Phantom Justice: Debunking the Equal Rights Myth of GOA’s Civil Code

Vanshikha Choraria, Jindal Global Law School

Photo Credits: Mario de Miranda

The Directive Principles of State Policy under Article 44 of the Indian Constitution provides that ‘the State shall endeavour to secure for the citizens a Uniform civil code throughout the territory of India.’  The BJP Government since 1997 has been holding up the Portuguese Civil Code in its election manifesto as a model to be implemented across the country as a Uniform Civil Code, applicable to all citizens. While the rest of the country discusses the pros and cons of such a  Civil Code, few are even aware that in Goa and the Union Territory of Daman and Diu, Common Civil Code instituted in 1867, which was under the Portuguese rule for about 450-odd years, exists even today.

The ‘Codigo Civil Portugues’ or the Portuguese Civil Code of 1867, is based on the French Civil Code (Code Napoleon). It has been in effect in Goa since 1870 and continues to exist with some modifications.

Goa comprises of people belonging to various communities.  The Portuguese Civil Code governs all the communities – personal laws are not applicable here. In D.P. Joshi v. State of Madhya Bharat &Anr[1], the Supreme court held 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 the purpose of domicile.” In Saeesh Subhash Hegde v. Darshana Saeesh Hegde,[2] the petitioner married the respondent under the provisions of the Portuguese Civil Code. However, after a dispute arose between the couple, the respondent instituted a suit under Section13(1)(ia) of the Hindu Marriage Act. The maintainability of the petition was challenged by the appellant, which the court rejected, stating that the Hindu Marriage Act was not maintainable as the family courts did not have any jurisdiction in the matter and that the Portuguese family law was applicable to the parties.

Marriages in Goa:

Under the Code, marriage is considered to be a contract and civil registration of a marriage is regarded as mandatory. The following are four different marital options available under the law: community property, absolute separation of property, separation of assets existing before marriage and communion of the property after marriage, and dotal regime. The Goan law allows the signing of an ante-nuptial agreement by the two partners prior to entering into the marriage, stating how the properties of each party are to be held. It is crucial to note that such agreements cannot be altered or revoked upon marriage. This has been used to the disadvantage of women in many cases, where a couple enters into a prenuptial agreement stating that the wife would have no right over the property of the husband in case of a divorce. Where the marriage was not solemnized, women are forced to leave their marital homes within a few months of marriage, without any recourse available to them. However, if an agreement is not signed prior to marriage, the marriage is considered to be a contract under the Communion of Assets.

Women’s organizations in Goa have found several cases, which came to light when women wished to take legal recourse during marital problems. A religious marriage alone is not valid in the eyes of the law, leaving many women vulnerable. Unlike Sections 405 and 406 of the Indian Penal Code, where a denial to stridhan (the wife’s personal property) is considered a criminal offence, under the Civil Code, a woman cannot immediately claim any of her belongings from her husband without going through the court to retrieve them. Thus, if a woman has been evicted from her marital home, she cannot even take her clothes and personal belongings,  let alone her rightful share in the family assets without applying for the same through the court.[3]

The first system is one of total separation of properties or no communion at all, which is a very rare agreement signed before marriage as it does not consider the sentiments surrounding marriage. Here, the partners hold onto all their properties independently. The second, is one where there is total separation of the properties and assets owned prior to the marriage and communion of the assets and properties acquired subsequently. This type of agreement was not very common until recently and reflects the changing social values in Goa. The third system is called the ‘Dotal Regime’ and is sometimes mistaken to be dowry. The bride is given a certain share of her father’s property and assets. These are handed to her husband at the time of marriage. The husband is bound to restore all the property and assets to his partner should the marriage be dissolved. It is not percieved as a consideration for marriage but rather as trust in the husband. In case of his death, his heirs are liable to pay the wife the corpus of the amount.[4]

