In this blog-post, Disha Pareek, a student of RGNUL, Punjab writes about the Civil Code of Goa and how the Indian Parliament should take inspiration from this code and enact a Uniform Civil Code for the rest of India.
Goa, a Portuguese colony, has a separate Civil Code, which is based on Portuguese Civil Code of 1867. Goa is an exceptional state. The, rest of India is governed by separate personal laws, for example, the Hindus, Muslims, Parsis, and Christians have their independent laws, but there is only one Code for Goans (residents of Goa) irrespective of their religion, ethnicity or any other consideration. The Goa Civil Code encompasses Family Law, Tort, Property law, domicile, access and possession.
Major provisions of Goa Civil Code in comparison with the laws for the rest of India
Goa being the only state in India which still continues to be governed by Portuguese law, it can be said that it is the most prestigious living legacy left by the Portuguese colony.
As per the Civil Code of Goa, citizenship can be acquired either by taking birth in Goa or also if one’s father or grandfather is born there and lastly, it can be acquired through marriage.
It’s high time that Indian law on property (applicable to the rest of India) should be reformed, taking cue from the Civil Code of Goa. This is because Indian property laws lack uniformity; it becomes a herculean task for the judiciary to decide matters that come to it. There is a huge difference between both the codes. The Goa Civil Code preaches absolute equality and promotes a sense of uniformity which is lacking in the property codes for the rest of India.[1] The provisions of the Goa Civil Code came into force in the year 1961 through its application to all sections of Goa uniformly and later were kept as an enactment of the Parliament.
Despite covering almost all aspects related to property, the Goa Civil Code has been silent on areas like transfer of property, contracts, registration, easement rights and so on and so forth.
- The first and most prominent provision is the concept of absolute equality. The civil laws currently in force in Goa which pertain to different provisions like marriage, separation, protection of children and succession are non-discriminatory about caste, ethnicity or gender. This is the lacunae in Common law which can be discriminatory in nature.
- A marriage under the Civil law of Goa is governed by a system called Communion of Assets, whereby, as soon as a person gets married, his spouse gets half of the undivided right in each other’s assets.
- In Goa, marriages take place through four methods, one of which is by Community Property Law, which is considered a legal method and the other three are considered conventional.Through Community Property Law (which is for the benefit of women), each spouse automatically acquires joint ownership of both the assets owned by them as also those due to them by inheritance. And therefore these assets may not be disposed of in any way by one spouse without the express will or consent of the other. In this way, the basic difference appears in the property law of the rest of the India is that under it, a woman does not have any such right.
- In addition to this, there is mandatory registration of marriage by virtue of which a woman in Goa is capable of establishing her rights from the very beginning. This is another significant advantage that women living under the Common Law system do not have. And in the event of legal separation, a woman is entitled to 50 percent of her husband’s income, and is not dependent on his charity or alimony. This way, it is a very advanced legal document
- The parents are not authorized to disinherit their children completely, but can do it only partially.
- Goa’s Civil Code is worth considering for promulgation all over India as it provides for common ownership of property and equal treatment to men and women. It can help in avoiding frequent breaking of marriages.
- The inheritance laws in the state of Goa are particularly interesting. As both husband and wife own the property together, in the case of the death of one spouse, the other spouse gets half the property. And if the couple has one son and one daughter, half of the remaining property must be shared equally between the two.
Benefit of Civil Code over Common Law for women
There are clear benefits of a Uniform Code in a state like that of Goa; firstly, as opposed to Muslim personal law, there is a right to an equal share in the inheritance of property. There are restrictions even in Hindu law as the Hindu Succession Act (Amendment) 2005 does not work retrospectively.
A woman, after she gets separated by a divorce, lives a miserable life under different personal laws, but there is an entirely different scenario in the Code of Goa, wherein the wife can legitimately demand half of the share of the matrimonial property. If a woman has these many rights regarding property, she does not become dependent and even when she is left alone, she can look after her children and parents. The Code of Goa is made in such a way that it helps all the communities along with both genders, and there is peaceful co-existence of all religious and cultural groups.
Is Goa’s Civil Code uniform?
The Portuguese Civil Code dates back to 1867; there is a need to amend the present Code of Goa, because the Civil Code, which is operating in Goa, had been repealed in Portugal itself in 1966. Now there is a certain amount of doubt on the uniformity of the Code in Goa. Many people and groups in Goa are not satisfied with the draconian code and there is a popular demand to amend the code by national consensus and popular vote by all the communities and by the real stakeholders.
As per a reality check by United Nations Population Fund (UNPF)[2], the code of Goa promotes bigamy. The provision of the code also promotes inequality as a man can legally marry a second time if he does not have a baby with his first wife till he is of age 25 or a male child is not born till 30 years of age.
