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Uniform civil code in goa

http://www.goaholidayhomes.com/information/uniform-civil-code-in-goa.html
Goa is the only state in India that regardless of religion has an active and enforced Uniform Civil Code
(UCC) for all citizens even though India has different civil laws for different religious communities. The
Portuguese Civil Code that remains in force even today was introduced in the 19th century in Goa and
wasn't
replaced
after
liberation.
The Uniform civil code in Goa is a progressive law that allows equal division of income and property
regardless of gender between husband and wife and also between children. Every birth, death and
marriage
has
to
be
compulsorily
registered.
For divorce there are severe provisions. Muslims that have their marriages registered in Goa cannot take
more than one wife or divorce by pronouncing "talak" thrice. During the course of marriage all the
property and wealth owned or acquired by each spouse is commonly held by the couple. Each spouse in
case of divorce is entitled to a half share of the property and if one dies, the ownership over half of the
property
is
retained
by
the
other.
According to the Uniform Civil Code even if the children (both male and female) have got married and
left the house, the other half has to be divided equally among them. Thus the parents cannot disinherit the
children totally as they can dispose only half of the property in a will and the rest has to be compulsorily
and equally shared amongst the children.

Goa civil code


From Wikipedia, the free encyclopedia

http://en.wikipedia.org/wiki/Goa_civil_code

The Goa Civil Code, also called the Goa Family Law, is the set of civil laws that governs the
residents of the Indian state of Goa. In India, as a whole, there are religion-specific civil codes
that separately govern adherents of different religions. Goa is an exception to that rule, in that a
single code governs all Goans, irrespective of religion, ethnicity or linguistic affiliation.[1]
History
The Goa civil code is largely based on the Portuguese Civil Code (Cdigo Civil Portugus) of
1867, which was introduced in Goa in 1870. Later, the code saw some modifications, based on:[2]

the Portuguese Gentile Hindu Usages Decrees of 1880 (Cdigo de usos e costumes dos
hindus gentios de Goa)

the Portuguese Decrees on Marriage and Divorce of 1910 (Lei do Divrcio: Decreto de 3
de Novembro de 1910). After the establishment of the First Portuguese Republic, the civil
code was liberalized to give women more freedom.[3]

the Portuguese Decrees on Canonical Marriages of 1946 (Decreto 35.461: regula o


casamento nas colnias portuguesas)[4]

The civil code was retained in Goa after its merger with the Indian Union in 1961, although in
Portugal, the original Code was replaced by the new Portuguese Civil Code of 1966. In 1981, the
Government of India appointed a Personal Law Committee to determine if the non-uniform laws
of the Union could be extended to Goa. The Goa Muslim Shariah Organization supported the
move, but it was met with stiff resistance from the Muslim Youth Welfare Association and the
Goa Muslim Women's Associations.[5]

Differences with the Indian law


Some ways in which the Goa Civil Code is different from other Indian laws include:[2]

A married couple jointly holds ownership of all the assets owned (before the marriage) or
acquired (after the marriage) by each spouse. In case of a divorce, each spouse is entitled
to a half share of the assets. However, the law also allows antenuptial agreements, which
may state a different division of assets in case of a divorce. These agreements also allow
the spouses to hold the assets acquired before marriage separately. Such agreements

cannot be changed or revoked. A married person cannot sell the property without the
consent of his/her spouse.

The parents cannot disinherit their children entirely. At least half of their property has to
be passed on to the children compulsorily. This inherited property must be shared equally
among the children.

Muslim men, who have their marriages registered in Goa, cannot practice polygamy.
Also, there is no provision for a verbal divorce.

Uniformity
The Goa Civil Code is not strictly a uniform civil code, as it has specific provisions for certain
communities. For example:[5][2]

The Hindu men have the right to bigamy under specific circumstances mentioned in
Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a
child by the age of 25, or if she fails to deliver a male child by the age of 30). For other
communities, the law prohibits bigamy.

