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The Goa Law On Polygamy An Overview

Goa is the only Indian state to have a UCC (uniform civil code) in the form of common family law. The Portuguese Civil Code that remains in force even today was introduced in the 19th century in Goa and wasn’t replaced after its liberation.

The Uniform Civil Code in Goa is a progressive law that allows equal division of income and property between husband and wife and also between children (regardless of gender).Every birth, marriage and death have to be compulsorily registered. For divorce, there are several provisions.

Muslims who have their marriages registered in Goa cannot practice polygamy or divorce through triple talaq. During the course of a marriage, all the property and wealth owned or acquired by each spouse is commonly held by the couple. Each spouse in case of divorce is entitled to half of the property and in case of death, the ownership of the property is halved for the surviving member. The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children. This inherited property must be shared equally among the children.

However, the code has certain drawbacks and is not strictly a uniform code. For example, Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa (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). For other communities, the law prohibits polygamy. Goa is the only state in India that has uniform civil code regardless of religion, gender, caste. Goa has a common family law. Thus Goa is the only Indian state that has a uniform civil code.

Recently, the Supreme Court in a case concerning the question of whether succession and inheritance of a Goan domicile is governed by the Portuguese Civil Code, 1867 or the Indian Succession Act of 1925, held that the Constitution in Article 44 requires the State to strive to secure for its citizens a Uniform Civil Code (UCC) throughout India, but till date, no action has been taken in this regard.

Secondly, The Hindu personal laws were codified in the year 1956. However, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country.

Thirdly, Despite exhortations of this Court in the case of Shah Bano in 1985, the government has done nothing to bring the Uniform Civil Code.

Fourthly, The Supreme Court hailed the State of Goa as a “shining example” where “uniform civil code” is applicable to all, regardless of religion except while protecting certain limited rights.
Goa has a common civil code called Portuguese civil code 1867, where by a Muslim man whose marriage is registered in the State cannot practice polygamy and married couple share property equally, pre-nuptial agreements are the order of the day and assets are divided equally between the man and woman on divorce.

Uniform Civil Code seeks to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. Status of Personal Law in India subjects like marriage, divorce, inheritance come under Concurrent list. Hindu personal laws have been by and large secularized and modernized by statutory enactments. The Hindu personal laws (that apply also to the Sikhs, Jains and Buddhists) have been codified by the Parliament in 1956 .

This Code Bill has been split into four parts:
  1. The Hindu Marriage Act, 1955,
  2. The Hindu Succession Act, 1956,
  3. The Hindu Minority and Guardianship Act, 1956,
  4. The Hindu Adoption and Maintenance Act, 1956

On the other hand, Muslim personal laws are still primarily unmodified and traditional in their content and approach. The Shariat law of 1937 governs the personal matters of all Indian Muslims in India. It clearly states that in matters of personal disputes, the State shall not interfere and a religious authority would pass a declaration based on his interpretations of the Quran and the Hadith. Apart from it, Christians and Jews are also governed by different personal laws.

Different personal laws promote communalism and it leads to discrimination at two levels:
  1. Between people of different religions.
  2. Between the two sexes.
Uniform Civil Code will provide women with the right to equality and justice in courts of law- irrespective of their religion in matters pertaining to marriage, divorce, maintenance, custody of children, inheritance rights, adoption, etc. The Supreme Court for the first time directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum, popularly known as the Shah Bano case. In this case, Shah Bano claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq by him.

However, government overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of criminal Procedure. The Supreme Court in Shayara Bano case (2(2017) had declared the practice of Triple Talaq (talaq-e-bidat) as unconstitutional.

The special marriage acts all Muslim community people to marry under it. Under this act polygamy was illegal and the system of succession would be governed by Indian succession act even the system of divorced is also governed by this law. But for divorce there are certain provisions that are followed in Goa. Muslim community people that have register their marriage in Goa cannot take more than one wife according to this act and during the marriage time period all the property and wealth owned by the couple each spouse have right in the property the share half –half of the property and if spouse dies the half share of the property were goes to the other.

