PUBLIC POLICY PROCESSES PROJECT

Implementation of Uniform Civil Code in Goa: A Critical

Analysis
PROJECT SUBMITTED TO:
DR. AVINASH SAMAL
(ASSISTANT PROFESSOR OF POLITICAL SCIENCE)

PROJECT SUBMITTED BY:

KEVIN JAMES
Semester VI, Section A

ROLL NO. 76
SUBMITTED ON: 15.02.2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

IMPLEMENTATION OF UNIFORM CIVIL CODE IN GOA: A CRITICAL ANALYSIS

Declaration
I hereby declare that this project titled Implementation of Uniform Civil Code in
Goa: A Critical Analysis is my own work and represents my own ideas, and where others
ideas or words have been included, I have adequately cited and referenced the original
sources. I also declare that I have adhered to all principles of academic honesty and integrity
and have not misrepresented or fabricated or falsified any idea/data/fact/source in my
submission.

KEVIN JAMES

SEMESTER VI, SECTION A, ROLL NUMBER 76

-

BA LLB (HONS.)

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Acknowledgements

I, Kevin James, would like to humbly present this project to Dr Avinash Samal. I
would first of all like to express my most sincere gratitude to Dr Avinash Samal for his
encouragement and guidance regarding several aspects of this project. I am thankful for being
given the opportunity of doing a project on Implementation of Uniform Civil Code in Goa: A
Critical Analysis.
I am thankful to the library staff as well as the IT lab staff for all the conveniences
they have provided me with, which have played a major role in the completion of this paper.
I would like to thank God for keeping me in good health and senses to complete this
project.
Last but definitely not the least, I am thankful to my seniors for all their support, tips
and valuable advice whenever needed. I present this project with a humble heart.

KEVIN JAMES

SEMESTER VI, SECTION A, ROLL NUMBER 76

BA LLB (HONS.)

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Contents

INTRODUCTION......1

1. NEED FOR UNIFORM CIVIL CODE IN INDIA................4

1.1. Gender Discrimination in Hindu Personal Laws
1.2. Gender Discrimination in Muslim Personal Laws
2. The Uniform Civil Code in Goa......
........6
2.1. Historical Background
2.2. Distinctive Provisions
2.3. Significance
2.4. Criticism
3. Drafting and Implementing

Uniform

Civil

Code

for

India..11
3.1. The Question of an Optional or Compulsory Civil Code

Concluding

Observations.

15

References.....16
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Introduction
Gender injustice has prevailed in the Indian legal system right from its beginning. In order to
ascertain gender equality, the drafters of our Constitution specifically ensured that women are
treated at par with men. However, the same has never been applied to religious personal laws.
The debate to secure a Uniform Civil Code by implementing Article 44 of the Indian
Constitution has been a long drawn one primarily focussing on the majority vs. minority
agenda, quite willingly neglecting the issue of gender equality.
The present project seeks to focus on the regime of gender injustice which has been brought
about by the oppressive religious personal laws, by highlighting the exceptional scenario that
is to be found in the State of Goa.
Firstly, this project will explore the exigency for a Uniform Civil Code in India, by
examining particular instances of discrimination in Hindu and Muslim Personal Laws. This
gives a national context which is useful for its second objective, that of critically analysing
the implementation of a Uniform Civil Code in Goa by exploring its historical background,
distinctive provisions relating to marriage registration, property rights, polygamy, etc., its
significance and implications for the rest of India, as well as certain criticisms. Finally, with
the help of the above discussion and case study of Goa, the project progresses to the
possibility of drafting and implementing a Uniform Civil Code at a national level,
emphasizing the question of a compulsory or an optional civil code for this purpose.

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Aims and Objectives

I.

To critically analyse and study the history, provisions, significance, and flaws of the
Uniform Civil Code in force in Goa

II.

To explore the need and possibility of a Uniform Civil Code at a national level.