The Roman Catholics can solemnize their marriages in church after obtaining a No
Objection Certificate from the Civil Registrar. For others, only a civil registration of the
marriage is accepted as a proof of marriage. The Catholics marrying in the church are
excluded from divorce provisions under the civil law.

For Hindus, the divorce is permitted only on the grounds of adultery by the wife.

The law has inequalities in case of adopted and illegitimate children.

The Portuguese ruled Goa for 400 years and have left behind a universal civil code applicable to
all residents of Goa. Personal law of Hindus and Muslims is not recognized. After 1961 all
Portuguese era laws were repealed by an Act of the Indian Parliament, except the civil code of
1867. This is valid even today and is a beacon to the rest of India
Goa was a colony of Portugal for 400 years till it was liberated from Portuguese rule by the
Indian army in 1961. During these 400 years the Portuguese enforced their own laws. After 1961
all Portuguese era laws lapsed and the Indian Parliament extended all Indian laws to Goa.
However the Portuguese civil code of 1867, Law of marriage 1910 and Laws of Divorce of 1910
and the family laws were not repealed and continue to this day.
When the British ruled India they did away with the Sharia in all matters except personal law.
Thus the inheritance of property and the marriage laws remained as per the Sharia. The
Portuguese went one step better than the British and enforced a uniform code in all aspects
including personal law for all citizens of Goa irrespective of the fact that a person is a Muslim,
Hindu or Christian.
Some of the basic provisions of the Portuguese civil code which have survived Portuguese rule
are
a)
The first is the concept of absolute equality irrespective of the fact that you are a Hindu or
Muslim.
b) All marriages in Goa are not valid till they are registered. In Goa, marriage is a contract
and civil registration of marriage is mandatory. Thus a marriage solemnized under Hindu custom
or Muslim law will be deemed valid only after the marriage is registered. A Muslim whose
marriage is registered in Goa cannot take another wife.
c)
The Portuguese civil code recognize that every Goan marries under a system called
Communion of Assets, whereby from the time of the marriage the spouse acquires half
undivided rights in the assets of the other. The Muslim law as per the Sharia is not valid in Goa.
d)
The Sharia law of divorce and 4 wives is not recognized in Goa. A Goan has perforce to
have only one wife till he divorces as per the civil code and marries again. All contentious forms
of divorce like triple Talaq are not valid in Goa.
Another aspect of the civil code pertains to property. Under the Uniform Civil code parents
cannot disinherit their children as at least half of the property perforce has to be divided amongst
all children.

However one aspect of the Goa family laws is contentious. As per the code of 1867 Canonical
marriages are not entitled to a divorce and the appropriate authority is the Church. But this law is
declared ultra vires of the Indian constitution and the courts have not applied this proviso of the
code. Interpretation of Portuguese era laws is difficult as they are drafted in Portuguese language
and have not been translated into English.
The Goa (Portuguese) Family laws are a step ahead of the rest of India. The law is applicable to
all citizens of Goa who are subject to a uniform civil code unlike in India where separate
personal law governs the Muslims as per the Sharia.
https://statutory-law.knoji.com/statutory-lawthe-portuguese-civil-code-of-1867-is-valid-in-goa-and-thesharia-takes-a-back-seat/

Goa's Civil Code


http://mmascgoa.tripod.com/id12.html

There is no question that over 400 years of Portuguese rule have left an indelible imprint on Goa . We
see the colonial period reflected in its Iberian architectural style and in many of the customs and traditions
of its people. Part of this cultural heritage, for better or for worse, depending on ones point of view, has
begun to fade over the past thirty-seven years. Today, in a great number of homes and in the academic
arena, as a direct result of the Indian governments decision to dispense with the Portuguese system of
education following the conquest of 1961, the Portuguese language has increasingly been replaced by
Marathi, Konkani and/or English. And, while this transformation has been welcomed by many native
Goans, it has also created an educational vacuum which is most noticeable in the realm of Law.

