PRAISED: Inaugurating the new High Court building in Porvorim retiring Chief Justice of India Bobde, who used to frequently preside over the Goa bench, praised the Portuguese Uniform Civil Code and stressed that it should apply to the entire country.
BY ARVIND PINTO
The Goa Civil Code which is a legacy of the Portuguese colonial regime, unlike the Hindu, Muslim and Christian Acts does not discriminate against women. On the death of a spouse 50% of the ancestral property automatically goes to the remaining spouse, irrespective of gender. Moreover under the Civil Code there is no ‘love jihad’ and people from any religious community can marry one another in a recognised civil marriages. Moreover, you don’t have to make a trip to present documents required to the Marriage Registrar’s Office but may post them online…
DURING the inauguration of the new premises of the Goa Bench of the Bombay High Court at Porvorim in Bardez, Goa, last week, the Chief Justice of India happened to mention about the uniqueness of the Civil Code existing in Goa and the experiences of the judges while dealing with this code. Goa unlike the rest of India has a Civil Code that has come down as part of its Portuguese legacy and is now a part of Goa’s set of state laws.
It is a historical fact that the Portuguese ruled Goa from 1453 to 1961 when the Indian army took over the territory. I would not like to go into the merits or demerits of Portuguese rule in the region, but the colonial power had a system of administration whereby the entire citizenry was governed by a common civil law, irrespective of individual religious laws, customs or traditions. This was indeed unique considering the fact that in the rest of India, we have yet to enact a Common Civil Code for jurisprudence. . Let us look at this code and the manner in which it makes Goa remarkably different from the rest of the country.
The Portuguese Civil Code of 1867 followed by the Code of Civil Procedure of 1939, that was the law in Portugal, was also enacted for citizens of Portugal the world over. Estado da India, as Goa was called by Portugal, was a part of its overseas empire, and all the laws as applicable to Portugal were implemented in Portugal’s colonies.
After the annexation of Goa in 1961, the Portuguese Civil Code of 1987 continued to be part of Goan law by virtue of Section 5(1) of the Goa, Daman and Diu Administration Act, 1962. Over time various Indian enactments have been extended to Goa, but the family laws of the Portuguese regime continue to be law in Goa.
What is this Code about ? The Goa Civil Code, primarily concerns the status of a person, the laws regarding marriage, divorce, adoption and rights regarding the acquisition and administration of property. The Goa Civil code is an Indianized variant of the Portuguese legal system that itself was modeled on the Code Napoleon, that is the basis of most legal systems in Continental Europe.
In contrast, the current Indian legal system is derived from the English common law, since much of the Indian legal system was modeled upon the basis of law as prevailing in England. Portugal’s Civil Code was indeed a comprehensive piece of legislation that dealt with various aspects of law; however, in this little article it would not be possible to deal with the entire code and I will limit myself to certain aspects of social and family laws.
The Moral Basis of the Civil Code
THE Code begins with an ideal of man. Article 1 states that only man is susceptible to rights and obligations, where a right means the moral faculty to do or not to do certain acts while duty or obligation means the moral need to do or not to do certain acts. Thus, law is seated on the plane of morality, thereby raising its status instead of just being a set of regulations, whose infraction is punishable! Further the Code goes on to elaborate that these rights and obligations originate from the very nature of man and his situation living in society.
The then Portuguese Code was applicable only to Portuguese citizens. Before 1961, Goa being a part of Portugal, this Code was applicable to all Goans. Portuguese citizens were all those who were born in Goa before 1961. Therefore by extension whoever was born before 1961 has the right to claim Portuguese citizenship. Further all those who can prove that they are the descendants of Portuguese citizens can still claim Portuguese citizenship. This is how several Goans by proving that their parents or grandparents were Portuguese citizens have obtained Portuguese passports while continuing to live in Goa. There are several entities in Goa which offer to help Goans claim this right even today!
BIRTH & DEATH
THE Civil Code mandated that all births, marriages and by default divorces and deaths be registered with the Civil authorities. The Goan record keeping dates back several centuries. The registration of births was compulsory and various persons were made responsible for the registration of a birth. Similarly, nobody could be buried or cremated without the death being registered in the Registration Book.
COMMUNIAO DOS BENS
ONE of the most talked about provisions of the Civil Code relates to marriages. Marriages were conducted according to the respective religious customs, but required to be registered by the Civil authorities. In the case of Catholics, the respective parishes communicated to the Civil authorities the marriages celebrated under their jurisdiction.
One of the unique factors of Goan marriages, unknown in other parts of the country, is the institution called “communiao dos bens.” After marriage, the couple hold all the property that they have brought into the union in joint ownership. This indeed is a unique institution only existing in Goa. The implications of this are several. This joint ownership implies that in matters of this joint ownership both the partners will have an equal decision in the governing of the property. Similarly, all income from this joint ownership will be equally shares. This concept was introduced in 1963 with the amendment to the Income-Tax Act, where income from the “communiao dos bens” is equally shared between the husband and wife.
The ramifications of this joint ownership are greater especially in cases of separation or divorce. For where couples decide to separate or divorce, the ownership of the joint property is equally divided between the two spouses. It is because of this cumbersome law, many couples do not officially divorce or separate, but live their individual lives without having to undergo the formal division of their assets.
Over the decades there have been several changes to the Civil Code, by making the Indian laws applicable to Goa. Over time the Indian Contract Act, the Notaries Act among others, were made applicable to Goa. Further, in the recent past, the Goa Bench of the Bombay High Court has held that the Writ Jurisdiction of the High Court would prevail over the Marriage Tribunal regarding judgments passed by the latter. In a recent Writ the Goa Bench has quashed the annulment decree and has reinstituted the marriage.
The Goa Civil Code has indeed stood the test of time. While it may not be the ideal solutions for all legal issues arising in Court, its vision to have a Common Civil Code is a feature that the Indian government could well consider in years to come!
(Arvind Pinto is retired as a Chief Income-Tax Commissioner and is now Standing Counsel for the IT Department in the Bombay) HighCourt)