The Goan Way of Civil Code In Contrast To Personal Family Laws in India: A Grand Success or Steep Failure with Special Reference To Marriage Regimes

| September 24, 2016 | Family Laws | No Comments

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This article was written by Anisha Jhawar a student of Nirma University Ahmedabad.

Introduction to the concept of Goa Civil Code

The Uniform Civil Code has been as of late proposed by the Hon’ble Supreme Court of India. Relatively few individuals outside Goa do realize that the Personal and Family Laws in Goa are represented by the Goa Daman and Diu Administration Act 1962; which has been greatly inspired from Portuguese Civil Code 1867.[1] This is quite evident from the fact that the domains of family laws including marriage, separation and succession are represented by the same laws till present day.

The Code concerns all religions thereby incorporating one law for Hindus, Christians, Parsis and Muslims. Indeed, even after Goa gained freedom from Portuguese rule on December 19, 1961, Goa’s family laws (marriage, succession and separation) continue to have laid its deep roots from the Portuguese Civil Code of 1867.[2]

Goa has achieved even-handedness in the light of many a things. The law has been in presence for over a century – somewhere in the range of five eras down the lane – so religion doesn’t come lento the big picture.[3]

Crosswise over India, the Goan law is less often referred to exemplify an effective code. In one such leading judgment[4], the Hon’ble Apex court said the Portuguese Civil code “had ended up being an intense weapon to forge a cohesive and to create homogeneous and well-knitted society with its people living harmoniusly, and additionally to reinforce that essential and basic unit of the society – the family – by shielding the interests of the kids and of widows.”[5]

Goa and other recent Portuguese provinces don’t permit triple talaq or polygamy. In any case, while ladies in Goa may have significantly more lawful insurance than their partners somewhere else in India, it doesn’t interpret into a superior execution of the law.[6]

We often see women irrespective of the religion they belong to, being tossed out of their conjugal homes within few months of their marriage; even in spite of a court order to recover their assets they don’t generally get police support.

Under the Portuguese Civil code, a marriage is lawful only when it is enrolled in the civil records with the registrar, with a couple of procedural contrasts between any two religions.[7]

Nature of the Code in relation to marriage, divorce and succession

Being a colony, the Goa Civil Code came in furtherance to the Portuguese Civil Code. Hence, the nature and the real essence of this code have to be looked upon in the light of the parent code. Perhaps, the paramount significant characteristics of the code have been jotted down in bullets.

  • Supreme Equality: Evidently, the laws in force about marriage, divorce, succession and protection of children have been non-discriminatory and apply equally to men and women irrespective of case they belong or ethnicity they follow.[8]
  • Consonance with the Constitution of India: The administration laws of Goa make the distant reality of implementing Article 44, which seems next to impossible in a country like India with diverse culture and practices.
  • Fraternity: Another essential feature is that it assures dignity of the individual and brings them all together under one roof. The very implication is the unity and the feeling of secularism amongst all religions.
  • Social Justice: Even though the laws that apply to Goa in matters of family laws are different from the rest of nation, it essentially drives us in achieving social justice wherein males are treated at parity with females; Muslims are treated at parity with Hindu and Christians.

Jurisprudence of the Goa Code: Portuguese Civil Code, 1867

The history of Goa under Portuguese rule dates back to late 18th and 19th centuries when Goa Daman and Diu had been under colonial rule of Portuguese as was India under the British Colonial Rule. Being a colony, Portugal laws were made applicable to Goa as well. And that is how the Portuguese Civil Code was made applicable to Goa Daman and Diu in 1870. Portuguese ruled for over 450 years before it was liberated 1961. Even after Portugal rule has ended, they have left an important legacy behind which covers entire gamut of the Civil Laws of the state. Goa Daman and Diu Administration Act was enacted by the legislators in 1962 which was purely based upon the preceding code. However, as of date, the Portugal Laws have been followed only with respect to family laws i.e. in matters of marriage, succession, divorce and others.[9] Other legislations like Transfer of Property Act, Contract Act continue to have its application in state of Goa too.

Scope for Operation of the Code

The code extends to the parts of Daman Diu and Goa only.