Perhaps the most valuable living legacy left in Goa by the Portuguese is a codified system of Law: the Portuguese Civil

Code of 1867 and the Code of Civil Procedure of 1939, which encompass the entire spectrum of Civil Law. It is a codificati
divided into four sections. Part I contains Articles 1 through 17 delineating the basic provisions of the Code, the most
important of which is Article 7, which establishes the principles of racial and gender equality. Part II further develops these
provisions. Part III deals exclusively and comprehensively with property rights. Part IV concerns itself with matters of civil
responsibilitiesinfringement of rights and their restitution.

In 1910, with the replacement of the monarchy by the Republic in Portugal, substantive changes were introduced in the are
of Family Laws. The performance of marriage before the Office of Civil Registration was made compulsory and only those
registered in this way were considered valid under the Law. For the first time, provisions were made permitting divorce.
These laws were applied uniformly to all sections of society and were in force in Goa in 1961.

In 1962, an enactment of the Indian Parliament, the Goa, Daman and Diu Administration Act, provisionally kept Portugues
civil laws in force in Goa until or unless repealed by the Legislature or another competent authority. Thereafter, with the
passing of a number of other Parliamentary Acts pertaining to legislation in areas such as Contracts, Transfer of Property ,

Easement Rights , Registration and so forth, the corresponding provisions in the Civil Code of Goa have been superseded

Only those provisions in the Civil Code pertaining to Family Laws and Usages have so far survived incursion. These includ
the laws appropriate to marriage/divorce, succession, guardianship, property, Torts, domicile, possession, access, and

waterways, among others. However, these laws have yet to be translated into English, the language of the new generatio

of lawyers in Goa, and so, increasingly, the number lawyers and judges conversant with these laws is on the decline, creati
a significant impediment in the adequate dispensation of justice.

There are a number of reasons why the Portuguese Civil Code is of paramount significance in the Indian legal context. Bu
will be addressing only two of the most primary here.

The first has to do with the concept of absolute equality. For the most part, the civil laws currently in force in Goa that perta

to marriage, divorce, protection of children and succession are non-discriminatory in terms of caste, ethnicity or gender. An

this is an advantage that does not exist in the rest of India, where the population is governed by Common Law, and in whic
there exists a lacunae where the protection of the rights of women and children are concerned. Under Portuguese Law,

marriage is a contract and the civil registration of marriage is mandatory. There are four different marital options under the
lawcommunity property, absolute separation of property, separation of assets existing prior to marriage and communion of

property after marriage, and dotal regime. Whenever no express contract was made, the Law of Community Property was
automatically applicable. Therefore, marriages that took place under Community Property Law were considered legal and
the other three options were considered conventional. However, since 98 percent of Goan marriages take place under
Community Property law, this is the application most relevant to our discussion. Under Community Property Law, each
spouse automatically acquires joint ownership of all assets already in their possession as well as those due to them by
inheritance. In other words, the total number of assets (and liabilities) that a couple brings into a marriage come under the

purview of Community Property. And these assets may not be disposed of or encumbered in any way by one spouse witho
the express consent of the other. In this way, women are protected under the law by husbands who might otherwise do as
they please with the assets. And this is a benefit the majority of Indian women do not have. In addition, by virtue of

registration of her marriage, a Goan woman is able to establish her rights from the outset, another advantage that women

living under the Common Law system to not possess, since registration of marriage is not mandatory and therefore is difficu
to prove, if at any time such proof becomes necessary. And in the event of legal separation, a woman is entitled to 50
percent of her husbands income, and not dependent on his charity.

