DR. AMBEDKAR AND THE HINDU CODE BILL 1201
then, in spite of the fact that a custom is a good one and observed by great numbers in the community, it will not grow if somebody is able to say that it is opposed to public policy.
Mr. Deputy Speaker : The Hon. Member is a good lawyer. My own interpretation is different. Wherever this Code specifically provides for a particular thing, unless an exception is made, to that extent a custom is abrogated whether it be opposed to public policy or not. What is the difficulty under which the hon. Member is labouring ? There are certain customs which have to be recognised, certain customs which are obnoxious and so opposed to public policy. Public policy is only a matter which can be judged by the foot of the judge. In regard to those matters we can say, why leave them to the court to decide; those customs are absolutely obnoxious. But with regard to other customs why say that they ought to be recognised by a court ? I think it is impossible to legislate for all the things.
Dr. Ambedkar : Perhaps you will allow me to intervene for a minute or two to clarify the point.
Pandit Thakur Das Bhargava : I am, Sir, of the same view as was expressed by you, but I am expressing it in a different way. I do not want to tamper with the customs which are growing which are good customs, but my fear is that any court may take upon itself to say that it is opposed to public policy. All the customs are not treated here because we have not the time and energy to go into all the customs throughout the country. Because we cannot say what customs will be saved, we should say that a custom to be recognised shall have to be judicially recognised as not opposed to public policy.
Dr. Ambedkar : The question which has been raised by my friend Pandit Bhargava is no doubt very important and so far as I know there is not the slightest difference between the view that I take and the view that he takes. The only thing is that he has applied his mind, if I may say so, to a wrong clause and that is why he has been rather confused as to what exactly is the position. Those Members of the House who are interested in the subject of custom versus the Code had better begin to apply their mind not to clause 3 but to clause 4 which is the main clause which deals with this matter of authority of custom as against the authority of the code and the law. And you will find, Sir, a very clear statement therein that unless a custom has been expressly saved that custom will not have any operation as against this law. Therefore, the question whether any particular custom has been expressly saved or not has to be gone into when we come