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The Portuguese Civil Code of 1867 is a colonial burden on Goa

Tahir Mahmood writes: 'Common civil code' is an archaic law that can be replaced by Hindu, Christian family laws prevailing in rest of India

The Portuguese Civil Code of 1867 was extended to Goa, Daman and Diu by a royal decree of November 18, 1869, declaring that the code would apply to the natives subject to the local usages and customs “so far as they are not inconsistent with morality or public order”.

The Portuguese Civil Code of 1867, the so-called “common civil code” of Goa, is in the news again. A 28-member parliamentary standing committee headed by senior BJP leader and Rajya Sabha member, Sushil Kumar Modi, recently visited the state to study it in the context of the demand for a uniform civil code. “Even in the case of Goa,” the law ministry has reportedly told the standing committee, that “if it (the code) requires review it must be looked into” (IE, July 31). So, what is so special about Goa that prompted the ministry to use ifs and buts?

Long before the arrival of the British imperialists in India, the Portuguese had occupied certain territories in the coastal regions of the country and established what they called Estado Portuguese da India (Portuguese State of India) with its capital in Cochin, later shifted to Goa. They did not interfere with the local customs relating to family relations and framed, in the mid-19th century, three separate codes of religion-based customary laws of Goa, Daman and Diu. The first of these was titled Usages and Customs of Gentile Hindus of Goa but the Portuguese clarified that “non-Catholic inhabitants of Goa who are not Hindu gentiles” could also follow their customs on the subjects it covered. The other two codes of customary law, for Daman and Diu, were called Usages and Customs of Non-Christian Inhabitants. The three codes were formally enforced as the law by royal decrees issued by the King of Portugal.

The Portuguese Civil Code of 1867 was extended to Goa, Daman and Diu by a royal decree of November 18, 1869, declaring that the code would apply to the natives subject to the local usages and customs “so far as they are not inconsistent with morality or public order”. The three local codes of customary law were accordingly revised in later years. In 1910, the Portuguese parliament enacted two civil marriage and divorce decrees and, in 1946, a canonical marriage decree for Catholics. All of these too were extended to Goa, Daman and Diu. The family law applied by the Portuguese, both at home and in the occupied Indian territories, was thus not a uniform code but a loose conglomeration of civil and religious laws.

Fourteen years after the advent of Independence, Goa and its affiliated territories were liberated and turned into a Union Territory (UT) under central rule. The Goa, Daman and Diu Administration Act of 1962 declared that all laws in force in these territories before their liberation would continue to be in force “until amended or repealed by a competent legislature or other competent authority” (Section 5). None of the pre-liberation family laws was, however, amended or repealed. Nor was any central law on family rights, including the four Hindu law Acts of 1955-56, extended to any of the three territories.

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In 1987, the Goa, Daman and Diu Reorganisation Act made Goa a full-fledged state with its own legislative assembly and left Daman and Diu as a UT. Section 67 of the Act said that “such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient” could be made within two years from its enforcement by the appropriate government. No such action was, however, taken either by the state government in Goa or by the central government for Daman and Diu. Twenty-five years later, the Goa state legislature enacted the Succession, Special Notaries and Inventory Proceedings Act, amending certain provisions, mainly procedural, of the 155-year old civil code. In 2019, the UT of Daman and Diu was merged with another such territory – Dadra and Nagar Haveli (also ruled in the past by Portugal) — to form a single UT under central rule. As laid down in Section 17 of the unifying Act, this development did not in any way change the family law system prevailing in either of these places since their liberation from foreign rule.

As mentioned above, the law ministry has told the concerned standing committee of Parliament that the Portuguese civil code and its later amendments as in force in Goa may — if required — be duly reviewed. Such a review is, in my opinion, long-overdue.

The myth of an outdated law of foreign origin now serving all inhabitants of Goa as a fully common civil code needs to be duly busted. Moreover, there is no justification for retaining over a century-old archaic law, 75 years after the independence of India. To me, it seems quite inexplicable that the Hindu law Acts of 1955-56 governing four religious communities in the rest of the country cannot be extended to the same communities in Goa, Daman and Diu. Over a fourth of Goa’s population is Christian. Why can they not be given the benefits of the Christian family law Acts in force elsewhere in the country — especially the Divorce Act of 1869, which in recent years has been brought on par with the modern divorce law under the latest version of Special Marriage Act of 1954?

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What has been said now by the law ministry about Goa is in the context of implementing the constitutional directive of Article 44 for a uniform civil code for the citizens throughout the territory of India. In recent months, the ministry has told Parliament about its reference on this issue to the Law Commission. However, while the 21st Law Commission had already given its opinion against the feasibility and need of such a code at this juncture, the next Law Commission is nowhere in sight.

The ministry has now reportedly told the parliamentary committee that enacting a uniform civil code would be possible only when a “sizeable majority” of the people seeks such a change. This is, more or less, what we have been hearing from successive governments since the enactment of the Constitution 72 years ago. And the long wait seems to be endless.

The writer is Professor of Law & ex-member, Law Commission of India

First published on: 11-08-2022 at 11:11:37 pm
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