Under the Civil Laws of Goa, registration of births and deaths are also mandatory. The children of deceased parents fall in
the category of what is known as mandatory heirs. They cannot be disinherited whether male or female, save under

extraordinary circumstances where the heir has been found guilty of an offense against the parents punishable by more tha

six months imprisonment, or has taken judicial action against the parent(s), or has refused to take care of the parent(s) prio

to their demise. If the deceased parent(s) leave(s) no will, all mandatory heirs are entitled to an equal share of the estate o

the deceased. If, on the other hand , the deceased has made a will, he/she may only dispose of 50 percent of the estate in

the manner of his/her choosing. This is known as the quota disponivel. The remaining 50 percent must be divided equally
among all mandatory heirs. Such a provision ensures the just distribution of assets among all children, whether male or

female. In fact, the only way a woman living under the Civil Law system can be deprived of her legitimate inheritance is by
her own express renunciation. The possibility of parents coercing their daughters to renounce their share is reduced by a

provision which says that such a renunciation is only valid if done subsequent to the death of the parents. Moreover, in the
event of divorce, the legitimate share of the wife, who in a majority of cases is not the major breadwinner, is not contingent

upon the munificence of her ex-husbandunder Community Property Law, she is automatically entitled to half of all assets.

The egalitarian nature of the Portuguese Civil Laws has been lauded by womens groups throughout India, and is seen as a
starting point for legislative reforms regarding womens' rights in the rest of the country.

This brings us to a discussion on the potential of the Civil Code to serve as a basis for the codification of Indian laws. Artic

44 of the Indian Constitution enjoins the Indian Legislature to create a uniform civil code for all Indiaa constitutional mandat
which has yet to be implemented 50 years after Independence. In light of this deficiency, and in an effort to initiate debate
and discussion, a conference was held by the Goa, Daman and Diu Bar Association in 1979. At the time, the then Chief

Justice of India, Y.V Chandrachud, made the following observations: It is heartening to find that the dream of a uniform civ

code in the country finds its realization in the Union Territory of Goa, Daman and DiuIn my view it would be a retrograde ste

if Goa too were to give up uniformity in its personal laws which it now possesses. Thereafter, in spite of several short-sight

and politicized attempts made at a local level to repeal Goas existing family laws in favour of the Hindu Succession Act and

the Hindu Marriage Act, the Goa State Government to its credit has repeatedly rejected such moves. Recently, in May of

1997, another conference was held in Goa which brought together a number of legal luminaries from Portugal and India. A
brainchild of Advocate M.S. Usgaocar, currently Goas Advocate General, the conference was organized by the Vaikuntrao
Dempo Centre of Indo-Portuguese Studies in collaboration with the Ordem dos Advogados de Portugal and in association

with the Bar Council of Maharashtra and Goa. It was dedicated to the memory of Dr. Luis da Cunha Gonsalves, who wrot
The Treatise of Civil Law, an exhaustive study of the Portuguese Civil Code of 1867, and today considered by scholars of

Portuguese Law as a magnum opus without equal in jurisprudence. For three days, some of the leading legal minds in Ind
and Portugal, which included the Chief Justice of India and the Attorney General of Portugal, came together , presenting

papers to a packed auditorium and entering into dynamic exchange of information on topics ranging from Marital Regimes
Property under the Civil Code, to a comparative analysis of the Portuguese Civil Codes of 1867 and 1966, to the Writ
Jurisdiction and Administrative Law as practiced in India.

One of the most gratifying results of the conference was the resolution to encourage the State Government of Goa to

endorse the entire Civil Code of 1867 and Civil Procedure of 1939 following its complete translation from Portuguese to

English. Those Indian lawyers hitherto unfamiliar with the Civil Code, proposed its use as a basis for the codification of the
entire system of Indian Law. And the Portuguese delegates were inspired by the discovery of Writ Jurisdiction and its
potential for application in Portugal. All the delegates expressed the desire for a follow-up conference.

The enormous benefits of exchanges of this nature cannot be denied. Not only do they broaden the horizons of those who

participate, but frequently, they galvanize further activity. The upcoming Youth Study Tour organized by the Indo-Portugues
Friendship Society , and those tours to follow, will provide an excellent opportunity for students of Law to examine more in
depth the Portuguese Civil Code of 1867 and the amendments that were ratified in 1966 for the purposes of comparative

study. It is the hope of many that this salubrious climate of cultural and intellectual dialog will continue to flourish between
India and Portugal.

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