Goa’s Civil Code
19/04/2021

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Context:

  • 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.
  • 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”. 

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.
  • 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.
  • Goa’s Code provides for the registration of marriages. This lacks uniformity between Catholic and non-Catholic marriages. 

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.
  • 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.
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