The Goa Civil Code or the Portuguese Civil Code has been in effect in Goa since 1870.

When
Goa attained liberation from Portugal in 1961, all Indian laws were extended to the state,
except family laws which fall under the Portuguese Civil Code. Under the PCC, everyone
marries under civil law and both spouses as well as their children had equal property rights.

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. Soon thereafter by virtue of the Goa Daman and Diu Administration
Act, 1962 the Parliament authorised the continuance of Portuguese Civil Code to Goa, until
amended or repealed by the competent legislature. The Code has survived by virtue of
Section 5(1) of the Goa, Daman and Diu Administration Act, 1962 that permitted its
continuance.
Accordingly, the Code continues to rule the realm of family law.

Under Article 1 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880, customs
of Hindus were preserved and exemptions from the Civil Code were given to gentile Hindus.
The Shariat Act has not been extended to Goa; Muslims are governed by the Code as well as
Shastric Hindu law.
The law is applicable to all persons who, prior to the 20th day of December, 1961, were
governed by the provisions of the Civil Code of 1867 as in force in erstwhile Portuguese
regime over Goa and which continued in force by virtue of sub-section (1) of section 5 of the
Goa, Daman and Diu (Administration) Act, 1962

any person born in Goa of parents who are governed by the provisions of the Civil Code of
1867

any person born outside the State of Goa of parents who were or are governed by the
provisions of the said Civil Code of 1867, unless such person declares that he does not desire
to be governed by the provisions of this Act at any time before the expiry of three years from
the date he attains majority

any person born in Goa of parents who are governed by the provisions of the corresponding
laws in force in the rest of India provided that he chooses permanent residence in the State of
Goa

any person born in Goa of parents who are foreign citizens

any person born in Goa of unknown parents or of unknown nationality;

any person adopted by parents who are governed by the provisions of the Civil Code of 1867
as in force in Goa or by parents to whom this Act is applicable:

According to law in Goa, marriage is a contract, and according to the Civil code there are
four systems by which a marriage can be contracted. Article 1056 terms marriage a perpetual
contract between persons of different sex (same sex marriage is not recognised) rather than
sacrament. Before the civil registration, an Ante nuptial agreement is to be signed stating how
the properties of the two parties entering into marriage are to be held. If no agreement is
made then it is assumed that the marriage was contracted under the first category, which is
the communion of assets.

In the first category all wealth and properties owned by both partners are considered to be
joint family assets and both own equal shares of it. The second system is of no communion at
all and is a very rare agreement signed before marriage. Here both partners hold all their
properties independently. The third involves total separation of the properties and assets
owned by both partners before marriage and a communion of assets acquired subsequent to
the marriage. The fourth system is often mistaken for dowry but is known as the Dotal
regime. The bride receives a certain share of her father’s property and assets which are then
handed over to the husband at the time of marriage. The husband is bound to restore to his
partner all the property and assets should the marriage be dissolved. It serves as a trust in the
hands of the husband. Regardless of the system of marriage all children have a share in the
family property and sons and daughters are treated alike.

The Ex-Chief Justice of India S A Bobde recently appreciated the uniform civil code (UCC)
in Goa. This brought the spotlight back on the UCC debate, although the Law Commission
had concluded in 2018 that a UCC is neither desirable nor feasible. 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. Proponents of the implementation of UCC
claim that the move will herald in gender equality and that the Goa code is responsible for the
cosmopolitan character of the nation’s smallest state. There exist several exceptions and
loopholes in the Code which enable individuals to circumvent the law and facilitate
discriminatory practices.
Spouses usually choose between Communion of Assets and Total Separation of Assets . In

both the regimes, administration of the properties vests in the husband. But 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. Moreover, if the

husband dies, the law puts the wife way down in the succession line of the husband’s share.

She only comes after his children, parents and siblings. This may endanger the widow’s

rights.

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. 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.

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. Article 3 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880 provides
that a Hindu husband can take a second wife in the absence of an issue, if the wife has
attained the age of 25, and also if she has attained age 30 without having a son. The provision
is contrary to both the Indian Penal Code and the Hindu Marriage Act. 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. This is despite the fact that
bigamy is prohibited under Section 494 of the IPC.

