Goa Civil Code

uniform civil codeBy : Saloni Vichare & Chirayu Biyani

ABSTRACT

 

The requirement of Uniform Civil Code (UCC) in a country like India with diverse communities and customs has been argued and debated upon from time to time. Personal Laws based on religions, castes, etc. in India have occasioned into a conflicts. Uniform Civil Code indicates the ideas of same set of civil rules for all the citizens heedlessly of their religion, caste, etc.

 

Where on one hand India is striving to attain ONE Code for itself and visualizing a Uniform Civil Code, a small Union Territory like Goa has its own Civil Code with Uniform set of laws irrespective of race, caste, creed, religion, etc. Based on Portuguese Civil Code, 1867, Indian Parliament elected for the enactment of Goa, Daman and Diu Administration Act. The Goa Civil Code pertaining Family Laws and Usages includes succession, marriage, divorce, guardianship, Tort, property, domicile, access, possession and waterways.

 

This paper discusses why is a Uniform Civil Code needed for a more liberal society and what are the pros and cons of having a Uniform Civil Code in a secular country like India. It also discusses how uniform the Goa Civil Code truly is.

 

The first thing that comes to our mind when someone says Civil Code is that it’s the Governing body of Civil Laws and indeed it is the law governing rights relating to personal matters and property. The question that stands before us since the formation of Constitution of India which came into force on 26th January, 1950 and is regarded to be an instrument and a living document which makes Governing system work, is that can the Civil Law ever be Uniform? India being a Secular Country has diverse laws depending on distinctive religion. For example, Hindus, Muslims, Christians, Parses, etc. have their independent laws for governing their right. The cliché meaning of Uniform Civil Code would be to get “uniformity” in governing laws of the society without any discrimination of religion. Article 44 of the Indian Constitution provides Uniform Civil Code for the Citizens. It says that ‘The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.’[1] But Article 44 falls under Part IV of the Indian Constitution, which is a Directive Principle of State Policy and according to Article 37, ‘DPSPs are not enforceable in the court of law, but should be applied by the State while the making of Laws.’[2]

 

“I do not expect India of my dreams to develop one religion, i.e., to be wholly Hindu or wholly Christian or wholly Mussalman, but to be wholly tolerant working side by side with one another”[3]

-Mahatma Gandhi

 

Mahatma Gandhi supported secularism. Even the Constitution has a strong essence of secularism. But as we are developing and the Indian society is becoming more liberal, the need of equality in Civil Laws becomes an alarming issue.

 

“Well, I should like a civil code which applies to everybody but wisdom hinders. If the member or anybody brings forward a Uniform Civil Bill, it will have my extreme sympathy. But I confess I do not think at the present moment the time is “ripe” for me in India to push it through. I want to prepare the ground for it.”[4]

-Jawaharlal Nehru

 

This was in the year 1954 that Jawaharlal Nehru stated the above and India had freshly gotten Independence. Religion was a sensitive issue at that point because of Partition of India. Now, the time has come that the laws become uniform and we as one, show strength to the world, as India has become an emerging world super power.

 

We the people created religion on the basis of geographical boundaries and common beliefs. Religion has one soul and should have similar laws. Though it’s far from achieving and a distant dream as it hurts the religious sentiments of institutions.

Supreme Court on Uniform Civil Code has taken an interesting stand. On one hand, it has time and again recommended early implementation of Uniform Civil Code in the SarlaMudgal[5] case and on the other hand, it has rejected all attempts to do so through Public Interest Litigation (PIL).

 

Where India is still visualizing on having a Uniform Civil Code, the small State of Goa has its own Goa Civil Code, which is also known as Goa Family Law. Goa Civil Code was framed by the Portuguese and enforced in the 19th and 20th centuries.[6] The colonial leaders in Goa left a precious living legacy in the form of Goa Civil Code. It is based on the Portuguese Civil Code of 1867, which was introduced in Goa in the year 1870.

