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.
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.
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.
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, 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
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. 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. 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.
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. 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
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. 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.
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and Vishal Trehan. (2021). Retrieved 5 June 2021, from
- Portuguese Renaissance in the 21st Century, AnB Legal. Retrieved 5 June
2021, from Microsoft Word - Portuguese Renaissance in the 21st Century.docx
- 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/
- Census of India, 2011. Census of India Website : Office of the Registrar
General & Census Commissioner, India. (2021). Retrieved 5 June 2021, from
- D'Mello, P. (2016). Uniform Civil Code: The Goa family law the BJP holds
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- Supra Note 5
- Supra Note 1
- 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