Unlike personal laws of various communities governed by their religious scriptures, under the Uniform Civil Code, all communities including Hindus, Muslims and Christians in the State are governed by the same law when it comes to marriage, divorce, adoption, inheritance, succession, among others. This code is derived from the Portuguese Civil Code of 1867, which was applicable during the Portuguese rule in Goa.
Sawant spoke since it is an ideological commitment of the ruling Bharatiya Janata Party (BJP), which is seriously toying the idea to implement Uniform Civil Code across the country before the next Lok Sabha polls. There are also high possibilities of BJP-led NDA government introducing a Bill in this direction in Parliament.
Goa’s Uniform Civil Code seems to be a widely acclaimed law by all and sundry and recently the Chief Ministers of many BJP-ruled States are advocating that such uniform Civil Code be applied to their respective States and some even made it an election issue.
After Goa, Uttarakhand will be the second State in the country to enact Uniform civil Code. A day back it constituted an exert committee headed by a retired Supreme Court Judge to check all the relevant laws that control personal matters for people living in Uttarakhand and suggest amendments in the present laws for implementing Uniform Civil Code.
BJP-rules States like Himachal Pradesh and Uttar Pradesh have also proposed to implement such a Code in their States.
Citing various positives of the Uniform Civil Code, the Goa Chief Minister had said rather than impacting minorities, it ensures equal rights for women. Since Goa’s liberation in 1961, Uniform Civil Code is followed in the State and there are no incidents of communal tension or any other issues due to this Code.
During the inauguration of the new Bombay High Court building at Goa in March last year, the then Chief Justice of India Sharad A Bobde had lauded the Uniform Civil Code. “Goa has what the framers of Constitution envisaged for the whole of India,” he had said and had suggested intellectuals debating about Uniform Civil Code to visit Goa and learn the administration of justice there to know what it turns out to be.
Many say that Goa’s Uniform Civil Code is the Portuguese Civil Code (Código Civil Português) of 1867, which was introduced in Goa in 1870 and retained even after the joining of Goa with the Indian Union in 1961.
According to them, this very code being obsolete and outdated has been repealed in Portugal and replaced by a totally new Portuguese Civil Code of 1966.
The Portuguese Civil Code in Goa became applicable although it became a part of India by virtue of Section 5(1) of the Goa, Daman and Diu Administration Act, 1962, through which the new Indian Administration ruled that “all laws in force immediately before the appointed day (the day Goa was liberated on December 19, 1961) in Goa, Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by a competent legislature or other competent authority.”
Herald spoke to few of the legal luminaries for their opinion on Uniform Civil Code after it came in the national limelight.
Saligao Seminary Professor of Latin for Post-Graduate Students Fr Mouzinho Athaide feels that the atmosphere is not conducive in the country to enact the Uniform Civil Code. He says, “Today country is ruled by Bharatiya Janata Party (BJP) whose ideology is Hindu, Hindi and Hindustan. They are talking of One Nation, One Language, One Law. They want to erase diversity. This is what I fear”.
Fr Athaide further said that it is not true to say that Goa has Uniform Civil Code because soon after liberation, Codes were converted into Acts.
V M Salgaocar College of Law, Miramar, retired Principal Mariano Pinheiro is of the strong opinion that law should be common to all. “We are a secular country and religion should be a private affair.”
Supporting the idea of having Uniform Civil Code for the nation, Prof Pinheiro said that religion can be one’s choice and he/she can change it voluntarily umpteen times. It’s not legally wrong to be atheist but law should govern citizens uniformally. Religion and law cannot be mixed and nobody can distinguish a person from one religion to other religion. But forced conversions are prohibited in the country,” he said.
Marriage, divorce, adoption, inheritance, succession, etc should be governed by same laws, claimed Prof Pinheiro.
