the political and economic spheres.
The Honourable Shri K. Santhanam : My hon. friends may well ask why we should not compile a code for the whole country rather than a unified code for the Hindu community alone. Well, Sir, while we were making the Constitution there were many who were asking why we continued to have provinces, why we were building on the Government of India Act and why we were continuing to have Rajpramukhs ? Sir, our argument in reply was that while we wanted change and reform we wanted to build, as far as possible, on the existing foundations, that we wanted a judicious combination of conservation of the existing forces and the forces that make for change and reform. This Bill is based on the same principle. It seeks to conserve as much of the Hindu law as is consistent with modem needs and ideas and it seeks to change wherever such change is necessary. I think that is the only way the whole country as well as the Hindu society can progress without internal disruptions and violent revolutions. Sir, our policy is one of peaceful and voluntary change and this Bill is a potable attempt in that process of peaceful change in the social sphere.
Sir, I don's want to go into the clauses of the Bill. The time is not yet ripe for it and when we take up clause by clause it will be time to scrutinise particular provisions.
Pandit Lakshmi Kanta Maitra: Not unless there are elaborate lathi charges outside.
The Honourable Shri K. Santhanam : There were people who were prophesying that the Constitution would never be passed; but we have passed it. In the same way, we are going to put this Bill on the Statute Book.
Sir, I am not saying that certain clauses, or even parts are not susceptible of slight changes or adjustments.
The Honourable Shri K. Santhanam : But I shall confine myself to the broad principles contained in the Bill and, leave details to a future occasion.
Sir, this Bill has got four aspects, namely, codification, unification, rationalisation and reform.
The Honourable Shri K. Santhanam: Well, I will leave that part to you. So far as the parts dealing with adoption, with minority, with guardianship and with maintenance are concerned, they are simply codification of existing Hindu law. (An Honourable Member : Question). You may question it, but I think Sir B. N. Rau is a far greater legal authority than the hon. Member.
Mr. Deputy Speaker: Order, order.
So far as the hon. Member's reference to Sir B. N. Rau is concerned, he probably meant that he was a Judge of the Calcutta High Court and it is not unparliamentary to say that the opinion of a particular person is highly valuable. Even as an individual the hon. Member perhaps meant that he knows him much better than any other Member of the House.
Sjt. Rohini Kumar Chaudhuri : On a point of order. Sir, Hindu Law is absolutely and intimately connected with Hindu religion. Can anyone tolerate the idea of a non-Hindu being an authority on Hindu Law and principles ?
Mr. Deputy Speaker : I can well appreciate differences of opinion among hon. Members. But there is no room for excitement. Let there be patience first and all hon. Members will certainly contribute to the debate in a harmonious atmosphere.
Shri L. Krishnaswami Bharathi : The hon. Member who just now interrupted seems to say that Shri B. N. Rau is not a Hindu; it is an insinuation which should not be allowed. Shri B. N. Rau is not here and it is your duty. Sir, to protect him.
Mr. Deputy Speaker : I am not in a position to say to what religion any particular person belongs. I do not know it personally. But I expect hon. Members to keep within limits, and because they have got certain privileges, they should not defame others. They should keep within limits, and if an hon. Member makes an aspersion, it will be wrong.
The Honourable Shri K. Santhanam: Sir, I do not mind interruptions; but if those who are opposed to this Bill think that they have the monopoly of such tactics, they are mistaken. Sir, I assert with all the emphasis I can that Shri B. N. Rau is as good a Hindu as any in this House. And so far as I am concerned, I may say that my ancestors have come from very orthodox Hindus, and up to this moment we have not eaten even a little bit of fish, and I may claim to be more orthodox than. . . .
The Honourable Shri K. Santhanam : In my part of the country eating fish is considered to be the most heterodox fashion.
The Honourable Shri K. Santhanam: I again say that so far as adoption, guardianship, minority etc. are concerned, they are merely codification of existing law, as can be found in the judgments of British courts. Sir, whatever Manu might have written, whatever Yagnavalkya might have written, the present Hindu law is the law as interpreted in the British Courts for the last one hundred and fifty years, and against this interpretation, even Manu and Yagnavalkiya are utterly helpless. So the Hindu law now is the law as interpreted and as laid down by the British judges in this country.
