India as a young democracy has a rich legal tradition, with a demonstrated history of having the world's longest written constitution supplemented by an extensive statutory repertoire rooted in common law origins, given its colonial history. It is also not surprising then, that given India's ethnical and religious diversity, India has maintained a pluralistic family law tradition which accommodates the various religious and socio-legal norms in the form of codified personal laws.

However, Goa in that sense is an outlier for it is the only state in the country which has a Civil Code in place which treats people of all religious backgrounds on an equal footing in matters of marriage, adoption, divorce, and succession among other things. Even after 1962, when Goa became a part of the Indian Union, the Portuguese Civil Code of 1867 remained in force.[1]

The Goa Code has been touted as the inspiration for the push towards a uniform civil code in the country for its supposedly progressive and gender-neutral stances, especially in succession matters. It is however important to acknowledge that the Code as it exists, and its subsequent iterations are not free of criticism and will not serve as the panacea for all our socio-legal lacunae. The implementation of the Portuguese Civil Code has been difficult because the original code was in archaic Portuguese and its official translation into English was only completed in 2018.

Furthermore, a need was felt by the Goa legislature as well as the legal community at large, to consolidate the various provisions of law relating to succession and inventory in property matters into one comprehensive and integrated act which led to the passing of the Goa Succession, Special Notaries, and Inventory Proceedings Act, 2012 (Goa Act 23 of 2016) in August 2016.[2]

Despite being an attempt to simplify legal matters relating to succession and correct the gaps of the colonial legal regime, the new scheme has unintentionally introduced new lacunae to the implementation of the succession scheme. The First Problem that arose with the implementation of the act is that despite an attempt to consolidate the various veins of succession laws, the rules of succession are spread across three acts such as the Portuguese Civil Code, 1867, The Code of Gentile Hindu Usages and Customs of Goa 1880 and The Goa Succession, Special Notaries, and Inventory Proceeding Act 2012 which makes implementation, adherence and awareness of the law very cumbersome for the general public as well as seasoned legal professionals.[3]

The ideal step in this scenario would be to amend the 2012 act to combine the various scattered provisions pertaining to succession matters from the Portuguese civil Code and the Gentile Hindu Act for a cohesive legal structure. The disjointed legal provisions across the various acts also allow for non-uniform application of the law which defeats the purpose of a uniform civil code in the first place, apart from violating principles of equality which is a constitutionally guaranteed fundamental freedom.

This can be seen most clearly in the various exceptions accorded to Goan Hindus, who form 66 per cent of the total population in Goa,[4] who are governed under the 1880 Code of Gentile Hindu Usages which preserves the regressive, archaic, and patriarchal tendencies of Hindu succession especially in matters of Joint Family Property wherein management of the family property vests in the hands of the elder most male of the family called the maioral as per Article 17 of the Hindu Code.[5]

Another problematic aspect that is brough to notice by this uneven application is through a reading of Article 3 of the Gentile Hindu Code which allows for limited polygamy, if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30.[6] This is in contravention to the national jurisprudence pertaining to Hindu bigamous marriages wherein bigamy is a punishable offence as per the Hindu Marriage Act as well as Section 494 of the Indian Penal Code which complicates Succession Matters apart from disinheriting women of their otherwise guaranteed rights and legal remedies.

While legal practitioners have pointed out that most non-Christians do not use these special provisions, however, the lacuna allows for a miscarriage of justice to take place under legal garb by way of ambiguity since the provision exists on the statute and has not been repealed.[7] This can be remedied by clearing the ambiguities presented by the various contradictory legal provisions by repealing Article 3 of the Hindu Code and bringing the inheritance provisions for Goan Hindus at par with Hindus from the rest of the country by solidifying the legal position on Bigamy as well as extending the newer progressive Hindu succession jurisprudence which allows for even married women to be coparceners and Karta's of joint family property.[8]

Another lacuna is inserted by Section 52 of the 2012 act which provides the order of legal succession which bestows the brother of the intestate and his descendant's primacy over sisters and even the intestate's spouse.[9] This is symptomatic of the European legacy of the Portuguese Civil Code wherein the brother is favored over sisters and her descendants as well as the spouse.

This order ignores the ground realities of Indian marital unions wherein women as surviving spouses can become destitute owing to lack of economic independence and ownership of property in their own name. This order ultimately and unknowingly reproduces gender disparity and contributes to the less than equal position of women in society. It is only in the interests of justice and fairness, that this succession order be amended to place the surviving spouse at par with their position in other legal schemes, that is above that of the brother and at par with the descendants of the intestate.

