Opinion Lesson from Goa’s uniform civil code: Uniformity can be unjust to women

The announcement that the Uniform Civil Code is around the corner, otherwise accompanied by the drum beats of uniformity across religions (to be read as out with polygamy for Muslims), also carries the additional, lighter beat of “equality” for men and women more recently. Therefore, the question would be whether the Goa family laws are equitable and have played out that way, especially for marginal stakeholders of the family and society.

Firstly, does the uniform portion of the family law have any discriminatory provisions? The management of the matrimonial property is the prerogative of the male spouse whether the couple hold the property together as a unit, or even if the couple have decided to hold the properties separately. Similarly, the husband can dispose of moveable properties of the couple, without the consent of his wife, if they are not gratuitous contracts. Provisions such as these are uniform in discrimination across all religious communities.

Secondly, the concept of matrimonial property involves all assets acquired through self-purchase or inheritance or any other manner before and during the subsistence of a marriage, by either of the couple. This provision of holding of property by the couple as a unit may in fact militate against the female spouse, who by and large ends up contributing to the property of the male spouse, in cash terms towards repairs or in kind towards maintenance, and therefore has a deserving claim to co-own the husband’s property, while the reverse may not be true. Also, such a provision unjustly empowers the male spouse to throw a spanner in the claims for marital property including residential property upon divorce, by making corresponding claims to the parental property of his spouse. Therefore, equality translated as sameness for men and women militates against justice for women.

Thirdly, critical to the whole discussion is the issue of access to justice. We have a pathetic scenario in Goa, where even to this day, there is limited scope for learning/teaching family laws of Goa in the curriculum for legal education. Even if informed about the law, there is a need to handhold many women, and explain the provisions. For instance, a woman needs assistance to gather details of matrimonial property and income, which are generally not easily accessible to her, and due to which she is unable to make appropriate claims in terms of her entitlements.

Fourthly, the uniform portion of the law itself provides for canonical marriages and civil marriages. For a marriage to be duly registered in the eyes of the law, there has to be a declaration of intent before the Civil Registrar of the taluka in which either one among the couple is resident, and a confirmation of the intent and details set out, after 15 days. The Roman Catholics have the option of confirmation of their marriage (second signature as they call it) in the Church where the nuptials are solemnised, after which the Church sends the extract of the marriage register to the Civil Registrar where it is then entered into the books of registration of marriage. When it is thus confirmed in the Church, it is called a canonical marriage. For all communities other than Roman Catholics, the confirmation necessarily has to be made before the Civil Registrar. These marriages confirmed before the Civil Registrar are called civil marriages.

Does this difference adversely affect anybody? It did at a time when there was also a corresponding provision that in the case of canonical marriages, a Church granted annulment through a largely untransparent process before an Ecclesiastical Tribunal, automatically took effect as a civil annulment for all legal purposes, with the High Court merely required to cursorily endorse the Church annulment. However, after the High Court of Bombay, through a judgment in 2019, struck this automatic civil effect down, it is the prerogative of the court to grant an annulment or separation or divorce, as the case may be, for civil purposes, even in case of canonical marriages.

After that provision of automatic civil effect for annulment was struck down, the tie-up with the Church now works positively for the Catholic couple, since, in the marriage formation course, the couple is provided with information about what they are signing into at the time of marriage, including the default provision of holding matrimonial property together as a couple, if they have nothing to say to the contrary. This legal counselling is not provided in the official system of the state, despite long-standing demands to that effect.

Fifthly, the Code of Customs and Usages of Gentile Hindus provides for polygamy and adoption under blatantly sexist conditions, and also for a Hindu Undivided Family that is to be governed, managed and represented by the senior-most male member, among other provisions.

Sixthly, to the extent that there are positive provisions, such as certain restrictions on willing away property that can help mitigate son preference, it is not known whether provisions such as these will be retained in the Uniform Civil Code that will come to be. Or will Goa lose even the positive provisions that it has?

So, a uniform civil code can be but a mirage resulting from the spectacle created by the ruling dispensation, as the Goa family laws amply illustrate.

The writer is a Goa-based advocate and human rights activist. She has a PhD in Law on Matrimonial Property Rights of Women under Family Laws of Goa, and has been on the Family Law Review Committee constituted by the Government of Goa