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Research Methodology
Nature of Research
This project is analytical in nature.
Sources of Data
This study is done with the help of secondary data. This secondary information has been
obtained from published sources such as books, journals, websites, newspapers, research
works etc.

1.Need for Uniform Civil Code in India

Women empowerment in core areas like social status, gender bias, health, security and
empowerment are of urgent necessity. Article 44 of the Constitution of India expects from the
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State to secure a Uniform Civil Code for all citizens of India. There is no Uniform Civil Code
in India but a Uniform Criminal Code does exist. The Criminal law is equally applicable to
all citizens irrespective of their religious affiliation. However in the case of civil law
particularly in the matter of personal laws there is no uniformity.1
The laws relating to marriage, divorce, maintenance, guardianship and succession governing
the Hindus, Muslims and Christians etc., is different and varies from one religion to other.
There are different laws like the Hindu Marriage Act; the Hindu Succession Act; the Hindu
Minority and Guardian ship Act, the Hindu Adoption and Maintenance Act governing the
personal matters of Hindus. The Shariat Act, The Dissolution of Muslim Marriage Act and
the Muslim Women (protection of Rights on Divorce) Act etc., which are based on the tenets
of Holy Quran, govern the personal matters of Muslims.
On a clear analysis of all these personal laws, it becomes obvious that the women have been
conferred on inferior status in most of the personal matters compared to the men. The
following examples justify the statement.2
1.1.

Gender Discrimination in Hindu Personal Laws

Even though the Hindu law has been codified, certain discriminatory provisions still exist
even today. For example a Hindu woman is not a coparcener in Hindu coparceners except in
a few states like Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Consequently she
is not entitled to claim a share in the coparcenary. Similarly she has no right to partition of a
dwelling house even though she is a legal heir. Thus it is obvious that the codification of
personal law of Hindus has not succeeded completely in eradicating the gender inequality.
According to the provisions of Hindu Adoptions and Maintenance Act, while giving a child
for adoption, the consent of the mother is mandatory. But she loses her right in case she
converts and ceases to be a Hindu. Similar provisions apply in case of adopting a child. In
case of inheritance of property, while a successor is entitled to his or her rights, even after
conversion, but the children of these converts lose that right.3
1.2.

Gender Discrimination in Muslim Personal Laws

1 V.R. Krishna Iyer, Unifying Personal Laws, The Hindu, 6 September 2003.
2 Kirti Singh, Obstacles to womens Rights in India, International Perspectives of Human
Rights of Women, 1994, 375.
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A Muslim male is permitted conditionally to marry as many as four wives at a time. It is

important to note that the polygamy among Muslim men is only a permission and not a
compulsion. The Shia Muslim male can contract muta marriages for an agreed period of time.
There is no ceiling on the number of muta marriages that may be contracted by a Muslim
male. In the matter of divorce the position of the Muslim women is the most inferior and
insecure compared to others. Particularly the method of divorcing the wife by the husband by
pronouncing triple Talak is highly discriminatory.
In the matter of succession, a Muslim woman is discriminated against despite the assertion of
certain Muslim scholars that the Islam in this regard is more progressive and liberal. The
legal position is that when two heirs, though of opposite sex but of the same degree inherit
the property of the deceased, the Muslim male gets twice the share of the female.
In the matter of maintenance also the divorced Muslim wife is not required to be maintained
beyond the Iddat period. The Code of Criminal Procedure, 1973, (Cr. P.C.) which imposes
an obligation on a husband to maintain his wife including divorced wife until she maintains
herself is a secular law and is applicable to all. There is a controversy as to whether a Muslim
husband can be directed to maintain his divorced wife even beyond the Iddat period under the
provisions of Section 125 of the Cr. P.C. 4 In the famous case of Mohd Ahmed Khan v. Shah
Bano Begum5 the Supreme Court speaking through Y. V. Chandrachud, the then Chief Justice
held that Section 125 of the Code of Criminal Procedure is applicable also to the Muslims
and that even a Muslim husband also is liable to maintain his divorced wife beyond the Iddat
period. Because of the controversy, the parliament has passed the Muslim Women (Protection
of Rights on Divorce) Act, 1986 to overrule the judgement in Shah Bano case. The effect of
this Act is that a Muslim husband is not liable to maintain his divorced wife beyond the Iddat
period, unless both the spouses submit to the court at the appropriate time that they would
like to be governed by Cr. P.C. However, in the case of Daniel Latif v. Union of India, 6, a
Constitution Bench of the Supreme Court held that the liability of a Muslim husband to his
3 Paras Diwan and Peeyushi Diwan, Law of Marriage and Divorce, Universal Law
Publishing, ed. 5, 1997, pp. 47.
4 Virendra Kumar, Towards a Uniform Civil Code: Judicial Vicissitudes [from Sarla Mudgal(1995) to Lily
Thomas (2000)] 42 JILI 315 (2000).

