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Friday, May 27, 2022

Explained: Why Goa’s Civil Code is not as uniform as it is made out to be

Chief Justice of India S A Bobde recently appreciated the uniform civil code (UCC) in Goa, the only state to have one.

Written by Faizan Mustafa | New Delhi |
Updated: April 20, 2021 7:41:46 am
Even the Supreme Court, in its judgment on Jose Paulo Coutinho (2019), had referred to Goa as the “shining example of UCC”.

Chief Justice of India S A Bobde recently appreciated the uniform civil code (UCC) in Goa, the only state to have one. This brought the spotlight back on the UCC debate, although the Law Commission had concluded in 2018 that a UCC is neither desirable nor feasible. No expert committee on the lines of the Hindu Law Reforms Committee of 1941 has ever been constituted, nor has any blueprint for a UCC been prepared.

A UCC is desirable, but in a piecemeal manner. Each state in the US has a separate Constitution and separate criminal laws, and the plurality of laws has not weakened that country. The UCC has no role in maintaining the integrity of the country.

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The CJI urged intellectuals to seriously study the Goa UCC. Even the Supreme Court, in its judgment on Jose Paulo Coutinho (2019), had referred to Goa as the “shining example of UCC”. Justice Deepak Gupta had preferred applicability of Goa’s Civil Code even in respect of properties situated outside Goa rather than apply the Indian Succession Act, 1925, the general law of the land, which was indeed applied in respect of Christians of Travancore & Kochi in Mary Roy (1986) and C J Simon (2012).

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Example of plurality

Goa’s Portuguese Civil Code, 1867 is basically an alien code given by the Portuguese. Its continuance — and non-enforcement of Hindu Marriage Act, 1955 and Hindu Succession Act, 1956 or Indian Succession Act, 1925 or Shariat (Application) Act, 1937 and Dissolution of the Muslim Marriage Act,1939 etc. in Goa — is an example of legal pluralism, and negation of the very idea of one nation, one law? Is Goa’s Civil Code really as uniform as is generally made out?

Under Article 1 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880, customs of Hindus were preserved and exemptions from the Civil Code were given to gentile Hindus. This decree continued the institution of Hindu joint family, named in Portuguese as sociedade, which technically is closer to a partnership rather than the concept of a Hindu joint family.

The Shariat Act has not been extended to Goa; Muslims are governed by the Code as well as Shastric Hindu law. Those who favour love jihad laws would be surprised to know that under Article 1090 of the Goa Code, marriage cannot be annulled on the ground of religion.

Goa’s Civil Code has four parts, dealing with civil capacity, acquisition of rights, right to property, and the breach of rights and remedies. It begins in the name of God and Dom Luis, King of Portugal and Algarves. India’s Constituent Assembly had rejected H V Kamath’s proposal of a similar invocation of God in the Constitution.

The Code has survived by virtue of Section 5(1) of the Goa, Daman and Diu Administration Act, 1962 that permitted its continuance. On the contrary, the Jammu & Kashmir Reorganisation Act, 2019 has repealed laws based on local Hindu customs; even Kashmiri Muslims were being governed by such non-Islamic laws and customs.

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Marriage & property

It is not clear whether the CJI wants that like Goa’s Civil Code, the proposed UCC should put national Transfer of Property Act, Contract Act, Civil Procedure Code, Sale of Goods Act, Partnership Act etc in one code along with family law provisions. But then, having all laws in one code does not necessarily guarantee justice and equality.

Article 1057 of Goa’s Code provides for the registration of marriages. This lacks uniformity between Catholic and non-Catholic marriages. First, the intent of marriage is recorded by the would-be spouses before the civil registration authorities and after two weeks, a marriage deed is signed. For Catholics, signature in churches are considered sufficient for civil registration. Many women are not aware that the UCC requires a second confirmation through signatures, and so, when a dispute arises, their marriages are found invalid. Many cases of bigamy through such frauds have been reported.

Marriages solemnised in churches can be annulled by the church tribunal in cases of non-consummation. Article 1086 says that ecclesiastical courts alone can nullify Catholic marriages. The High Court mechanically approves such annulment, except in extraordinary cases. And yet, non-consummation is not a ground of annulment or divorce for non-Christians. For them, Article 1089 says such a power to annul marriage can be exercised only by the civil courts.

