By Pamela D'Mello

Pamela D'Mello is Goa correspondent for The Asian Age. This article is based on a paper presented at a seminar on law in Goa.

It has been so described -- and much praised -- not only by many from the legal fraternity, but also visiting dignitaries. Even political parties like the BJP, whose sectarian approach to the law is well known, has itself similarly praised the Goa Family Laws. BJP leaders have even suggested that the rest of the country needs a common civil code "like the one which exists in Goa now". (See 'BJP for common civil code.' Gomantak Times. 9 January 1993:3)

In view of this, it is important to take a closer look at what exactly these laws imply. This paper attempts to look at the impact of these laws on women. It also turns to the issue of how women -- particularly Catholic women -- are affected by the special role assigned to the Catholic Church by the Portuguese Government decades ago.

HARDLY UNIFORM: Any close examination of the Code and other related legislation presently in force in Goa will show that the law cannot be termed as uniform. In fact, for laws which are termed 'uniform' and 'common', the Goa Family Laws are surprisingly non-uniform.

To begin with some definitions. Uniformity in a 'Uniform Civil Code' implies that laws relating to marriage, divorce, adoption, succession and other matters of personal life are similar to all, irrespective of caste, religion or sex. It means that personal laws do not either govern or have precedence over civil laws.

Family Laws of Goa refers to the entire body of legislation dealing with marriage, divorce, adoption etc presently applicable in Goa. It includes the Portuguese Civil Code of 1867, subsequent amendments made in 1910 and 1946, and the three separate Codes of Customs and Usages for Hindus of Goa, of Daman, and of Diu.

MARRIAGE UNDER GOAN LAW: Lack of uniformity becomes more than clear from the very fact that there is a three-tier system of matrimonial law operating in Goa.

Marriage laws differ for those opting to marry outside the Catholic Church, those who opt for a Catholic Church marriage, and for non-Catholics as a whole.

Canonical marriages refers to those undergone through the Church. All parties have to compulsorily register their intent to marry at the civil registry. Next -- because of a treaty signed between the Catholic Church and Portugal in the 'forties -- Catholics ordinarily have to solemnise their marriage in church. Officiating priests are granted the power of a civil registry. Marriage records are transcribed by the church to the civil registry, and is then considered as having civil effects. Marriage of this form is considered to be a sacrament.

Civil marriages refer to Hindu and other non-Canonical marriages. These first require registration of the 'intent-to-marry' by the two parties, and subsequently the marriage itself takes place in the presence of the Civil Registrar, who makes a record of the marriage. Only after these two procedures are complete does the marriage have civil effects.

Catholics can also opt for the civil form of marriage, instead of a canonical marriage. But, in practise, it is not that simple, due to societal and other pressures explained below.

In the past, many have argued that this is a "minor disuniformity". But its impact is significant.

For one, marriages of Catholics opting for what is commonly known as civil marriages are not recognised by the Church. Couples marrying under this provision are considered to be 'living in sin' by the rest of their community. One could say that, in Goa, what one has in effect is a Personal Law, alongside with an option for a civil marriage. Quite like the two existing parallel options of Personal Laws and the Special Marriage Act (available to those who opt for it) in the rest of the country.

Thus, since a colonial Decree of 1946, Catholics have been excluded from compulsorily registering their marriage at a civil registry, and routing this process through the church itself. This is a difference drawn on the basis of religion, and amounts to the operation of a personal law for Catholics in Goa, which is recognised by the State.

GOVERNING LAWS: This also makes a major difference in the marriage laws governing Catholics after they wed. Canonical marriages are governed by Canon Law of the Church. Canon Law, it may be noted, differs from both the Indian Divorce Act applicable to Christians elsewhere in the country, and the civil law in Goa.

One could well raise the issue of what is the role of a State which calls itself secular, and yet extends to a section of its people laws giving wide powers to the Church, even while portraying it as a uniform or common code.

'CUSTOMS AND USAGES': Under the 1880 Degree of the Customs and Usages for "Gentile" Hindus of Goa -- another Portuguese law dating back to colonial times -- marriages performed under religious rites are recognised by the state and are governed by the civil laws, when the marriage is registered in the civil registry.

Similar provisions under the 1894 Decree for non-Christian inhabitants of Diu and the 1854 Decree for non-Christian inhabitants of Daman also recognise marriages performed under the religious rites and customs.

