In this article, Kirti Kothari from Institute of Law, Nirma University, discusses few important provisions under the Goa Civil Code.
Personal laws in India
India has been belaboring about its recent and extraordinary developments in the field of Science, Technology, Medicine, Astronomy and the list continues. At the same time, we have failed to acknowledge the fact that a major section of our Indian society is deprived of its basic rights and are being discriminated in various spheres of life.
In India, there exists discrimination within the laws itself. One such sphere where women are highly discriminated and have suffered since decades is the existence of PERSONAL LAWS for different religions in our country. As India is a land having many religions each having its own beliefs and faith they are guided by their own set of rules in matters related to family affairs that are marriage, divorce, adoption, succession etc.
Discrimination within the personal laws
One major flaw which exists in almost all personal laws is that they tend to be biased towards men and give women a subordinate position in the society. There are certain provisions in these personal laws which tend to discriminate women in matters related to marriage, succession, inheritance. An example is, a Hindu woman has no right to adopt a child on her own without the permission of her spouse and such similar disturbing provisions are there in personal laws of every religion.
The idea of Uniform Civil Code
- To solve all such problems there has been a plethora of debate on the implementation of the UNIFORM CIVIL CODE in the country which means that all the personal laws in the country will be replaced by a single set of laws common for all the religions in the matters of marriage, divorce, adoption, and inheritance.
- The principle of the uniform civil code is laid down in the article 44 of the constitution under the directive principles of the state policy. The framers of the Indian constitution have been in the support of the implementation of the uniform civil code as well as the honorable Supreme court of India has also stated the dire need for the implementation of the uniform civil code in several landmark judgments.
- However religious personnel have been continuously rejecting the implementation of the uniform civil code taking the defense of the Article 25 of the constitution of India.
- According to the views negating the proposition of implementation of the UCC, the matters of marriage, divorce, adoption and succession reflects the religious beliefs and sentiments.
- However the above-stated view have failed to accomplish the fact that it has clearly being stated sub-clause 2 of Article 25 that all the SECULAR activities are outside the purview of the protection under the article and it has been clearly stated by the honorable supreme court that the matters related to marriage, succession etc are clearly secular activities related to religion.
On one hand where women in the whole country is suffering due to the flaws which occur in the personal laws, the courts are flooded with cases related to cruelty and discrimination towards women.
GOA, the smallest Indian state has a common code for all the citizens residing in the state irrespective of their religion commonly known as the GOA CIVIL CODE.
- When Goa became a part of India in the year 1961 by the Goa Daman and Diu administration act 1962 the parliament authorized the Portugal civil code of 1867 in Goa which shall be amended as per the necessary requirements and shall be repealed by competent legislature. There have been several amendments in the Goa civil code after its implementation.
- In 1981 the government of India appointed a personal law committee to determine if personal laws could be implemented in the state but it failed to do so. The most recent development in the Goa civil code has been the passing of the Goa succession act in the year 2012 by the parliament.
- The Goa civil code provides a model for rest of the country of how equal rights can be provided to both men and women without hurting the sentiments of any religion or any particular section of the society.
- It also put forward an example before various communities to stop discriminating women in the name of religion. Some very unique features of Goa civil code are as follows.
- A unique feature of the Goa civil code is that it is in consonance with the article 44 of the constitution that is the directive principles for the state policy which is in fact a major achievement for the state.
- There are certain provisions in which the Goa civil code is far better than the existing personal law but in this article we will only deal with the provisions related to marriage and point out that how the Goa civil code is better and how it ensures gender equality which is one of the major concerns for the country.
Provisions of marriage under Goa civil code
- Under the Goa civil code marriage is a contract between two persons of different sex that is man and woman with the purpose of living together and constitute a legitimate family together
- Any form of polygamy or bigamy is strictly prohibited under the Goa civil code except for certain special cases. Monogamy is the prescribed form of marriage.
- Men cannot marry before they attain the age of 21 and the same is 18 in the case of women.
- Consent is required from both men and women before and at the time of marriage.
- All the marriages should be lawfully registered under the court of law and any marriage if not registered shall be considered as null and void before the court of law.
- Under the Goa civil code there are four methods of marriage. Three of them are the conventional methods of marriage and the fourth one is the communion of assets
- Under the law of communion of assets as soon as the person gets married his spouse automatically gets half of the assets thus each having undivided rights over others assets.
- There should be consent of both husband and wife in the case they file a divorce case in the court of law and proper grounds must be presented before the court for the divorce
- There are certain restrictions due to which a certain category of persons are not allowed to marry under certain circumstances.
Reasons for supporting marriage under the Goa civil code over personal laws
- As marriage is a contract between men and women which is recorded under the court of law there are hardly any chances of men denying the marriage and abandoning the women which are seen on several instances in cases of marriage under the personal laws. It provides security to women.
- One of the most striking features of the Goa civil code s that the property is divided equally among both men and women and women is the legal heir of the property which provides a sense of financial security to women.
- As Goa permits only monogamy, problems such as triple talaq and polygamy which is a major problem of other personal laws are solved automatically.
- As even after the divorce the property is divided equally among both men and women the women are often saved from the harsh and difficult life as it has been seen in divorce under several personal laws
In a whole to sum up it has been seen and observed that the provisions under the Goa civil code are far more better than the other personal laws and women has a greater sense of security and are often at equal par with the men. However like every other system of laws the Goa civil code is also not without any loopholes. There are lacunae in the code and there is a scope of improvement as well.
Lacunae in the Goa civil code
- One of the major problems in implementing the Goa civil code is that as it is derived from the Portuguese Law it is difficult to understand and convert the same into the English language. Very few efforts have been taken to solve this issue which creates an inconvenience for the lawyers and the whole judiciary to interpret the law.
- It is often claimed that the Goa civil code is in itself uniform in nature, however, this does not hold to be true. There are certain provisions in the code itself which promotes bigamy for Hindus in certain special cases as well as there are certain provisions which tend to discriminate women.
- Even after the implementation after the uniform civil code there have been certain cases in the court of law in which the women are discriminated in the name of religion and personal laws.
Uniform civil code is the need of the hour. It has been suggested by the judiciary as well as the legislature on several instances for the implementation of the uniform civil code. As far as the Goa civil code is considered we can definitely take it as a model to implement it in the rest of the country. There is no system in which there are no loopholes but that does not mean that we reject the system as a whole. There is always a scope for betterment and improvement and the same applies to the Goa civil code as well.
- Aditi Pratap Sampat,Uniqueness Of The Goan Family Laws, Ipleader
- Gauri Kulkarni, Uniform Civil Code, Legalserviceindia.comhttp://mmascgoa.tripod.com/id12.html