Above: The SC ruled that the Portuguese Civil Code (PCC) is applicable to Goa in many spheres/Photo: weddingsdegoa.com
In an interesting judgment, the Supreme Court has said that the Portuguese Civil Code, a liberal document, shall govern the rights of succession and inheritance of any Goan anywhere in India
By Shivanand Pandit
The Supreme Court recently expressed dismay that governments had made no attempts to make a Uniform Civil Code (UCC) though it had encouraged such a move. The Court noted that Goa is a “shining example of an Indian state which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights”.
A bench of Justices Deepak Gupta and Aniruddha Bose in its 31-page ruling in a divorce case pronounced that the Portuguese Civil Code (PCC), 1867, shall govern rights of succession and inheritance in respect of properties of a Goan domicile located anywhere in the country. The PCC is applicable to Goa in many spheres. As per the Code, a Muslim man whose marriage is registered in the state cannot practise polygamy, a married couple shares property equally, pre-nuptial agreements are the order of the day and assets are apportioned uniformly between the man and woman while divorcing.
The applicability of overseas legislation was assessed and gauged on the basis of two outstanding observations by the apex court. The first question was whether foreign law would be applicable in the Indian context and the second was whether the property of a Goan domicile beyond the territory of Goa would be regulated by the civil code or by the Indian Succession Act or by personal laws as in the rest of the country.
The Court addressed both questions in its ruling. It remarked that the PCC has been prescribed in the previously colonial possessions of Goa, Daman and Diu by an act of Parliament. This makes the Code Indian law though it is of Portuguese origin. The Supreme Court also mentioned in the judgment that Goa was at liberty to embrace the old decrees wholly or in part. It could completely discard the old laws and substitute them with laws which apply in other regions of the new sovereign. It is for the new sovereign to judge what action it would implement with respect to the application of laws.
With reference to the second question, the Court said that the Indian Succession Act, which included the Hindu Succession Act, Muslim Personal Law or the laws of succession would not be applicable to Goan domiciles even for property outside Goa, and the PCC would apply. Thus, the apex court made it crystal clear that the civil code is Indian law and no principles of private international law are applicable. The top court’s verdict also showcases the democratic philosophy of the nation.
The facts of the case are as follows. Joaquim Mariano Pereira married Claudina Lacerda Pereira and had three daughters—Maria Luiza Valentina Pereira, Virginia Pereira and Maria Augusta Antoneita Pereira Fernandes. Joaquim purchased a property in Mumbai in 1955 and donated it to his youngest daughter as per the will dated May 6, 1957. He also donated Rs 3,000 each to his other two daughters.
Claudina expired on October 31, 1960, and Joaquim died on August 2, 1967. The validity of the will was granted by the Bombay High Court’s Panaji bench on September 12, 1980, and the other two daughters were served notice of the probate trials. Even though the High Court ruled that the Goan civil code would not apply to the property situated outside Goa, the apex court set aside its judgment. The apex court pronounced that the property in Bombay would have to be integrated in the stock of properties in the inventory proceedings in Goa.
In the Shah Bano case in 1985, the Court granted maintenance to the 60-year-old divorcee, which gave rise to deliberations regarding a UCC. In another adjudication of 1995 in the Sarla Mudgal case, various conflicts between personal laws prevailing in matters of marriage were highlighted by the Court, thereby emphasising the need for a UCC.
In 2003, a bench led by then Chief Justice VN Khare said that Article 44 was founded on the principle that there was no necessary connection between pious and personal law in a civilised and democratic society. In 2015, again the Supreme Court directed the government to take immediate action on a UCC to curb confusion over personal community laws while dealing with a divorce case under the Christian Divorce Act. A bench headed by Justice Vikramajit Sen was to deal with the lawsuit.
In all the cases, the Court insisted that Parliament enact a UCC to eliminate personal laws applicable in matters of marriage, divorce, inheritance and succession. Despite constant exhortations, the government did not bring in a UCC. Nevertheless, in 2018, the Law Commission said that a UCC was neither necessary nor viable at this point of time. It said that secularism cannot controvert the majority predominant in the nation.
So why is a UCC needed in India? A uniform civil code is defined in our Constitution under Article 44 of the Directive Principles of State Policy. It refers to a set of regulations to administrate personal matters of all citizens regardless of religion and assuring them that their fundamental, elemental and constitutional rights are shielded.
These regulations cover numerous provisions relating to marriage, divorce, inheritance, adoption and maintenance. Goa is the only state which has common family law and the 1954 Special Marriage Act permits any citizen to marry outside the area of any religious personal law.
A UCC is the need of the hour as it offers the same status to all citizens, irrespective of their religion, class and caste. It also aims at promoting gender equality. Undoubtedly, its adoption will be progressive legislation. Changing times necessitate the need for having a common civil code for all citizens.
—The writer is a Goa-based financial and tax specialist