Revisiting Hindu Code Bill; Dr. Ambedkar, a Crusader for Women’s rights

Women empowerment, identity politics and social justice movements have been the major focus of the contemporary political discourse. In the beginning of 21st century such concepts emerged with mere intensity and became the core idea of policy process.

During Independence our dominant understanding of women was reconciling with Dharma Sastras and Smritis available in traditional Hindu society. While constructing new India on the basis of modern understanding, we stressed on various modern values and tried to codify many universal rights inevitable for the modern state to sustain. In course of time, we enforced our constitution. The constitution imposed many new things and almost declared a ‘social revolution’ against various types of ‘injustice’ encircled to Dalits and Women. Then society forbidden women basic human rights like; liberty, education, right over property and right to take any decision over their own marriage.

In this context, we want to see how Ambedkar wanted to empower Indian women through codifying rights of women; also tried to legalize the responsibility related to property, succession, and guardianship etc.

The ‘injustice’ that Ambedkar was talking about is not only against the caste hegemony but also a struggle for the basic rights of women. Since his days at Columbia University he was concerned about the basic rights denied to Indian people, especially untouchables and women. Later he used Mook nayak (launched in 1920) and Bahishkrit Bharat (launched in 1927) as his mouth pieces to promote ‘social justice’ and all section. In 1920 he said,

“We shall see better days soon and our progress will be greatly accelerated in male education pursued side by side with female education”.

Dr. Ambedkar was considering that progress of a community can be achieved with the equality given to the women in every sphere of life. When talking about the successful marriage he assumed that “let every girl who marries stand by her husband, claim to be her husband’s friend and equal, and refuse to be his slave. I am sure if you follow this advice, you will bring honor and glory to yourselves”.

He did not only criticized the patriarchal interpretation of Hindu scriptures but he tried to replace the superior- subordinate relationship in to a perfect equal partnership. He tried to place all the Indian women in equal level to men.

The main objective of this article is to elucidate various historical trajectory of Indian society which established the status of women.

The status of women was as an issue of great concern in nineteenth century India. The reformers like Raja Ram Mohan Roy who work hard for the abolition of Sati; Jyotiba Phule, Sabitribai Phule and Fatima Sheikh for the education of women and uplifttment of backward caste; Iswar Chandra Vidyasagar worked for widow remarriage. Gandhi also tried to reform the Hindu society to educate and aware women. But contribution of Dr.Ambedkar remains important because he tried to arm women with constitutional rights which directed the foundation for ‘gender justice’ and equality.

Before getting into analysis, it’s important to go through the ‘social context’ and background of the proposed Hindu Code Bill.

Not in very past, Indian women, wives were considered as property of men (the notion still exists). The main narrative womanhood was related to faithful wives and pativrata women who are being valorized. During Ancient time Streesvabhava- women’s innate nature which was considered to be always wicked, their ‘insatiable’ lust. Through defining Streedharma (woman’s code) her womanly character is being tamed into a socially and culturally established individual.

While examining the Hindu Code Bill Ambedkar pointed out three main menaces against women are patriarchal outlook of Hindu society; caste-endogamy and marriage without divorce or ‘sacramental’ nature of marriage. By enforcing Hindu Code Bill he wanted to eradicate these three menaces which are obstructing growth. Dr, Ambedkar discussed all the problems of caste and gender relationship of traditional Indian society.

Caste Endogamy and Sacramental Marriage

Endogamous marriage is the basic norm of traditional Indian society. It is very crucial to confirm the caste endogamy in case of marriage. Caste endogamy was important for ‘holding blood with in a bounded group, and keeping one group distinct from other’. Ambedkar recognized that ‘the real remedy for breaking caste is inter-marriage (Chakravarti, 2013:151). Nothing else will serve as a solvent of caste’. In this manner he explicitly tried to break the immobility persisting in caste system.

The sacramental marriage was a marriage which was indissoluble. There could be no divorce allowed for women. This practice will lead to polygamy or abandonment of previous wife without giving any legal alimony or compensations. It was vehemently present in pre independent era in India.

Dr. Ambedkar was of firm opinion that for the overall development of women we must enact such laws which will instill courage and strength in Women. According to him’ the Bill was only aimed at removing the obstruction of Law in the social advancement of women. On wealth depends independence, and a woman must be very particular to retain her wealth and rights, to help retain her freedom’ (Jhadhav, 2013:390).

Hindu Code Bill and Empowerment of Women

Hindu Code Bill was a declaration of overall development of women personality and her existence in Indian society. The Bill tried to give equal status to Indian women in the socio-religious sphere along with some decision-making in relation to property. Still that time the Hindu laws were not uniformly written and not given clarity of enactment. By codifying this Ambedkar wanted to bring uniformity of application and consolidation of these rights. He was trying to reform the Hindu society, by remaining in the jurisdiction of age old system of marriage and family. Despite all persuasions and avocation the bill could not get passed by the then parliament.

