Judiciary advocates uniform civil code for India
23 May 1997 22:09 IST Majority of academicians support the uniform civil code for the country, but not the politicians, for the reasons best known to them. With the days of judicial activism, the judiciary is also now seems to be little more vociferous on the demand. At least it could be sensed at a national conference on Civil Code for India, held in Goa recently.
The historical meet, organised by the Vaikuntrao Dempo Centre for Indo-Portuguese Studies in collaboration with Bar Council of Portugal and the Bar Council of Maharashtra and Goa, was held primarily to discuss codification of civil law in the country, on the lines of the Portuguese Civil Code, 1867, which is still in force in Goa, a former Portuguese colony.
The organisers consciously kept any personal law-related matter out of its purview to avoid any controversy. But the jurists who attended were in no mood to restrain their views.
Justice P B Sawant, chairperson of the Press Council of India, was the most vociferous among them : "Personal laws don't belong to any particular community. But politicians raise a bogey of religion to foil attempts to amend them." He strongly advocated a view that a uniform civil law could be drafted, incorporating all good aspects from all the personal laws existing here.
Jaychandra Reddy, chairperson of the Law Commission, also emphasised on thorough deliberations among various quarters before going for any change. "Resistance and opposition will always be there. But it can be dealt with by educating and convincing the people", he said.
"Hope this conference would provide a direction to the country", said Justice M N Venktachalia, chairperson of the National Human Rights Commission and former chief justice of India.
Irrespective of caste, creed or religion, Goa's family laws provide for compulsory registration of marriage to avoid multi-marriages, stringent provisions for divorce, equal sharing of property among the husband and the wife and equally democratic sharing among the sons and the daughters. Justice M B Shah, chief justice of Mumbai high court, who also heads a bench in Goa, observes that atrocities on women are less heard in Goa compared to other states.
"India needs uniformity in laws though our society is of pluralistic nature. Rest of the country can learn from Goa. However, extension of these analogies to the areas of personal law needs higher degree of national consensus", said Justice J S Verma, Chief Justice of India, who actually set a tone while inaugurating the meet. It prevailed throughout the meet.
"Goa's civil code is worth considering for promulgation all over India as it provides for common ownership of property and equal treatment to men and women. We can avoid frequent breaking of marriages and driving out wife of the house if this code is adopted", says Justice Shah.
He seemed to be fascinated with a provision, penalising the civil registrar if any marriage is registered in contravention of the provisions of the civil code. "It makes the concerned officers more responsible", he opines.
"Ninety five per cent marriages break due to men. But this code can provide enough protection to women", opines Justice Sawant. He also dismisses opposition to it by the Muslim leaders : "It's similar to the opposition by Lokmanya Tilak to the Child Restraint Marriage Act, on the grounds that reforms should be within and not by aliens. That doesn't mean it shouldn't come".
"Don't be under the impression that it's fully implemented here", however cautions Dr Nishtha Desai, a researcher of Goa's civil code. As the police here are not properly educated, she points out, a woman has to approach the court even for taking her belongings once thrown out of the house. Even the Portuguese civil code has many flaws, which may have to be amended after a thorough study.
Women's groups in Goa are also not fully happy with the code, especially where marriage and property rights are concerned. "It has a problem with interpretation and implementation", says Sabina Martins of Bailancho Saad, mainly because the full Portuguese text of it is yet to be translated. The meet has decided to translate it and deliberate upon it once again.
THE PORTUGUESE CIVIL CODE IN GOA (Excerpts from a research by Dr Nishtha Desai) In Goa, the Codigo Civil Portugues or the Portuguese Civil Code (PCC), operational from 1870 with subsequent modifications, is based on Napoleon's French Civil Code. It continued to prevail after Goa's liberation from Portuguese rule in 1961, owing to an assurance by the Jawaharlal Nehru government that the laws prevailing earlier would remain in force even under Indian rule.
As is widely known, the composition of Goa's population is mixed, comprising approximately 64 per cent Hindus, 31 per cent Christians (mostly Roman Catholics), 4 per cent Muslims and 1 per cent other communities. All the communities are governed by the PCC.
The code of civil registration according to which the registration of all births, deaths and marriages is compulsory, has always been an integral part of the PCC. As a result of this even elderly, unlettered women in Goan villages are aware of the need of registering births and marriages.
The procedure of registration of marriages is not entirely uniform. Catholics have an option of solemnising their marriages in Church after obtaining a No Objection Certificate from the Civil Registrar.
In the case of Hindus, there is no relationship between the civil marriage and the religious marriage, whereas in the case of Muslims the Maulavi may ask to see the certificate of civil registration before performing the nikah. Muslim men whose marriages are registered in Goa cannot divorce by pronouncing talaq thrice, nor can they have more than one wife.
Unless otherwise specified, marriage is contracted according to the regime of property known as the Communion of Assets. According to this system, all the wealth or property that is owned or acquired by each spouse during the course of marriage is held in common by the couple. In case of divorce, each spouse is entitled to a half share of the property.
An ante-nuptial agreement can be drawn up, stating in definite terms what each spouse can claim as his or hers. Such an agreement has to be recorded as a public deed and cannot be changed or revoked. The spouses may opt for a combination of communion and separation of assets, whereby whatever is acquired or earned before marriage is held separately while what is obtained after marriage is held in common.
The inheritance laws are particularly interesting. As both spouses own the property in common, in case of the death of one spouse the other spouse retains ownership over half of the property.
According to the Portuguese Law of Succession, half of the remaining property is necessarily shared equally by the male and female offspring. In the absence of descendants, the parents or ascendants are entitled to this share. And in their absence, the brothers and sisters and their descendants are entitled to the said share.
It is clearly impossible for parents to disinherit their children entirely, as only half of the property can be disposed of through a will, according to their wishes.