5 AIR 1985 S.C. 945.

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divorced wife arising under section 3(1) (a) of the Act to pay maintenance is not confined to
the Iddat period.

2.The Uniform Civil Code in Goa

Goa is the only state in India where there exists a Uniform Civil Code which is followed by
all communities.
2.1.

Historical Background

The Goa Civil Code collectively called Family Laws, was framed and enforced by the
Portuguese colonial rulers through various legislations in the 19th and 20th centuries. The
Portuguese Civil Code, 18677 and Civil Procedure Code, 1939 encompasses the scope of the
civil law there. By a Decree of 18 November 1869, the Civil Code of 1867 was extended to
the Overseas Provinces of Portugal. In Portuguese India, however, the usages and customs of
the New Conquests, as well as those of Daman and Diu, as compiled in their respective
codes, were preserved by that Decree, insofar as they were not contrary to morality and
public policy. Parties to whom this exception applied could nevertheless opt in for the Civil
Code. Thus, when Goa, Daman and Diu were integrated in the Indian Union, as territories
thereof, the Civil Code of 1867 was fully applicable there.8
When Goa was occupied by India in 1961, the Government promised to keep the Goan Civil
Code intact.9 In 1962, an enactment of the Indian Parliament called the Goa, Daman and Diu
Administration Act, kept Portuguese civil laws in force until or unless repealed by the
legislature or other competent authority. Since then, some legal acts of the Indian Union
concerning Civil Law matters, such as the Indian Contract Act 1872 and the Indian Transfer
6 (2001) 7 SCC 740.
7 Drio Moura Vicente et al. (eds.), O Direito da Famlia e das Sucesses no Cdigo Civil
portugus de 1867: uma perspectiva do sculo XXI Family and Succession Law in the
Portuguese Civil Code of 1867: a XXIst Century Approach, Lisbon, 2008.
8 Ave Cleto Afonso, The Portuguese Law of Goa (Succession and Inventory)/O Direito
Portugus de Goa (Sucesso e Inventrio), Goa, 2009.
9

DSouza,

Camo,

Family

Laws

of

Goa,

The

Goan

Forum,

http://www.colaco.net/1/CarmoFamLawsGoa.htm (last accessed Feb. 12, 2016).

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of Property Act 1882, were extended to Goa, Daman and Diu and the corresponding
provisions of the Civil Code were repealed. Only those legislations regarding family laws and
usages have so far endured the incursion. These include the laws appropriate to marriage and
divorce, succession, guardianship, property, torts, domicile, possession, access and
waterways. The remaining provisions of the Code, notably those concerning Family and
Succession Law,10 they apply not only to Christians born there during Portuguese
administration and to their descendants, but also to non-Christians in all matters not regulated
in their Codes of Usages and Customs. In this sense, the Civil Code should be characterised
as a uniform (although local) code, not as a personal law. In these territories of India, the
aspiration to a uniform Civil Code, as expressed in article 44 of the Constitution, has thus
found its realisation.
2.2.

