The Uniform Civil Code of Goa has come into discussion time and again as and when the need for a uniform civil code for the entire country has been brought up. To study its intricacies, it is necessary to go into the history, meaning, the purpose of a uniform civil code, and how it functions in Goa. This article seeks to provide information, evaluation of the uniform civil code, its applicability in India, advantages, and disadvantages.
Uniform civil code refers to a single law that would preside over the personal laws of various religions in a country. It would apply to areas of personal matters such as marriage, divorce, inheritance, adoption, etc. It has been a debated topic for an exceptionally long time and continues to be so due to the diversity of communities and opinions in our country.
The idea of a uniform civil code originated during the British colonial rule. The second law commission of the government submitted a report in 1835, which opined the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts. However, it suggested that personal laws of the communities be kept outside the realm of such codification. Their choice to exclude personal laws from being codified was due to the fear of interference and possibly disrupting peace and harmony as communities relied on their religion and laws derived from it heavily. The Supreme Court of India directed the Parliament to frame a UCC for the first time in the year 1985 in the Mohammad Ahmed Khan v. Shah Bano case[i] wherein Shah Bano claimed maintenance from her husband under Section 125 of the Code of Criminal Procedure after he pronounced talaq-e-biddat or triple talaq .
Codification of Hindu Law
Personal laws have been known to be discriminatory to women directly and indirectly in various religions. During the British rule, there were many protests led against the discrimination of women and this led to the passing of various laws such as the Hindu Widow Remarriage Act of 1856, Married Women’s Property of 1874, and the Hindu Inheritance Act of 1928, which established a Hindu woman’s right to property. This drew attention to the disparity in personal laws caused between both genders leading to the setting up of a Hindu Law Committee in 1941.
Hindu law committee
The Hindu law committee was set up by B.N Rau and hence, it is also known as the B.N Rau Committee. The committee recommended a codified Hindu law, which would give equal rights to women in our society. After several attempts, The Hindu Marriage Bill was passed in May 1955, and the Hindu Succession Act in June 1956, The Hindu Minority and Guardianship Bill in August 1956 and The Adoptions and Maintenance Bill in December 1956. To indicate interest for a uniform code in the future, the implementation of UCC was added in Article 44 of the directive principles of state policy by the parliament making it non-justiciable.
Criticism against the Hindu Law committee
There were various criticisms regarding the codification of Hindu personal laws. The major one being that why Hindu law alone was being codified, why was not a uniform code for everyone being proposed by the committee. Many believed that the traditions of the Hindu Shastras should be preserved and some believed that the grant of equal property rights to women threatened the economic rights of men in the society.
Among these critics were the first President of the country, Rajendra Prasad, Sardar Vallabhai Patel, J.B. Kripalani, the Hindu fundamentalists within the Congress Party, the Hindu Mahasabha. The other criticisms were from groups (Sikhs, Buddhists, Jains) who did not like the idea of being grouped with the Hindus. Lastly, it was criticised by the women parliamentarians for not being adequate.
Uniform Civil Code: Current Scenario
The Uniform civil code in present times is still limited to being a directive principle. The Supreme Court has been pushing the narrative of the need for a Uniform Civil Code and stated that though the “Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country”.
Pros of a Uniform Civil Code
India is a country with a lot of diversity. Having a uniform civil code will help in the unification of all religions under one code and make judicial decisions easier.
Personal laws were formed long back and many of them for that reason are misogynistic and biased. A Uniform civil code will ensure that women of all religions have equal access to rights to men.
Elimination of vote bank politics
During elections politicians appease to voters based on religion, making false promises, creating communal tension etc. By the introduction of a Uniform Civil Code this will no longer take place.
Abolishment of communalism
Personal laws promote communalism and leads to discrimination between people of different religions. A Uniform Civil Code will leave no space for biasedness.
Cons of a Uniform Civil Code
The Uniform Civil Code will be viewed as an interference by the state in the personal matters of people’s religion and will lead to protests
One ideology dominance
Many people believe that this is the state’s way of imposing their common ideology derived from the majority religion’s beliefs on everyone else.
