The Supreme Court expressed regret for making no attempts to design a Uniform Civil Code for citizens of the nation although the Court has encouraged the move. The Apex court noted that Goa is a "shining example" as it has a UCC related to all, irrespective of religion "except while protecting certain limited rights."…
The Supreme Court of India pronounced the idiosyncratic verdict. A Supreme Court bench of Justice Deepak Gupta and Justice Aniruddha Bose in a 31 page ruling pronounced that the Portuguese Civil Code, 1867 (PCC) shall govern rights of succession and inheritance in respect of properties of a Goan domicile situated anywhere in the country.
The PCC is applicable to the State of Goa in many spheres. As per the code, a Muslim man whose marriage is registered in the State cannot practice polygamy, a married couple share property equally, pre-nuptial agreements are the order of the day and assets are apportioned uniformly between the man and woman on divorce.
The applicability of an overseas legislation was assessed and gauged on the basis of two outstandingly outlined interrogations by the Apex Court. First question was whether a foreign law will be applicable in the Indian context and second was whether the acreage or property of a Goan domicile beyond the territory of Goa would be regulated by the Portuguese Civil Code or by Indian Succession Act or by personal laws, as pertinent in the rest of the country.
The Supreme Court addressed both questions in its ruling. It has remarked that the PCC has been prescribed in its previous colonial possessions of Goa, Daman and Diu by an Act of Parliament. This makes the Code an Indian Law though the Code is of Portuguese origin.
The Supreme Court also mentioned in the judgment that the State of Goa is at liberty to embrace the old decrees wholly or in part. It may completely discard the old laws and substitute them with laws which apply in the other terrains of the new sovereign. It is for the new sovereign to judge as to what action it would implement with respect to the appliance of laws.
With reference to the second question the Court said that the Indian Succession Act, which includes Hindu Succession Act, Muslim Personal Law or the laws of succession would not be applicable to Goan domiciles even for property outside Goa, and the PCC would apply. Thus the Apex Court made it crystal clear that the PCC is an Indian law and no principles of private international law are applicable. The top court's verdict also showcases the democratic philosophy of the nation.
Facts of the Case
Joaquim Mariano Pereira, married to Claudina Lacerda Pereira, had three daughters, namely Maria Luiza Valentina Pereira, Virginia Pereira and Maria Augusta Antoneita Pereira Fernandes. Joaquim purchased a property in Mumbai in the year 1955 and donated that property to his youngest daughter as per the will dated 6th May 1957. He also donated 3,000 rupees each to his remaining two daughters.
Claudina expired on October 31, 1960 and Joaquim died on August 2, 1967. The validity of the will was granted by the Bombay High Court's Panaji bench on September 12, 1980 and both the other daughters were served notice of the probate trials. Even though the High Court ruled that the the Goan civil code would not apply to the property situated outside Goa, the Apex Court set aside its judgment. The Apex court pronounced that the property in Bombay shall have to be integrated in the stock of properties in the inventory proceedings in Goa.
Court proposed, Government disposed
Long back in 1985 the top Court had granted maintenance to 60 year old divorcee Shah Bano which gave birth to bubbling deliberation over the UCC.
In another adjudication of 1995 in Sarla Mudgal case various conflicts between the personal laws prevailing on matters of marriage have been highlighted by the Court and strongly emphasized the need of a UCC.
In 2003 a bench led by the then Chief Justice of India VN Khare had said that Article 44 of the Indian Constitution was founded on the principle that there was no necessary connection between pious and personal law in a civilized and democratic society.
In 2015 again the Supreme Court directed the government to take immediate action on the UCC to curb the chaos and confusions over personal community laws while dealing with a divorce case under the Christian Divorce Act. A bench was headed by the then Justice Vikramajit Sen to deal with the lawsuit.
In all the cases the Court insisted Parliament to enact a UCC to eliminate personal laws applicable in matters of marriage, divorce, inheritance and succession. The Court cannot order Parliament to frame a law and can only ask it to consider enacting one. Thus, in spite of constant exhortations by the Apex Court the government has not attempted to safeguard the citizens of the country with a UCC.
Nevertheless, Law Commission of India in the year 2018 opined differently and said that the UCC is neither necessary nor enviable at this point of time in the nation. It has said that secularism cannot controvert the majority predominant in the nation.
Why is UCC needed?
Uniform Civil Code (UCC) is defined as per our Indian Constitution under Article 44 of Directive Principles of State Policy. UCC refers to a set of regulations to administrate personal matters of all citizens regardless of religion and assuring that their fundamental, elemental and Constitutional rights are shielded. These regulations cover numerous provisions relating to marriage, divorce, inheritance, adoption and maintenance. Goa is the only state which has a common family law and the Special Marriage Act, 1954 permits any citizen to marry outside the area of any special religious personal law.
UCC is very much needed to offer identical repute to all citizens irrespective of their religion, class and caste. It also aims at promoting gender equality and accommodates the ambitions of the juvenile population to use their complete ability for nation building and national integration or secularism.
To conclude, UCC is the need of the hour to safeguard the rights of citizens of the country. Undoubtedly its adoption will be a progressive legislation. Changing times strongly necessitate the need for having a Common Civil Code for all citizens irrespective of many differences. Then only India of our dreams will be wholly tolerant along with its religious working simultaneously.
The writer is financial adviser, tax specialist and public speaker based in Margao - Goa