Article 1204 permits the husband to get a divorce if adultery is committed by the wife, but the wife can get a separation only if the husband commits adultery with public scandal, and a divorce if he keeps a mistress in the conjugal home or abandons her.

Article 3 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880 provides that a Hindu husband can take a second wife in the absence of an issue, if the wife has attained the age of 25, and also if she has attained age 30 without having a son. The provision is contrary to both the Indian Penal Code and the Hindu Marriage Act.

Article 1056 terms marriage a perpetual contract between persons of different sex (same sex marriage is not recognised) rather than sacrament. Is the rest of India ready to deny sacramental nature of Hindu marriage in the UCC? In any case, with the addition of the provision of divorce, marriage is no more perpetual even in Goa.

The Code provides for pre-nuptial contracts; here again, the devil is in the details. There are four types of such contracts — no communion of properties; total separation of assets before and after marriage; Dotal regime under which the bride’s share in her father’s property is given to the husband; and communion of all assets of husband and wife that are equally divided on divorce or death. It is only the fourth that looks equitable, and yet, even here the management of properties is solely vested in the husband. Under Article 1104, the wife is not entitled to deprive the husband by way of ante-nuptial contracts from the administration of assets. She may, however, reserve for herself the right to receive part of income from her assets for pocket expenses provided it does not exceed one-third of the net income. Of course, there is joint ownership, and the husband cannot sell assets without the wife’s consent.

Moreover, what is divided are properties, not ownership of rights/interests. Thus, if the husband was an agricultural tenant, she would not get half the tenurial interests. Many pre-nuptial contracts do provide that there would be no right if the marriage is not solemnised or the wife leaves the marital home within a few months, or even on divorce.

In cases of parties opting out of joint ownership of properties, the succession order becomes significant. Not only Article 1969 of the Goa Civil Code, but also Goa Succession, Special Notaries Inventory Proceedings Act, 2012 (enacted in 2016) mentions in Section 52 the surviving spouse at number four in the order of preference of legal succession — after descendants, ascendants, and brothers and sisters and their children.

Unlike the Hindu Succession Act that gives unlimited testamentary powers, Article 1784 of the Goa Code prohibits disposal of more than 50% of assets through a will. This is called legitime. The Goa Succession, Special Notaries and Inventory Proceedings Act too has retained it. The provision is similar to one in Muslim Personal Law that says a Muslim cannot make a will of more than one-third of his property and two-thirds must go to the heirs. Is the Hindu right prepared to have such a provision in the UCC as and when it is enacted? Are we ready for a provision similar to Article 1876 of the Goa Code that disentitles an heir from inheritance in case of refusal to maintain his or her parents without a good reason or commission of an offence against their person punishable with six months’ imprisonment?

States, different laws

In fact, not all Hindus in the country are governed by one law. Marriage amongst close relatives is prohibited by the Hindu Marriage Act, 1955 but is considered auspicious in the South. The Hindu Code Bill recognises customs of different Hindu communities. Even the Hindu Succession Act, 1955 could not make the daughter a coparcener until 2005. The wife is still not the coparcener. Even today, property devolves first to class-I heirs, and if there are none, then to class-II heirs. While the heirs of sons are moved to class-I, heirs of daughters are not. Even among class-II heirs, preference is given to male lineage. And if a couple is issueless, self-acquired property of both spouses goes to the husband’s parents even when they have thrown out the daughter-in-law. The wife’s parents do not get anything from the property of their issueless daughter.

There is no uniform applicability of personal laws among Muslims and Christians either. The Constitution protects the local customs of Nagaland, Meghalaya and Mizoram. Even land laws in a number of states are discriminatory, and daughters do not inherit landed properties in the presence of sons. With a 2006 amendment in UP, only an unmarried daughter gets a share in agricultural property. The distinction between married and unmarried daughters is arbitrary. These laws have been exempted from judicial scrutiny by including them in the Ninth Schedule.

Let the secular laws first be made gender-just before the country undertakes reforms in religious laws. Piecemeal reform rather than enactment of the UCC in one go is the only way forward. In fact, a just code is preferable to a uniform code.

The writer is Vice Chancellor, NALSAR University of Law, Hyderabad

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