Ameya A Nayak discusses the much spoken about Uniform Civil Code (UCC) and its implementation in Goa, the ongoing UCC debate and whether or not, the UCC is actually as desirable and feasible as it seems
As most of us are aware, the then Chief Justice of India, S A Bobde in his recent visit to Goa for the inaugural of the new building of the Bombay High Court at Goa, lauded the State’s Uniform Civil Code and urged intellectuals who have been engaging in debates over the workability of the UCC to learn the administration of justice here, in order to figure what it actually is. Earlier, in the year 2019, the Supreme Court of India has labeled Goa to be an illuminating example with a Uniform Civil Code while deciding a matter pertaining to properties of a Goan. Various legal luminaries have been urging the effective implementation of a UCC for India; however, there have been no attempts at framing such a code for the country.
What is Uniform Civil Code?
Interestingly, the founders of the Indian Constitution, in Article 44, in part IV that envisages Directive Principles of State Policy (DPSP), stated that ‘the State shall endeavor to secure for all its citizens, a Uniform Civil Code throughout the territories of India.’
A Uniform Civil Code is one that would enable the operation of a singular standard law for the whole of the nation and would be applicable to all religions alike in matters of personal importance such as marriage, divorce, adoption, inheritance and so on. Nonetheless, the UCC being part of the Directive Principles under Article 44 are not enforceable by any court as per Article 37, but is considered to be fundamental in the governance process.
The main aim of the UCC is to replace fragmented legislations and bring uniformity within the territory of India. Interestingly, during the framing of the Indian Constitution in 1946, there were two sects with diverse views on the ideology of the UCC in the Constituent Assembly. While one faction wanted to wholly adopt the UCC, the other felt that their personal laws would be abrogated by the Uniform Code. This is precisely the reason why the UCC find a very minute position for itself in the DPSPs enshrined within the Constitution.
India’s position with respect to UCC
Indian laws, in most scenarios pertaining to civil matters, do follow a uniform code. Whether it is the Civil Procedure Code, Indian Contract Act, Partnership Act, Transfer or Property Act or the Indian Evidence Act, a uniform law and procedure is what is followed. However, there tends to be diversity in uniformity due to multiple amendments made to these laws by each State. Overall, a UCC is desirable but in a fragmentary style. That apart, India is also a diverse country with different religions which has always been an essential part of Indian culture. Even though the UCC is included as a Directive Principle, it has not been implemented across India mainly due to resistance on religious grounds. Goa happens to be the only State in India that has implemented the UCC which governs all citizens in a uniform manner despite differences in religious values.
Is Goa’s UCC actually as ‘uniform’ as it claims to be?
The UCC in Goa, known as Goa’s Portuguese Civil Code on 1867 is an outlandish cypher that dictates non-enforcement of the Hindu Marriage Act of 1955 and Hindu Succession Act of 1956 or the Indian Succession Act of 1925 or the Shariat Act, 1937 and Dissolution of the Muslim Marriage Act, 1939 etc, in Goa. This in turn implies legal pluralism which makes one want to raise questions as to whether the UCC in Goa is really as uniform as it claims?
The civil code in Goa is divided into 4 Parts that deal with civil matters pertaining to property, acquisition of rights, right to property and breach of those rights and remedies for the same. This code has found its survival by virtue of Section 5 (1) of the Goa, Daman and Diu Administration Act of 1962 that has permitted its continuance in the State.
As far as the marriage aspect is concerned, Article 1057 of Goa Portuguese Civil Code elaborates upon registration of marriages wherein the intent to marry is recorded by the to-be spouses before the civil registration authorities and after a period of 2 weeks, the deed of marriage is executed. However, for Catholics, signature at the church is considered sufficient for civil registration of marriage. Further, it is found that many women are not aware about the UCC requiring a subsequent second confirmation through signatures as a result of which, if differences arise, the marriages are found to be invalid or void.
Article 1086 of this Code also empowers Ecclesiastical Courts to nullify Catholic marriages. Usually, the judicial court also recognises such nullification. However, in case of non-Catholics, the power to nullify marriages lies only with the civil courts, thus raising question about the nature of uniformity between Catholic and non-Catholic marriages.
For Hindus, Article 3 of the Gentile Hindu Usages and Customs of Goa, 1880 provides that a Hindu husband can take a second wife in the absence of objection if the wife has completed 25 years of age and also attained 30 years of age without having a son. This provision of the Goa Code is in direct contravention of both the Hindu Marriage Act as well as the criminal law i.e., the Indian Penal Code of 1860.
Additionally, this Code also makes provisions for pre-nuptial agreements. Here again, there are 4 types of pre-nups.
- No communion of properties.
- Total separation of assets before and after marriage.
- Dotal regime under which the woman’s share in her father’s property is given to the husband, and;
- Communion of all assets of the husband and wife that are equally divided on divorce or upon death.
If we analyze all 4 types of pre-nuptial contracts, only the last one seems fairly reasonable, but again, the management of properties and related responsibilities are all vested entirely in the husband only.
On the aspect of succession, unlike the Hindu Succession Act that gives limitless testamentary powers, Article 1784 of the Goa Code prohibits the disposal of more than half of the assets by means of a Will. This is the concept of legitime right. The Goa Succession, Special Notaries and Inventory Proceedings Act also retain this concept.
Even if we look at the state-wise picture on these aspects, not all Hindus across India are governed by the same law. The Hindu Marriage Act, 1955 prohibits marriage between close relatives but the same is considered auspicious in Southern India.
The Hindu Code further recognises customs of different Hindu communities. The Hindu Succession Act, 1955 gave the daughter the recognition of being a coparcener only in the year 2005 and the wife is still not a coparcener! Even today, property devolves first to class-I heirs, and if there are none, then to class-II heirs. While the heirs of sons are moved to class-I, heirs of daughters are not. Even among class-II heirs, preference is given to the male lineage. Besides being a challenge to secularism across the nation, the UCC in Goa seems like a far-sighted success in the State, since its application separates religion from areas such as marriage, succession, adoption and so on as discussed earlier. Its implementation across the country would ensure the creation of a more secular society, as personal matters would no longer have any religious shade. Further, all citizens would be subjected to equal treatment and would also ensure liberty and equality towards the womenkind. Although, there may seem to be multiple advantages of putting the UCC into action, rampant incongruities about the UCC being a medium for religious dominion is what is playing the role of a major obstruction in the path of its smooth functioning.
The writer is an Assistant Professor (Law) at V. M. Salgaocar College of Law, Miramar. Email: ameyanayak@vmslaw.edu.in