The fourth and most commonly observed system is that of the ‘communion of assets’ where the wealth and properties, regardless of their source, are owned by both partners, are considered joint family assets and both the partners own equal shares. This does not allow the husband to sell his property without the consent of his wife. For example, in the event of a non-payment of a loan taken by the husband alone, the half share of the property belonging to the wife cannot be attached. In other cases, however, the division of properties cannot be done during the subsistence of the marriage. The partition of the collective property can only take place on the dissolution of the marriage, i.e, in the event of death or divorce. The main drawback of this system is that the administration of the common assets rests solely with the husband. Lawyer-activist, Albertina Almeida states 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 a cooperative society can be transferred or the property can be given on rent, without the wife’s consent.[5]

Furthermore, there are problems with the actual implementation of the laws governing the sharing of assets and inheritance of property. For instance, when a man wants to disinherit his wife and dispose of his property, he can easily do so by concealing his marital status, as it is the husband’s name that is recorded, unless the wife is aware of her right to have her name included while registering a property.

Article 1204 of the Code discusses the grounds for separation of persons and assets. On one hand, a wife committing adultery is considered a ground for separation. But, for a husband, the grounds for separation are if he abandos his wife or commits adultery with a public scandal or keeps a mistress in the conjugal domicile.

In the book, ‘Legal Systems of Goa’, Carmo D’Souza points out how certain customs of Hindus in Goa, like limited polygamy[6] and bigamy, are allowed under Article 3 of the Code[7]. This occurred after the Hindu groups in the State petitioned the colonial Portuguese administration to recognise and retain their religious usages. It has been observed that, although limited bigamy is a rare occurrence and is held to be legal under the Code, bigamy by fraud is not as rare. Women are inveigled into thinking that they are married when the couple signs the first intent to marry form (which is a legal requirement in the State before the actual marriage takes place), but fail to sign the final marriage deed. Cases have been reported of bigamy where two marriages take place in which registration occurs by non-disclosure and fraud.

“Even if the law bans polygamy, there is nothing to prevent it happening… and there are umpteen cases where bigamy happens, said Almeida.”[8]

In 1999, Bailancho Saad[9] collaborated with the Goa State Commission for Women to organise a workshop that exclusively dealt with Bigamy[10] in the State. In the workshop, they observed that in most cases, whenever a woman tried to move out of her hostile and oppressive marital house to seek help, her husband would bring home another wife without even officially dissolving the first marriage. They also noticed that it seemed difficult for the officially wedded first wife to complain about her husband’s bigamous relationship as she feared for the future of her children. While the first wife was seen as a symbol of security and stability, the second wife was seen as a symbol of pleasure. It was also observed that a large number of second wives consented to the marriage because they were made to believe that either the first wife was dead, divorced , remarried , abandoned the husband, or they were completely unaware of the persisting marriage in the first place. While some women did know about the subsistence of the first marriage, they still went ahead with it because they belonged to poor families, had crossed the ‘ideal’ age for getting married, were forced by their respective families, or believed that it would yield in security.

For Catholics and people of other religions, marriage laws are different, and this affects the laws that control Catholics after they marry. As there is no separation of the Church and the State yet, the divorce depends on the law under which the couple was married. This can be seen in Peter Philip Saldanha and another Vs. Anne Grace Saldanha[11] ,in which both the appellant and the defendant domiciled in Goa, professed the Roman Catholic faith and were married under the Indian Christian Marriage Act, 1872. However, the plaintiff married again during the subsistence of his first marriage leading to bigamy. The validity of the second marriage was in question. The Court in this regard held that although the parties were domiciled in Goa, they got married under the Canon law which forbids bigamy and thus, could not be saved by the Portuguese Civil Code, 1867 which allows limited bigamy under certain situations.

Equal Share Of Property Between Sons And Daughters:

 Under the Code, both, the son and daughter share the family assets equally. It is a gender-just system as no distinction is made between the male and female heirs. However, Shaila de Souza, who heads the Centre for Women’s Studies at Goa University, said that these property rights often exist only on paper. She states, “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…it is not common that daughters fight for their share of the parental property and if there are such cases, invariably it will be because of an informed son-in-law who wishes to claim his share.”[12]

In the recent Supreme Court judgement of Jose Paulo Coutinho Vs. Maria Luiza Valentina and Ors,[13] the question arose regarding whether a property located outside Goa but owned by a person domiciled in Goa would be governed under the said Code. The High Court of Goa ruled that the Portuguese Civil Code would not apply to the property situated outside Goa. However, the apex court set aside the judgment and answered the question in the affirmative, stating that the Indian Succession Act which includes the Muslim Personal laws, the Hindu Succession Act and Acts governing successions of other religions would not apply to the domiciles of Goa if their property is situated outside the State and that such property would have to be included in the inventory of properties in the inventory proceeding in Goa.