Some argue that India is a land of diverse culture and traditions and it would be difficult to frame a law that applies to everyone. All minorities must be respected, and their opinions must be taken into consideration.
Uniform Civil Code: Goa
Goa is the only state in India that has a Uniform Civil code and is used as an example to promote the idea of a Uniform Civil Code for the rest of the country time and again. Goa was ruled by the Portuguese and got liberated by them 59 years ago. Goa became a part of India in the year 1961 by the Daman and Diu administration act 1962. The parliament authorised the Portugal Civil Code of 1867 in Goa which shall be amended as per the requirements and shall be repealed by the competent legislature. After an order issued by the Bombay High Court in March 2017 the English translation of the Portuguese Civil Code, 1867 was made available in the Official Gazette.
Marriage Under the Goa UCC
- Marriage under Article 1056 of the Goa Civil code is a contract between two people of the opposite sex to live together and constitute a legitimate family
- Any male who is 21 years of age or more and any girl who is 18 years of age or more can marry. The religion of such persons is irrelevant according to Article 1090 of the Goa Civil Code.
- Under Article 1073 of the Goa Civil Code, marriage cannot take place between (i) relatives by consanguinity or affinity in a direct line, and (ii) those who have another spouse with whom their marriage has not been dissolved also known as bigamy, polygamy is not permitted under this law.
- Under Article 1083, marriage can be proven only by a certified copy of the competent registration.
- There are four methods of marriage under the Goa Civil Code, three conventional methods and the fourth is by the splitting of assets [Article 1096, 1097, 1098, 1099,1100, 1101]
- There should be the consent of both parties before and at the time of marriage. Marriage cannot be agreed to under the title of betrothal, affiance or any other contract to marry in the future [Article 1067]
- Under Article 1123 of the Goa Civil Code, as soon as the spouses get married the assets get equally divided between both, thus, both parties have equal rights over each other’s assets.
- Consent to marriage may be given through an attorney, provided that the power of the attorney is special and expressly designates the person with whom the marriage shall be contracted.
- Registration of marriage of non-Goans is currently banned in Goa. However, the chief minister of Goa, Pramod Sawant said they will make a provision through amendment so that non-Goans will be allowed to do so.
Divorce Under the Goa UCC
- Under Article 1204 of the Goan Civil code the grounds for divorce are:
- Adultery by husband or wife
- Complete abandonment of wife
- Conviction of the spouse to life-imprisonment
- Ill-treatment and serious injuries
- Separation may be sought only by the innocent spouse (Article 1205)
Procedure of Divorce
Under Article 1205, 1206 the procedure for divorce is:
- The spouse who desires to get divorced shall move to the court of his or her domicile or residence and summon a family council consisting of six closest relatives of both parties, three from each side, the competent law officer of the Public Ministry, who shall have no right to vote but only express his opinion.
- In case there is a lack of relatives, friends of the family can make up for it and if there is a lack of the same, respectable persons of the neighbourhood may make up for it.
- In case of a tie, the matter shall be decided by the judge
- The wife may apply for provisional custody, whether the wife or the husband is the applicant.
The Benefits of the Goa Civil Code
As marriage is a contract between two people under this code, the chances of men denying marriage and abandoning the woman are scarce. It provides security to women. Another benefit is that property is equally divided between the spouses providing women a sense of financial security. The property gets divided equally even after divorce hence women do not suffer from lack of maintenance. As bigamy and polygamy are prohibited under the Goa Civil Code, issues like triple talaq are solved easily. Various Inhuman or gender-biased provisions under other personal laws do not exist owing to the civil code. Cases can be dealt with speed and efficiency hence reducing the load on the judiciary.