On one side, it has been opined that the Code of Goa should inspire the Uniform Civil Code for the whole of India, but the harsh reality is that even this is not a comprehensive law in itself. The code cannot completely justify itself.
A lesson for India
India has now, for a very long time, been debating on the issue of the implementing the Uniform Civil Code under Article 44 of the Constitution, which will have a common set of laws for all and one without any form of discrimination. This particular issue has divided the country politically, culturally, socially and morally as well. The other laws of the country are same anyway; the real controversy revolves around different religious laws on marriage, inheritance, succession and maintenance.
We Indians are a bunch of hypocrites, on one hand, we talk about an egalitarian society which shall be bound by our very own Constitution but on the other, we resist having a Uniform Code for everyone. Even after the assertions of the Apex court to have a Uniform Civil Code, apprehensions lie in the hearts of all. Among this chaos, there is only one state which has been successful in bringing all religions under a single umbrella.
The future ahead
Rather than completely overhauling the current archaic laws in India, the need of the hour is to bring small changes. Some innate lacunas in the religious codes should be reformed and they must suit the needs of present times.
The problem not only lies in the draconian laws but also in the lack of will of the government to enact such laws because the political parties fear losing their vote banks amongst the masses. But, the need has been realized by different activists, and there have been women’s rights movements in several parts of the country demanding the enactment of a Uniform Civil Code specifically because the current laws do not provide the appropriate property rights that a woman should get.
Footnotes:
[1] Mmascgoa.tripod.com (2015) GOA’S CIVIL CODE
Available at: http://mmascgoa.tripod.com/id12.html (Accessed 11 July 2016)
[2] Free Press Journal, (2013). BIGAMY ALLOWED IN GOA, SAYS A UN STUDY
Available at http://www.freepressjournal.in/india/bigamy-allowed-in-goa-says-a-un-study/254150
Well written article.
However, just to point out one aspect which is not entirely correct.
The article states thus: “7. The inheritance laws in the state of Goa are particularly interesting. As both husband and wife own the property together, in the case of the death of one spouse, the other spouse gets half the property. And if the couple has one son and one daughter, half of the remaining property must be shared equally between the two.”
This may not be correct position. Under the Family Laws of Goa, when a couple enters into marriage, their estates merged into a single estate under the regime of comunhao dos bens (i.e. communion of assets). Each spouse acquires rights to the assets of the other, by virtue of the marriage, during their lives. This is not an inheritance as they are acquired during the life of the spouse and not after the death of the spouse. It is called moiety rights or half sharing rights. It operates upon assets held at the time of the marrage and to assets acquired during the subsistence of the marriage.
On the demise of one spouse, the other retains a 50% share he/she acquired by virtue of their marriage as moiety to the assets/estate of the deceased spouse. The remaining 50% of the rights to the assets of the deceased spouse pass on to heirs and alongwith them 50% of the rights to all the assets of the surviving spouse, which the deceased spouse acquired as moiety by virtue of the marriage.
To illustrate: A & B get married. A has one flat in Mumbai prior to marriage. B has one flat in Pune prior to marriage. immediately, upon the marriage being solemnised, B acquires 50% undivided right as moiety to A’s flat in Mumbai, and A acquires 50% undivided right as moiety to B’s flat in Pune. This is by virtue of the marriage. During the marriage A purchases a second flat in Pune, exclusively in his own name. B by operation of law acquires 50% undivided rights as moiety in this flat too. If B expires, A retains the 50% right he already acquired to B’s flat in Pune, during her lifetime, and the remaining, 50% undivided right to B’s flat in Pune, as well as 50% of the undivided rights B acquired to A’s flat in Mumbai and Pune, (notwithstanding that A is still living) devolve on to A’s heirs.
The couple may, prior to the marriage enter into an “ante nuptial agreement” that the regime of comunhao dos bens (or communion of assets) shall not apply to them. In such a situation, neither gets the 50% share to the assets of the other.
The precise information given here by Ms Disha Pareek, about the Portuguese Civil Code and Family Law in Goa, makes an interesting reading. I just want to know if any co-heir can dispose his or her undivided rights or share in a common ancestral property to a stranger when there are other co-heirs.
nice article disha. what if a woman is married to a goan but the marriage took place outside goa? does she still have rights?
plz reply on [email protected] if possible. thanks
Ordinarily a marriage is governed by the personal laws of the husband.
If a woman is married to a Goan man, and his is subject to Goan law, the marriage will be governed by the family laws of Goa and the woman will get all the benefits therender.
I enjoyed reading your post about the Uniform Civil Code and the Goa Civil Code.
Do you know where can I find an online version of the Goa Civil Code?
My best regards,
Eduardo