Marriage under different regimes

Essentials of Marriage

The essentials of marriage under Goan Code are no different to the essentials of marriage under Uniform Civil Code. However, the important features of a marriage which are essentially required to validate the contract of marriage are:

  • Monogamy: There imposes monogamy between the parties. Polygamy is not permitted, unlike Sharia law, under any marriage except in certain circumstances as mentioned in the Code, i.e., where the first wife is not able to reproduce till 25.
  • Age: The minimum age limit for a male is 21 years and for female is 18 years. Thereby, it is evident that child marriages are not promoted by the Goan Code.
  • Registration: The registration of marriage has been made compulsory with the Civil Registrar. Hence, a marriage is deemed to be valid only when both man and woman pass their declaration. This can also been seen from the perspective of contract laws wherein a contract is deemed to be valid only with a valid consent and consideration.
  • Grounds of Divorce: The grounds of divorce should also be laid down specifically and must be in accordance with the principles of natural justice.
  • Consent: The contract of marriage cannot end in vanity. The mutual consent of the parties is an equally important condition to the contract of marriage.[10] Impliedly, the Sharia Law takes a back seat in contrast to Goa Civil Code wherein contentious forms of divorce such as triple talaq are strictly prohibited.[11]

Procedure for Marriage under Goa Civil Code

Under the rule of law as has been followed in Goa, marriage is considered as one of the forms of contract.[12] Hence, it is quite evident and furthermore has been made compulsory that the marriages under Civil Code to be registered with Registrar.

Besides this, there are four different ways by which two couples can validly marry. These have been penned down and explained thereof in following bullets:

  • The law of Community property: This is applicable in circumstances where the parties are not bound by any express contract. Wherein under this form, both the parties acquire all the assets in possession as joint ownership. The joint ownership extends to those assets which are due by way of inheritance. At the time of disposal or encumbrance, the consent of spouse is equally important. In events of separation, the wife is entitled to half of the husband’s income. There is no concept of charity in form of maintenance. Factually, 97% marriage takes place under this form.[13]
  • Absolute Separation of property: The essential element that distinguishes it from the previous form is that it encompasses all properties that the spouses own at the time of marriage.[14]
  • Separation of assets is prior to marriage: The point of difference with respect to this form is that communion of property is ascertained before the parties enter contract of marriage. The extrapolation is made with respect to separation and duration of marriage.
  • Communion of property after marriage: The parties have already entered the agreement of marriage. Where after, the communion of property is ascertained. This is the rarest of the form which is practiced as on current date.

Marriage under Goa Code in contrast to Personal Laws

Hindu Laws

A marriage is considered valid under Hindu Marriage Act, 1955 if it fulfils certain condition, namely:

  • Either of them is single at the time of marriage.
  • Either of the parties are capable of giving a valid consent
  • The bride must not be less than 18 years and the groom, not less than 21 years of marriage.
  • Neither of them is under prohibited degrees unless custom prohibits so.
  • There is no sapinda relationship between the two parties i.e., belong to same sect by blood
  • Both the parties are required to be Hindus
  • Marriage may also be solemnized according to customary rites and ceremonies of the parties.
  • Saptapadi (taking seven rounds around sacred fire) is a very important ritual of Hindus and upon completing seventh round, the marriage becomes complete and solemnized.

Where all the essentials of marriage are fulfilled, a marriage under Hindu Marriage Act is deemed to be valid.[15]

Issues under Hindu Laws in contrast to Goa Civil Code

However, there are certain issues with marriage solemnized under Hindu Marriage Act in contrast to Goa Civil Code. In first instance, sapinda relationship constrains marriage between two people who may or may not be related to blood. Furthermore, unlike Goa Civil Code wherein marriage is equal to contract, a Hindu Marriage is considered to be sacrosanct. Under Hindu Marriage Act, parties are bound for entire lifetime. Furthermore, Saptapadi is another issue which makes marriage under Hindu Law much complex. However, marriage under Goa Civil Code can be solemnized by mere registration.

