Goa certainly has many provisions in the family laws which are uniform. And some that are not. But a law is only as good as its operationality as reflected from the lived experiences of it, especially for the marginalised among those for whom it is meant to apply.
Therefore, what use are those uniform or un-uniform provisions, if:
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* If the daughter has no idea about what her parents’ properties are, simply because the parents were prejudiced enough to believe that their daughter need not know about properties?
* If the Court cannot subpoena the sons who might have knowledge of the assets of their parents, to disclose the assets on pain of perjury within the case itself?
* If they do not specially enable a daughter to assert her rights to parental property and interests in property, like mundkarial rights, in the same way as a son?
* If the wife is not apprised of the property details, or the technical details of the sources of income, of her husband, to seek her rights to marital property on divorce?
* If the concept of matrimonial property rights is not translated into mutation of survey records at the time of marriage, considering that in the absence of retention of the Portuguese system of description and inscription of property, the survey records, that is, the Form I and XIV, almost operates like the ultimate document?
* If management of marital property is the prerogative of the male spouse, and he can thus squander the property away? Or simply that the woman has no rights as such to manage it, because of this provision, and her rights arise only when she is an exclusive owner upon divorce or separation or widowhood?
* If owing to or despite such unequal uniform provisions, the husband enters into an agreement of leave and licence or lease with a prospective tenant, and the tenant cannot be faulted for the same, simply because the husband had the right to enter into an agreement of leave and licence in respect of marital assets?
* If wills can be made in favour of the son who does not have strained relations with his spouse, to circumvent the affirmation of marital property rights by the spouse of the other son with whom there are strained relations, and the property can be then mutated in the name of the other son in the records, without an inventory proceeding?
* If there is no mandatory legal counselling, as in legal awareness to a couple about their options at the time of marriage, about reading out the contents of application for registration of marriage, specially to a woman who is conditioned not to read the form, as that would signify lack of trust which is supposed to be the basic foundation of a marriage?
* If the Panchayat will, upon a divorce successfully initiated by the wife, transfer the house tax records of the marital owned house, in the name of the husband from her name or his ancestors’ name?
* If a woman’s name on the electoral list can be cancelled because she is temporarily staying elsewhere due to imminent danger in staying in her marital home, even if it be till protection orders are obtained, and the husband, or other family member, in the meantime, tells the Booth Level Officer that she is not staying there, and the Electoral Registration Officer can get her name deleted from the voting list of the area in which her marital home is located?
* If her name may not be entered as a share-holder, upon the demise of her parents who held those shares, simply because the name of her brother is set out as nominee and her parents’ shares are just transferred in his name under the Companies Act?
* If a husband can retire from a partnership in collusion with his parents, siblings, others, only so that she cannot claim the tangible profits of that partnership?
* If markers of modern evolving society like adoption, have no location in the family laws of Goa, except under sexist conditions, for non-Catholics?
* If markers of modern evolving society like recognition of the lesbian, gay, bisexual, transgender, queer, and intersex persons and their relationships inter-se, are missing?
* If Goa’s family laws are used as a badge of superiority, and will be used, like the slogan of Uniform Civil Code, to gloss over the non-existence of a social security system for those who will have equal shares to their parental property, which is nothing, or moiety (half) share in marital property, where the couple notionally has rights to half of nothing?
*If a law, albeit partially not used, called the Usages and Customs of Gentile Hindus of Goa, and decreed by the Portuguese, and retained by the Indian Parliament, by default, which provides for a Brahmin to swear on Shree Bhagwad Gita and the other castes on coconut, betel, areca and rice, is allowed to stay on the statute book as a shining example of sexism and casteism?
Whether the Government of Goa, is ready and willing, or not, to look at and redress all the questions raised above, which make the law lopsided, and will state so in explicit terms, might indicate something about its true intent. As a first step, if it is argued that the Portuguese decree was enacted with the condition that that any provisions of law inconsistent with morality or public order, cannot survive, is the Government prepared to declare that the varna system is against public policy, and so also sexist provisions for adoption if there are no male children, and explicitly repeal such a law or provisions in the law that reaffirm such a system.
(Albertina Almeida is a lawyer and human rights activist).
