In this blog post, Aditi Pratap Sampat, Advocate, Nabco Enterprises Pvt Ltd and a student of the Diploma in Entrepreneurship Administration and Business Laws by NUJS, gives an interesting insight into the family laws of Goa. The post highlights how the civil laws applicable in the state of Goa go beyond religious, gender and caste based discrimination in order to bring about equality and uniformity in the laws enforceable in Goa.
Portuguese Civil Code and Goa
The Portuguese Rule of more than 400 years has left an indelible imprint on Goa, as is seen in its Iberian architectural style and also in the customs and traditions of the people. The Portuguese language is at present being replaced by Marathi, Konkani, and English which has also created an educational vacuum regarding the interpretation of the Law.
The most valuable living legacy left by the Portuguese in Goa is the codified system of Law in the form of Portuguese Civil Code of 1867 and the Code of Civil Procedure of 1939, which covers the entire gamut of Civil Law. The Code is divided into four sections:
- Part I comprising of Articles 1 to 17 deals with the major provisions of the Code. Pertinent is Article 7, which deals with the principles of racial and gender equality.
- Part II enhances the provisions mentioned in Part I.
- Part III exclusively deals with property rights in a comprehensive manner.
- Part IV deals with matters of civil responsibilities, infringement of rights and their resolution.
In the year 1910, substantial changes were introduced in the area of family law due to the replacement of monarchy by the Republic of Portugal. As a consequence of the change, the performance and registration of marriage before the Office of a Civil Registrar was made compulsory to consider a marriage valid under the Law. Divorce was permitted as a result of the changes made in family law. The provisions were made applicable to all sections of the society uniformly in the State of Goa in 1870.
After the liberation of Goa, Daman, and Diu from the Portuguese rule in 1961, the Indian Legislature enacted the Goa, Daman and Diu Administration Act 1962 which provisionally kept the Portuguese Civil Laws in force in Goa until and unless they were repealed by the Legislature or any other competent authority. Subsequently, all legislations about contracts, Transfer of Property Act, easement rights, etc. superseded the provisions of the Civil Code of Goa. However, the provisions in the Goa Civil Code about family laws and usages have so far survived the intrusion. These laws mainly deal with the law relating to marriage and divorce, succession, guardianship, property, torts, domicile, possession, access, and waterways. A major problem encountered by most lawyers and judges today is related to the translation of these laws in English, and hence this creates a significant impediment in the administration of justice.
Provisions of the Goan laws under the Portuguese Civil Code, 1867
The paramount significance of the Portuguese Civil Code in the Indian Legal Context can be judged by the following provisions of the Code:
1. Absolute Equality
The Civil Laws in force in Goa about marriage, divorce, protection of children and succession are non-discriminatory irrespective of caste, ethnicity, and gender. As opposed to this, the rest of India is governed by the Common Law system wherein there exists lacunae as far as the rights of women and children are concerned.
2. Marriage and Divorce
Under the family law of Goa, marriage is a contract and therefore civil registration of marriage is compulsory. There are four marital options under the Goan Law –
- The Law of Community Property – where no express contract is made, this law is applicable. Marriages taking place under this law are considered legal. Under this law, each spouse automatically acquires joint ownership of all assets already in their possession as well as those due to them by inheritance. The assets may not be disposed of or encumbered in any way by one spouse without the consent of the other spouse. It should be noted that 98% of Goan marriages take place under this law. In the event of divorce or separation, the woman is entitled to 50% of husband’s income and is not dependent on his charity.
The remaining three marital options which are mentioned below were considered conventional and are not in use today.
2. Absolute separation of property
3. Separation of assets is prior to marriage.
4. Communion of property after marriage.
3. Mandatory Registration of Births and Deaths and Succession
According to the Goan Civil laws, registration of births and deaths is mandatory. The children of deceased parents are mandatory heirs. They heirs cannot be disinherited whether male or female, except under extraordinary circumstances. If the parents die intestate, that is without a will; then all the mandatory heirs are entitled to an equal share of the estate of the deceased. On the other hand, if there exists a will, then the parents can only dispose 50% of the estate in the manner as per their choice, which is called ‘quota disponivel.’ The remaining 50% must be divided equally among all the mandatory heirs. A direct effect of this provision is the just distribution of assets among all the mandatory heirs whether male or female. However, the only way a woman can be deprived of her inheritance is by her express renunciation, and such renunciation is valid only if done after the death of the parents.
4. The validity of Sharia Law in Goa
The Sharia law takes a back seat in Goa. As a contrast to Sharia Law, contentious forms of divorce like triple talaq and polygamy are not valid in Goa. A Goan Muslim can have only one wife till he divorces her as per the Civil Code and marries again.
However, there is one aspect of Goa family law which is contentious. As per the provisions of the Portuguese Civil Code of 1867, Canonical marriages are not entitled to a divorce and the appropriate authority is the Church. The Courts have declared this to be ultra vires the Indian Constitution and have not applied this proviso of the Code. One must also realize that the Civil Code is in Portuguese language and has not yet been translated into English.
Article 44 of the Constitution of India and Goa
As of today, we have touched the 69th year of Indian Independence. However, implementation of Article 44 of the Constitution is a distant reality. Article 44 speaks of Uniform Civil Code for all Indian citizens.
In the wake of this deficiency and to initiate debate and discussion, a conference was held by the Goa, Daman and Diu Bar Association in 1979 which was attended by the then Chief Justice of India Mr. Y.V.Chandrachud. He quoted the following observations – “It is heartening to find that the dream of a uniform civil code in the country finds its realization in the Union Territory of Goa, Daman, and Diu. In my view it would be a retrograde step if Goa too were to give up uniformity in its personal laws which it now possesses”.
Subsequently, in spite of several attempts being made to repeal the Goan family laws for Hindu Succession Act and Hindu Marriage Act, such moves have been rejected by the State Government.
In 1997, there was another conference held in Goa wherein present were legal scholars from Portugal and India. The then Chief Justice of India and the Attorney General of Portugal presented a comparative analysis of the Portuguese Civil Code 1867 and 1966 as well as the Writ Jurisdiction and Administrative Law as practiced in India. The biggest effect of the conference was that a resolution was passed to encourage the Government of Goa to endorse the entire Portuguese Civil Code, 1867 following its translation from Portuguese to English. Indian lawyers present at the conference proposed to use the Civil Code as a basis for the codification of the entire Indian Law. This codification would have in turn meant that India would have a Uniform Civil Code for all her citizens.
Recently, the Narendra Modi-led Government requested the Law Commission of India to find ways and means to implement the Uniform Civil Code throughout the territory of India. However, presently, the Portuguese Civil Code about family laws is only applicable to the State of Goa.
Conclusion
The Portuguese Code of 1867 is a mammoth legislation with parallel decrees substituting various provisions of the Code. Interpreting the Code is a herculean task since it is in the Portuguese language which requires translation to English. The Judges and lawyers alike faced tremendous problems while interpreting the Code until a translation of the relevant parts of the Code was made available. In spite of this, the legal intricacies surrounding the entire gamut of Goan family law has been mastered by only a few senior lawyers in the State.
Nevertheless, Goa is a role model for the rest of the country. The Civil Code of Goa is so woven into the social fabric of the State that it can be rightly said that Goa is the only State in India which is secular to the core.
Sources:
- http://mmascgoa.tripod.com/id12.html
- https://statutory-law.knoji.com/statutory-lawthe-portuguese-civil-code-of-1867-is-valid-in-goa-and-the-sharia-takes-a-back-seat/
- http://www.livelaw.in/uniform-civil-code-unique-goa-experience/
