Context

The Portuguese Civil Code of 1867, the so-called “common civil code” of Goa, is in the news again. A 28-member parliamentary standing committee recently visited the state to study it in the context of the demand for a uniform civil code.

Background

• Long before the arrival of the British imperialists in India, the Portuguese had occupied certain territories in the coastal regions with its capital in Cochin, later shifted to Goa.
• They did not interfere with the local customs relating to family relations and framed, in the mid-19th century, three separate codes of religion-based customary laws of Goa, Daman and Diu.
• The three codes were formally enforced as the law by royal decrees issued by the King of Portugal.
• The Portuguese Civil Code of 1867 was extended to Goa, Daman and Diu by a royal decree of November 18, 1869, declaring that the code would apply to the natives subject to the local usages and customs “so far as they are not inconsistent with morality or public order”.
•  In 1910, the Portuguese parliament enacted two civil marriage and divorce decrees and, in 1946, a canonical marriage decree for Catholics.
• All of these too were extended to Goa, Daman and Diu.
• The family law applied by the Portuguese, both at home and in the occupied Indian territories, was thus not a uniform code but a loose conglomeration of civil and religious laws.

After Indian independence

• Fourteen years after the advent of Independence, Goa and its affiliated territories were liberated and turned into a Union Territory (UT) under central rule.
•  The Goa, Daman and Diu Administration Act of 1962 declared that all laws in force in these territories before their liberation would continue to be in force “until amended or repealed by a competent legislature or other competent authority” (Section 5).
• None of the pre-liberation family laws was, however, amended or repealed.
• Nor was any central law on family rights, including the four Hindu law Acts of 1955-56, extended to any of the three territories.
• In 1987, the Goa, Daman and Diu Reorganisation Act made Goa a full-fledged state with its own legislative assembly and left Daman and Diu as a UT.
• Twenty-five years later, the Goa state legislature enacted the Succession, Special Notaries and Inventory Proceedings Act, amending certain provisions, mainly procedural, of the 155-year old civil code.
• In 2019, the UT of Daman and Diu was merged with another such territory – Dadra and Nagar Haveli (also ruled in the past by Portugal) — to form a single UT under central rule.
• As laid down in Section 17 of the unifying Act, this development did not in any way change the family law system prevailing in either of these places since their liberation from foreign rule.

Need for uniform civil code

• The law ministry has told the concerned standing committee of Parliament that the Portuguese civil code and its later amendments as in force in Goa may — if required — be duly reviewed.
• Uniform civil code: What has been said now by the law ministry about Goa is in the context of implementing the constitutional directive of Article 44 for a uniform civil code for the citizens throughout the territory of India.
• However, while the 21st Law Commission had already given its opinion against the feasibility and need of such a code at this juncture
• In recent months, the ministry has told Parliament about its reference on this issue to the Law Commission.
• There is no justification for retaining over a century-old archaic law, 75 years after the independence of India.
• Hindu law Acts of 1955-56 governing four religious communities in the rest of the country needs to be extended to the same communities in Goa, Daman and Diu.

Conclusion

The ministry has now reportedly told the parliamentary committee that enacting a uniform civil code would be possible only when a “sizeable majority” of the people seeks such a change.

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