Distinctive Provisions

There are four different marital options under Goan law: community property, absolute
separation of property, separation of assets existing prior to marriage and communion of
property after marriage, and dotal regime. Whenever no express contract was made, the Law
of Community Property was automatically applicable. Therefore, marriages that took place
under Community Property Law were considered legal and the other three options were
considered conventional. However, since 98 percent of Goan marriages take place under
Community Property law, this is the application most relevant to this project.11
2.2.1. Compulsory Marriage Registration
Under the Goan Civil Code, a marriage is considered a contract and registration of a marriage
is compulsory. By virtue of registration of her marriage, a Goan woman is able to establish
her rights from the outset, another advantage that women living under the Common Law
system to not possess, since registration of marriage is not mandatory and therefore is
difficult to prove, if at any time such proof becomes necessary.12
2.2.2. Property Rights during Marriage
10 Manohar Sinai Usgocar, Family Laws of Goa, Daman and Diu, 2 vols., Goa, 1988, pp.
89.
11 Miguel Bardem, Evoluo do Direito portugus em Goa, Revista da Faculdade de Direito
da Universidade de Lisboa, 1999, pp. 275.
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As per the Community Property law, each spouse automatically acquires joint ownership of
all assets already in their possession as well as those due to them by inheritance. In other
words, the total number of assets (and liabilities) that a couple brings into a marriage come
under the purview of Community Property. And these assets may not be disposed of or
encumbered in any way by one spouse without the express consent of the other.13 In this way,
women are protected under the law by husbands who might otherwise do as they please with
the assets. And this is a benefit the majority of Indian women do not have.

2.2.3. Property Rights In case of divorce or death of spouse

One of the most significant aspects of the Goan Civil Code is the pre-nuptial public deed
regarding the disposal of immovable and movable property in the event of divorce or death.
During matrimony, both parents have a common right over the estate, but on dissolution, the
property has to be divided equally; son and daughters have the equal right on the property.
Also, in case of legal separation, a woman is entitled to fifty percent of her husbands income.
As the procedure involves compulsory registration of marriage, this effectively checks child
and bigamous marriage. The philosophy behind the Portuguese Civil Code was to strengthen
the family as the backbone of society by inculcating a spirit of tolerance between husband
and wife and providing for inbuilt safeguard against injustice by one spouse against the
other.14
2.2.4. Property Rights of Sons and Daughters
Moreover, as per the Goan Civil Law, registration of births and deaths is also compulsory.
Children of deceased parents are known as mandatory heirs. Save under extraordinary
circumstances where the heir has been found guilty of an offense against the parents
punishable by more than six months imprisonment, or has taken judicial action against the
parent(s), or has refused to take care of the parent(s) prior to their demise, irrespective of their
12 Dirk Otto, Das Weiterleben des portugiesischen Rechts in Goa, in Erik Jayme (ed.), 2.
Deutsch-Lusitanische Rechtstage. Seminar in Heidelberg 20.-21.11.1992, Baden-Baden,
1994, pp. 124.
13 Carmo DSouza, Legal System in Goa, vol. II, Laws and Legal Trends (1510-1969),
Panaji, 1995, pp. 253.
14 Gustavo Filipe Couto, Glimpses of Family Laws of Goa, Daman and Diu, p. VII.
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gender they cannot be disinherited. In cases where the deceased leaves no will, all the
mandatory heirs are entitled to equal shares of all assets of deceased. However, in the
presence of a will, on the other hand, they may only dispose fifty percent of the estate in a
manner according to their choosing.15 The remaining fifty percent must be distributed equally
among all mandatory heirs. This is known as the quota disponivel and it ensures the just
distribution of assets among all the heirs. Interestingly, the only way under Goan Civil Laws
by which a woman can be deprived of her legal inheritance, is by her own, express
renunciation, also to avoid coercion to renounce her inheritance by the parents, a womans
renunciation to her inheritance is only considered valid if done by her after the death of both
her parents.
2.2.5. Muslim Polygamy and Talaq
Muslim men, who have their marriages registered in Goa, cannot practice polygamy. Also,
there is no provision for a verbal divorce.
2.3.