Conclusion:

A careful reading of Goa’s tryst with the Uniform Civil Code reveals significant amounts. It seems like a chimaera of uniformity being equated with equality. It also means discrimination across different communities and genders uniformly. It goes on to show that laws can be uniformly applied to all in respect to women’s right, but at the same time it can also be applied uniformly to all communities in disregarding women’s right. The practice of bigamy, adultery laws under Article 1204 and 1210 shows the sheer manifestation of grossly entrenched patriarchal values that inadvertently suppresses any power shift in the male hegemony and thereby conclusively promotes the misogynistic culture. This is a lesson to be learnt from Goa’s family law. Furthermore, there is an immense lack of awareness about the Code among Goans themselves as the Code was never properly translated from Portuguese to English.

The lacunas in the law make it an unfair proposition, especially for women. To remove such lacunas, family law must be revived through a consultative process involving all the stakeholders. Bigamy should be made a cognizable offence as it is under the Indian penal Code. There should be greater legal awareness on the procedure of marriage and that marriage should only be solemnized after obtaining a civil marriage certificate. This shows that the Code has a long way to go before it becomes uniform in its true sense and is capable of being considered as a model for the applicability of the Uniform Civil Code across the country. Hence, proving that it isn’t as progressive, gender just and equitable a law as it appears to be.


Vanshikha Choraria is a student at Jindal Global Law School. You can find her on LinkedIn.


Photo by Culture Club

Bibliography:

  1. Anisha Jhawar, 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, 24th Sep 2016.
  2. Pamella D’ Mello, Uniform Civil Code:Goa shows the Way
  3. Nabeela Jamil, “Is Goa Civil Code the answer to India’s Sexist Laws?”, 9th Nov 2018.
  4. Albertina Almeida, Goa’s Civil Code shows that Uniformity does not always mean Equality, 8th Aug 2016.
  5. Status of Women in Goa :The Empirical Context for Bailancho Saad
  6. Shaila Desouza, A situational Analysis of Women in Goa(2005)

Notes:

[1]1955 AIR 334, 1955 SCR (1) 1215

[2]AIR 2008 Karnataka HC

[3]ShailaDesouza , A Situational Aanlysis of women in Goa, National Commission for Women in New Delhi

[4]Id3

[5]Nabeela Jamil, “Is Goa Civil Code the Answer To India’s Sexist Laws?”,(9 Nov,2018)

[6]Polygamy is permitted only under certain conditions:

  1. Absolute absence of issues by the wife from the previous marriage until she attains the age of 25 years (with the consent of the wife from the previous marriage).
  2. Absolute absence of male issue, the wife from the previous marriage having completed 30 years of age; and being of lower age, 10 years having elapsed from the last pregnancy (with the consent of wife from the previous marriage).
  3. Separation on any legal grounds, when proceeding from the wife, and when there is no male issue.

Dissolution of the previous marriage as provided under Article 6 of Usages and Customs, that is, (a) impotency of spouses, duly proved; (b) adultery by the wife; (c) ill-treatment and serious injuries; (d) change of religion.

[7]Article 3 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 having elapsed from the last pregnancy; (3) Separation on any legal grounds when proceeding from the wife and there being no male issue, (4) Dissolution of the previous marriage as provided for in Article 5.”

[8]Albertina Almeida,Goa’s Civil Code Shows That Uniformity Does Not Always Mean Equality, (8 August,2016)

[9]An organisation which works in collaboration with organisations and neighbouring states to manifest consensus for the struggles that are being fought by women across the country.

[10]A bigamous relationship is the second marriage or relationship in the nature of marriage, which is entered into when the first marriage is still subsisting. This is regardless of the consent of the first wife to the cohabitation.

[11]AIR 1930 Bom 105

[12]Id 2

[13]MANU/SC/1257/2019


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