1212 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
Emperors, when there was a child from the Hindu wife, circumcision was not necessary and they were entitled to the pension or something like that. Therefore the Hon. Law Minister will appreciate that this uniformity with regard to customs even in a particular family has not been a necessary factor and I think that he will do well to adopt this amendment of Pandit Thakur Das Bhargava, suggesting that the word ‘uniformity’ be dropped.
Dr. Ambedkar : This has no judicial value. The distinction there was made between custom and practice. Practice has no judicial value.
Shri Naziruddin Ahmad : I want to speak with regard to the definition of the word ‘custom’ to begin with and I must say that I am in entire agreement with the official draftsman.
Shri Syamnandan Sahaya : For once.
Shri Naziruddin Ahmad : I am in general agreement with the Hon. Minister except on occasions when he cannot be made reasonable. With regard to this definition of the word ‘custom’ it is not merely the Indian law but it is also the law throughout the world. I have a copy of Holland’s Jurisprudence which also lays down that a custom in order to be followed must be reasonable, must be continuous, must not be broken and it must be of ancient standing. This is all that is laid down there. The question of uniformity is regarded in Jurisprudence as absolutely essential. If once a custom is broken, it ceases to bear the character of custom at all. This has always been regarded so. So the mere fact that a custom is broken is enough to break the custom. Therefore, I think the definition as it stands should be supported. So far as judicial decision is concerned, the judicial decisions in all cases must have been or are supposed to have been given in view of these considerations but these are considerations which are essential, which are to be found in books of Jurisprudence and therefore, it is far better to rely upon these essential elements rather than rely upon judicial definitions because judicial definitions might be coloured with regard to the difficulties of a particular case and it is far better to rely upon well-known expressions rather than rely upon judicial decisions. Therefore, I think that the definition in the Bill should remain.
Shri J. R. Kapoor : I have not been able to appreciate the necessity of the two amendments that have been moved by my hon. Friend, Pandit Thakur Das Bhargava, particularly in view of his own view. His view I understand, is that the definition of ‘custom’ should be