Significance

The egalitarian nature of the Portuguese Civil Laws has been lauded by womens groups
throughout India, and is seen as a starting point for legislative reforms regarding womens
rights in the rest of the country.16 Commenting that the dream of a Uniform Civil Code in the
country finds its realization in Goa, former Chief Justice of India Y.V. Chandrachud had once
expressed hope that it would one day "awaken the rest of bigoted India."17 Justice M.B. Shah,
Chief Justice of the Bombay High Court who also heads a bench in Goa, observes that
atrocities on women are less heard of in Goa compared to other states.18

15 Manohar Sinai Usgocar, Birds Eye View of the Portuguese Civil Code of 1867 and of the
Portuguese Civil Procedure Code of 1939, Revista da Ordem dos Advogados, 1998, pp. 19.
16 F. E. Noronha, Understanding the Common Civil Code: An Introduction to Civil Law,
Nagpur, 2008, pp. 95
17 Mohammad Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.
18 Sandesh Prabhudeshai, Judiciary Advocates Uniform Civil Code for India, Goa News, 23
May 1997.
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There are various reasons why the existence of these set of civil laws in Goa is of great
importance in context of the study of civil laws in India. It elucidates the concept of absolute
equality. Margaret Mascarenhas writes For the most part, the civil laws currently in force in
Goa that pertain to marriage, divorce, protection of children and succession are nondiscriminatory in terms of caste, ethnicity, or gender.19 Remarkably, this is an advantage that
does not exist in the rest of India, where the population is governed by Common Law, and in
which there exists a lacunae where the protection of the rights of women and children are
concerned.
Hence, as per the hereinabove elucidated provisions of the Goan Civil Code, it is safe to
deduce that Goan civil law is more just and is more in line with the principle of equality than
the personal laws governing various religions throughout the country. Not only does it ensure
equality for both the genders, thus, ensuring gender justice, but at the same time it provides
the judiciary a platform for better implementation of justice.
2.4.

Criticisms

The Goa Civil Code is not strictly a uniform civil code. Despite it being repeatedly mentioned
that Goa already has a uniform code, the truth is that the Hindus of Goa are still governed by
Portuguese family and succession laws. The reformed Hindu law of 1955-56 is still not
applicable to them. The unreformed shastric Hindu law on marriage, divorce, adoption and
the joint family is very much valid. This also holds true for Goan Muslims, as The Muslim
Personal Law (Shariat) Application Act, 1937 has not been extended to Goa. Thus, Goan
Muslims are governed by Portuguese law as well as the shastric Hindu law, and not by
Muslim personal Law.20
The idea of Goa model is a myth. Application of the Portuguese Civil Code in Goa to the
Hindu is subject to the provisions of the Goa Hindu Usages Decree of 1880 which remains in
force. Thus, the true picture on the ground is that there are several aberrations with respect to
the tall claim of uniformity.

19

Mascarenhas

Margaret,

Legal

Legace-

Goas

Civil

Code.

http://mmascgoa.tripod.com/id12.html (last accessed Feb. 13, 2016).

20 Nandini Chavan; Qutub Jehan Kidwai, Personal Law Reforms and Gender
Empowerment: A Debate on Uniform Civil Code, Hope India Publications, 2006, p. 245.
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For example Hindu men have the right to bigamy under specific circumstances mentioned
in the Codes of Usages and Customs of Gentile Hindus of Goa, namely, 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 bigamy.
Marriage laws differ for Catholics and people of other faiths, and this affects the laws
governing Catholics after they marry. Roman Catholics can solemnize their marriages in
church after obtaining a No Objection Certificate from the Civil Registrar. For others, only a
civil registration of the marriage is accepted as a proof of marriage. The Catholics marrying
in the church are excluded from divorce provisions under the civil law.21 Divorce depends on
what law people have been married under. There is no true separation of the Church from the
State. In the case of those who opt to solemnise their marriage in church, the Church can
annul the marriage at the instance of one of the parties, as is laid down in church law.
It can even be called strange, that these 19th-century colonial laws are consistently lauded,
because they are far from equal, or even capable of coping with contemporary requirements.
There are other inequalities too, like on issues of adoption and the rights of illegitimate
children. When it comes to taking an oath in court, differences on the basis of caste have been
accepted.
Further, it is also noteworthy that despite the laws of Goa promoting absolute equality as
mentioned hereinabove, the issue of domestic violence is still very prevalent there. This
shows that family laws, no matter how equitable, do not automatically translate into the
absence of domestic violence. So this misrepresentation of Goas law as the constitutionally
mandated Uniform Civil Code is highly misleading and even dangerous.