Streedharma-idealized women’s role and anchored a state of inequality in Indian society. What Ambedkar did and tried to constitutionally recognize women as equal, legal being in society. He not only tried to codify her right over father’s property but her right over dowry and absolute right over property. He is the man who penned down the nitty gritty of women rights in Indian constitution. He tried to transform the ‘sacramental’ version of Hindu marriage to ‘civil’ relation between two consenting adults. His appeal was not total revolutionary change or dishonor of Hindu marriage else he wanted to change some of the outdated traditions which are inconsistent in the dignity of modern Indian women depicted in the Fundamental Rights (FRs) of the constitution. On the floor of the parliament, during the debate he defended the proposed code by saying,

“…those who want to conserve must ready to repair and all I am asking of this house is this: that if you want to maintain the Hindu system, Hindu culture, Hindu society, do not hesitate to repair where repair is necessary. This Bill asks for nothing more than repairing those parts of the Hindu system which are all most become dilapidated.”(Rege, 2016: 231)

Ambedkar wanted to change some of the anomalous Hindu laws which govern the family relations in India. There is another part of Bill which is important and it relates to the rights of a wife to claim separate maintenance who she lives separate from her husband (alimony or compensation). Generally, under the provisions of Hindu law, a wife is not entitled to claim maintenance from her husband if she does not live with him in his house. But the bill wanted to recognize some of the circumstances where wife should be entitled for maintenance from her husband if he is a) suffering from a loathsome disease; b) if he keeps a concubine c) if he is guilty of cruelty) if he has abandoned her for two years; e) if he has converted to another religion; and f)any other cause justifying her living separately( Ambedkar, BAWs, vol.14.pp 4-12Rodrigues, 2002: 498;Jadhav,2013: 358,Rege,2016:209-10).

The next topic which Ambedkar wanted to explain and crystallize various provisions related to marriage. He tried to recognize two form of marriage one is ‘sacramental’ marriage and other is called ‘civil’ marriage or register marriage. He tried to depart from some of the values related to it. Within ‘sacramental’ marriage he wanted to change some of the age old policy of restrictions like ‘spindaship’ (blood-kin) cannot marry; ‘gotraparvara’ (exogamy in case of gotra) same gotra cannot marry system and indissoluble nature of Hindu marriage.

For ‘sacramental’ marriage he underlined various conditions. Firstly, the bridegroom must be eighteen years old and the bride must be fourteen years old. Secondly, neither party must have a spouse living at the time of marriage. Thirdly, parties must not be within prohibited degree of relationship. Fourthly, parties must not be sapindas of each other. Fifthly, neither must be an idiots nor lunatics.

Here he tried to keep no bar of’sapindaship’ and gotra’ in case of registered marriage which was vigorously available in Hindu society post-independence period. It does still persist in some part of India at present century.

Third most appreciable aspect introduced by Ambedkar in Hindu Code Bill was monogamy.

It was one of the distinctive features and can give legitimacy to wife who devotes all her life to the institution like ‘marriage’. He had given sincere respect to the institution of ‘marriage’ and related responsibility.

We can definitely call him a reformer who had given evidential justification in favor of women as equal partner to men. However, he didn’t believed in the dominant discourse of feminism which free women from any institution or responsibilities.

Fourth, and the most striking features of Hindu Code Bill was ‘dissolution of marriage’ in certain situation which was previously not acknowledged by ancient law code. During debate in parliament Ambedkar argued, ‘the sacramental marriage was a marriage which was indissoluble. There could be no divorce’. The present Bill makes a new departure by introducing into the law provisions for the dissolution being into the law provisions for the dissolution of marriage. Any party which marries under the new code has three remedies to get of the contract of marriage. One is to have marriage declared null and void, secondly to have the marriage declared invalid; and thirdly to have it dissolved (Jadhav, 2013:359).

Fifth, as far as Hindu marriage is concerned he tried to establish –monogamy as pan Hindu culture. He tried to nullify caste and gotra provisions which denying mobility concerned with marriage. That is how he rejected the sacramental status of marriage and prescribed for consent based contractual civil marriage. He also vehemently opposed dowry system categorized Streedhan into one single category of property.

Last but not the least, the Code wanted to change existing customary adoption law. Dr. Ambedkar jotted down the criterion for the valid adoption where ‘consent of wife’, capacity of woman to adopt, right of mother over property after adoption became the main stay of adoption policy in proposed Hindu Code Bill. Though, all these provisions are incorporated in The Hindu Adoption and Maintenance Act, 1956.

However, the Hindu Code Bill was later split into four Bill, and some were put on the Statute Book of Parliament. The Hindu Marriage Act ,1955; the Hindu Succession Act 1956; the Hindu Minority and Guardianship Act 1956 and Hindu Adoption and Maintenance Act,1956 are four enactments which incorporated the ideas and principles of Hindu Code Bill formulated previously by Dr. Ambedkar.

There were many difficulties in the proposed Hindu Code Bill, so why it was being rejected by the then cabinet and seriously criticized by many individual leaders and civil societies. Yet, its introduction had crystallized some of the very important women issues which are long been neglected by traditional Indian society. Secondly, by allowing dissolution to invalid marriage Ambedkar tried to pass women from the emotional and physical trauma. Thirdly, in course of time we established family courts and other mediating agencies to rehabilitate women who decided to be outside family structure. Fourth, most appreciable aspect introduced by Ambedkar in Hindu Code Bill was monogamy. At this point, he wanted to establish-monogamy as pan Indian culture. Fifthly, he also wanted to nullify caste and gotra provisions which denied any type of mobility in relation to Hindu marriage. Sixthly, Ambedkar transformed the old ‘sacramental’ version of Hindu marriage to ‘civil’ relation between two consenting adults. This was one of the most dynamic and civilized idea to establish marriage as civil contract.

However, above analysis has ‘rediscovered’ various ideas of Dr. Ambedkar and elevated many of the women issues. Indeed, he tried to codify the basic legal rights for the women to ensure her a fair and dignified life. Along with it he tried to ensure her a maternity benefit, he also defended on equal wages and representation of women laborer in the welfare fund activity and tried to strengthen women’s right related to economic development which remain the main gateway to uphold ‘gender justice’ in Indian society. Hence, the education to maternity leave to property right, Dr. Ambedkar wanted to empower Indian women in substantive and holistic manner.

(Dr. Shakti Pradayani Rout is Assistant Professor of Political Science at Ram Lal Anand College, Delhi University)