Goa Only state in India to follow common law; Know why this is an exception

Uttarakhand Chief Minister Pushkar Singh Dhami announced on Thursday that the state cabinet has decided to form an expert committee on the implementation of a Uniform Civil Code (UCC). But it should be noted here that Goa followed the Portuguese Civil Code of 1867, also known as the Uniform Civil Code. After its liberation from Portuguese rule, the code survived under Section 5(1) of the Goa, Daman and Diu Administration Act 1962. Its continuation amounts to the non-application of the Hindu Marriage Act 1955 and the Hindu Succession Act, 1956 or Indian Succession Act, 1925 or Shariat (Application) Act, 1937.

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Speaking to 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 has unanimously approved that a committee (of experts) will be formed at the earliest and will be implemented in the state.”

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

About Goa Civil Code

Goa is so far the only state in India where all communities including Hindus, Muslims and Christians are governed by the same law in matters of marriage, divorce, inheritance, etc., because although the state became 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 quite identical to a Uniform Civil Code proposed by the BJP. While “uniform” means uniformity of all despite belonging to any religion, race, caste, sex and age, some Goa code laws make a clear distinction between common civil code and uniform civil code .

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The Civil Code of Goa prohibits bigamy – which the code defines as the offense of marrying someone when they are already married to another person – for all other religions except Hindus. Hindu men therefore have the right to bigamy under specific circumstances mentioned in the Codes of Habits and Customs of the Gentile Hindus of Goa (if the wife fails to give birth to a child at the age of 25, or if she fails to deliver a male child at the age of 30). Such a privilege granted particularly to men of the Hindu religion and prohibited to men of other religions is manifestly not valid to form part of a uniform civil code.

During a groundbreaking ceremony for a new building of the Bombay High Court in Goa in March 2021, India’s former Chief Justice, Justice Sharad Arvind Bobde said, “Goa has what the constitutional framers envisioned for India – a uniform civil code. And I had the great privilege of administering justice under this code. It applies to marriage and inheritance, governing all Goans regardless of religious affiliation,” Bobde was quoted as saying by ANI news agency.

The Special Marriage Act, enacted to govern the marriages of two people of different religions, is conducted differently in Goa. Muslim men, whose marriages are 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 marriage intention is registered by the future spouses before the civil status authorities and after two weeks, a marriage certificate is signed. For Catholics, the signature in churches is considered sufficient for civil registration. Many women are unaware that the UCC requires a second confirmation by signatures, and so when a dispute arises, their marriage is declared invalid. Many cases of bigamy through such frauds have been reported, according to a report by Indian Express.

WHY IS GOA AN EXCEPTION?

Indian courts, including the Supreme Court, have repeatedly questioned why a UCC has not yet been introduced when the framers of the Constitution themselves laid the groundwork by including it as a guiding principle. The Supreme Court has also in several orders, including the 1985 Shah Bano case, 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 would endeavor to assure the citizens of a uniform civil code throughout the territories of the India, so far no action has been taken in this area. in this regard,” an SC division bench had said in its order in a 2019 case. In the same judgment, it noted that Goa is a “shining example” with a UCC “applicable to all, regardless religion, except while protecting certain rights.”

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