By : 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)