3.Drafting and implementing a Uniform Civil

Code for India
Following requirements should be met in order to frame up a Uniform Civil Code:22

Endeavour to reduce the distance between the laws of separate communities as well as
laws of sects within the community.

21 Partha S. Ghosh, The Politics of Personal Law in South Asia: Identity, Nationalism and
the Uniform Civil Code, Routledge, 2012, pp. 1922.
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Make changes in personal law compulsory on the followers.

Give more rights to the disadvantaged groups like the woman and children and better
protection of tribal and other oppressed people.

Work towards achieving equality between men and women, regardless of their
religion.

3.1.

The Question of an Optional or Compulsory Civil Code

It has been a common observation among the public that a voluntary code would be a
stepping stone towards a compulsory code and would also allay the fears of the minorities
that the code would impose Hindu personal law upon them. Even, the convention of the Bar
Council of India on the UCC came out strongly in favour of a compulsory code.23
The problem that lies in implementing an optional code is that it cannot be applied uniformly.
It would be a mere addition to the existing family laws, thus compounding rather than
reducing the plethora of confusion that exists.
There remain two different aspects of materialising the concept of optional civil code. Either
one has to opt for the entire code or one may opt only for selected areas. It is argued by some
scholars that there shouldnt exist the option of withdrawal from such code, once a person has
agreed to follow it. Once a person opts he/she will have opted for their future generations as
well. There will be no opting out. If one spouse opts for the code, the other will also have to
do so as otherwise the option will be ineffective. A voluntary code thus is accompanied by its
own uncertainties, confusion and ambiguities. The more pertinent question however relates to
the drafting of a Uniform Civil Code. Wide-spread debates have already created an imbroglio
about who and how it should be drafted.
A model Uniform Civil Code drafted by women would give minority women, as well as
majority women, a standard by which their formal rights can be appropriately judged.
22 V. Choudhary, A Proposal for Uniform Civil Code for Law of Succession in India, 13,
SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1669547 (last accessed Feb. 13,
2016).
23 Jyoti Rattan, Uniform Civil Code in India: A Binding Obligation Under International AndDomestic Law
46 JILI 577 (2004).

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Further, it would make concrete the aspirations of Indian women and create a point of focus
around which women may rally to press for their rights. 24 Moreover, it would prevent the
promulgation of a UCC by ideologues intent on using womens rights as an instrument for
propagating an assimilationist agenda and without focussing on actual lived experience of
Indian women.
Several model codes have already been proposed by various groups in India, including
various feminists. Flavia Agnes reviews some of the most important ones. However, she
concludes that none of the codes are satisfactory.25 Moreover, her analysis of a secular code
identifies the following issues:

The problem of the imposition of a Uniform Civil Code is not recommended.

Education and a campaign for the code must also be undertaken.

If the goal is to improve the circumstances of women and children, then the
recommendations must be based on notions of substantive equality. Use of
undifferentiated terms such as spouse are likely to deteriorate womens rights.

Abolishing polygamy through compulsory registration of marriages forms the core

of the controversy over Uniform Civil Code. The codes recognize the problem of
polygamy but are unsuccessful in recommending viable and practical solutions. There
have been two contradictory tendencies in the proposed solution: i) more stringent
punishments of breaches of the anti-bigamy provisions, and ii) the recognition of
women and children in de facto bigamous/polygamous relationships.

