F E Noronha
A fundamental question which has unnecessarily bedevilled the legal field in Goa is a very simple one; “To whom does the Portuguese law apply?”
When Goa was liberated in 1961, its population was a little over 6 lakhs, now it is about 16 lakhs with a large number of non-Goans residing here. Is the Portuguese Law applicable to non-Goans also?
A matter of this nature should have been decided by the Legislature and in default by the Judiciary; both failed to do it for many decades. This fundamental question “To whom do the Portuguese Laws still in force in Goa apply?” “Who is a Goan?“ was discussed by this writer in his book ‘Understanding the Common Civil Code’ as early as 2008.
Under Art. 17 of the Portuguese Civil Code, its full provisions apply only to Portuguese citizens. Naturally the Portuguese Laws applied to those who were Portuguese citizens on 19/12/1961. In this connection, another piece of legislation passed in the first few months after liberation comes to our rescue namely the G.D.D. (Citizenship) Order, 1962 of which Section 2 reads as follows:-
“Every person who or either of whose parents or any of whose grandparents was born before the twentieth day of December, 1961, in the territories now comprised in the Union Territory of Goa, Daman and Diu, shall be deemed to have become a citizen of India on that day.”
Clearly the above provision was enacted to grant Indian Citizenship to those who were Portuguese citizens on the day of liberation and therefore it provides a sound and sensible answer to who is a Goan.
Similar opinion was given by this author in his later books Portuguese Civil Code, 1867 - 1st Edition 2016 and 2nd Edition 2020, u/Art.17.
On 22nd December, 2016, the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 came into force providing inter alia at para 1(4) :- (4) that it shall be applicable to,—
(a) all persons who, prior to the 20th day of December, 1961, were governed by the provisions of the Civil Code of 1867;
(b) any person born in Goa of parents who are governed by the provisions of the Civil Code of 1867;
(c) any person born outside the State of Goa of parents who were or are governed by the provisions of the said Civil Code of 1867;
The above Act added to the confusion. Between 2016 and 2023 while the applicability of Portuguese law was statutorily clarified as to Succession, nothing was clear as to the remaining areas of the Civil Code like Marriage, Custody of Children, Property etc. During this 7 year period, a person could be governed by Portuguese Law as to Succession, but as to Marriage and Property, uncertainty prevailed.
The matter was lucidly set at rest by the High Court of Bombay, Goa Bench, through the Ld. Justice Prakash D. Naik on 30/08/2023 in Writ Petition No.913/2023(F) concerning the custody of a child of a separated non-Goan couple.
Some illuminating portions of the judgment read as follows: “It is an admitted position that the Respondent is not born in Goa and both the parties are Hindus. It is also not possible to accept that the Portuguese Code would apply to Respondent and child as he is domiciled in Goa. The question of domicile does not arise and what is required to be seen for applicability of the Portuguese Code is Portuguese citizenship as defined under Article 18 thereof.
Only Portuguese citizens may enjoy all rights which the civil law recognizes and secures.
It is necessary to ascertain whether the parties and the child was Goan within the meaning of Articles 17 and 18 of Portuguese Civil Code so as to avail benefit of Portuguese Civil Code and Portuguese Civil Procedure Code.
Section 2 of Goa Daman and Diu (Citizenship) Order 1962, was enacted with a purpose to grant Indian Citizenship to those who were Portuguese citizens on the day of liberation i.e. 19th December, 1961. The Portuguese Civil Code applies to persons to whom it was applicable on 19.12.1961 and their descendants. The Goa Daman and Diu Citizenship Order was passed. As per the said order, the persons whose parents or grandparent were born in Goa before 20.12.1961 shall become Indian citizens. Birth of child in Goa to parents who have migrated or settled in Goa would not entitle the parents or child the right to file Petition for custody by invoking provisions of Portuguese laws. They are governed by their personal laws.”
This judgement sets at rest the long pending controversy. Mr. Justice Prakash D. Naik carries the credit of settling something which should have been settled long back.
A deeper question of law (Private International Law/ Conflict of Laws) on this kind of matter, has to be noted. In Common Law countries, applicability of law is decided on basis of domicile. India as a whole follows this system. In Civil Law systems, applicability of law is decided as basis of nationality. Goa, Daman and Diu fall under the second category.
(Adv F E Noronha is an advocate practising in Panjim)