The Honourable Shri K. Santhanam: British or Britishised judges. Therefore, Sir, I think we are at least as competent to change that law as the British Judges who have changed the ancient law into the present Hindu law as it is.
Sir, I come now to the next aspect of the Hindu Codethe unification portion of it. I am surprised that any Hindu looking to the future should say that so far as the law is concerned, no unification is necessary, that each part can have a regional law, that in Bengal we can have the Dayabhaga law, that in Malabar they can have the Marumakkattayam law and other parts the Mitakshara law and so on, that everything should be as it was in the ancient days. I cannot understand people when they say that in politics and in economics we shall be in the year 1950 A.D. but so far as the law is concerned we shall be in 1950 B.C. Sir, to say so is wholly a disintegrating and disastrous proposition. If Hindus have to be one community, if they have to have vitality they must all come under one law, whether it be Dayabhaga or Mitakshra. I can understand some people saying, " Let us have Mitakshara " or " Let Bengal come under Mitakshara ". I can understand other people saying, let them all come under the Dayabhaga law. But to say that Hindus should be dissected into various regional groups, each having its own law, so that if a Bengali goes to Malabar, the courts would have to interpret three types of Hindu law, that I think. Sir, is pronouncing the doom of Hindu society. Sir, the enemies of Hindu society cannot ask for anything better than that Hindus should be administered by a dozen regional laws. Sir, by this Bill we are at last bringing Hindu society under one unified Hindu law, let it be any law, but it should be one unified Hindu law for the entire Hindu community. Sir, in this Bill ....
Sjt. Rohini Kumar Chaudhari : Sir, on a point of order, the hon. Member is speaking communalism in this House. He is talking of unifying all the Hindus, probably against the Muslims and others. He wants one law for the Hindus; so he is preaching communalism.
Mr. Deputy Speaker : This point of order only enlivens the debate, but it is not really any point of order.
The Honourable Shri K. Santhanam : Sir, the day this Bill is put on the Statute Book, the whole process of assimilation will begin and it will not be long before the rest of the Indians in this country will begin to conform to that law, and if necessary, we shall give them minor changes so that the whole country will come under one civil code. Sir, this process is not a disintegrating process but a cementing process. The process will go on and before long.
Pandit Lakshmi Kanta Maitra: Inspired by you.
The Honourable Shri K. Santhanam : I have been in this House too long to be worried by these interruptions.
Now, the question is whether we should prefer the Dayabhaga law or the Mitakshara law. My friend Pandit Mukut Bihari Lal said that Mitakshara law is followed by twenty crores of people and Dayabhaga is followed by five crores, and asked why should we choose the law of the five crores rather than the law of the twenty crores. I do feel that comparatively Mitakshra law was intended to serve the needs of ancient rural communities whose main property was agricultural land. It was on the basis of that conception of society that the right of birth and the right of survivorship were evolved. But we are fast evolving out of that primitive community into a modern community in which property goes from the immovable to the movable property. You have immovable properties diminishing and movable properties increasing. Even immovable property is being converted into movable property, in the form of shares, cash savings deposits and government securities and other things. Therefore, we should adopt that system which is in tune with these changes from the tangible immovable property to intangible and notional property. Where property is largely intangible, this right of birth is really impracticable. You cannot enforce it. It will always be open to the father to dispose of securities or shares or movable property. It is not possible for a son to inherit a right in shares. It is possible for him to inherit a share in agricultural land, but it is not possible for him to inherit a right in cash securities or other movable property. That is why this Bill has given preference to the Dayabhaga system of law rather than the Mitakshra system of law : not because it had any disrespect to the twenty crores who are under the Mitakshara law, nor because it had any special preference to the Dayabhaga system of law; Today, the right of inheritance by birth and right of survivorship have become archaic and impractical institutions.