Womens organizations have begun to move away from marriage as a moral idea and
a means to regulate sexual relations to marriage as an economic contract. So, the
traditional view of marriage being a sacrament has now moved towards being just a
mutual contract.

24 Cyra A. Choudhury, (Mis)Appropriated Liberty: Identity, Gender Justice, and Muslim

Personal Law Reform in India, Florida International University Legal Studies, Research
Paper No. 07-11, 64.
25 Flavia Agnes, Law and Gender Inequality, Women & Law in India, 94-106 (2004).
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The drafts are based on one of two premises: i) Women as a class are non-working
spouses and their only contribution is unpaid domestic labour, or ii) Men and women
are equal partners and hence their rights, duties and responsibilities are equal and of a
similar nature. A third category of women who are the sole bread earning member of
their families, are strangely invisible in this debate. The recommendations do not
protect these women who shoulder the double burden as the wage earners and homemakers. The implication of introducing the concept of joint family property and equal
right to matrimonial home and maintenance etc., using gender neutral term spouse
would be detrimental to the rights of these women most of whom belong to the
marginalized sections of society.

However some of these issues are accepted and acknowledged under Muslim personal law.
Thus, a secular code must be resolved in such a manner that it benefits all women irrespective
of religion. Thereby, it would be intelligent enough to concur with the one of the prevailing
opinions that a secular code drafted by womens group that give primacy to economic
considerations instead of polygamy in the code would yield more results and viable.
When all religious personal law is replaced by a uniform civil code that prioritizes gender
equality over religious rights, there will be a two-fold effect of easing religious tensions and
holding the state accountable for women's rights: For if a civil code enumerates legal rights
without reference to the various religious personal laws, then no community can legitimately
argue that its religion is being superseded by the religion of other communities. At the same
time the State will no longer be able to justify legal inequality for women on the ground that
it does not want to hurt the religious sentiments of some communities. Thus, the creation of a
uniform civil code will finally place the state in the position it has sought since the members
of the Constituent Assembly abolished reserved seats for minorities on the grounds that
separate treatment deepens the divide between religious groups. 26
Furthermore, the government will no longer be able to hide behind the religious personal
laws and shirk its duty to women. A code that provides women with equality does nothing if
women do not know it exists. Therefore, the final stage in this process is for Parliament to
establish a permanent commission for gender and religious concerns "the Commission",
26 B., Parashar, Charting a new path towards gender equality; from religious personal laws,
p.715.
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which will exist for the primary purpose of transforming legal equality into actual equality.
This plan for the implementation of a uniform civil code aims to allay the fears of minority
groups through its process of including a wide spectrum of voices in the discussion. It further
aims to challenge the patriarchal assumptions about women by making gender equality the
substantive goal of the code27.
Some women's rights advocates continue to favor the establishment of such a code, arguing
that it serves the interests of all Indian women and women's rights should not once again be
subordinated to political machinations. Other women's groups have retreated from advocating
a uniform code, expressing concern that any advocacy of a uniform code will be hijacked by
nationalist Hindu leaders who will ultimately frame a code that serves a majoritarian ethnoreligious agenda, rather than women's rights or indeed any other fundamental rights 28. As it
has been seen from the above example of Turkey, Tunisia and Egypt where the countries in
spite of being a majority believing in Islam has modified its laws with the design to elevate
women equal to that of men in matters of family relations.29
Applying such a system for the whole country in general, would ensure less legal ambiguity
when it comes to cases of personal laws and reduce the burden on the judiciary to interpret all
personal laws separately, as a result avoiding the dilemma that have arisen due to the plethora
of judgments regarding the same laws again and again as has been seen earlier chapter. Also,
making the implementation of such a statute, optional subjected to the consenting parties, as
has been suggested would also ensure better reception of the same by the masses. Thus, in
context of civil laws of India, the Goan model can be set up as a blueprint to set it up on.

