Goa Only State in India to Follow Common Law; Know Why It’s An Exception

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Uttarakhand Chief Minister Pushkar Singh Dhami on Thursday announced that the state cabinet has decided to form a committee of experts on the implementation of a Uniform Civil Code (UCC). But it is to be noted here that Goa has been following the Portuguese Civil Code, 1867 which is also called Uniform Civil Code. Post its liberation from the Portuguese rule, the code is survived by virtue of Section 5(1) of the Goa, Daman, and Diu Administration Act, 1962. Its continuance amounts to the non-enforcement of the Hindu Marriage Act, 1955 and Hindu Succession Act, 1956 or Indian Succession Act, 1925 or Shariat (Application) Act, 1937.

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Addressing the media after his first state cabinet meeting, Dhami said, “We have decided to implement the Uniform Civil Code in the state. The state cabinet unanimously approved that a committee (of experts) will be constituted at the earliest and it will be implemented in the state.”

Uniform Civil Code (UCC) essentially refers to a common set of laws governing personal matters such as marriage, divorce, adoption, inheritance and succession.

About Goa Civil Code

Goa is the only state in India so far where all communities, including Hindus, Muslims, Christians, are governed by the same law when it comes to marriage, divorce, succession, etc. because though the state became a part of the Indian Union in 1961, the former Portuguese colony decided to continue with the Portuguese Civil Code of 1867 for all communities in the state.

The Goa Civil Code, however, is not entirely the same as a Uniform Civil Code proposed by the BJP. While “uniform” means the uniformity of all despite being from any religion, race, caste, sex, and age, some laws in the Goa code make a clear distinction between the common civil code and uniform civil code.

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The Goa Civil Code prohibits bigamy – which the code defines as the offence of marrying someone while already married to another person – for all other religion except for Hindus. Hindu men thus have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). Such a privilege being given particularly to men of the Hindu religion and prohibited for men of other religions is clearly not valid to be a part of a uniform civil code.

At an inauguration ceremony of a new Bombay High Court building at Goa in March 2021, former Chief Justice of India Justice Sharad Arvind Bobde said, “Goa has what Constitutional framers envisaged for India – a Uniform Civil Code. And I have had the great privilege of administering justice under that Code. It applies in marriage and succession, governing all Goans irrespective of religious affiliation,” Bobde was quoted as saying by news agency ANI.

The Special Marriage Act, enacted to govern the marriages of two people from different religions, plays out differently in Goa. Muslim men, who have their marriages registered in Goa, cannot practice polygamy. Also, there is no provision for a verbal divorce.

However, the provision lacks uniformity between Catholic and non-Catholic marriages. First, the intent of marriage is recorded by the would-be spouses before the civil registration authorities and after two weeks, a marriage deed is signed. For Catholics, signature in churches are considered sufficient for civil registration. Many women are not aware that the UCC requires a second confirmation through signatures, and so, when a dispute arises, their marriages are found invalid. Many cases of bigamy through such frauds have been reported, according to an Indian Express report.

WHY IS GOA AN EXCEPTION?

Courts in India, including the Supreme Court, have time and again questioned why a UCC is yet to be introduced when the framers of the Constitution themselves had laid the ground for one by including it as a directive principle. The apex court has also in several orders, including in the Shah Bano case of 1985, called for the enactment of a UCC.

“It is interesting to note that whereas the founders of the Constitution in Article 44… had hoped and expected that the state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard,” a division bench of SC had said in its order in a case in 2019. In the same judgment, it remarked that Goa is a “shining example” with a UCC “applicable to all, regardless of religion except while protecting certain limited rights.”

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