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Journalism of Courage
It was a strange demand. F E Noronha had got a call from the Cabeca de Casal, an administrator appointed to make an inventory of assets for partition in his maternal family, asking for his mother’s dowry certificate. Noronha’s parents married nearly six decades ago and his mother died a few years ago. But the certificate was crucial to decide his mother’s inheritance, which his father would share in half.
“Birth, marriage, death and succession — everyone does the same paperwork… it is recorded and registered. So, we found the tattered piece of paper. My mother came from a rich family but my father was a good man and never cared much about that. But she has an equal share in her family property and under our law, my father is entitled to half of whatever she would get. When someone dies, they start carefully counting the heirs,” Noronha, 70, said.
With the matter of a Uniform Civil Code likely to be kept alive in the run-up to the 2024 elections – even if, as The Indian Express earlier reported, the BJP-led government is unlikely to push it through in its current term – the crucial question is what form and shape the proposed law would take.
One model that is held up as an example is the Portuguese Civil Code – a 156-year-old, 647-page code that was enacted in the Ajuda Palace in Lisbon. The Code continues to govern Goa, and the Union Territories of Daman & Diu and Dadra & Nagar Haveli. After its liberation in 1961, Goa, with a population of just six lakh at that time, retained the Portuguese Civil Code, making it the only state to have a uniform civil code for all religions.
This crucial feature of the Portuguese Civil Code that cuts across religions and with laws that govern everything from gender equality in marriage to personal inheritance, is what the Uniform Civil Code aspires to achieve.
After the 22nd Law Commission on June 14 sought public comments on the Uniform Civil Code, Goa Chief Minister Pramod Sawant, among the most vocal supporters of the idea, had said, “I am proud that in Goa, Uniform Civil Code has been followed since the time of liberation… Minorities comprise more than 27 per cent of the population in Goa, and in the last 60 years, there has not been any problem or complaint. No one has faced any problem here or raised an issue on this.”
While the ‘only state with Uniform Civil Code’ status invokes a sense of pride and sub-nationalism, the 19th Century law is now being closely scrutinised for how equal and uniform it is.
A radical idea for India in 1861, the Portuguese codified the “communion of assets”, a joint ownership of marital property which was followed in Portugal since the Middle Ages. The law, aimed at achieving gender equality by securing economic rights, gives spouses an equal right in each other’s assets, which means neither party can sell it without the other’s consent. Under Hindu law, while the wife is a legal heir, she is not a joint owner of the husband’s property.
“Communion of assets is a great idea. But it was meant for a time when marriages used to last and there was no concept of a divorce,” former Advocate General and senior advocate S D Lotlikar said.
He has just advised a 29-year-old client on divorce. She has been married only for two years, but a divorce now means her husband is entitled to half of any inheritance from her parents.
But even the seemingly equal law has riders. Even when a wife has joint ownership of her husband’s property – both ancestral and self-acquired — the law gives the husband the right to manage the estate.
“On the face of it, this guarantees equal rights but often families put pressure against divorce given that there is the threat of having to split ancestral assets. If one initiates divorce, the first step by the other partner is to start an inventory proceeding in the spouse’s family,” said advocate Albertina Almeida.
On inheritance, the Portuguese Civil Code is quite similar to the Muslim law in including lineal ascendents and descendants as legal heirs. This means, parents and siblings of an individual can inherit property unlike in Hindu law which passes only to spouse or descendant. But the crucial difference is that the Portuguese law treats sons and daughters equally. While Hindu daughters secured the right to an equal share in ancestral property only after the 2005 amendment to the Hindu Succession Act, Muslim daughters are entitled only to half of the share that a son gets.
For Rashida Mujawar, a Panjim-based women’s rights activist, it is important that her daughters inherit equally which would not be the case in Muslim personal law. “I have long opposed extending Indian personal laws to Goa. Our daughters get an equal share in the property and there is a Goan identity that is homogenous,” she said.
It is this “Goan identity”, as Mujawar calls it, that is crucial for the continued Portuguese law. Even as Chief Minister Sawant calls for “wiping away the traces of Portuguese rule from the state”, the colonial civil Code is undeniably a distinct marker of Goan identity.