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,”  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. Marriages solemnised in
churches can be annulled by the church tribunal in cases of non-consummation. Article 1086
says that ecclesiastical courts alone can nullify Catholic marriages. The High Court
mechanically approves such annulment, except in extraordinary cases. And yet, non-
consummation is not a ground of annulment or divorce for non-Christians. For them, Article
1089 says such a power to annul marriage can be exercised only by the civil courts.
Much like the way the law plays out in the rest of the country, in Goa too, women’s rights
activists contend that in a patriarchal society, women are seldom encouraged to seek their
rights — first as daughters, and then as wives. daughters, for instance, are pushed by brothers
to relinquish their rights over parental property. Of late, however, some daughters have begun
claiming their rights — only because their husbands are pushing them to do so, creating new
grounds of conflict within the family.
Property rights apart, experts say that the women’s story in Goa is pretty much the same as it
is outside of the state. “What do equal rights mean when there are women who can’t even
access their salary, or their jewellery in their marital homes?” there is a perception that
women in Goa are more liberated, and assertive, but this is extremely misleading. Women’s
groups in Goa demanded for the Dowry Prohibition Act, 1961, to be extended to the state
because the law was enacted before the liberation of Goa and laws enacted before Goa’s
liberation in 1961 are not applicable to the state.
For a Code that has been around since 1870, legal education and awareness on its several
clauses has been lacking. One reason has been the fact that the Code was never properly
translated from Portuguese to English.
Awareness about other protections such as mandatory registration to avoid fake marriages
also needs to be increased. Even though many Goan women insist on “proper legal
procedures”, some do also end up being duped. Women assume that the first signature at the
Civil Registrar’s office (the declararion of intent; confirmation follows after a few days) is
enough. They do not know that a second signature is required and realise that the marriage
never occurred in the first place. The law does not come to their aid then. Article 1057 of
Goa’s Code provides for the registration of marriages. This 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 code 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.
Some provisions of the Goa Civil Code are revolutionary in the Indian context. Take, for
instance, the Community Property Law, which guarantees – immediately upon betrothal –
each spouse 50% of all assets owned and due to be inherited at the time of marriage. Not only
does a woman own half the property of her husband, and vice versa, but each partner must
take the spouse’s permission before disposing of any of those assets. However, Cases of
husbands having willed away their share in the property without the knowledge of the wives
have often come to light, and at times, these husbands even flee the country.
Until recently, salaries were joint property too. there is also an influential section within Goa
that sees a financial opportunity here. . There is money to be made in presenting that the Goa
civil code is uniform. 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 But many women in
Goa struggle to claim ownership of that too. 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.

But changes are hard to bring about. For one, the Goa Civil Code is matter of pride and the
state’s “unique” identity. 

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. If the couple chose to follow the Dotal regime of
marriage and the husband refuses to return the wife’s trust fund, there is no immediate
recourse available to her even though as per Section 406 of the IPC refusal of returning
stridhan is punishable. women across religions are thrown out of their marital homes within
months of marriage,” “Despite a court order to retrieve their belongings they don’t always
get police support,

Equal 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.”

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 as a ground to get divorced is
only available to men. Article 1204 permits the husband to get a divorce if adultery is
committed by the wife, but the wife can get a separation only if the husband commits
adultery with public scandal, and a divorce if he keeps a mistress in the conjugal home or
abandons her.

It is not clear whether the CJI wants that like Goa’s Civil Code, the proposed UCC should put
national Transfer of Property Act, Contract Act, Civil Procedure Code, Sale of Goods Act,
Partnership Act etc in one code along with family law provisions. But then, having all laws in
one code does not necessarily guarantee justice and equality.
It is strange that these 19th-century colonial laws are consistently lauded, because they are far
from equal, or even capable of coping with contemporary requirements.
But the BJP had in its election manifesto promised to implement a Uniform Civil Code,
applicable to all citizens. Since 1997, the party has been holding up Goa’s Civil Code as a
model to be implemented across the country. In fact even today not all Hindus in the country
are governed by one law. Marriage amongst close relatives is prohibited by the Hindu
Marriage Act, 1955 but is considered auspicious in many regions of South India. The Hindu
Code Bill recognises customs of different Hindu communities. Even the Hindu Succession
Act, 1955 could not make the daughter a coparcener until 2005. The wife is still not the
coparcener.
There is no uniform applicability of personal laws among Muslims and Christians either. The
Constitution protects the local customs of Nagaland, Meghalaya and Mizoram. Even land
laws in a number of states are discriminatory, and daughters do not inherit landed properties
in the presence of sons. With a 2006 amendment in UP, only an unmarried daughter gets a
share in agricultural property.
The Goa Civil Code is often credited to have led to a seemingly high social status of women.
While this might be true in certain areas of life such as health, education etc. Much remains
to be desired before we can establish actual equality of sexes in the state. The Civil code is
also held responsible for the cosmopolitan character of the state, but the law dates bach
centuries and this development is a modern phenomenon which can be attributed to the
increasing women’s movement in the state. The law has not helped usher in economic
equality. Neither have they been allowed to exercise their rights nor have they been able to
protect themselves from domestic violence as cases of domestic violence have been
consistently rising. Women’s rights groups have continuously argued for the extension of the
Dowry Prohibition Act to Goa but have experienced resistance to this proposal.
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.
Law needs to be based in society and its complexities should be understood by lawmakers
before we can hope that law will improve society and the conditions of women. The law
making agencies should include not merely deal with the institutional but also engage with
the social aspect of law. Legal and social reforms have to go hand-in-hand