Many of the provisions in the Portuguese Civil Code of 1867 have been retained since it came closest to fulfilling the objectives of Article 44 of the Constitution of India for a uniform civil code.
By Pamela D’ Mello in Panaji
The Portuguese Civil Code of 1867 that came into force in July 1870 in the erstwhile colonial territory of Goa, is still applicable in parts to this region, along with relevant procedure from the Civil Procedure Code of 1939. In its full form, it has four parts and 2,538 articles, and was the most comprehensive piece of legislation comprising the law of Contracts and Obligations, the Law of Persons, the law of property rights and the law of Torts. Post the liberation of Goa in 1961, some three hundred central Indian laws were extended to Goa, and large portions of the 1867 Code stood repealed.
GENDER JUST LAW
In the 1970s, jurists and legal practitioners, however, lobbied for retention of many of the provisions of the Code and allied colonial legislation and decrees, successfully arguing that this entire corpus of codes, decrees and laws relating to matters of family, marriage, guardianship, children, divorce, succession, inheritance, wills and partition of family property—constituted a unique heritage, that defined the Goan region, binding all its inhabitants to a uniform and common system of law. It was posited then, that the Goa Family Laws were a unique and superior system of law, gender just and equitable, that applied uniformly to all, irrespective of religion and came closest to fulfilling the objectives of Article 44 of the Constitution of India for a uniform civil code, since religious family laws, applicable elsewhere in India were not applicable in Goa and minor efforts to have them extended were rejected.
Under such laws in the region, marriages are a civil contract, and have to be compulsorily registered in the civil registry to have civil effects. One of the most important aspects of such marriages is the four systems under which property is governed within the marriage. The general principle is that of communion of assets and properties, where the properties owned by both spouses are held equally though administered by the husband. There are provisions for absolute separation of assets, with the signing of a pre-nuptial public deed, and simple communion of acquired assets with ante-nuptial deeds. Consent and concurrence of both spouses is needed for alienation of immoveable property. Much of these provisions contributed to a comparatively better protection for legal rights of women in Goa, and these were available across communities.
No distinction is made between male and female heirs, or on the basis of age. Brothers and sisters inherit equally. It’s a gender-just legal system.
The law of marriage of 1910 defined void and voidable marriages, rights and obligations of spouses and provided for the fate of minor children in cases of annulment. Religious marriages do not automatically have civil effects unless they are registered, though exceptions were supplemented by a 1946 decree. The law of divorce of 1910, during a republican regime in Portugal, provided for several grounds for litigious divorce, including adultery of any spouse, serious ill treatment, abandonment for over three years of the marital domicile, incurable lunacy, de-facto separation for 10 consecutive years, gambling etc. No grounds are required for divorce by mutual consent, if both spouses are over 25 and have been married for more than five years. The provisions for alimony, property of the ex-spouses, children from the marriage are thus also common for all communities. Procedure in these matters stem from the Civil Procedure Code of 1939, following a special equity jurisdiction.
Elaborate laws for the protection of children in 1910, provided for recognition of illegitimate children with succession rights, investigation into illegitimacy, alimonies to the mother etc.
SUCCESSION LAWS
Succession laws are also similarly uniform with specific exceptions provided in an 1880 decree. The character of wills, its interpretation etc are all codified under a single law. An important aspect is the setting aside of a “legitima” or indisposable legal portion reserved for compulsory heirs, that cannot be willed or gifted away and protects next of kin and inheritors.
Within classes of heirs, distribution is per capita and equal. No distinction is made between male and female heirs, or on the basis of age. Brothers and sisters inherit equally. Provisions of the law set out procedures to evaluate and partition property between heirs through inventory proceedings. The general quality of the law is touted as leading to a gender just legal system, though not without exceptions, limitations and practical infringements.
An article in the 1860 Code summarily permits non-Christians to follow their usages and customs, provided it is within public morality and order.
There are also exceptions to absolute uniformity in the laws. These reflect the changing political conditions in colonial Portugal at the time and the negotiation and capitulation to local sentiments that the erstwhile colonial regime made. A decree on canonical marriage in 1946 singled out Church marriages and gave the same civil effects, if records of the same were transcribed in the civil registry. Christians had the option of choosing a church marriage or a civil marriage. The former meant they renounced possibilities of availing civil remedies of a divorce. Only an annulment, decided by an ecclesiastical court, was open to such marriages. By a 1974 case law though, provisions to debar divorce under the 1946 decree has been struck down and divorce is now granted even to such marriages.
HINDU CUSTOMS RECOGNIZED
A further exception is the 1880 Code of Usages and Customs of Gentile Hindus. This grants civil effects to marriages according to religious rites, and furthermore permits “simultaneous polygamy” in limited cases of absolute absence of issue, or absence of a male child, separation when proceeding from the wife and no male issue and dissolution of marriage for adultery. Such religious marriages permitted dissolution only in the case of adultery by the wife, but entitled her to maintenance. Simultaneous marriage was permitted only if conditions were proved in court and with the consent of the first wife, made in a public deed.
It also recognized traditional Hindu joint family units for succession purposes and provides for constitution and reconstitution of such units. An important aspect, still in current usage, is the adoption procedures permitted to Hindus under this specific Code. (The Civil Code did not provide for adoption to other communities). An article in the Code also summarily permits other non-Christians to follow their usages and customs, provided it is within public morality and order.
“By and large though, most communities integrated with the Civil Code” says advocate Fernando Colaco, former officer on special duty to the First Law Commission for Goa. The provisions of the Customs and Usages Code dealing with limited polygamy are also not exercised, except in rare cases, though they continue to exist on the statute book.
A fresh release of translated and slightly amended sections dealing with succession, inventories and special notaries law was released in a gazette in September 2016, under the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 (Goa Act 23 of 2016).
Lead picture: The laws that have been evolved under the Portuguese rule provide for a host of rights to women. Photo: saviocolaco.com