News

September 14, 2019

Supreme Court Rues Lack Of A Uniform Civil Code Across India; Praises Goa’s Uniform Civil Code As Shining Example


[ By Bobby Anthony ]

Supreme-Court

The Supreme Court has stated that though makers of the Constitution of India had hoped that the state would endeavor to secure a Uniform Civil Code throughout India, no action has been taken on the matter so far.

The observation was made in a recent civil suit between Jose Paulo Coutinho versus Maria Luzia Valentina Pereira.

Citing the case of Goa, the Supreme Court said, “Muslim men whose marriages are registered in Goa, cannot practice polygamy. Further, even for followers of Islam, there is no provision for a verbal divorce”.

Making a reference to the Uniform Civil Code, Justice Deepak Gupta stated in a judgement, “Though Hindu laws were codified in the year 1956 there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations”.

The Supreme Court identified Goa, as a shining example, which has a Uniform Civil Code applicable to all, regardless of religion, except while protecting certain limited rights.

The Supreme Court held that Portuguese Civil Code, 1867 as applicable in Goa, will govern the rights of succession and inheritance with respect to properties of a Goan domicile situated outside Goa, or anywhere in India.

The Supreme Court noted that with effect from December 22, 2016, certain portions of Portuguese Civil Code have been repealed and replaced by the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012, but still it is in line with its predecessor, which is the Portuguese Civil Code, 1867.

“The salient features with regard to family properties are that a married couple jointly holds the ownership of all the assets owned before marriage or acquired after marriage by each spouse. Therefore, in case of divorce, each spouse is entitled to half share of the assets,” the Supreme Court stated in its judgment.

However, the law permits pre-nuptial agreements which may have a different system of division of assets. Another important aspect, as pointed out earlier, is that at least half of the property has to pass to legal heirs, which the court observed is akin to the concept of 'coparcenary' in Hindu law.

“Similarly, for Muslims within the state of Goa, the Civil Code would apply and outside Goa, the Muslim Personal Law (Shariat) Application Act, 1937, would apply. This would lead to many uncalled for disputes and total uncertainty with regard to succession,” the Supreme Court stated.

The Supreme Court observed that there is a conflict between the Indian Succession Act, the Hindu Succession Act, the Muslim Personal Law (Shariat) Application Act, 1937, etc and the Portuguese Civil Code with regard to the laws of inheritance “but this conflict has to be resolved”.



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