And the other half property was divided between the children. In Goa Hindu, Muslim, Christians all are bound with the same law related to marriage, divorce, succession. When the Goa became the part of union territory in 1961 by the virtue of the Goa Daman and Diu administration act 1962 the parliament authorized the Portuguese civil code of 1867 to Goa and shall be amended and repealed by the competent legislature.

In Goa marriages is a contract between two people of different sex with the purpose of living together and constitute the legitimate family which is register before the office of civil registrar. And the particular rules and regulation has to be followed by the parties after that they can live together and start their life but there are certain restrictions according to which these categories of person are prohibited to perform marriage for example: any spouse convicted of committing or abetting the murder of other spouse shall not marry.

Cases:
Shah Bano case (1985):
A 73-year-old woman called Shah Bano was divorced by her husband using triple talaq (saying I divorce thee three times) and was denied maintenance. She approached the courts and the District Court and the High Court ruled in her favour. This led to her husband appealing to the Supreme Court saying that he had fulfilled all his obligations under Islamic law.

The Supreme Court ruled in her favour in 1985 under the maintenance of wives, children and parents provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion. Further, it recommended that a uniform civil code be set up.

Facts about the case:
  • Under Muslim personal law, maintenance was to be paid only till the period of iddat. (Three lunar months-roughly 90 days).
  • Section 125 of Cr.PC (criminal procedure code) that applied to all citizens, provided for maintenance of the wife.
Impact – After this historic decision, nationwide discussions, meetings and agitations were held. The then government under pressure passed The Muslim Women’s (Right to protection on divorce) Act (MWA) in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women.

Daniel Latifi Case:
Muslim Women’s Act (MWA) was challenged on the grounds that it violated the right to equality under Articles 14& 15 as well as the right to life under Article 21. The Supreme Court while holding the law as constitutional harmonized it with section 125 of Cr.PC and held that the amount received by a wife during iddat period should be large enough to maintain her during iddat as well as provide for her future. Thus under the law of the land, a divorced Muslim woman is entitled to the provision of maintenance for a lifetime or until she is remarried.

Sarla Mudgal Case:
In this case, the question was whether a Hindu husband married under the Hindu law, by embracing Islam, can solemnise a second marriage. The court held that the Hindu marriage solemnized under Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act 1955. Conversion to Islam and marrying again, would not by itself dissolve the Hindu marriage under the act and thus, a second marriage solemnized after converting to Islam would be an offence under section 494 of the Indian Penal Code (IPC).

John Vallamattom Case:
In this case, a priest from Kerala, John Vallamattom challenged the Constitutional validity of Section 118 of the Indian Succession Act, which is applicable for non-Hindus in India. Mr Vallamatton contended that Section 118 of the act was discriminatory against Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purposes by will. The bench struck down the section as unconstitutional.

Conclusion:
According to me uniform civil code should not be imposed in India. As adopted by the Goa. The main reason behind why the uniform civil code should not be imposed is the family laws of India is basically depends upon the religious and customs .all the people believe in their religion and customs they thinks that whatever is there in their religion and mentioned in the personal law is right and should be enforced in their community and some people thinks their law, their customs, their traditions are right and some might think in the opposite direction.

For that community who thinks that tradition or customs is wrong according to them it is a violation of fundamental right “as freedom of conscience, practice propagation of religion” guaranteed under article 25 of Indian constitution. In India everyone thinks that his/her customs are best and no one wants to reform their customs and mixing of religion customs give birth to politics and social complicated situation.

Most of the community be it Hindu, Christian, Muslims they are not ready to adopt secular laws separate religion customs and also it is not morally right to enforce one group customs on the other group. So according to my point of view uniform cavil code should not be imposed in India it will give birth to riots and so many people fundamental rights will be violated.

The ideal of uniform civil code for all India is regarded as eminently foster to give the idea of national unity and integrity and argued the motto of “one citizen one law”. But this remained a problem because as we live in a democratic country where different caste people use to live and they have their personal law If we impose a uniform law on all citizen of India than.

It might violate the fundamental right of citizen and as might think the law is right and some might think the law is not right than it will infringe the right of that person. For example as according to Hindu law more than marriage is illegal but according to Muslim law it is correct so here the question of discrimination and violation of one’s personal right arise. So we cannot impose such type of laws which violates the right of other community people.

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