Goa's
unique common civil code
Sandesh Prabhudesai
25 July 2003
No fear of talaq talaq talaq, no relevance to the mere temple
marriage and no church marriage without seeking No Objection
Certificate from the Civil Registrar.
It's not a dream but a hard rule that is being practiced,
in India, in a tiny coastal state of Goa. It's called the
Portuguese Civil Code, the common civil code that is being
practiced for that last 136 years.
The women's organisations, progressive lawyers and sociological
experts have their objections to this century-old law, not
because it is a regressive legislation, but to make it more
progressive with changing times. None of them however is found
denouncing it, but proud of it, in spirit.
The freedom fighters fought vigorously to liberate the 450-year
old Portuguese colony and merge Goa into the Indian Union.
But Pandit Jawaharlal Nehru, India's first prime minister,
was kind enough to assure that the laws prevailing earlier
would remain in force even under Indian rule.
Goa was ranked the number one state recently, in several
fields like education, health, population control etc. But
it has been the first state in the country to have the common
civil code since 19 December 1961, the day Goa was liberated,
thanks to the Codigo Civil Portuguesa, which continues till
date.
Irrespective of caste, creed or religion, Goa's family laws
under the Code provide for compulsory registration of marriage
to avoid multi-marriages, stringent provisions for divorce,
equal sharing of property among the husband and the wife and
equally democratic sharing among the sons and the daughters.
The Portuguese Civil Code (PCC), operational from 1870 with
subsequent modifications, is based on Napoleon's French Civil
Code, reveals Dr Nishtha Desai, a sociologist, who has critically
studied the its emergence and existence in Goa.
As is widely known, the composition of Goa's population is
mixed, comprising approximately 70 per cent Hindus, 26 per
cent Christians (mostly Roman Catholics), 3 per cent Muslims
and 1 per cent other communities. All the communities are
governed by the PCC.
The code of civil registration is an integral part of the
PCC, making the registration of all births, deaths and marriages
compulsory. Because of this, even elderly, unlettered women
in Goan villages are aware of the need of registering births
and marriages.
The procedure of registration of marriages is not entirely
uniform. Catholics have an option of solemnising their marriages
in Church after obtaining a No Objection Certificate from
the Civil Registrar.
In the case of Hindus, there is no relationship between the
civil marriage and the religious marriage, but the marriage
is obviously not considered legal, if there is no civil registration.
In case of Muslims, the Maulavi may ask to see the certificate
of civil registration before performing the nikah. Muslim
men, whose marriages are registered in Goa, cannot divorce
by pronouncing talaq thrice nor can they have more than one
wife.
In fact, it is said that Muslims outside try their level
best to get their daughters married in Goa, while the Goan
Muslims try and avoid their daughter's marriage outside.
But the crux of the matter lies not in compulsory registration,
but the property rights, defined under Communion of Assets.
According to this system, all the wealth or property that
is owned or acquired by each spouse during the course of marriage
is held in common by the couple. In case of divorce, each
spouse is entitled to a half share of the property.
An ante-nuptial agreement can be drawn up, stating in definite
terms what each spouse can claim as his or hers. Such an agreement
has to be recorded as a public deed and cannot be changed
or revoked. The spouses may opt for a combination of communion
and separation of assets, whereby whatever is acquired or
earned before marriage is held separately while what is obtained
after marriage is held in common.
The inheritance laws are particularly interesting. Both husband
and wife own the property in common. In case of the death
of one spouse, the other spouse retains ownership over half
of the property.
According to the Portuguese Law of Succession, in such a
situation, half of the remaining property is necessarily shared
equally, by the male members as well as the female members
of the family, even if they have married and gone.
In the absence of descendants, the parents or ascendants
are entitled to this share. And in their absence, the brothers
and sisters and their descendants are entitled to the said
share.
It is clearly impossible for parents to disinherit their
children entirely, as only half of the property can be disposed
of through a will, according to their wishes.
May be it is the first time the Supreme Court of India has
advocated the need for the whole country having the common
civil code. But the judges, at formal seminars outside the
courtroom, had echoed the sentiments almost six years ago.
The occasion was the Indo-Portuguese seminar
of legal luminaries from both the countries, organised in
Goa on 14 May 1997 by the Vaikuntrao Dempo Centre for Indo-Portuguese
Studies.
The key figures in the Indian judiciary, like then Chief
Justice of India Justice J S Verma, then chairman of the Law
Commission Justice Jaychandra Reddy, then chairman of the
National Human Rights Commission M N Venkatchalia, former
chief justice Y V Chandrachud and then chairman of the Press
Council of India Justice P B Sawant had unanimously expressed
to extend such a legislation for the whole country.
Your
Comments Please
