Goa’s uniform Civil Code is being hailed as a model for the Uniform Civil Code in the Country. A clutch of unique clauses such as ‘communion of assets’, ‘equal property rights for both sons and daughters’ and the application of all laws uniformly to all citizen of the State have made the Goa Civil Code a unique one. Yet as lawyers and activists point out, there are several lacunas in the law, that make it an unequal proposition, especially for women.
Goa’s Uniform Civil Code, a remnant of the state’s colonial past, was enforced in 1870 by the erstwhile Portuguese rulers, is being hailed as a model for the Uniform Civil Code in the country. It is the only state in India that has uniform civil code regardless of religion, gender, caste where Hindu, Muslim, and Christians all are bound with the same law related to marriage, divorce, and succession.
According to the Hindustan Times, when Goa attained liberation from Portugal in 1961, all Indian laws were extended to the state, except family laws that fall under the Portuguese Civil Code. This code could be amended and repealed only by the legislature.
The Goa civil code is largely based on the Portuguese Civil Code (Código Civil Português) of 1867, which was introduced in Goa in 1870. Later, the code saw some modifications, based on:
- The Portuguese Gentile Hindu Usages Decrees of 1880 (Código de usos e costumes dos hindus gentios de Goa)
- The Portuguese Decrees on Marriage and Divorce of 1910 (Lei do Divórcio: Decreto de 3 de Novembro de 1910). After the establishment of the First Portuguese Republic, the civil code was liberalized to give women more freedom.
- the Portuguese Decrees on Canonical Marriages of 1946 (Decreto 35.461: regula o casamento nas colónias portuguesas)
According to Legal Services India, under the PCC, people married under the civil law and both spouses had an equal right to property, as did their children.
An exception was made for the Catholics. They could solemnize their marriage in church, but the document then had to be sent for ratification and registration by the civil registrar. For non-catholic, marriages only registered at the Civil Registrar were recognised.
Similarly, in the case of Hindus, the practice of bigamy was allowed in case of absence of a male heir by citing Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). These exceptions were made to accommodate Hindu businessmen who wished to retain the ‘Hindu undivided family’ to avoid fragmentation of land and ensure their lineage. Bigamy, however, was not practiced, but they resorted to adoption in the absence of a male heir.
The Goa Civil Code differs from other Indian laws in several aspects.
A married couple jointly holds ownership of all the assets owned (before the marriage) or acquired (after the marriage) by each spouse. In case of a divorce, each spouse is entitled to a half share of the assets. However, the law also allows ante-nuptial agreements, which may state a different division of assets in case of a divorce. These agreements also allow the spouses to hold the assets acquired before marriage separately. Such agreements cannot be changed or revoked. A married person cannot sell the property without the consent of his/her spouse.
The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children compulsorily. This inherited property must be shared equally among the children.
Another aspect of this law prevents, Muslim men, who have their marriages registered in Goa, from practicing polygamy. Also, there is no provision for a verbal divorce.
Under the law, persons are prohibited to perform marriage if any of the spouses is convicted of committing or abetting the murder of other spouse.
However, it would be pertinent to note that the Goa Civil Code is not strictly a uniform civil code, as it has specific provisions for certain communities.
On the issue of divorce, Catholics marrying in the church are excluded from divorce provisions under the civil law.
For Hindus, divorce is permitted only on the grounds of adultery by the wife.
Muslims, who have registered their marriage in Goa, cannot take more than one wife according to this law and during the tenure of the marriage, both spouses have right to all the property and wealth owned by them. In the event of the death of one, the half share of the property goes to the other and the other half to the children in the same ratio.
However, as several lawyers and activists point out, in a report in Feminism in India, there is a lacuna in the law. According to lawyer-activist, Albertina Almeida, “There is an immense lack of awareness regarding Goa’s Civil Code even among Goans as the code was never properly translated from Portuguese to English,” she said while highlight various aspects of these, with specific regard to communion of assets, equal share of property between sons and daughters, limited polygamy and bigamy allowed.
