SocietyLaw & Policy Is Goa Civil Code The Answer To India’s Sexist Laws?

Is Goa Civil Code The Answer To India’s Sexist Laws?

According to the Goa Civil Code, Muslims, Hindus and Christians are bound by the same laws relating to marriage, divorce and succession.

Uniform Civil Code has been the bone of contention since decades. Many people see Uniform Civil Code (UCC) as the magical solution to the lacunae in the personal laws and a beacon of uniformity, women empowerment and gender justice. Interestingly, there is no blue print of the proposed UCC. Whenever asked from the political parties for a blue print or even a model of UCC, the most beloved answer to provide is the Goa Civil Code.

“If we can have a Uniform Civil Code in Goa then what is the problem in introducing it countrywide?” BJP leader LK Advani said when he brought his Swarn Jayanthi Rath Yatra to the state that year. “The majority of the population in Goa is Christian and if there is no problem there, how can it create a problem elsewhere?” is a question which is asked frequently.

In India, communities are governed by their personal laws for the matters related to marriage, separation, inheritance, maintenance, guardianship etc. All the personal laws contain sexist elements in them. An analysis of the Hindu Personal Law which governs most of the people in country will reveal how Hindu women are subjugated to unequal laws. For instance in case of the Hindu Personal Law, the property of a woman who dies without a will is handled differently from that of a man. In the absence of spouse and children, the husband’s heirs inherit the woman’s estate.

Also read: Feminist Criminology & Psychiatry: The Leniency Of Law For The ‘Ideal’ Woman

In Goa, Muslims, Hindus and Christians are bound by the same laws relating to marriage, divorce and succession. This is unique in the sense that the Civil Code in Goa is the residue of Portuguese regime and therefore the “existing law in force in the territory” when Goa became a part of Indian Union in 1961. Soon thereafter by virtue of the Goa Daman and Diu Administration Act, 1962 the Parliament authorised the continuance of the existing laws, namely the Portuguese Civil Code of 1867 to Goa, until amended or repealed by the competent legislature. Accordingly, the Code continues to rule the realm of family law.

Communion Of Assets

Spouses usually choose between Communion of Assets and Total Separation of Assets with Communion of Assets being the default system. Under Communion of Assets, as the name suggests, the assets of both the spouses come together after marriage and belong to both equally. In both the regimes, administration of the properties vests in the husband. Lawyer-activist Albertina Almeida says that in Goa, ownership and control mean two different things. The property might be shared equally, but its ‘management’ lies with the husband. As a ‘manager’ the husband can, for instance, rent out the premises without the wife’s consent. Due to this shares in cooperative society can be transferred, property can be given on rent, without the wife’s consent.

Under the Goan law, there is equal distribution of property between daughters and sons.

The Goan law allows prenuptial agreements modifying or limiting the property holding or the entitlement. Thus, a couple may enter into a prenuptial agreement stating that the wife shall have no right over the property owned by the husband before marriage is solemnised in case of a divorce. Such prenuptial agreements entered into just before marriage cannot be modified or revoked upon marriage.

“We see women across religions being thrown out of their marital homes within months of marriage,” says Sabina Martins, a woman rights activist. “Despite a court order to retrieve their belongings they don’t always get police support,” she adds.

Equal Share Of Property Between Sons And Daughters

Under the Goan law, there is equal distribution of property between daughters and sons. On the dissolution of marriage, spouses get equal share of the assets and in case of death of one spouse, the share of the deceased spouse goes equally to the mandatory heirs i.e. daughters and sons. However, Shaila de Souza, who heads the Centre for Women’s Studies at Goa University, said that these property rights often exist only on paper. “Very often, daughters get a certain amount of gold at the time of their marriage and are asked to sign off their rights to the family property,” she said. “It is not common that daughters fight for their share of the parental property and if there are such cases invariably it will be because of an informed son-in-law who wishes to claim his share.”

Panjim based activist Sabina Martins says that for many women, an equal share in property has only meant equal liabilities. Many men took loans to spend money on Goan casinos, and left their wives to pay those loans off. “Now, the women are trying to pay off that money that they didn’t even know their husbands had taken!” she says.

Limited Polygamy And Bigamy Allowed

In addition, the ‘customs and usages’ of the Hindus of Goa are also recognised. ‘Limited’ polygamy has been allowed to Hindus and bigamy has been recognised to have civil effects. Other inequalities – on issues of adoption and the rights of illegitimate children – are also allowed for in these laws.

Article 3 states, “However, the marriage contracted by a male Gentile Hindu by simultaneous polygamy shall not produce civil effects; except in the following cases only (1) Absolute absence of issues by the wife of the previous marriage until she attains the age of 25 years. (2) Absolute absence of male issue, the previous wife having completed 30 years of age, and being of lower age, ten years having elapsed from the last pregnancy; (3) Separation on any legal grounds when proceeding from the wife and there being no male issue, (4) Dissolution of the previous marriage as provided for in Article 5.”

This was done after Hindu groups petitioned the Portuguese colonial administration to retain and recognise their religious usages at the time, wrote former law professor Carmo D’Souza, in his book Legal Systems of Goa.

Albertina Almeida, lawyer and women’s activist, said that the fact that provisions for limited polygamy continue to exist in the statute book, and have not been specifically repealed or called out by parties advocating the Goa law as a model for nation-wide use, is problematic.

There is an immense lack of awareness regarding Goa Civil Code even among Goans as GCC was never properly translated from Portuguese to English.

Almeida said that while limited bigamy, permissible under the Code, may fall in the rarest of rare categories, bigamy by fraud is not uncommon and forms a staple of the cases that come to women’s groups. Women are often duped into thinking they are married and cohabiting, when the couple sign only the first intent to marry forms (a legal requirement in Goa that both parties sign before the actual marriage) but fail to sign the second actual marriage deed. Cases of bigamy also take place when two marriages are registered by non-disclosure and fraud.

“Even if the law bans polygamy, there is nothing to prevent it happening,” said Almeida. “And there are umpteen cases where bigamy happens.”

Uniformity Does Not Mean Equality

Marriage laws differ for Catholics and people of other faiths, and this affects the laws governing Catholics after they marry. Divorce depends on what law people have been married under. “There is no separation of the Church from the State yet,” argued lawyer Albertina Almeida, a campaigner for women’s rights. She points out that in the case of those who opt to solemnise their marriage in church, the Church can annul the marriage at the instance of one of the parties, as is laid down in church law.

A reason for interest of corporations in GCC is to evade taxes as assets are divided equally between the spouses hence resulting into lesser taxes. Albertina feels that Goan women should have the concept of mehr and stridhan too, apart from affirmative provisions for women to claim their rights.

There are several other issues also like casteism. When it comes to taking an oath in court, differences on the basis of caste have been accepted. Adultery is a ground to get divorce only available to men. There is an immense lack of awareness regarding Goa Civil Code even among Goans as GCC was never properly translated from Portuguese to English.

Also read: Why The Adultery Law Verdict Shows Promise For A More Gender-Sensitive Legal System

In the words of Albertina Almeida, “The way the word ‘uniform civil code’ is bandied around, it presents a chimera of uniformity being equated with equality. Laws can be uniformly applicable to all in respecting women’s rights, and they can also be uniformly applicable to all communities in disregarding women’s rights. In other words, they can also be uniform in discrimination. That is also a lesson to draw from Goa’s Family Laws.”

Featured Image Source: Live Law

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