 

The Goa Civil Code preaches absolute equality and promotes a sense of uniformity.In the year 1910, the Republic of Portuguese replaced Monarchy and hence substantive changes in Family Laws were introduced. Registration of marriages and performing them in front of the Office of Civil Registration was made compulsory and divorces, for the first time were permitted. These laws came into force in Goa in the year 1961 and were applied uniformly to all the sections of society in Goa.[7]In the year 1962, Goa elected to keep the Portuguese Civil Code in an enactment of Indian Parliament by the Goa, Daman and Diu Administration Act.[8] The Civil Code pertaining Family Laws and Usages have survived which include succession, marriage, divorce, guardianship, Tort, property, domicile, access, possession and waterways. But the Goa Civil Code has been suppressed in the areas like Transfer of Property, Contracts, Registration, Easement Rights, so on and so forth.[9]

 

The Overview of laws under Goa Civil Code is as follows:

 

·         It imposes the practice of Monogamy on all the religions. It believes that practice of Polygamy is injustice and cruelty against women, which violates the basic human rights.[10]

 

·         To curb child marriages, the marriage age of the male should be minimum 21 and that of female should be minimum 18. It also states any person who violates this provision or is, in any way, involved in such acts should be punishable under the court of law. The validity of marriage depends on the declaration of eligibility before the registrar and marriages are mandatorily to be registered. The grounds of divorce are to be laid down and the Principles of Natural Justice should specifically prescribe its procedure.[11] Even if the Sharia Law allows a man to have four wives, Goa Civil Code does not allow a Muslim man to have more than one wife at a time. Divorce cannot be given by the pronouncement of Talaq thrice.[12]

 

·         The parents cannot disinherit their children completely.[13]

 

·         The marriages that take place under the Community Property Law allow each spouse to automatically acquire joint ownership of all assets in their possession. Moreover these assets cannot be disposed without the consent of the latter, therefore women are protected under the law by husbands who might otherwise do as pleased with their assets.There is an equal share of property tothe son and daughter from the father. The provisions of Hindu Succession (Maharashtra Amendment) Act, 1994 are taken are guiding principles wherein a daughter or a son shall have the same rights in a coparcenary property.[14]

 

IS THE CODE REALLY “UNIFORM”?

According to a study conducted by United Nations Population Fund (UNPF) the Goa’s Family Law promotes Bigamy. The Family Law of Usage and Customs of Gentile Hindus allows bigamy under certain conditions.

It states that a man’s second marriage is legal if he does not deliver a child with the first wife till the age of 25 or a male child is not born till 30 years. This section also shows clear discrimination portrayed under the law as it specifically states “or a male child”. The Goan Civil code not only applies to marriages but also applies in the cases of divorce, inheritance, and succession. The Anti-dowry law describes dowry as “means any property or valuable security given or agreed to be given either directly or indirectly- by one party to a marriage to the other party, at or before or any time after the marriage in connection with the marriage.”It is not only limited to this law but the Prohibition of Child Marriage Act is discriminatory against a girl as despite strict measures taken under the Act to those who “promote” or “permit” it, marriage is not void but voidable.[15]

 

Lack of uniformity becomes even clearer as marriages under the Goan Family Law are a three tier system. Marriage laws differ from those opting to marry outside the Catholic Church, those who opted for a Catholic Church and for non-Catholics as a whole. Since the colonial decree of 1946, Catholics have been excluded from registering their marriage at the civil registry, and routing the process through Church itself. This is a difference based on the grounds of religion amounting to interference of personal laws for Catholics in Goa.Canonical marriage refers to those undertaken through the Church are governed by the Canon Law of Church, Canon Law. It differs from the Indian Divorce Act applicable to the Christians and the Goa Civil Code.[16]

 

Divorce is governed on the basis on what law one is married under. Marriage is considered to be sacrament which is indissoluble. Divorce is not permitted under the Canon Law of the Church. In a decree between the Catholic Church and Portuguese State, Catholics marrying under the Canon Law were excluded from seeking divorce under the law.[17]

 

In 1974, the provision of Marriage decree was judicially struck down being ultra vires of the Constitution of India. This was given in the case, Nunes of Bicholim v. P NicolauFernandes of Merces.[18]

 

There are other inequalities visible in Goa’s Family Laws in terms of adoption rights and the rights of an illegitimate children. These rights differ and depend on the religion. Furthermore the Special Marriage Act, 1954 was also made applicable in the State as the Government notified it. Despite of having equal laws, domestic violence is still seemingly prevalent and Goa has demanded to extend Dowry Prohibition Act.[19]

 

“There is no uniform civil code in the State. This is a misconception. When the civil code came into force in Goa the Customs of Usages of Hindus in Goa was also enacted to protect the Hindus. There is an impression that there is a common civil code but some Hindus opted for the Hindu law and it was accepted by the Portuguese. The Hindu Undivided Family prevailed in addition to the civil code. But this new notification will only cause confusion.”[20]

-RamakantKhalap

(Former Chairman of the State Law Commission)

 

CONCLUSION-

Uniform Civil Code is an ideal form of State and is meant to safeguard rights of the citizens based on equality. But, in a country like India, where there are diverse denominations and religions based on beliefs of the people, having a Uniform Civil Code becomes a controversial and a sensitive issue. Uniform Civil Code won’t affront religious sentiments and will bring about national unity in distinct faiths, but, even after 69 years of independence, it seems India is still not prepared for implementation of Uniform Civil Code as an Act.

