Introduction
Albertina Almeida in her article ‘Goa’s Civil Code Shows That Uniformity Does Not Always Mean Equality’ on thewire.in,has shed light upon the pros and cons of uniform civil code which was introduced in Goa by Portuguese in the year 1867. In the above-mentioned reading Albertina Almeida explains differences in civil code in Goa and rest of India. Also, she gives detail how the civil code in Goa acts differently for women even after it is said to be uniform. She also describes the meaning of uniform as in the civil code of Goa.[1] This reading has changed my perspective towards how uniformity can also be at disadvantage to minorities.
What is Uniform Civil Code?
Uniform Civil code (hereafter UCC) is a collection of personal laws which apply to every citizen irrespective of their gender, religion, caste, etc. There are several differences between personal laws of every religion. One such examples of differences between personal laws of religions is definition of marriage. In Hindu law, marriage is considered as a sacrament whereas, In Muslim law, marriage is considered to be a contract. UCC aims to remove the boundaries and set a foundation for secular country. UCC was laid down under Article 44 of constitution as a directive principle which states that “the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.” Despite of the Article 44 of constitution of India, UCC has not been implemented throughout the country.[2]
Uniform Civil Code, Goa
Civil Code of Goa is an exception in India which follows Portugal Civil Code that is applied to all citizens irrespective of gender, religion, caste, etc. In Goa all citizens are bound by the same law with regards to marriage, inheritance, adoption, etc. According to the Portuguese Civil Code, in Goa marriage is a contract between two people of different sex with an intention of living together and form a legitimate family which should be registered before the civil registrar office. Any spouse convicted of committing or abetting the murder of other spouse are prohibited to perform marriage in Goa.[3]
Benefits of Uniform Civil Code, Goa
One positive takeout from UCC Goa is right to will, which limits share of property of a married man or woman to half of his/her property and provides necessary to have consent of both the spouses with respect to will making. It safeguards rights of both male and female offspring and helps in reducing bias. With help of this uniformly applicable provision a couple cannot will away all their property to their favoured offspring.[4]
Concept of prenuptial agreements and matrimonial property is a unique concept in India brought by civil code of Goa. In Goa, if no conditions are spelt out at the time of marriage, then by default it is considered as communion of assets where property of both husband and wife becomes jointly acquired after marriage.[5] A contract of opting out of communion of assets and setting conditions on acquisition of property can be drawn before marriage which is called as prenuptial contract. Prenuptial agreement safeguards rights of property for females by giving them sole ownership of property.
Downsides of Uniform Civil Code, Goa
Meaning of marriage, customarily and socially across all religions and communities expand outside the ambit of registration, which includes religious ceremony and customs. Mandatory registration is still seen as a formality to follow legislation.
Civil code in Goa is uniform to all citizens in spite of that few people, mainly females are unaware that two signatures within the gap of fifteen-day period are required for the process of registration to be complete. The first one being applicable to everyone, which is required as declaration of intent and other one being a confirmation that is to be signed before the church in case of Catholics and civil registrar in case of non-Catholics. All citizens are familiar with the first signature but few lack in knowledge regarding requirement of second signature and that is why second signature is not appended.[6]
Albertina Almeida points out an error in the UCC where women are still not well versed with legal requirements of marriage. Lack of knowledge makes it easier for women to be deceived into marriage without registering it according to legislation and in Goa, a marriage is not considered if there is no civil registration of marriage. [7]
Grounds for divorce/annulment in Goa differs with respect to the solemnisation of marriage. If a marriage is solemnised in church it can be annulled in church on the grounds of non-consummation of marriage and once it is annulled at the tribunal of church it is mechanically confirmed at the High Court at the condition that there is no bias. Whereas, if the divorce is filed in the matrimonial court, non-consummation of marriage is not seen as a ground for divorce/annulment. [8]
Uniform civil code lays down the idea of equality and focuses on eradicating gender discrimination with the support of equal laws for all genders. In the first glance it looks progressive but when looked at it carefully, it presents the idea of uniformity in discrimination. If laws are applied uniformly, it means they are same for all communities in respecting women’s right but also they are uniformly applicable in all communities in overlooking women’s right. [9]
A hint of patriarchy is still present in some of its provisions of uniformly applicable civil code. According to UCC in Goa, women have equal rights with respect to ownership of property but administerial rights still lie in the hands of man. A man can rent out the property without consent of his wife even after the property being a joint one, in another words control button of property is given to husbands providing privileges to one gender over all communities. [10]
Goans always wanted themselves to be seen different from mesticos (Mixed race of Mexicans and Portuguese) and also from the rest of India. UCC differentiates them form rest of Indians and also gives Goans a badge of honour. But it is seen that some existing provisions deny equal rights to women and few other sections of the society, they are not reformed due to the constant hesitation and the desire to uphold the power equations which has brought uniformity in discrimination. The idea is derived from the perspective of dominant caste males who constantly resist efforts of changing Portuguese civil code which has resulted into maintaining of portions of family law even though they are discriminatory to other sections. [11]
Implementation of UCC in rest of India
Supreme Court first directed parliament to frame UCC in the year 1985 when it gave the verdict in favour of Shah Bano. Chief Justice, Y.V Chandrachud, perceived that a Common Civil Code would help the foundation of national integration by removing contrasting faithfulness to law[12]. The same was observed in John Vallamattom v. Union of India[13], in the year 2003 by the Chief Justice of India, V. N. Khare, he stated that UCC can help remove contradictions based on ideologies. In 1955, judgement of Sarla Mudgal, & others. v. Union of India[14] by Supreme Court highlighted the need for UCC in India. The verdict focuses on the issue of bigamy and conflicts between personal laws in India. In the year 1996, in Pannalal Bansilal Patil vs State of Andhra Pradesh[15], Supreme court observed the difficulties with implementation of UCC in India it explained how enactment in one go can be inefficient to the unity of the nation and can create conflicts between religions and fundamental rights provided in Article 25 of Constitution.
