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In March 2022, the Supreme Court told the central government to respond to a public interest litigation that sought the implementation of religion-neutral inheritance and succession laws, called uniform civil code (UCC).
UCC essentially refers to a common set of laws governing personal matters such as marriage, divorce, inheritance and succession for all citizens of the country. Article 44 of the Constitution, which is one of the Directive Principles of State Policy, also advocates a uniform civil code. However, governments since Independence have allowed respective religion-based civil codes to respect the diversity of India.
A month before the Supreme Court notice on the petition by a Bharatiya Janata Party (BJP) member Ashwini Upadhyay, Uttarakhand chief minister Pushkar Singh Dhami announced that the state will go for a uniform civil code. A committee to frame the new civil code was his first decision after his party won the state elections.
Chief ministers of several BJP-ruled states have since then advocated the uniform civil code. Assam chief minister Himanta Biswa Sarma recently said the uniform civil code will provide justice and relief to Muslim women as “no woman likes to share her husband with another woman.” Himachal Pradesh chief minister Jairam Thakur has announced that the state will have its own uniform civil code.
On Sunday, Goa chief minister Pramod Sawant held up the Goa Civil Code as the model that other states can emulate. The code is derived from the Portuguese Civil Code of 1867, which was applicable during the Portuguese rule in the state. To be sure, Portugal replaced its 1867 law with a modern version in 1966.
Goa law
In 1867, Portugal enacted a Portuguese civil code and in 1869 it was extended to Portugal’s overseas provinces (that included Goa).
The law provides for compulsory registration of marriages before a civil authority, ensuring that the wife is an equal inheritor and is entitled to half of the “common assets” including those inherited by her husband in the case of a divorce (in the absence of a prenuptial agreement stating otherwise) and that the parents must compulsorily share at least half of the property with their children including daughters.
“The Goa Civil Code is in force since Portuguese times and is considered a Uniform Civil Code. The provisions in the matter of succession are progressive to a large extent. And while when it comes to marriage and adoption, there is not complete uniformity, generally it is far more gender-just than other laws in the country,” lawyer Cleofato Almeida Coutinho, a former member of the Goa Law Commission, said.
The Portuguese Civil Code in Goa continued in 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.”
Because of this, the Portuguese civil code continues to be in force in Goa despite being replaced in Portugal, the country of its origin, with a more modern Portuguese civil code 1966.
Uniform provisions
When it comes to marriages, the law uniformly mandates that there will be a two-stage process commonly referred to as the first and second signature. The first being the statement of intentions (and calling for objections) and the second signature being the formal marriage.
Coutinho said the law has many uniformly applicable provisions such as half of the property has to be given to a daughter and the will should have the consent of both the spouses. “This is a positive provision that is present in the uniformly applicable provisions,” women’s rights activist Albertina Almeida.
“Then there is the unique concept of matrimonial property rights, which is not found in the personal laws of the rest of India. In Goa, if nothing is spelt out at the time of marriage, the default system is the regime of the communion of assets, which means that upon marriage, couples will hold whatever assets they have each or jointly acquired or inherited before or after marriage as co-owners of the property,” she added.
She said that in many cases the woman administers the right of properties to the husband. “Thus the law makes the ‘control’ button available to the husband. This provision is uniformly applicable to all communities,” she said.
A big exception
The law also doesn’t recognise bigamy or polygamy, including for Muslims but grants an exception to a Hindu man to marry once again if his wife doesn’t conceive a child by the age of 21 or a male child by the age of 30.
AIMIM chief Asaduddin Owaisi recently pointed out that the provision makes an exception for Hindu men. Goa chief minister Pramod Sawant, however, defended the law, saying that the provision exists on paper but was never implemented. “By the passage of time, (that section) is redundant. Since 1910, no one has been given the benefit of it,” Sawant was quoted as saying by ANI in April.
The provision which was introduced by an amendment in 1880 called the Usages decree of gentile Hindus, was done since the Portuguese government wanted to appease Hindu businessmen who wanted to ensure male lineage for their properties and possessions.
Not so uniform
There exist differences in how the law recognises a valid marriage when it comes to Roman Catholics and non-Catholics. While the first signature is common across all religions, the church ceremony is considered a valid ‘second signature’ for Catholics with the law recognising a Church marriage as valid for civil purposes.
For non-Catholics, however, both signatures are required to be before a civil registrar.
Similarly, a divorce granted by the ecclesiastical (Church) authorities is treated as a valid divorce for civil purposes, while non-Catholics have to secure a divorce before a civil court.
Coutinho admits that the code favours Catholic Christians and has an exception for Hindus. According to Almeida, uniformity doesn’t necessarily mean equality and to a large extent, women continue to be excluded from their rights unless they can enforce them.
A counterpoint
Coutinho and Almeida believe that the debate for a uniform civil code is mostly driven by polarising politics.
“There can be no two opinions that a secular country needs to have secular laws which are gender just. The law commission of India was adjoined with the responsibility of formulating a uniform civil code and has opined that a country of such diverse dimensions in the matter of religion and culture does not require uniformity of laws. What is required is reforms to all the personal laws making them gender just. Our country requires reform in all laws in the area of marriage, succession and divorce. If each of the existing law of every community is made progressive and gender just, we may not even require a uniform law for all the communities,” he said.
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