Parsi Laws

Any marriage under the following conditions is considered as a invalid marriage:

  • The parties to the marriage are related by degrees of consanguinity or affinity
  • Marriage is not considered to be solemnized if it does not has ‘Ashirvad’ by Parsi priest and in the presence of two other Parsi priest.
  • And any marriage wherein bride is less than 18 years and groom is less than 21 years.[16]

Issues under Parsi Laws in contrast to Goa Civil Code

However, there are certain issues with marriage solemnized under Parsi Law, although fewer than those that have been under Hindu Laws. However, this is one of the biggest issues that the marriage will be solemnized only if it is in the presence of main Parsi priest and two other Priests other than main priest. Furthermore, the restriction of marriage by consanguinity or affinity might be considered as an issue in light of considering marriage as a contract under Goa Civil Code.

Christian Laws

Any marriage under Christian Laws is considered to be valid only if the following circumstances are fulfilled:

  • Herein, the bride should be atleast 18 years and groom must be atleast 21 years of age.
  • The marital relationship between the partners should not be more than monogamous.
  • And the marriage is conducted in the presence of person licensed under Section 9 of Indian Christian Marriage Act, 1872 and two other credible witnesses.[17]

Issues under Christian Laws in contrast to Goa Civil Code

Christian Laws have just one drawback of witnesses, apart from which they are almost pari materia to the Civil Laws applicable in Goa.

Muslim Laws

Marriage under Mohomedan Laws requires following conditions to be fulfilled so as to be considered as valid under Mohomedan Laws:

  • Marriage is defined as a contract aimed at procreation and legalising children
  • Capacity to contract wherein a person who is not of unsound mind and has attained age of puberty is under valid capacity to enter the contract of marriage
  • There must be a proposal and an acceptance to that proposal with a valid consent. This is done under the presence to two persons from either side.
  • There are certain impediments which are required to be absent and act as prohibition to a valid marriage. These are:
    • A married woman cannot enter into contract of marriage if her husband is alive at the time of contract or there is parallel existence of another marriage.
    • Bar on consanguinity renders marriage void which clearly implies that marriage between ascendants, descendents, sister (by consanguinity or uterine), niece or great niece, aunt or great aunt[18]

Issues under Muslim Laws in contrast to Goa Civil Code

Comparing both the Family laws, there is a great contrast between the two. While both of them agree that marriage is a form of contract. However, the impediments are made to restrict women only. Men are permitted to have polygamy. This is in stark contrast to Go Civil Code where Muslim Men are treated with equal footing opposite to other religions. Polygamy is strictly restricted herein. The registration of marriage under Goa Civil Code is made compulsory which has not been so under Mohomedan Laws. This is preferably advantageous as there is a piece of evidence with Registrar as to validity of marriage rather than relying upon witnesses during Nikah which has been so in Mohomedan Laws.

A Grand Success or A Steep Failure?

Although this Code seems to be a very successful code since it promotes equality fraternity and social justice, it suffers serious problems too. One of the major issues that the lawyers are facing these days is the conversion of the Portuguese Civil Code into English Language.
It is noteworthy to mention that even though Portuguese ruled over Goa Daman and Diu for over 450, only few people could speak Portuguese. Till date, hardly people know how to speak the language.

Closely and briefly analysing the Goa Civil Code, there are a number of provisions which lead our society to the source of light to achieve greater equality and social justice. However, considering it as a successful might not be correct to say.

The Central Government need to come up with a legislation which is central and has extensive scope over the whole of nation. This Uniform Civil Code would be a replacement to the Personal Laws. This would also prohibit some of the impediments and would bring all the religious marriages at equal footing.

However, it is very much extrapolated that this would prove to be a success across India although conflicts are bound to prevail due to diversity.

Case Laws

The essence of compulsory registration of marriage has been very well discussed in the case of Seema v. Ashwani Kumar[19], wherein Supreme Court has opined the reasoning behind mandatory registration. This is so because the compulsory registration would bring out child marriages, if any, in lime light and help the state to curb the same. This is also in consonance with the Prohibition of Child Marriage Act and Entries 5 and 30 of Concurrent List, Seventh Schedule of the Constitution of India.

In one such another judgment of D.P. Joshi v. State of Madhya Bharat & Anr[20]., the Hon’ble Apex court said that it is the system of law prevailing in that particular region which governs succession and marriage. This is because there are distinct set of laws which should also be regarded for purpose of domicile.