Drawbacks of the Goa Civil Code
Everything is not sunshine and rainbows with the Goa Civil Code. Like any system of laws, the Goa UCC has its flaws. It could be easily assumed that due to a uniform civil code, Muslim women would be safeguarded by the unfairness of some of their personal laws, but some instances prove otherwise. Since bigamy and polygamy have been prohibited and a man must divorce his wife to marry another, it has caused Muslim men to carry out illicit relationships and leave their helpless wives behind. For a woman who considers her personal law the only source of marriage and divorce, she gets isolated by the law because the law will not accept such divorce and hence, she cannot marry again either.
We rave about how property is equally split between the couple, but this works only for those whose marital families have property of their own. This means that if a woman’s husband does not have ownership rights in the property, the division of such property at the time of divorce would mean that the woman gets half of nothing.
Article 9 of the Goa UCC states that “The Government is empowered to extend the Civil Code to the overseas provinces, after hearing competent agencies and after making modifications, which are required by special circumstances of the provinces”. Under this article by way of a decree passed on 16th December 1880, in favour of the gentile Hindus, their special and peculiar usages and customs were reviewed and codified. This allowed articles 2,3,4,5,7 of the Hindu Marriage act,1955, sec 10 of the Hindu Adoption and Maintenance Act 1956, etc. Hence, this shows that the concept of absolute uniformity is not true.
While other personal laws have been offered some security, Muslim personal law has been portrayed as defective.
While the idea of a Uniform Civil Code, in theory, seems to be a great solution to cure all the issues persisting in personal law, practically in a country like India it’s not feasible, not only do we have differences in law among religions but also within different sects and communities, and regions (Nagaland). Uniformity of law does not necessarily translate to uniformity of equality. It is difficult to decide what rules should be decided to govern everyone and how to justify them as equal and indifferent to all. There is a looming fear amongst minorities that the uniform civil code will derive its basis from Hindu concepts that will make it hard to gain acceptance. So instead of suddenly implementing a Uniform Civil Code, it would be more feasible to slowly make acts and amend specific provisions of personal laws that are discriminatory in general to all human beings. this has already taken place in the past and is easier to implement and accept in the long run. Even if it were to be adopted it should be a voluntary adoption, as suggested by Chairman of the Drafting Committee of the Indian constitution and the country’s first law minister, Dr. B.R Ambedkar.
Whether a Uniform Civil Code is the solution to inequality?
A uniform civil code does not guarantee equality as discussed before; uniformity can also be uniformity of discrimination. The Goa UCC model itself is viewed narrowly and on a closer examination shows its own loopholes and biasedness. Uniform Civil code can easily lead to the erasure of a lot of factors that make up various identities in our country.
Why has the uniform civil code come into discussion again?
The call for a uniform civil code has been an old one. The BJP was the first party in the country to promise the implementation of UCC if it were elected. With the revocation of article 370, criminalisation of triple talaq, the decision to construct the Ram temple in Ayodhya, the idea of the need for a uniform civil code sprang up once again. Further, “An ideologue of the Rashtriya Swayamsevak Sangh (RSS), Seshadri Chari, as recently as August 19, 2019, made the case for the BJP government to bring in a UCC on the heels of the revocation of Article 370[ii]”.
What is the role of article 14 and 25 in the Uniform Civil Code?
Article 14 advocates equality before the law. Some people have asserted that their right to equality is hindered by certain personal laws.
Article 25 advocates freedom of practice and propagation of religion but, Clause (2) of Article 25 allows the state to frame any law to regulate or restrict economic, financial, political, or other secular activity which may be associated with religious practice. Hence it does not restrict having a Uniform civil code
What is article 44?
Article 44 defines a uniform civil code. It was added to the constitution by the parliament in 1949 as a directive principle. Article 44 states that “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
Why was only the Hindu personal law codified?
The codification of the Hindu personal law was done as an experiment. If it turned out successful, the same idea would slowly be applied to the other religions too. It was felt that the other communities especially the Muslim community was not yet prepared to accept a uniform code at that time.
- https://www.indiacode.nic.in/bitstream/123456789/8312/1/ocrportuguesecivilcode.pdf – Goa UCC bare act