PERSONAL LAW

Common Personal Law in Goa - A Critique by Pamela D'Mello

Goa's family Laws are based on the Portuguese civil code and other decrees promulgated for this region before 1961. for too long, an impression has surprisingly gained currency that the Family Laws applicable in this state constitute a uniform civil law.

It has been so described - and much praised – not only by many from the legal fraternity, but also visiting dignitaries. Even a political party like the BJP, whose sectarian approach to the law is well known, has itself praised the Goa Family Laws. BJP leaders have even suggested that the rest of the country needs a common civil code "like the one which exists in Goa now".

In view of this, it is important to take a closer look at what exactly these laws imply. This paper attempts to look at the impact of these laws on women. It also turns to the issue of how women - particularly Catholic women - are affected by the special role assigned to the Catholic Church by the Portuguese government decades ago.

Any close examination of the Code and other related legislation will show that the Goa Family Laws are surpassingly non-uniform.

Family Laws of Goa refers to the entire body of legislation dealing with marriage, divorce, adoption etc. presently applicable in Goa. It includes the Portuguese Civil Code of 1867, subsequent amendments made in 1910 and 1946, and the three separate Codes of Customs and Usages for Hindus of Goa, of Daman and of Diu.

Lack of uniformity becomes more than clear from the very fact that there is a three-tier system of matrimonial law operation in Goa. Marriage laws differ for those opting to marry outside the Catholic Church, those who opt for a Catholic Church marriage, and for non-Catholics as a whole.

Canonical marriages refer to those undergone through the Church. Marriage of this form is considered to be a sacrament.

Civil marriages refer to Hindu and other non-Canonical marriages.

Catholics can also opt for the civil form of marriage, instead of a canonical marriage. But, in practice, it is not that simple, due to societal and other pressures.

In the past, many have argued that this is a "minor disuniformity". But its impact is significant.

For one, marriages of Catholics opting for what is commonly known as civil marriages are not recognised by the Church. Couples marrying under this provision are considered to be 'living in sin' by the rest of their community. One could say that, in Goa, what one has in effect is a Personal Law, alongside with an option for a civil marriage, quite like the existing parallel options of Personal Laws and the Special Marriage Act in the rest of the country.

Since Decree of 1946, Catholic have been excluded from compulsorily registering their marriage at a civil registry, and routing this process through the Church itself. This is a difference on the basis of religion, and amounts to the operation of personal law for Catholics in Goa, which is recognised by the State.

Under the 1880 Decree of the Customs and Usages for "Gentile" Hindus of Goa - another Portuguese law dating back to colonial times - marriages performed under religious rites are recognised by the state and are governed by the civil laws, when the marriage is registered in the civil registry.

Similar provision under the 1894 Decree for non-Christian inhabitants of Diu and the 1854 Decree for non-Christian inhabitants of Daman also recognise marriages performed under the religious rites and customs.

Divorce is once again governed on the basis of what law one is married under Divorce is not permitted under the Canon Law of the Church. By the same 1946 decree and agreement between the Catholic Church and the Portuguese State, Catholic marrying under Canon Law were excluded from the divorce provisions under civil law. 

Canon Law 1141 says a marriage which is ratified and consummated is absolutely indissoluble.

What the Church does allow though is judicial separation, or so-called annulment of the marriage, which is bases on the assumption that the marriage has not taken place or not been consummated. Decision (is) taken not by any civil court, but by the Ecclesiastical Court of the Church itself.

In 1974, the provision of the 1946 Marriage Decree denying divorce was judicially struck down [E Nunes v. Fernandes AIR 1974 Goa 46] for being ultra vires of the Indian Constitution. The judicial verdict has still not been given legislative recognition, though Under the Civil Law, divorce is permitted on (various) grounds. Under the Customs and Usages for "Gentile" Hindus, divorce is permitted only on the grounds of adultery by the wife. Whether this provision still applies or not is unclear.

Under the Usages and Customs of "Gentile" Hindus of Goa, bigamy was recognised to have civil effects (i) if there is 'failure' by the first wife to give birth to a male child by the time she reaches 30 years of age or (ii) if the first wife is unable to deliver by the time she attains 25 years of age. There appears to be considerable confusion over whether 'polygamy in a limited sense' is still allowed or not.

Other inequalities are visible in Goa's Family Laws in terms of adoption right, and the right of illegitimate children suing their fathers for a declaration of paternity. These rights depend on the religion one belongs to.

In the name of 'Customs', the law also gives its approval to caste-based differences for oath-taking in court, permitting even ex-communication by religious heads, and also took into cognizance the exploitative system of so-called 'dancing-girl' Bhavinas), which in actual fact was a thinly disguised form of prostitution.

In conclusion, one can say that some provisions of the Goa Family Laws are undoubtedly favourable to women. But (it should be) discussed whether the laws are at all uniform and what could be done to make them better.

All laws reflect the thinking and ideology of the law-makers of their times. One cannot view the currently- prevailing laws in isolation from the conservative outlook of the rulers of colonial Portugal who framed or amended the Law. Former dictator Antonio Oliveira Salazar, whose government dominated Portugal for a significant part of the twentieth century, has himself stated: “ We are opposed to all that disintegrates, divides, or dissolves the family. We do not ask for much. An understand of virtue and the sacred nature of religion."

Due to certain reasons - not excluding the possibility that the current laws are favoured because of the tax- benefits they offer to affluent sections - the Goa Family Laws have come to be widely regarded as uniform and common. This has unfortunately prevented a closer scrutiny of the same.                               

 (Pamela D'Mello is Goa correspondent for The Asian Age).