In theory, a ‘uniform civil code’ means equality with respect to all rights, including property rights. Although the Goa ‘Uniform Civil Code’ provides more ‘equitable’ property rights irrespective of gender as compared to other personal laws in India, this is usually more true in theory than in practice. But even these limited rights have been eroded over time by the constant barrage of laws imported into Goa without regard for the centuries-old legal tradition of the state.
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CONTROL over resources is at the heart of the global struggle for gender equality. The struggle over the means of production essentially centers on the access to, ownership of, and control over the chief means of livelihood that is land.
Consequently, attainment of gender parity, especially in developing economies, focuses mainly on issues of land and property rights.
In recognition of this central issue, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the United Nations General Assembly, has given women the right to own and administer property without discrimination (Article 15) as well as an equal treatment in land and agrarian reform [Article 14(2) (g)].
Article 16 gives both spouses equal rights in the “ownership, acquisition, management, administration, enjoyment and disposition of property”.
India is a signatory to these and other conventions that make a commitment to gender equality, including through land rights.
Without going into the details, suffice it to say that the eighth five-year plan saw a policy support for gender equality, especially in the form of the guideline issued to states to issue land pattas in the joint names of husband and wife, as well as single women, both married and unmarried.
The ninth five-year plan introduced, for the first time ever, individual as well as group distribution of land titles to women.
The tenth five year plan recommended the distribution to women of land declared surplus under the Land Ceiling Act.
The twelfth five year plan emphasised the enhancement of women’s land access from all three sources— direct government transfers, purchase or lease from the market, and inheritance.
Consequent to these policy initiatives, and combined with the impact of the burgeoning women’s movements, the share of women landholders in the country rose from 10.9 percent in 2000–01, to 11.7 percent in 2005–06, and 12.78 percent in 2010–11, as per the agricultural census of 2015–16.
This increase of almost 2 percentage points is not insignificant for a short span of a decade, reflecting the success of both the policy and the struggle.
However, it must be pointed out at the outset that updated data of land ownership in India is not available. Regrettably, since the dismantling of the Planning Commission, no policy initiatives whatsoever have been undertaken in order to ensure gender-equal control over land.
Women, land rights and the Portuguese Civil Code
Gender equality, as manifested in the ownership and control over land resources, is a complex issue. In India, Goa presents the most intricate case of the historical and regional specificities relating to economic as well as extra-economic factors and forces on gendered resource control and ownership.
Goa is the only state in India where the directive principle enshrined in Article 44 of the Indian Constitution, calling for “The State” to “endeavour to secure for the citizens a uniform civil code” finds application.
A common civil code, officially known as the Portuguese Civil Code, was instituted in Goa in 1867 and still exists and applies to virtually all facets of life in the state, including de jure equality in land and property rights.
Besides the code, land rights for women in Goa are regulated through a vast array of laws and regulations. Those relevant to this discussion are:
- Family laws which embody the concept of matrimonial property rights and are based on and determined by the Portuguese Civil Code, which also incorporates the Code of Usages and Customs of Gentile Hindus.
- Code of Comunidades is a village community law that ensures common management of land and resources.
- Goa Mundkar (Protection from Eviction) Act of 1975 governs the rights of Mundkars (those who lawfully reside with a fixed habitation in a dwelling house with or without obligation to render any services to the family), with the consent of the Bhatkar (landlord).
Understanding the Goa ‘Uniform Civil Code’
The appellation ‘Goa Uniform Civil Code’ was not used during the Portuguese rule, rather the interchangeable terms were Portuguese Civil Code, Portuguese Civil Procedure Code, Portuguese Code of Civil Registration, Portuguese Commercial Code, Portuguese Criminal Code and Codigo Civil Portugues.
Although the Code of 1867 has been amended several times, the 1936 version, along with the amendments consequent to the Concordat (a treaty between Portugal and the Holy See) in 1940, are the legal foundation of what are called the ‘family laws’ of Goa.
In 2016, the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 was enacted. It has been criticised for being delinked from the 1867 code and for being bad in law.
Code of Usages and Customs of Gentile Hindus
Included in the family laws of Goa is the Code of Usages and Customs of Gentile Hindus. While applicable primarily to Hindus, there are provisions for other non-Catholic inhabitants of Goa to avail of the limited polygamy provisions.
It is rather shocking that there are legal provisions for the practices of bigamy and polygamy within a ‘Uniform Civil Code’.
A Hindu male is permitted to marry a second time even without divorcing the first wife in case no child is born by the time she attains the age of 25, if no male child is born to the first wife when she attains the age of 30 years, and if there is a ten-year gap between pregnancies.
Further, under the Gentile Hindus code, adoption is permitted uniformly for a “Hindu of any caste” when there is no male progeny.