 

 

BIBLIOGRAPHY-

 

BOOKS CITED-

i.            The Constitution Of India, Bakshi, P. (2013)

ii.            AIR 1974

 

GOOGLE BOOKS-

i.            India Of My Dreams

ii.            Making Of The Constitution In Deeply Divided Societies

 

CASE LAWS-

i.            Smt. SarlaMudgal, President, Kalyani and Others v. Union of India and Another

ii.            Nunes of Bicholim v. P NicolauFernandes of Merces

 

WEBSITES-

iii.            Legalserviceindia.com

iv.            Mmascgoa.tripod.com

v.            Goalawcommission.gov.in

vi.            Goacom.com

vii.            Freepressjournal.in

viii.            Refworld.org

ix.            Lisamonteirowrites.blogspot.in

[1]Bakshi, P. (2013). THE CONSTITUTION OF INDIA-New Delhi, India: Universal Law Pub. Co., Twelfth Edition, Page no. 106
[2]ibid
[3]Google Books (2015), INDIA OF MY DREAMS, by Mahatma Gandhi, Page no. 241
[4]The Times of India, September 16, 1954, Page 11, Cited in: Google Books, MAKING OF THE CONSTITUTION IN DEEPLY DIVIDED SOCIETIES, Page no. 140
[5]Smt. SarlaMudgal, President, Kalyani and Others v. Union of India and Another (AIR 1995 SCC (3) 635)
[6]Legalserviceindia.com, (2015). UNIFORM CIVIL CODE

Available at: http://www.legalserviceindia.com/articles/ucc.htm (Accessed 22 Aug. 2015)
[7]Mmascgoa.tripod.com, (2015). GOA’S CIVIL CODE

Available at: http://mmascgoa.tripod.com/id12.html (Accessed 22 Aug. 2015)
[8]Goalawcommission.gov.in, (2015)- LAW COMMISSION, GOVERNMENT OF GOA.

Available at: http://goalawcommission.gov.in/aboutus.htm (Accessed 22 Aug. 2015).
[9]Mmascgoa.tripod.com, (2015). GOA’S CIVIL CODE

Available at: http://mmascgoa.tripod.com/id12.html (Accessed 22 Aug. 2015)
[10]Legalserviceindia.com, (2015). UNIFORM CIVIL CODE.

Available at: http://www.legalserviceindia.com/articles/ucc.htm (Accessed 27 Aug. 2015)
[11]JyotiDhondh (2015). MARRIAGE & THE LAW – INFORMATION AND SERVICES IN GOA. Goa News Available at: http://www.goacom.com/marriage-the-law (Accessed 27 Aug. 2015)
[12]Statutory-law.knoji.com, (2015). STATUTORY LAW: THE PORTUGUESE CIVIL CODE OF 1867 IS VALID IN GOA AND THE SHARIA TAKES A BACK SEAT.

Available at: https://statutory-law.knoji.com/statutory-lawthe-portuguese-civil-code-of-1867-is-valid-in-goa-and-the-sharia-takes-a-back-seat/ (Accessed 27 Aug. 2015)
[13]ibid
[14]Legalserviceindia.com, (2015). UNIFORM CIVIL CODE.

Available at: http://www.legalserviceindia.com/articles/ucc.htm (Accessed 27 Aug. 2015)
[15]Free Press Journal, (2013). BIGAMY ALLOWED IN GOA, SAYS A UN STUDY

Available at: http://www.freepressjournal.in/bigamy-allowed-in-goa-says-a-un-study/ (Accessed 30 Aug. 2015)
[16]Refugees, U. (2015).Refworld, INDIA: POSITION OF WOMEN IN GOAN SOCIETY, PARTICULARLY WHETHER A WIDOW IS REQUIRED TO MARRY HER LATE HUSBAND’S BROTHER BECAUSE OF SOCIAL RULES; AND AVAILABLE STATE PROTECTION (1999).