Due to this multiplicity of laws and exceptions, though, there prevails some confusion as to its application.

DIVORCE PROVISIONS: Divorce is once again governed on the basis of what law one is married under. Thus, the claim to uniformity is again belied.

Divorce is not permitted under the Canon Law of the Church. By the same 1946 decree and agreement between the Catholic Church and the Portuguese State, Catholics marrying under Canon Law were thus excluded from the divorce provisions under civil law.

Marriage for Catholics is considered to be a sacrament which is indissoluble. Thus, for most Catholics of Goa, who marry under Canon Law, divorce is not permitted as the Church does not recognise this concept.

Canon Law 1141 says a marriage which is ratified and consummated is absolutely indissoluble. It has been noted that the position of the Catholic Church on the indissolubility of marriage ignores the reality of increasing marriage breakdown among Catholics, and the acceptance by informed and practising Catholics that in the event of marriage failure, women suffer more and face greater difficulties. (See Monteiro, Rita. 'Belief, Law and Justice For Women: Debate on Proposed Christian Marriage and Matrimonial Causes Bill, 1990' Economic and POlitical Weekly, Bombay 24-31 Oct 1992: WS74-80.)

What the Church does allow though is judicial separation, or so- called annulment of the marriage, which is based on the assumption that the marriage has not taken place or not been consummated. Decisions on this are taken not by any civil court, but by the Ecclesiastical Court of the Church itself. It may be also noted that the grounds for annulment available to Catholics and divorce granted to others is rather different from each other.

In 1974, the provision of the 1946 Marriage Decree denying divorce was judicially struck down [E Nunes of Bicholim v. P Nicolau Fernandes of Merces, AIR 1974 Goa 46] for being ultra vires of the Indian Constitution. The judicial verdict has still not been given legislative recognition, though. Thus the right to divorce for many Catholics rests tenuously on a judgement, that itself could be reversed.

Under the Civil Law, divorce is permitted on grounds which range from adultery by either party, to illtreatment, absence without notice for over four years, prolonged incurable mental illness, divorce by mutual consent, incurable contagious diseases or sexual aberrations, freely consented-to separation for ten consecutive years for whatever cause, or even the "chronic vice of gambling".

Under the Customs and Usages for "Gentile" Hindus, divorce is permitted only on the grounds of adultery by the wife. Whether this provision still applies or not is unclear.

'LIMITED' POLYGAMY: Under the Usages and Customs of "Gentile" Hindus of Goa, bigamy was recognised to have civil effects (i) if there is a 'failure' by the first wife to give birth to a male child by the time she reaches 30 years of age or (ii) if the first wife is unable to deliver by the time she attains 25 years of age.

There appears to however be considerable confusion, even in legal quarters, over interpreting whether 'polygamy in a limited sense' is still allowed or not.

OTHER INEQUALITIES: Other inequalities are visible in Goa's Family Laws in terms of adoption rights, and the right of illegitimate children suing their fathers for a declaration of paternity. These rights depends on the religion one belongs to.

In the name of 'Customs', the law also gives its approval to caste-based differences for oath-taking in court, permitting even ex-communication by religious heads, and also took into cognisance the exploitative system of so-called 'dancing-girls' *Bhavinas), which in actual fact was a thinly disguised form of prostitution.

CONCLUSION: Some provisions of the Goa Family Laws are undoubtedly favourable to women. But this should in no way prevent a discussion about whether the laws are at all uniform, and what could be done to make them better.

All laws reflect the thinking and ideology of the law-makers of their times. One cannot view the currently-prevailing laws in isolation from the conservative outlook of the rulers of colonial Portugal who framed or amended the law. Former dictator Antonio Oliveira Salazar, whose government dominated Portugal for a significant part of the twentieth century, has himself stated: "... We are opposed to all that disintegrates, divides, or dissolves the family.... We do not ask for much. An understand ... of virtue and of the sacred nature of religion."

Due to certain reasons -- not excluding the possibility that the current laws are favoured because of the tax-benefits they offer to affluent sections -- the Goa Family Laws have come to be widely regarded as uniform and common. This has unfortunately prevented a closer scrutiny of the same.

Journalist Pamela
Email:fred@goa1.dot.net.in