In Saeesh Subhash Hegde v. Darshana Saeesh Hegde[21], the court said that the Portuguese Family Law will continue to apply within the State of Goa.

In one of the oldest cases of Ardaseer Cursetjee v. Perozeboye[22], Privy Council dealt upon the matters of jurisdiction and status of the parties.

The following cases have been the leading judgments wherein the Hon’ble Supreme Court of India has extensively decided upon the matters with respect to status of marriage. However there have been a lot more cases in the row that concern succession or separation.

The scope of this research article has been revolving around marriage under Goan Code only.

Conclusion

The Uniform Civil Code has been recently proposed by the Honourable Supreme Court of India. Not many people outside Goa know that the Personal Family Laws in Goa are governed by the Goa Daman and Diu Administration Act 1962; which has been inspired from Portuguese Civil Code 1867.

The realms of family laws including marriage, divorce and succession are governed by the same laws till date. The Code followed a uniform code for all religions which includes Christians, Hindus, Muslims, and Parsis.

Even after Goa was liberated from Portuguese rule on December 19, 1961, Goa’s family laws (marriage, succession and divorce) – common for all religions – continue to remain rooted in the Portuguese Civil Code of 1867.

Goa has reached equitability in the perception of things. The law has been in existence for more than a century – some five generations down the road – so religion doesn’t come lento the picture.

Across India, the Goa law less often cited as an example of a successful code. In Shri Damodar Ramnath Alve vs Shri Gokuldas Ramnath Alve (1996), the apex court said the Portuguese Civil code “had proved to be a powerful weapon to create and forge a cohesive, well-knitted and homogeneous society with its citizens living in peace and harmony, as well as to strengthen that basic unlit of the society – the family – by safeguarding the interests of the children and of widows.”

Goa and other erstwhile Portuguese colonies do not allow triple talaq or polygamy. But, activists point out, that while women in Goa may have a lot more legal protection than their counterparts elsewhere in India, it does not translate into a better implementation of the law.

We see women across religions being thrown out of their marital homes within months of marriage, despite a court order to retrieve their belongings they don’t always get police support.

Under the Portuguese Civil code, a marriage is legal only lf it’s registered at the office of the Civil registrar, with a few procedural differences between faiths.

Bibliography

[1]  Prakash Nanda, Supreme Court is the door to Unifrom Civil Code, not Parliament, FirstPost.com (July 5, 2016)

[2]  http://shodhganga.inflibnet.ac.in/bitstream/10603/35656/7/07_chapter%201.pdf (last visited July 16, 2016)

[3]  http://www.telegraphindia.com/1151104/jsp/opinion/story_51223.jsp#.V4KEprh97IU

[4]  Shri Damodar Ramnath Alve vs Shri Gokuldas Ramnath Alve (1996)

[5]  http://www.livelaw.in/uniform-civil-code-unique-goa-experience/

[6] https://thelogicalindian.com/story-feed/exclusive/everything-you-need-to-know-about-uniform-civil-code/

[7]  Sujai Joshi, Real Estate Laws-Goa, Hairani & Co Advocates & Solicitors

[8]  http://mmascgoa.tripod.com/id12.html (last visited July 19, 2016)

[9]  Supra 8

[10]  Gauri Kulkarni, Uniform Civil Code, Legalserviceindia.com (last visited July 24, 2016)

[11]  Ibid 9

[12]  Aditi Pratap Sampat, Uniqueness Of The Goan Family Laws, Ipleader (July 20, 2016)

[13]  Infra 9

[14]  Aridane cara Santos, What Absolute Community of Property Is (Family Code), Slideshare.net (Sep 22, 2014)

[15]  Kusum, Family Law Lectures Family law I, Lexis Nexis (2008 ed 2)

[16]  Supra 15

[17]  Supra 16

[18]  Supra 17

[19]  Transfer Petition 291 of 2005

[20]  1955 AIR 334, 1955 SCR (1) 1215

[21]  AIR 2008 Karnataka HC

[22]  1856 SCC Online PC 6: (1854-57) 6 Moo IA 348

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