A petition challenging a provision that permits only males to be adopted by Gentile Hindus in the absence of legitimate male issues is now pending before the High Court of Bombay at Goa.
Classification of marriages and matrimonial property rights
The Portuguese Uniform Code categorises marriage into two types: canonical (for Catholics who want to opt for this type) and non-canonical (civil), for non-Catholics and Catholics that do not want to opt for the canonical type.
Canonical marriages can be annulled before the Patriarchal Tribunal of the Catholic Church. It used to be the only way to end a marriage between Catholics till 1996, when a Catholic church held that for dissolution of marriage in order to legally marry another woman, annulment has to be obtained from the court even after the marriage has been dissolved by the church.
The ecclesiastical authorities maintain that an Order for annulment of marriage issued by them, on confirmation by the high court, only has civil effects when it comes to the union of the spouses, and it is for the courts to decide on the separation of properties.
However, when the courts deliberate on separation of properties in terms of either the law on separation of properties or in terms of the inventory proceedings, it is invariably the high court-approved Order of the Patriarchal Tribunal that is considered.
It is said that the rights relating to succession and separation of properties in the 1867 code are equally applicable to all.
Daughters and sons formally have equal rights to parental properties. In the absence of a will, the default system of holding property upon marriage is the regime of communion of assets which means that upon marriage, unless an option is made to the contrary, all assets, including land, whether inherited, acquired before or acquired after marriage, are held in common by the couple.
There is also a limitation on parents as they are able to alienate only half of their property by a will, which means parents cannot pass on the whole of their properties to a son through a will.
However, rights of parties whose marriage has been annulled are different from those whose marriage has been dissolved by divorce, death or who are separated by a decree of separation of persons and properties.
In the event of a divorce, the properties are divided into equal shares. In the event of separation, if the separation was sought both of persons and properties, then the properties will be divided equally.
However, there is no clarity even on this account. For instance, annulment means that the marriage never was. It would follow that there is no concept of matrimonial property rights.
But the law provides that the party who is not at fault can secure benefits from an annulled marriage.
Therefore, when the Patriarchal Tribunal, by circumventing the civil law grants annulment on grounds such as non-consummation of marriage which is not a ground for annulment under the family laws of Goa, it is the tribunal’s grounds of determining fault that will be upheld for division of properties.
Logically, control over properties belongs neither to the husband nor to the wife but to the marital relationship.
The Code of 1867 states that notwithstanding gender-equal inheritance and ownership of matrimonial property, the management and administration rights are bestowed on the male spouse except in the case of an impediment.
The impediment can be a disability such as being “deaf and dumb” as well as the migration of the male spouse to international destinations.
As per the code, a husband can alienate property and obtain post facto consent of the wife, but a wife can only alienate property if she has the authorisation of her husband.
A provision for relinquishment of rights of inheritance by a child is often used by brothers to compel their sisters to give up their rights to parental property in exchange of dowry. A majority of Goan women agree to formally surrender their due share.
There are many laws that do not take into account women’s land and property rights guaranteed under the Portuguese Uniform Code. The 1969 Goa Land Revenue Code is totally delinked from the family laws.
The survey and record of rights conducted in the late 1970s and early 1980s, and the ‘land mutation system’, either omitted or wrongly registered names of owners.
Catholic women do not automatically change names upon marriage, which is how they are registered in the land records if their spouses or son-less parents die. The survey and the land mutation system registered them under their first name and their husband’s surname, creating legal complications.
The survey also excluded dwelling houses of the Mundkars constructed in the landlord’s property, thus compounding the case for equality in property, especially for women from marginalised sections.
The Goa Mundkar (Protection from Eviction Act), 1975 defines heritable members of a family of a Mundkar as his spouse, son, unmarried daughter, and includes father, mother, grandson, widowed daughter, widowed grand-daughter, solely dependent on the Mundkar for maintenance.
Combined with automatic assumption of patrilocality after marriage, this provision excludes members who qualify as heirs under the family laws.
The centuries old Code of Comunidades, which exists along with the family laws, does not confer rights upon women except under a patriarchal definition of a family, i.e., if they are widowed without male children, or are the unmarried daughters of son-less parents.
The Goa Succession, Special Notaries and Inventory Proceeding Act
In 2016, the Goa government enacted The Goa Succession, Special Notaries and Inventory Proceeding Act, which has brought several amendments to the Portuguese Civil Code.
The Act has attracted criticism on several grounds, including that of constitutionality, legal correctness and separation of succession from the prevailing Portuguese Civil Code without a discussion.
For one, a part of the code has been revoked and then enacted as an Act, thereby ignoring the fundamental fact that a code and an Act are two different legal entities.
When the Bill (of the Goa Succession Act) was made public, barely two weeks of notice was given for suggestions and objections. Still, many prominent lawyers and women activists speedily came together to study and analyse it.
