Underscoring that the founders of the Constitution had “hoped and expected” a Uniform Civil Code, the Supreme Court Friday said there has been no attempt at framing the same despite the “exhortations of this court”.
“It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard,” a bench of Justices Deepak Gupta and Aniruddha Bose said while deciding the case of succession of a Goan settled outside the state.
The court said that “though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court” in the Shah Bano case and other cases.
The bench, however, observed that Goa is a “shining example” with a Uniform Civil Code “applicable to all, regardless of religion except while protecting certain limited rights”.
The Court said that “the salient features (of Goan law) with regard to family properties are that a married couple jointly holds the ownership of all the assets owned before marriage or acquired after marriage by each spouse. Therefore, in case of divorce, each spouse is entitled to half share of the assets”.
“The law, however, permits prenuptial agreements which may have a different system of division of assets. Another important aspect…is that at least half of the property has to pass to the legal heirs as legitime. This is in some way akin to the concept of ‘coparcenary’ in Hindu law. However, as far as Goa is concerned, this legitime will also apply to the self-acquired properties. Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam, there is no provision for verbal divorce”.
The court was hearing a plea regarding the properties of a Goan in Bombay. He passed away in August 1967.
The question was whether the 1867 Portuguese Civil Code which was applicable to Goa, Daman and Diu before its liberation in December 1961 would apply or the Indian Succession Act, 1925.
Answering this, the court said the Portuguese Code was no more a foreign law as it was applicable to Goa, Daman and Diu by an Act of Parliament post annexation.
“We are clearly of the view that these laws would not have been applicable unless recognised by the Indian Government and the Portuguese Civil Code continued to apply in Goa only because of an Act of the Parliament of India. Therefore, the Portuguese law which may have had foreign origin became a part of the Indian laws, and, in sum and substance, is an Indian law. It is no longer a foreign law,” the bench said.
The SC ruled that “it will be the Portuguese Civil Code, 1867 as applicable in the State of Goa, which shall govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India”.