Goa’s uniform civil code not a perfect model

In conversations over the idea of a Uniform Civil Code, Goa’s name often comes up. They say if Goa can have a Uniform Civil Code, why can’t the rest of the country? BJP leaders, the most zealous champions of it, do not lose an opportunity in recommending the Goa model. A parliamentary panel headed by BJP leader Sushil Modi visited Goa in June to study the model.

A few questions become interesting here: What is Goa’s Uniform Civil Code? How has it worked for the people of different communities over the years? Can it be a model for the rest of India?

First of all, no single law exists in Goa by the name of Uniform Civil Code. There are ‘family laws’—separately governing marriage, divorce, succession, inheritance, guardianship of children, adoption, gifts and so on—that have been grouped as Uniform Civil Code for nomenclatural convenience. The first set of family laws were introduced by the king of Portugal in his country and colonial provinces like Goa in 1870. They were amended, and more laws were added to the group over the years.

Although Goa’s Uniform Civil Code applied equally to all communities—Hindus, Christians and Muslims—it was not totally uniform. Certain communities enjoyed privileges.

For instance, though civil marriage—marriage recorded with the registrar—alone was held maintainable under law for Hindus and Muslims, in the case of Christians, even a church marriage was valid. Religious marriages of Hindus and Muslims were not valid.

The Christians enjoyed the special privilege from 1870 to 1910, when the republicans seized power in Portugal, overthrew the monarchy, and passed another set of family laws—Law of Marriage, Law of Divorce and the Code of Civil Registration—which laid down common procedures for all for registration of marriage and divorce, annulling the validity of church marriage. In 1940, the Vatican prevailed over the Portuguese government to re-validate church marriage, until a court in free Goa declared it null and void in 1974, saying Articles 14 and 15 of the Constitution allowed no discrimination on religious grounds.

Goa’s ‘uniform’ civil code allowed certain privileges also to Hindus in such matters like second marriage under a law called the Code of Usages and Customs of Gentile Hindus. It allowed a Hindu man to take a second wife if his first one delivered no issue till the age of 25 or no male issue till the age of 30. It sounds absurd today but it is a part of the common civil code.

In most respects, however, the civil code was the same for everybody regardless of religion. One of the strongest and most unique features of the monarchical civil code, which neither the republicans nor the Salazarists ever tampered with, was the relationship of marriage to property. The man and woman were required to sign a contract before marriage on how they would like the marital property to be governed. There were four regimes under which marital property could be governed, but the commonest choice was the regime called ‘Communion of Properties’. This regime applied by default even to the couples who signed no contract.

Under this ‘communion’ regime, all the properties brought by either of the spouses by gift, succession or previous exclusive right from before the marriage as well as all the properties acquired or earned by either of them during the subsistence of the marriage, were to be held as common property by the two spouses till the dissolution of the marriage by death, divorce or separation. No revocation of or changes in the contract was allowed during the subsistence of marriage.

The ownership and possession of the common properties were vested in both the spouses during the subsistence of marriage. Immovable properties could not be alienated or charged in any manner without the consent of both spouses. The husband could not renounce any inheritance without the consent of the wife.

In case of divorce or separation, the common properties were to be equally divided between the spouses. A spouse was entitled to half share of the common properties even if he or she did not bring any ancestral or previously held assets from before marriage.

Goa’s civil code was excellent in terms of theoretically guaranteeing religious and gender equality. But how did it work in the real life of Goans?

According to M S Usgaocar, the most well-known expert on Goa’s civil code, the philosophy behind the code was to strengthen the family. The regime of ‘Communion of Properties’ was aimed to consolidate the marital bond by making the property common and indivisible and by minimising the chances of marital discord with the threat of equal partition hanging over the head of either spouse.

However, evidence showed the code had failed to prevent marital discord. According to the Goa State Commission for Women, the number of cases of domestic violence has been rising. Nearly 70% of cases filed with the Commission between September 2020 to March 2021 were caused by domestic violence. The commission received 15–20 cases of domestic violence every month.

Despite the code, there are cases of bigamy among all communities, Hindus, Christians and Muslims. A man, while having a wife from civil marriage, marries another according to religious customs, so the law cannot come after him because he has not violated the civil marriage. There is no law binding a Hindu, Christian or Muslim priest to not solemnise a marriage without a certificate from the civil registrar that the man was not married.

Despite the code, divorce has been rising. The divorce rate in the state was 4.5% in 2020, which was considered very high, considering India’s divorce rate of 1.1%.

Clearly, notwithstanding the rights to women enshrined in the common civil code, Goa remains a patriarchal society. The code may be egalitarian but the society remains inegalitarian. The woman still remains the weaker partner in marriage and is not expected to cry aloud to the world when her husband subjects her to cruelties, takes another woman or manipulates legal documents to deny her just share of the ‘Communion of Properties’.

An ideal common civil code for other states or the country has to correct these major gaps that exist in Goa’s civil code in order to make it truly egalitarian and just to women.

Arun Sinha

Journalist and author of Goa Indica: A Critical Portrait of Postcolonial Goa

(arunsinha3000@gmail.com)