The success of the Common Civil Code (Portuguese Civil Code, 1867) as in force in Goa, could serve as a guiding light in the process of nationwide acceptance and enactment of the Uniform Civil Code for the country.
The public notice dated June 14, 2023 issued by the Law Commission of India soliciting views from the public on the subject of Uniform Civil Code provided an apt opportunity to me to write in detail about the success of the Portuguese Civil Code as in force in Goa. Accordingly, I have addressed a detailed 16-page submission dated July 7, 2023 to the Law Commission of India on the need, importance and desirability of the Uniform Civil Code in response thereto. The Law Commission of India had vide the said public notice solicited views from the public within a period of 30 days, which later came to be extended till July 28, 2023.
My submission has dealt exhaustively upon the constitutional ideal envisaged in the Part IV of the Constitution, namely the Directive Principles of State Policy and more particularly in Article 44 of the Constitution vis a vis the Uniform Civil Code, while also stating the various judgments of the Hon’ble Apex Court on the subject. I have therein also laid emphasis on the successful working of the Portuguese Civil Code, 1867 in the State of Goa while stating that Goa could serve as a model State as regards the common regime of law as in force pertaining to uniform applicability of family laws and personal laws to all Goan’s irrespective of religion, caste and creed.
While the Uniform Civil Code remains a dream in the rest of India, in Goa the Portuguese Civil Code, 1867 has been in force for certain historical reasons since pre-Liberation times and thus we in Goa have inherited a Common Civil Code which brings a unique distinction to our State of Goa, thereby making it the only State in India which largely satisfies the legal expectation as envisioned in Article 44 of the Constitution. Post Goa’s Liberation, The Goa, Daman and Diu Administration Act, 1962 was enacted which provides in its scheme that all laws which were in force at the time of Liberation would remain in force until repealed. Goa thus continues with the prevailing Portuguese Civil Code, 1867 which applies to all Goans irrespective of religion, caste or creed in all matters pertaining to personal laws and family laws being, marriage, dotal regimes, divorce, succession, inheritance, registration of birth, death, rights of women, children etc and thus embodies the ideals contained in Article 44 of the Constitution. The Concurrent List in Schedule VII, Entry 5 of the Constitution empowers the State Assemblies as well as the Union Parliament to enact laws pertaining to marriage, divorce, infants, adoption, wills, succession etc.
Through the submission, I have sought to lay emphasis on the subject of Portuguese Civil Code as in force in Goa vis a vis the aspects of family laws and personal laws only. The several other legal aspects contained in the Portuguese Civil Procedure Code, 1939, the Decree laws, Regulamentos, Legislative Diplomas, Portarias inter alia, pertaining to the subjects beyond the personal laws and family laws contained therein are not covered in the submission as the said submission seeks to only state the salient features and aspects relating to the family laws and personal laws as applicable to Goans in the State of Goa as the same has being discussed with reference to the constitutional scheme and guarantee as envisaged in Article 44 of the Constitution.
I have also delved into the aspect of the compulsory registration of births, marriages and deaths more specifically contained in the Code of Civil Registration of the State of India, 1912 as an important aspect of the Civil Code. In my note I have also discussed Article 1108 of the Common Civil Code which pertains to the unique aspect of ‘Communion of Assets’ (Communiao dos Bens) in the case of Goans which has also been incorporated in the mandate of Section 5A of the Income Tax Act, 1961 for the purpose of assessment of incomes of the husband and wife. My note also seeks to state in detail the law of succession which mandates that children irrespective of their sex inherit equally the estate of their parents, the concept of pre-nuptial agreement, the concept of disposable quota in the process of alienation of property and the provisions pertaining to the separation of assets of the spouses on divorce which are unique features contained in the Code. Therein I have also discussed the systematic aspects and procedures pertaining to the physical transcription of wills, deed of succession and deed of relinquishments inter alia in the register maintained by the Civil Registrar which are embodied in the Code. The equal applicability of the provisions of Common Civil Code for all without distinction between persons on the basis of sex except as expressly provided is also an important feature of the Code.
It is important to note that Goa has graduated from the Portuguese Civil Code in matters of succession by enacting The Goa Succession, Special Notaries and Inventory Proceedings Act, 2012 which inter alia lays down the detailed procedure to be followed in inventory proceedings in order to determine inheritance and shares in the estate amongst the heirs of the estate leaver. It also lays down the order of legal succession among other aspects of inheritance and succession through its provisions. Thus, the State of Goa can be safely said to have lit a bright trail towards a progressive Uniform Civil Code for India.
The Hon’ble Supreme Court of India has pronounced a slew of Judgments underlining the need for the adoption of the Uniform Civil Code. In fact in the Judgment pronounced by the Hon’ble Supreme Court in the case of Jose Coutinho v/s Maria Luiza Valentine Pereira and Anr (2019)5 ALL MR 928) the Hon’ble Supreme Court has highlighted the aspect of the success of the Common Civil Code in Goa.
Thus, the Portuguese Civil Code which was enacted in 1867 and extended to the overseas provinces including Goa in 1869 and which has continued to be in force in Goa by virtue of the enactment of The Goa, Daman and Diu Administration Act, 1962 thereby becoming a part of our body of laws could serve as a guiding light in the process of enactment of the Uniform Civil Code for the country.
(The author is a practicing advocate and the spokesperson of BJP, Goa Pradesh)