Subclause (iii) of Section 52 of the 2012 act should also be amended to include the sister and her descendants. One of the most surprising elements of the relatively young 2012 act is the ableist tendencies ingrained in the act which dispossess disabled people of a dignified life by preventing from exercising their agency over inheritance matters and refusing to see them as fully functional human beings capable of leading fulfilling lives.

Section 2(q) of the 2012 Act provides that a 'person under disability' is a person who is incapable of managing their own assets and includes minors,absent or insane persons as well as deaf and dumb people. Section 247 of the act stipulates that a person under disability cannot become the manager of the family property which does not take into account the full spectrum of disability which allows for various levels of functionality. There is no correlation between a dumb or deaf person's inability to talk or hear with their cerebral capacity to manage their finances and inheritance.

Section 247 should be amended to include a case-by-case examination of the functionality of the disabled person by a panel of physicians in order to determine their capacity to manage their inheritance. Another very problematic aspect that reveals itself in various provisions of the collective succession scheme of the state of Goa is the denial of the socio-economic ground realities of its women and the matrimonial institution.

While the default marital setup calls for a communion of assets wherein both parties to marriage have equal right to the complete joint property of the couple (acquired both prior to and during the commencement of the marriage) and requires the consent of both parties for selling it.[10] The problem arises however when a distinction is drawn between ownership and control of the property as Article 1117 of the Portuguese Civil Code stipulates that although both parties own the property jointly, the right to the management & administration of the properties lies solely with the husband which means that the wife can be deprived of capital acquired through leasing said property or when said property is used as collateral.

The provision granting the sole management rights to the husband should be amended to include the consent of both parties of a marital union in matters pertaining to management of joint property. Furthermore, the other options available to couples for marital setups pertaining to the assimilation of assets are rigid as prenuptial agreements entered into cannot be modified later during the course of the marriage. Another marital setup that is available to couples in Goa is contained in Article 1100 which allows for a total separation of assets acquired prior to marriage and a communion of assets acquired during the pendency of marriage.

This provision allows women to hold on to security provisions like Stridhan or Mahr which are accorded to women seeking refuge under personal laws. However, this provision also begs the question if the provision has classist undertones as it is difficult to determine what becomes of poor women who enter into marital unions under Article 1100 with no assets of their own and they are deprived of their share in ancestral property acquired by their husbands prior to marriage which can form a significant portion of a couple's assets.

In light of the above stated possibility, it becomes clear that this provision only would protect the interests of middle class or rich women who have access to education and competent legal aid.

End-Notes:

1. Gender discrimination in devolution of property under Hindu Succession Act, 1956, Devendra Damle, Siddharth Srivastava, Tushar Anand, Viraj Joshi and Vishal Trehan. (2021). Retrieved 5 June 2021, from https://www.nipfp.org.in/media/medialibrary/2020/05/WP_305_2020.pdf
2. Portuguese Renaissance in the 21st Century, AnB Legal. Retrieved 5 June 2021, from Microsoft Word - Portuguese Renaissance in the 21st Century.docx (anblegal.in)
3. Explained: Why Goa's Civil Code is not as uniform as it is made out to be. (2021). Retrieved 5 June 2021, from https://indianexpress.com/article/explained/why-goas-civil-code-is-not-as-uniform-as-it-is-made-out-to-be-7279365/
4. Census of India, 2011. Census of India Website : Office of the Registrar General & Census Commissioner, India. (2021). Retrieved 5 June 2021, from https://censusindia.gov.in/2011-common/censusdata2011.html
5. D'Mello, P. (2016). Uniform Civil Code: The Goa family law the BJP holds up as ideal permits polygamy for Hindus. Retrieved 5 June 2021, from https://scroll.in/article/820030/uniform-civil-code-the-goa-family-law-the-bjp-holds-up-as-ideal-permits-polygamy-for-hindus
6. Ibid
7. Supra Note 5
8. Ibid
9. Supra Note 1
10. Goa's Civil Code Shows That Uniformity Does Not Always Mean Equality. (2021). The wire. Retrieved 5 June 2021, from https://thewire.in/law/goas-uniform-civil-code-is-not-the-greatest-model-to-follow