The ‘committee on suggestions’ concluded: “The idea is retrograde and takes the law backwards. It totally overlooks jurisprudence, legal theory, Indian and Western legal history, and legal culture. We are going backwards from car to bullock cart.”
But all the objections were dismissed and none of the recommendations were considered.
The Act goes beyond the issue of succession, affecting other elements
Many Sections of the 2016 Act go beyond succession and enter into the law of marriage, divorce and separation, which are intrinsic to the Portuguese Civil Code.
According to Section 249, the eldest spouse shall be the “head of the family”. The notion of “eldest spouse” is contextualised by the fact that in a patriarchal society, the male spouse is invariably older than the female spouse. The Act admits as much, by referring to the family head as a ‘he’ in every single provision.
The Act does not take into consideration several attempts to examine and critique discriminatory rules and provisions. For example, the suggestions and objections of the redrafting committee set up by the government of Goa in the early 2000s to examine the state’s family laws played no role in informing the formulation of the 2016 Act.
Article 1057 of the 1867 code provides for the registration of marriages. An intent of marriage has to be recorded by the would-be spouses before the civil registration authorities and a marriage deed has to be signed within fifteen days.
Many women are not informed of the requirement of the second confirmation through signatures. The consequence is that when a dispute arises, the marriage is declared invalid, making these women susceptible to fraud, bigamy and sometimes even extortion.
Similarly, while church marriages can be annulled by the Church tribunal in cases of non-consummation; for non-Christians, non-consummation is not a ground of annulment or divorce.
Further, under Article 1204, which deals with separation of persons and assets, the husband is permitted to get a divorce if the wife commits adultery. However, the wife is permitted separation only if the husband commits adultery combined with a “public scandal”, and divorce only if the husband abandons her and also if he keeps a mistress in the conjugal domicile.
Four forms of pre-nuptial contracts are permitted, none of which can be modified during the course of the marriage.
The first system is one of total separation of properties or no communion at all: this is an extremely rare agreement signed before marriage as it does not consider the sentiments surrounding marriage. Here, the partners hold onto all their properties independently.
The second form is one where there is total separation of the properties and assets owned prior to the marriage and communion of the assets and properties acquired subsequently: this form has apparently gained some prominence in recent times.
The Dotal regime constitutes the third category, under which the share of the bride in her father’s property and assets is given to the husband, and is often mistaken to be dowry. The husband is bound to restore all the property and assets to his partner should the marriage be dissolved.
The fourth category relates to the communion of all assets of husband and wife that are divided equally on divorce or death.
While this may appear to be equitable, the law stipulates that the management and administration of the properties and common assets of the couple, even the exclusive properties of the wife, belongs solely to the husband.
For instance, as a ‘manager’ the husband can rent out the premises and even transfer the shares in a cooperative society without the wife’s consent. The wife is legally permitted to receive part of income from her assets for pocket expenses on the condition that this amount is not in excess of one-third of the net income.
Finally, for those who choose to opt out of joint ownership of properties, this Act clearly reduces the ownership and succession status of the surviving spouse by placing the spouse at number four in the order of preference of legal succession.
Conclusion
It is interesting that after the liberation of Goa and its joining India in 1961, laws were simply imported into the Union territory of Goa (and later the state of Goa), without taking into account the family laws prevalent in Goa or even the concept of substantive equality. These include the Land Revenue Code and the Agricultural Tenancy Act.
Laws and regulations that have a bearing on land rights in Goa need to be synchronised with the family laws in the matter of property rights and the same principles must reflect in the operationality of land rights without discrimination, except of course for positive discrimination where and when necessary.
The terms ‘uniform’ and ‘uniformity’ need to be demystified. What is the definition of uniformity when it applies differently to different groups, in this instance ‘gentile’ Hindus?
How does uniformity take into account those who are unequal in the system of production, especially in relation to those who are propertyless and assetless as most women and many men are?
Can uniformity be imposed on those who are already marginalised and unequal? How is equality and uniformity to be legally applied to a woman who has been deserted or married under fraud and deceit?
Are those who are out of the patriarchal definition of a family, whether by choice or involuntarily, equal to those who by law fit into the current definition of a family?
Will the levels and extent of inequality lessen or deepen?
The 2016 Act has resulted in much confusion and disruption. The Act removes and revokes part of a centuries-old code without taking into account its intrinsic character, particularly in relation to the rights of women related to ownership and management of property and assets, limited as such rights were.
(This article is an extension of the author’s study titled ‘Women and Land Rights in the context of Legal Propertied Equality in Goa’ conducted for the Centre for Rural Studies, Lal Bahadur Shastri National Academy of Administration. The inputs by Dr Albertina Almeida, Advocate-Goa are sincerely acknowledged).
