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Thursday, October 1, 2015

No Sharia in Goa * 68

Statutory Law:The Portuguese Civil Code of 1867 is Valid in Goa and the Sharia Takes a Back Seat



The Portuguese ruled Goa for 400 years and have left behind a universal civil code applicable to all residents of Goa. Personal law of Hindus and Muslims is not recognized. After 1961 all Portuguese era laws were repealed by an Act of the Indian Parliament, except the civil code of 1867. This is valid even today and is a beacon to the rest of India.

Goa was a colony of Portugal for 400 years till it was liberated from Portuguese rule by the Indian army in 1961. During these 400 years the Portuguese enforced their own laws. After 1961 all Portuguese era laws lapsed and the Indian Parliament extended all Indian laws to Goa. However the Portuguese civil code of 1867, Law of marriage 1910 and Laws of Divorce of 1910 and the family laws were not repealed and continue to this day.
When the British ruled India they did away with the Sharia in all matters except personal law. Thus the inheritance of property and the marriage laws remained as per the Sharia. The Portuguese went one step better than the British and enforced a uniform code in all aspects including personal law for all citizens of Goa irrespective of the fact that a person is a Muslim, Hindu or Christian.
Some of the basic provisions of the Portuguese civil code which have survived Portuguese rule are
a)      The first is the concept of absolute equality irrespective of the fact that you are a Hindu or Muslim.
b)      All marriages in Goa are not valid till they are registered.  In Goa, marriage is a contract and civil registration of marriage is mandatory. Thus a marriage solemnized under Hindu custom or Muslim law will be deemed valid only after the marriage is registered. A Muslim whose marriage is registered in Goa cannot take another wife.
d)       The Sharia law of divorce and 4 wives is not recognized in Goa. A Goan has perforce to have only one wife till he divorces as per the civil code and marries again. All contentious forms of divorce like triple Talaq are not valid in Goa.c)       The Portuguese civil  code recognize that every Goan marries under a system called Communion of Assets, whereby  from the time of the marriage  the spouse acquires half undivided rights in the assets of the other. The Muslim law as per the Sharia is not valid in Goa.
e)      Another aspect of the civil code pertains to property. Under the Uniform Civil code parents cannot disinherit their children as at least half of the property perforce has to be divided amongst all children.
However one aspect of the Goa family laws is contentious. As per the code of 1867 Canonical marriages are not entitled to a divorce and the appropriate authority is the Church. But this law is declared ultra vires of the Indian constitution and the courts have not applied this proviso of the code. Interpretation of Portuguese era laws is difficult as they are drafted in Portuguese language and have not been translated into English.
The Goa (Portuguese) Family laws are a step ahead of the rest of India. The law is applicable to all citizens of Goa who are subject to a uniform civil code unlike in India where separate personal law governs the Muslims as per the Sharia.