Crucial exceptions
A short drive north of Panjim is Taleigao, on the Tiswadi island. The burgeoning neighbourhood that is making space for the new settlers in Goa is lined with hypermarkets and high-rise apartments. The Portuguese law does not apply to them. It applies to Goans: by legal definition, only those whose either of their parents or grandparents were born in Goa before December 20, 1961.
Amidst changing demography, with the influx of migrants and Goans taking up Portuguese passports, it is unclear how many of the 15-lakh local population in the state are governed by the common Code. The Portuguese law allows those born in its erstwhile colonies – for up to three generations – to take up Portuguese citizenship.
“In principle, extending the Code to everyone in Goa is a good idea. But is there a real necessity when a national step is being taken,” said Vijai Sardesai, Goa Forward Party MLA from Margao’s Fatorda.
Sardesai, whose party’s motto is “Goem, Goemkar, Goemkarponn” (Goa, Goans and Goan ethos), also cautions that the Goa model for UCC might not be ideal.
“The Goan Uniform Civil Code is also not strictly uniform. It is different for Hindus and Catholics. And women’s rights are also not perfectly equal to men’s. I can definitely say that the Goan UCC cannot be the perfect template. It needs to be modified and updated to fulfil modern aspirations.”
The Portuguese Civil Code carves out crucial exceptions for Hindus and Catholics. In 1867, the Code drafted by António Luiz de Seabra, a judge at the Oporto Court of Appeal, had created several exemptions for the “gentile” population in Portuguese colonies.
These exceptions extended to Chinese customs in Macau; customs of Baneanes, Bhatias, Parsis and Muslims in Mozambique and to the “moral or public policy” of Indians in New Conquests – outside the core of 16th Century Portuguese Goa – and of Daman and Diu.
The Code of Gentile Hindu Usages and Customs of Goa was enacted in 1880, a decade after the civil Code came into effect to codify the concessions to Hindus. One key exemption from 1880 is crucial in Indian law too — “partnership sociedade” or the taxation benefits for a Hindu Undivided Family. The Code also recognises a “maioral” or “karta” of a Hindu family who heads the family.
A controversial exception to the monogamy rule in the Portuguese Code is also made for Hindus. Although the provision has not been invoked in the post-colonial era, a Hindu male is allowed the right to bigamy, with the consent of his wife, if she fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30.
“This consent had to be taken before a public notary. When the Code came into force, there were only two public notaries for the whole of Goa and they were white men. If they saw the slightest hesitation in the woman…suppose she started crying…that would be the end of it,” Noronha said.
Even Chief Minister Sawant insists that the bigamy law for Hindus has not been invoked since 1920. However, the regressive provision continues to be on the books.
For Catholics, the Code did not envision a clear separation of church and state for personal laws. Canonical marriages enjoyed the same status as civil marriages and rulings of the church in annulling a marriage or grant of divorce were given legal sanctity. However, in 2019, the Goa bench of the Bombay High Court struck down portions of a Portuguese edict that gave legal sanctity to rulings of ecclesiastical tribunals in the former Portuguese colony.
Frozen in time
The 2,538 Articles in the Portuguese Civil Code deal with not just personal laws and property, though the focus is largely on these aspects. From recognising the right to existence, right to liberty and inviolability of thought as fundamental rights, to the law on patents, copyright and shipwreck, the Code was intended to be the complete law of the land.
Till 1961, amendments made in Portugal would be applicable in Goa. With Indian legislation extending to Goa, several provisions of the Code stand repealed. However, without a direct amendment since 1961, the Code stands frozen in time.
Take for instance the concept of communion of marital assets, touted as the unique provision that enables gender equality — even Portugal has moved from a general communion of assets to a regime of communion of assets acquired only during the marriage.
With first-hand knowledge of Portuguese slowly disappearing, it is telling that the need for an official translation of the Code to English was commissioned by the state government in 2016 and was completed in 2019.
While the proposed Uniform Civil Code is an opportunity for voices calling for reform, Mujawar’s unwavering support for a common code has a cautious tone.
“There are fears that the community is under attack in the country. It is in that context that we have to think of a UCC and what good it can do for Muslim women who are said to be the beneficiaries,” she said.
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