In the communion of assets, spouses usually choose between ‘Communion of Assets’ and ‘Total Separation of Assets’ with ‘Communion of Assets’ being the default system. Under Communion of Assets, the assets of both the spouses belong to both equally. However, the administration of the properties vests in the husband.
A recent incident, according to a source, has highlighted this aspect. A government employee, 25-year old Sarita is separated from her husband of two years. Fortunately for her, the communion of assets rule has come to her rescue. “Now, if we divorce, he will have to part with half of everything, including the flat that we invested in together,” she says well aware of her rights. However, not every woman has this privilege.
Almeida highlights the fact that in Goa, ownership and control mean two different things. “The property might be shared equally, but its ‘management’ lies with the husband. As a ‘manager’ the husband can, for instance, rent out the premises without the wife’s consent. Due to this, shares in cooperative society can be transferred and property can be given on rent, without the wife’s consent.
The law also allows prenuptial agreements modifying or limiting the property holding or the entitlement.
Hence if a couple enters into a pre-nuptial agreement which states that the wife will have no right over the property owned by the husband, she will forfeit that right, as it cannot be amended or revoked upon marriage or divorce.
Activist Sabina Martins points out how in Goa the number of women across all religions in Goa, are being thrown out their marital homes within months of marriage due to such agreements.
Secondly, under the Goan law, there is an equal distribution of property between daughters and sons. If the marriage is dissolved, then spouses get an equal share of the assets. In case of death of one spouse, then the share of that spouse must go equally to all the heirs including daughters.
However, reality paints a different picture according to Shaila de Souza, Centre for Women’s Studies at Goa University. According to her, these property rights exist only on paper. “Very often, daughters get a certain amount of gold at the time of their marriage and are asked to sign off their rights to the family property,” she stated. In a rare instance, a daughter will fight for her share of parental property.
Limited polygamy and bigamy, as catered to in the law, is another instance of injustice to the woman.
Article 3 of the law states, ‘However, the marriage contracted by a male Gentile Hindu by simultaneous polygamy shall not produce civil effects; except in the following cases only (1) Absolute absence of issues by the wife of the previous marriage until she attains the age of 25 years. (2) Absolute absence of male issue, the previous wife having completed 30 years of age, and being of lower age, ten years have elapsed from the last pregnancy; (3) Separation on any legal grounds when proceeding from the wife and there is no male issue, (4) Dissolution of the previous marriage as provided for in Article 5.’
Almeida pointed out that “the fact that provisions for limited polygamy continue to exist in the statute book, and have not been specifically repealed or called out by parties advocating the Goa law as a model for nation-wide use, is a problem.”
Almeida said that while limited bigamy, permissible under the Code, may fall in the rarest of rare categories, bigamy by fraud is not uncommon and forms a staple of the cases that come to women’s groups.
When it comes to civil marriage, she cautions women to check the forms they are signing. The first form is only the intent to marry forms. After this, a second actual marriage deed needs to be signed. Cases of bigamy also take place when two marriages are registered by non-disclosure and fraud.
“Even if the law bans polygamy, there is nothing to prevent it happening,” said Almeida. “And there are umpteen cases where bigamy happens.”
Taking these points into consideration, Almeida says uniformity in the civil code does not necessarily mean equality. The word ‘uniform civil code’ can be a misnomer. Laws can be uniformly applicable to all in respecting women’s rights, and they can also be uniformly applicable to all communities in disregarding women’s rights.
A reason for the interest of corporations in GCC is to evade taxes as assets are divided equally between the spouses hence resulting in lesser taxes. Albertina feels that Goan women should have the concept of ‘mehr’ and ‘stridhan’ too, apart from affirmative provisions for women to claim their rights.
There are several other issues like casteism as well, as well as issues of adoption and illegitimate heirs, where the equality of the law comes into questions. When it comes to taking an oath in court, differences on the basis of caste have been accepted. Adultery is a ground to get a divorce only available to men.
In a bid to amend the law, the government had, in 2012, unanimously passed the Goa Succession Special Notaries and Inventory Proceeding Bill 2012 which seeks to replace the Portuguese Civil code on the subject of succession, inventory and notarial law to meet the present-day requirements and make it workable.