"Goa's
civil code is not common"
Sandesh Prabhudesai
27 July 2003
The Portuguese Civil Code, prevalent in Goa for the last
136 years, is not an ideal code to be extended to the rest
of the country as the common civil code, feels a legal luminary
here.
Adv Amrut Kansar, a constitutional expert, admits that the
existing code is little progressive but strongly opposes its
adoption for a common civil code for the entire country.
"The Portuguese civil code is not a common civil code.
It is primarily a code for the Roman Catholic community, which
also provides legal protection even to the inhuman and anti-women
traditions in the Hindu society", he points out.
Most of the acts coming under the original Portuguese Civil
Code have been repealed due to the extension of central acts
to Goa after the Portuguese colony was liberated in 1961.
"It is today limited to marriage, succession, protection
of children, obligation towards wife, divorce and partition
of properties under Communion of Assets", states Adv
Kansar, a former Member of Parliament.
The Portuguese Civil Code was introduced in Portugal in 1867
and was also made applicable to Goa since it was part of the
colonial rule. However, subsequently, the code was amended
drastically in 1966 by the democratic government of Portugal
but not in its former colony of Goa, which was ruled by the
dictatorial regime of Salazar till 1961.
According to Adv Kansar, Salazar had brought the civil code
in collusion with the Vatican, for his Christian populace
and was made applicable in Goa by default. Since forcible
conversions had stopped by 1760, the newly conquered seven
regions of Goa remained predominantly Hindu, except the four
coastal regions that were conquered in 1510 and were forcibly
converted to Christianity.
At the request of the dominant Hindu trading community in
Goa, the Hindu traditions were then made part of the Portuguese
Civil Code in 1880, in order to provide legal protection.
"This itself proves beyond doubt that it was not a common
civil code for the entire multi-religious Goan society. How
could such a code be applied to the whole country today",
asks Adv Kansar.
As he reveals, the existing Portuguese Civil Code provides
legal protection to the caste structure, the most inhuman
Devdasi system and even authorises the religious heads to
pronounce punishment like excommunication.
Under this code, only the Church marriage is considered to
be legal marriage but neither the Hindu marriage nor the Muslim
marriage. "Making civil registration compulsory is definitely
good, but look at the religious discrimination", he points
out.
The existing Portuguese Civil Code allows sharing of property
between the husband and the wife and even to the married daughters
after the death of parents. However, it also keeps primary
control of the property with the male, no control of female
over the immovable property and no right of heir in the first-preference
list.
Due to the extension of several legislations to Goa after
it became part of Indian Union in 1961, several acts under
the Portuguese Civil Code have become redundant. It includes
contract act, transfer of properties act, easementary act,
commercial contracts like partnership etc as well as acts
related to the bodies of persons like associations and societies
etc.
"No doubt our existing code is quite progressive compared
to the rest of India. But it is also regressive in many more
matters and has no case for its blind extension to the whole
country as the common civil code", asserts Adv Kansar.
According to him, countries like France, Portugal and England
have much progressive legislations than Goa's existing Portuguese
Civil Code. "We need to study these legislations and
then adapt it to the Indian conditions of a multi-cultural
society", he adds.
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