Difficulties in Implementation of UCC in India
India stands a diverse nation when it comes to cultures and religions, with such diversity it can be difficult to bring everyone under one umbrella and come up with common and uniform set of laws. Our government is still trying to find a solution to have uniformity in personal laws. Personal laws in India are considered as a part of religion and providing equality to all communities can result in discrimination against minority communities who may perceive it as violation of their rights to religious freedom. Considering the current situation, it may happen that more focus is given upon one religion and it might be a possibility that personal laws of one religion is said to be followed by all. [16]
Conclusion
I believe UCC of Goa, gives numerous benefits to all genders and religions. It provides equal rights to women with respect to right to will and property rights by introducing prenuptial contracts and communion of assets. It has also kept religious bias aside but traces of patriarchal thinking can still be spotted in some provisions. Also, lack of knowledge of provisions between few groups specially women can come as a disadvantage to them. UCC of Goa is an example of how providing uniformity to all communities can sometimes result in inequality amongst them.
Supreme Court at multiple instances have suggested the need for UCC in India through its judgements but due to religious conflicts and contrasting opinions it was not brought into action even though idea of UCC has been given in Article 44 of our constitution. I cogitate that until one doesn’t believe that law is different from practicing religion and it doesn’t violate any fundamental rights, till then it will not be possible for any government to enact uniform civil code in the country.
Bibliography
- Goa’s Civil Code Shows That Uniformity Does Not Always Mean Equality (https://thewire.in/law/goas-uniform-civil-code-is-not-the-greatest-model-to-follow)
- Uniform Civil Code (https://www.drishtiias.com/daily-updates/daily-news-editorials/uniform-civil-code-1#:~:text=The%20Uniform%20Civil%20Code%20(UCC,%2C%20divorce%2C%20inheritance%2C%20adoption.)
- Why India needs a Uniform Civil Code (https://www.thestatesman.com/supplements/law/india-needs-uniform-civil-code-1502922940.html)
- Uniform Civil Code in Goa (http://www.legalservicesindia.com/article/2157/Uniform-Civil-Code-in-Goa.html)
- Is Goa Civil Code The Answer To India’s Sexist Laws? (https://feminisminindia.com/2018/11/09/goa-civil-code)
- What is Uniform Civil Code? (https://www.jagranjosh.com/general-knowledge/why-uniform-civil-code-is-necessary-for-india-1477037384-1)
- John Vallamattom and another v. Union of India (Writ Petition (civil) 242 of 1997) (https://www.equalrightstrust.org/sites/default/files/ertdocs//Microsoft%20Word%20- %20Vallamattom.pdf)
- Smt. Sarla Mudgal, President, … vs Union Of India & Ors on 10 May, 1995 (1995 AIR 1531)
- Mohd. Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945)
- Pannalal Bansilal Patil vs State of Andhra Pradesh, (AIR 1996 SC 1023)
- Landmarks that make personal laws more benevolent (https://www.dailypioneer.com/2018/state-editions/landmarks-that-make-personal-laws-more-benevolent.html#:~:text=Echoing%20the%20concerns%20over%20difficulty,all%20persons%20may%20be%20desirable.)
[1] Goa’s Civil Code Shows That Uniformity Does Not Always Mean Equality, , The Wire , https://thewire.in/law/Goas-uniform-civil-code-is-not-the-greatest-model-to-follow (last visited Mar 21, 2021).
[2] What is Uniform Civil Code?, , Jagranjosh.com (2020), https://www.jagranjosh.com/general-knowledge/why-uniform-civil-code-is-necessary-for-india-1477037384-1 (last visited Mar 21, 2021).
[3] Id.
[4] Goa’s Civil Code Shows That Uniformity Does Not Always Mean Equality, supra note 1.
[5] Id.
[6] Id.
[7] Nabeela Jamil, Is Goa Civil Code The Answer To India’s Sexist Laws?, Feminism In India (2018), https://feminisminindia.com/2018/11/09/Goa-civil-code/ (last visited Mar 21, 2021).
[8] Goa’s Civil Code Shows That Uniformity Does Not Always Mean Equality, supra note 1.
[9] Jamil, supra note 7.
[10] Id.
[11] Goa’s Civil Code Shows That Uniformity Does Not Always Mean Equality, supra note 1.
[12] Mohd. Ahmed Khan v. Shah Bano Begum, , AIR 945 (1985).
[13] John Vallamattom v. Union of India, , AIR 2902 (2003).
[14] Sarla Mudgal, & others. v. Union of India, , AIR 1531 (1995).
[15] Pannalal Bansilal Patil vs State of Andhra Pradesh, , AIR 1023 (1996).
[16] What is Uniform Civil Code?, supra note 2.
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