The laws of India, be it procedural or substantial do govern every citizen, irrespective of religion, caste or creed. But in matters of marriage, divorce and inheritance, citizens are governed by diverse laws depending on their religion, which are termed as personal laws, though religion is not merely a matter of personal choice. Under a Constitution which promotes an egalitarian society and wedded to the ideals of equality and fraternity, this rule of treating citizens differently based on religion had raised challenges on grounds of violation of fundamental right to equality. It is a golden norm of constitutional jurisprudence that the State shall not make any law which is violative of fundamental rights enshrined in Part III of the Constitution. However challenges on personal law as being inconsistent with the right to equality under Article 14 had not always received a favourable response from the Supreme Court of India.
The hesitance to bring personal laws within the purview of fundamental rights,was pioneered way back in 1951 by the Bombay High Court in State of Bombay v. Narasu Appa Mali. While deciding on the validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, the Court was of the conclusion that the framers of the Constitution did not wish that the provisions of the personal laws should be challenged by reason of the Fundamental Rights. This view continued to be reiterated by the various High Courts as well as the Supreme Court of India. Later on, in Ahmedabad Women Action Group v. Union of India, a writ petition to challenge the Muslim Personal Law which allows polygamy as offending Articles 14 and 15 was refused cognizance by the Supreme Court on the ground that it was a matter of state policy, which ordinarily falls outside the Court’s domain. On similar lines, the Kerala High Court in P.E.Mathew v. Union of India held the Christian personal law to be outside the scope of Fundamental Rights, falling back on the principle of ‘judicial hands-off’ over such matters. However there have been contrary views as well, worth mentioning would be John Vallamattom v. Union of India (2003), wherein the Court has ventured to strike down S.118 of the Indian Succession Act, 1925 as violative of Article 14.
Thus in India, law relating to marriage and connected matters is not the same for all citizens. There are different laws for Hindus, Muslims and Christians, and the existence of such unlike laws are not always allowed to be challenged in the Court as infringing the fundamental right to equality guaranteedunder the Constitution. Ironically, Articles 44 of the Constitution of India directs the state to strive to secure for the citizens of India a Uniform Civil Code, throughout the territory of India. It is indeed necessary that law be divorced from religion, especially so, in a secular country. Supreme Court has many a time suggested the enactment of a Uniform Civil Code in India and has asserted that “A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.” But Parliament thought it never ripe enough to bring in a Uniform Civil Code. Apprehensions are many, but in India there is this one State which harmoniously brings all religions under the umbrella of a common civil code, the State of Goa.
Goa is a glare model for uniform civil code in our country. In Goa, a Muslim, Hindu and a Christian is bound by the same laws relating to marriage, divorce and succession. This is unique in the sense that the Civil Code in Goa is the residue of Portuguese regime and therefore the “existing law in force in the territory” when Goa became a part of Indian Union in 1961. Soon thereafter by virtue of the Goa Daman and Diu Administration Act, 1962 Parliament authorized the continuance of the existing laws, namely the Portuguese Civil Code of 1867 to Goa, until amended or repealed by the competent legislature. Accordingly the Code continues to rule the realm of family law.
In Goa, marriage is a contract made between two persons of different sex with the purpose of legitimately constituting a family and it is solemnized before the Office of Civil Registrar. The religious ceremonies are often performed by the parties,days or months after the Civil Marriage, at their convenience and thereafter the couple starts living together as husband and wife. Certain persons are prohibited from contracting marriage between each other. For example, any spouse convicted of committing/abetting murder of the other spouse shall not marry the person who had been convicted of committing/abetting the same offence.
One of the striking features of the Portuguese Civil Code is the Matrimonial Regime. The spouses can agree between themselves at the time of marriage, the manner in which their properties will be managed and disposed of during their matrimony. This is with respect to the assets they have at the time of marriage as also the assets they may acquire after marriage. It is also necessary to provide about the legal actions that third parties can take as against the assets of the married couple. Such agreements are called Matrimonial Regimes.
The two prominent regimes prevailing under the Code are (1) Communion of Assets and (2) Total Separation of Assets. The prospective spouses, before marriage can opt between these regimes. They are free to choose any hybrid regime such as separation of assets acquired by each of them before marriage and communion of assets acquired after marriage. The regime chosen by the parties must be incorporated in a public deed executed before the marriage. In case the parties do not execute any such deed opting for the matrimonial regime, it is presumed that they are opting for the regime of communion of assets.
Communion of Assets, as the name implies means that the assets brought by both of them becomes one after marriage and therefore belongs to both of them together. The communion ends by the dissolution of marriage.On the dissolution of marriage by divorce, the total assets is to be divided into two parts and each half is allotted to each spouse, irrespective of what they had brought at the time of marriage, or what each one has acquired thereafter. In case of death of one of them, the half of the assets is owned by the surviving spouse and the other half goes to the mandatory heirs, i.e., the sons and daughters who have equal share in the assets of the deceased parent. The parent can dispose by will his property only to the extent of 50% the other 50% shall necessarily go to the legal heirs, hence the name “mandatory heirs”.
In case of Separation of Assets, each of the parties to the marriage will continue owning the assets that he or she has brought to the marriage exclusively and on the death of one of them, the assets of the deceased will pass to the legal heirs. In both the regimes, administration of the properties vests in the husband. However the immoveable properties shall not be alienated without the consent and agreement of both.
The Portuguese Code of 1867 is a mammoth legislation with parallel decrees substituting various provisions of the Code. Deciphering the Code, which is in Portuguese language, was itself a herculean task for the lawyers and judges in Goa. Thanks to Senr. Advocate Shri Manohar Usgaocar, an English translation of the relevant parts of the Code is now available. Even then the legal intricacies surrounding the maze of family law in Goa is believed to be mastered only by a few senior lawyers in the State. There are two Law Colleges in the State offering LLB program, the syllabus of which is yet to be effectively altered by the Bar Council of India, so as to meaningfully include the Code as a separate subject for study and specialization. The Code which can be a model Code for the entire country as well, is so woven into the social fabric of the State that it can be rightly said that the State of Goa is truly secular to the core.
The Views expressed above are personal only and it does not reflect the view of Live Law.
Sandhya Ram is an Asst. Professor at V.M.Salgaoacar College of Law, Goa