Uniform Civil Code: The Goa family law the BJP holds up as ideal permits polygamy for Hindus

As the debate on a Uniform Civil Code – which ostensibly seeks to replace scripture-based personal laws of each religious community in India with common laws that are binding on all citizens – is perceived as largely focusing on Muslim Personal Law, the Goa Family Law that Bharatiya Janata Party leaders are holding up as an exemplar for a common civil code are being held up to scrutiny and coming up somewhat short.

One serious shortcoming in Goa Family Law is the provision for polygamous marriages, in limited circumstances, for what the law – drafted by the state’s former Portuguese colonial rulers – refers to as “Gentile Hindu” men.

An internet meme recently highlighted this provision. While disbelief has greeted the meme, the fact is that this provision has not been specifically repealed from the statute book in Goa.

Though lawyers Scroll.in spoke to, said that what is referred to as “limited polygamy” is almost never used in modern times, the commentary and literature on the subject about its current applicability throws up ambiguous findings.

So where does this provision exist?

Placating local sentiments

The decreto (decree) dated December 16,1880, exists in the statute book under the title Codigo de Usos e Costumes de Goa (Code of Usages and Customs), said lawyer Fernando Colaco, former officer on special duty to the first Law Commission for Goa, and an authority on Portuguese laws in the state.

The 1880 decree applicable in the state's family law regime – in addition to provisions of the Portuguese Civil Code of 1867 – recognised and codified traditional usages and customs of what the decree refers to as “Gentile Hindus” of Goa. This was done after Hindu groups petitioned the Portuguese colonial administration to retain and recognise their religious usages at the time, wrote former law professor Carmo D'Souza, in his book Legal Systems of Goa.

Article 2 of the decree states:

"The marriage solemnized between Gentile Hindus, according to their religious rite, produces all the civil effects which the laws of the country acknowledge to the Catholic and civil marriages."

— Source: Family Laws of Goa, Vol 1 by MS Usgaoncar.

Article 3 states:

"However, the marriage contracted by a male Gentile Hindu by simultaneous polygamy shall not produce civil effects; except in the following cases only (1) Absolute absence of issues by the wife of the previous marriage until she attains the age of 25 years. (2) Absolute absence of male issue, the previous wife having completed 30 years of age, and being of lower age, ten years having elapsed from the last pregnancy; (3) Separation on any legal grounds when proceeding from the wife and there being no male issue, (4) Dissolution of the previous marriage as provided for in Article 5."

— Source: Family Laws of Goa, Vol 1 by MS Usgaoncar.

Article 4 states:

"The indispensable condition for the simultaneous marriage are as follows: (1) Proof of any of the circumstances mentioned in the preceding article through the court; (2) Consent of the previous wife, expressed in a public deed, in the cases falling under clauses 1 and 2 of the said Article 3".

— Source: Family Laws of Goa, Vol 1 by MS Usgaoncar.

The Code of Usages and Customs itself forms only a very small part of the family law applicable in Goa. Its provisions deal mainly with adoption, constitution and reconstitution of the Hindu Joint family, and these constitute the main areas of its use today, said lawyers. Its provisions for limited polygamy have become almost obsolete in usage. Stray cases, with the permission of the first wife are known to have taken place though, and Colaco recalled having to notarise one such deed around 1970.

Similarly, Article 29 of the same 1880 Code has provisions for other non-Catholic inhabitants of Goa to avail of the limited polygamy provisions, said Colaco.

Article 29 states:

"The non-Catholic inhabitants of Goa who are not Hindu Gentiles may observe the provisions of the present law, which shall be applicable to them in so far as it is not contrary to their religious rites; and in the same manner their private usages are safeguarded in so far as they are not contrary to morality and public order."

— Source: Family Laws of Goa, Vol 1 by MS Usgaoncar.

Said Colaco: “By and large though, Muslims, non-Christians and Hindus in Goa did not use these provisions, preferring to integrate with the civil code that was common for all. Article 3 and 4 of the Codigo was and is mostly not applied, but in rare cases it has been evoked.”

Other lawyers said that the Code reflects the then Portuguese administration's negotiation and placation of local sentiments. There is no provision to recognise adoption under the main Code, and the importance attached to a son was then sought to be provided for through special adoption provisions made in the Code, in addition to Article 3 and 4.

Polygamy law still in place

The question of whether the limited polygamy sections are still extant provides a multitude of answers from lawyers, and conflicting opinion from commentary and literature on the subject. Some suggest it stands repealed by later decrees.

Senior lawyer and legal expert MS Usgaocar said the limited polygamy sections stood repealed by Article 2 (2) of the 1946 decree on canonical marriages. Some literature says it is barred by Section 494 of the Indian Penal Code. In other places, references to it say it "remains protected to this day" and it is to be repealed. Other documents, including the First Law Commission Report of 1971, suggests it remains in force and was even used on rare occasions.

Former MP and lawyer Amrut Kansar said provisions like this ought not to continue in the statute book and should be amended.

Ramakant Khalap, the former Union Minister of State for Law, told Scroll.in that: “There is no corresponding law to repeal it, nor to my knowledge has the Goa Assembly passed any such law. It has not come before the courts for finality on the matter, and so in my opinion, it continues.”

Albertina Almeida, lawyer and women's activist, said that the fact that provisions for limited polygamy continue to exist in the statute book, and have not been specifically repealed or called out by parties advocating the Goa law as a model for nation-wide use, is problematic.

“The confusion and ambiguity should have been settled in a clear repeal so these provisions are not open to use” said Almeida, who was part of a government redrafting committee that was set up in the early 2000s to look at Goa’s family law that govern marriage, divorce, children, succession, wills and inventories.

The committee was able to prioritise, translate, amend and redraft Goa family law provisions on succession, wills, inventories and notaries, presenting a draft bill in 2005, which was finally passed in August 2016. However, translations and a relook at the family law on marriage, divorce and children, besides other sections of the Code, have not proceeded apace, said Almeida.

Commercial needs of property division, partition and succession, in a climate where real estate and mining land holdings become critical, took precedence.

Almeida, the lone female representative, was taken onto the all-male drafting committee only after women's groups objected to this rather routine oversight in Goan public life.

Almeida said that while limited bigamy, permissible under the Code, may fall in the rarest of rare categories, bigamy by fraud is not uncommon and forms a staple of the cases that come to women's groups. Women are often duped into thinking they are married and cohabiting, when the couple sign only the first intent to marry forms (a legal requirement in Goa that both parties sign before the actual marriage) but fail to sign the second actual marriage deed. Cases of bigamy also take place when two marriages are registered by non-disclosure and fraud.

"Even if the law bans polygamy, there is nothing to prevent it happening,” said Almeida. “And there are umpteen cases where bigamy happens.”

Almeida added: "Bigamy is not a cognisable offence and the police hardly help women find out when and where previous marriages have taken place or been registered. Technology has not been harnessed either to help women caught in this situation, trace records of their errant husband's earlier marriages.”