Available at: http://www.refworld.org/docid/3ae6ad6060.html (Accessed 30 Aug. 2015)
[17] ibid
[18]AIR 1974 Goa 46
[19] Cunha, P. (2015). INDIA LEARNS TO PLAY AS A TEAM INSTEAD OF A GROUP OF INDIVIDUALS. Scroll.in.

Available at: http://scroll.in/article/750450/india-learn-to-play-as-a-team-instead-of-a-group-of-individuals (Accessed 30 Aug. 2015)
[20]Monteiro, L., Monteiro, L. and profile, V. (2014).GOA REVIEWED: A HURRIED ACT. Lisamonteirowrites.blogspot.in.

Available at: http://lisamonteirowrites.blogspot.in/2014/06/a-hurried-act.html (Accessed 30 Aug. 2015)

Uniform Civil Code: The Dormant Law

Prof. Annam Subrahmanyam and Mohan Rao, Bolla

Introduction

The High Court of Kerala in Agnes alias Kunjamol v. Regeena Thomas, has been confronted with a peculiar question of which the law has been dormant. It has, inter alia, reference to a long awaited issue of enactment of Uniform Civil Code. Despite the Constitutional mandate by Part – IV of the supreme law of the land, no state has had courage to make the law on the subject. Long ago, in the Shah Bano Case, the Apex Court has expressed its regrets that Article 44 of the Constitution has remained a dead letter. One decade after Shah Bano Case, in Sarla Mudgal v. Union of India, the Supreme Court of India, has reiterated the need for the Uniform Civil Code for India.

India has been declared more ‘secular’ through the 42nd Constitutional Amendment in 1976. Secular character was considered as one of the basic structures of the Constitution of India by the Kesavananda Bharathi Court. Alas, the plight of women in India has been continuing unabated in the male ‘chauvinistic’ society!

The Peculiar Agnes Case The story of the Agnes case hails from the most literate district of Kerala, viz., Ernakulam. There are several peculiar and interesting issues in this case. Firstly, it pertains to a ‘legal battle between a mother in law and a daughter in law’ in which the mother in law has succeeded in the lower courts. The brief facts of the Agnes case are as follows: The first plaintiff/appellant, Mrs. Agnes, was married to one Sebastian, the youngest son of the defendant. At the time of the marriage, a sum of Rs. One Lakh has allegedly been given to the defendants’ family by the first plaintiff’s family. Sebastian was also allegedly having 75% share in the Prakash Gold Covering business managed by his father. As the father was sick, the business was being run by Sebastian.

 

Another peculiarity of the case was that Sebastian became mentally sick and the sickness aggravated to such a stage that he had caused the death of one of his two children. He was prosecuted under Section 302 IPC but was given the benefit of Section 84 of IPC. He is undergoing treatment in a mental hospital. The other child of the first plaintiff and Sebastian, i.e., Ms. Nayana (minor) is the second plaintiff in the instant case.

 

After the death of the father in law, the business was run by Thomas the elder son of the defendant. The first plaintiff has been living in the ‘Tharawadu’ house (the ancestral residential house in the name of the defendant which is said to have been maintained with the One Lakh rupees brought by the first plaintiff). The defendant has been providing Rs. 1000/- per month and Thomas was giving Rs.2000/- per month for some time to the first plaintiff. Another peculiarity is that the defendants stopped giving the amounts to the Plaintiffs and strangely served eviction notice to the first plaintiff. Thus, the battle between the mother in law and the daughter in law has begun. The daughter in law replied obviously that she would be rendered homeless but the defendant and her family were not willing to provide anything for her and her daughter and were only willing to do something to Sebastian. Apprehending forceful dispossession, the suit was filed by the Plaintiff. The defendant resisted the suit.

 

The daughter in law claims that the amount of Rs. One lakh given by her family at the time of the marriage was utilized for the maintenance of the ‘tharawadu’ (ancestral) house. The house according to her has been orally given to her by the defendant. The defendant being a retired teacher claims that the (‘tharawadu’ house) schedule property was acquired with her own funds. She wants to evict the daughter in law (even without providing anything for her living) and sell the residential house to utilize the sale proceeds for treatment of her son Sebastian.

 

The Trial Court came to the conclusion that the first plaintiff was unable to establish any manner of right over the suit property and therefore, dismissed the suit. The Appellate Court too dismissed the appeal. Both the Courts found that “being a Christian there is no ‘tharawadu’ (ancestral) for the family and the first plaintiff has no manner of the right over the suit property.”