Adv Guru Shirodkar said that Goa has been following Civil Code for the last many years but some of the provisions need to be translated in English. In Goa all communities abide by Civil Code and the Government of India should implement it for the nation. At the same time he said that some sections of society and orthodox segments will oppose transformational laws. It happened when the government wanted to abolish instant `Triple talaq’, he said adding that what is rationale to the nation should be accepted.
Adv Rohit Bras de Sa said that in a patriarchal country like India where daughters are not entitled to any inheritance, is bound to face opposition to implement Uniform Civil Code. Also matters of marriage, divorce, adoption and succession, provisions are not sacrosanct and need to be codified by a legislation. Even registration of marriage has to be made compulsory and linked to Adhaar Card.
Adv F E Noronha said, “First of all it is Civil Code and can be called Uniform Civil Code only when it is implemented to every citizen of this country. Also each State should not enact its own Civil Code and it should be enacted by a legislation by Parliament. In Goa, Hindu laws and Muslims laws are not application to Goans and teaching of Civil Code should be started in colleges so as to prepare a full generation of well trained people. The government should appoint a Law Commission to amalgate al laws into one Code.”
South Goa Advocates Association President Adv Prasad Naik said that Uniform Civil Code gives equal rights to both – husband and wife under the communion of assets. Here along with their minds, the duo also brings their assets together. Also before marriage both the spouses can execute anti-nuptial deal before the Civil Registrar under Separation of Assets. These are lacking in other States.
Adv Pritam Da Morais from Margao said that Uniform Civil code can be replicated in other States provided a proper study is done by understanding basic structures and cultures of different religions and communities and that the law is acceptable to all. Also there will be `one Nation One Law’ since different States having different laws are creating confusion.
“Today travel being easier and if you are Indian then you should be governed by one law. State boundaries should not decide which laws you are governed with,” Adv Morais said.
G R Kare College of Law Alumni Association, Margao, President Adv Sanjit Desai, under Uniform Civil Code, a marriage is registered and both the spouses are protected. It is a protective legislation where rights of both are safeguarded. Similar is the case regarding Property Rights, he said.
In a telephonic conversation, Arlindo Viegas, a Portuguese national of Goan origin presently residing in USA, said, 'I am well versed with the Goa Uniform Civil Code having done my education in Goa and Pune. I am of the opinion that this Code in its present form cannot be replicated in other States for the very reason that it infringes the fundamental right guaranteed under Article 21 of the Constitution of India specially with respect to right to equality, right to freedom and right against exploitation.”
Justifying his statement, Viegas argued by stating that as per the Code of 1867, marriage by default is under the 'communion of assets regime' wherein a married couple holds ownership of all assets jointly including those assets acquired by the individual spouses after marriage and also before marriage. He stated that why it is perfect if assets acquired after marriage fall under the purview of 'communion of assets', but to bring assets of spouses acquired before marriage under the 'communion of assets' is absolutely unwarranted.
Why should ancestral properties belonging to one of the spouses before marriage fall 'under communion of assets'? he questioned. What happens if one of the spouses wants to renounce his/her share in the ancestral property in favour of his siblings say brother or sister and which is his/her fundamental right. Why should he/she take permission from the other spouse to effect such renouncement? What if the other spouse declines consent? Will it not amount to breach of Constitutional freedom and tantamount to exploitation?
Viegas further stated that the Portuguese Civil Code prevailing in Portugal can truly be termed as Uniform because the marriage by default is under 'separation of assets regime' wherein the law envisages that whatever property is of the husband before marriage is exclusively his and in the same way whatever property is of the wife before marriage is her's exclusively and whatever is acquired by both spouses jointly after marriage constitutes `communion of assets’ and which is a fair and uniform law as each of the spouse if free to deal with his or her property whatever is acquired before marriage independently and without the consent of the other.
Viegas concluded by saying that no State in India will accept such one sided old and obsolete Goa civil code and which issue needs to be urgently addressed by the political establishment and suitably amended and rectified on the lines of what is prevailing in Portugal and elsewhere in the World.