 

The Subordinate Status of Women

 

The concept of maintenance under all matrimonial statutes stems from the financial subordinate status of the woman. Women are socialized into accepting being wives and mother, as their primary role. As housemakers, women’s contribution to the household economy has remained unremunerated and un accounted for. Even when women do earn, they rarely had control over their earnings. Hence in most cases, when women are compelled to leave their matrimonial house due to any reasons, they were rendered destitutes. More often then, the children became the sole responsibility of the women. Of course, S. 125 Cr.P.C, some relief to such women. But, such a state of affairs is far from satisfactory. “ The Court lamented that ‘the relief provided under section 125 Cr.P.C., is far from satisfactory.’

 

Justice Bhavadasan has traced the position in Common law and observed that in Common law, the husband has no right to turn his wife out of the house. She has a right to reside there and it is not possible for the husband to drive her out. The Court recalled,’ the Hindu Law has always recognized the independent status of wife. In fact, Koutilya in Arthasasthra and Manu in Manusmruthi, have dealt with the right of maintenance of the wives. Both the parties belong to Christianity and the Indian Christian Marriage Act, 1872 does not provide any property rights to the daughter in law.

 

However, the Court held that the principle of ‘ubi jus ibi idem remedium’ applies in this case…,”

Article 44 : The Dead Letter

 

As a matter of regret the Court ruled that Article 44 of our Constitution had remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The Court observed that there was no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A Common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. The Court expressed its hope that the community is likely to bell the cat by making gratuitous concessions on this issue.

 

The Court further reminded that ‘It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another.’

 

The Court realized the difficulties in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecement attempts of courts to bridge the gap between personal laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. speaking through Chief Justice Y.V. Chandrachud in Mohd.Ahmed Khan v. Shah Bano Begum held as under:

 

“The High Court expressed wonder as to how long would it take for the Government of the day to implement the mandate of the Framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu Law – personal law of the Hindus – – governing inheritance, succession and marriage was given a go-by as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country…. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like has all a sacrament origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a common civil code for the whole of India.”

 

Comparing the two provisions viz. Arts.25 and 44 the Court analyzed that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Arts.25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Arts.25 and 26 is a suspect legislation. …. in Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others it was opined that it was a matter of regret that Art.44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. Accordingly, ‘a common civil code will help the cause of national integration by removing the contradictions based on ideologies.’

 

Relief Granted

 

The evidence was to the effect that the first plaintiff hails from a poor family and her family will not be able to support her, if she goes to her parental house. One can only say that the position of the first plaintiff and her daughter is deplorable and precarious. The only course now open to this Court, is to let the plaintiffs continue to reside in the plaint schedule property till they are provided with another home by her husband’s family members. As already stated, the plaintiffs may not have any statutorily enforceable right in this regard. The Court finally ruled that certainly, the Plaintiff, ‘has a right to reside in the matrimonial house,’ reminding that her husband has been mentally ill and ‘one can easily understand the plight of the first plaintiff and her daughter.’

 

Accordingly, the appeals were allowed and in the result, the setting aside the judgments of the lower courts, the Hon’ble Court issued an ‘order of permanent prohibitory injunction against the defendant [or any one claiming under her] from dispossessing the plaintiffs from the plaint schedule property until they are provided with another suitable residence by the family members of Sebastian, her husband.’

 

The counter claim filed by the respondent/defendant was held dismissed. Further, the plaintiffs were held entitled to their costs throughout.

 

Conclusion

It may be concluded that this judgment of the Kerala High Court through the Justice P.BHAVADASAN would be an eye opener for the parliamentarians to come forward to enact a law in pursuance of Article 44 of the Constitution of India in the interest of rendering famine justice. It is sumitted that we can’t, with a sigh of relief, feel contended with the laudable judgments of the Courts like the one we are discussing about. It may be pointed out that time is ripened and it is for the legislature to enact a law for a Uniform Civil Code. It is analytically clarified in the case and the Court’s historic venture to do justice to an unfortunate Christian woman of whom the law has been silent, was so apt and appreciable.

 

But, the State cannot remain a mere spectator when many a Shah Bano and Agnes suffer due to lack of the statutory aid given in pursuance of Article 44 of the Constitution. By performing its duty, the State would render justice to the needy, deserving and deplorable Chiristian and Muslim (Minority) women. Hope that the parliamentarians exhibit the courage expected by the Supreme Court in Shah Bano and Sarla Mudgal cases by enacting a law in pursuance of Article 44 of the Constitution.