27 Islamic Law and Law of the Muslim World Research Paper Series at New York Law
School No. 09-59, A Cause Celebre on Article 44: An Attempt Towards Unifying Diversity in
the Jungle of Personal Laws Prevailing in the Indian Democracy.
28 Agnes Flavia , The Supreme Court, Media and the UCC; Religion, Power and Violence, p.
101.
29 Ghosh S Partha, Politics of personal laws in South Asia, Identity Nationalism and
Uniform Civil Code, p.281.
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Concluding Observations
Thus in this project, we have seen the urgent need there is for a Uniform Civil Code in India.
It is a Directive Principle of State Policy enshrined under Article 44 of the Constitution of
India, and as such the State has to undertake measures towards the drafting and
implementation of the same. That there is a need for this is clear on examination of the
currently in force religious personal laws, which acutely compromise gender justice.
Goa is the only state to have implemented the directive principle on the Uniform Civil Code
and converted it into a law called the Goa Civil Code or the Goa Family Law. On studying its
historical background and specific provisions, we have observed how Goas uniform civil
code happily co-exists with a variety of personal codes available to followers of particular
faiths. While this can be noted as a flaw in its claim of uniformity, another way of looking at
it is that it makes available an option and underlines the point that a uniform civil code and
personal laws do not represent an either/or choice and that the one does not mandate the
obliteration of the other. This is an important point, especially in the context of a possible
national Uniform Civil Code. If the Centre is unwilling to move forward, there is no reason
why some progressive States should not take the lead as they have done in the case of
legislating Freedom of Information Acts. A national Uniform Civil Code could follow. Goa
has shown the way and there is absolutely no reason for delay. A secular India needs a
uniform civil code.

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References
Table of Cases

Daniel Latif v. Union of India AIR 1985 S.C. 945.

Mohammad Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.

List of Statutes

The Constitution of India, 1950.

The Hindu Adoption and Maintenance Act, 1956.
The Hindu Succession Act, 1956.
The Code of Criminal Procedure 1973.
The Dissolution of Muslim Marriage Act and the Muslim Women (protection of

Rights on Divorce) Act, 1986.

Goa, Daman and Diu Administration Act, 1962.
The Muslim Personal Law (Shariat) Application Act, 1937
Portuguese Civil Code, 1867.
Codes of Usages and Customs of Gentile Hindus of Goa, 1880.

Books and Articles

Agnes Flavia , The Supreme Court, Media and the UCC; Religion, Power and
Violence, (2005).

Ave Cleto Afonso, The Portuguese Law of Goa (Succession and Inventory)/O
Direito Portugus de Goa (Sucesso e Inventrio), Goa, (2009).

B., Parashar, Charting a new path towards gender equality; from religious personal
laws, (1991).

Carmo DSouza, Legal System in Goa, vol. II, Laws and Legal Trends (1510-1969),
Panaji (1995).
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Cyra A. Choudhury, (Mis)Appropriated Liberty: Identity, Gender Justice, and Muslim

Personal Law Reform in India, Florida International University Legal Studies, (2009).

Drio Moura Vicente et al. (eds.), O Direito da Famlia e das Sucesses no Cdigo
Civil portugus de 1867: uma perspectiva do sculo XXI Family and Succession
Law in the Portuguese Civil Code of 1867: a XXIst Century Approach, Lisbon,
(2008).

Domestic Law 46 JILI 577 (2004).

F. E. Noronha, Understanding the Common Civil Code: An Introduction to Civil Law,

Nagpur (2008).

Flavia Agnes, Law and Gender Inequality, Women & Law in India, (2004).

Ghosh S. Partha, Politics of personal laws in South Asia, Identity Nationalism and
Uniform Civil Code, (2007).

Gustavo Filipe Couto, Glimpses of Family Laws of Goa, Daman and Diu, (1970).

Jain, M.P, Indian constitutional law, Wadhwa, Nagpur (2005).

Jyoti Rattan, Uniform Civil Code in India: A Binding Obligation Under International
And

Kirti Singh, Obstacles to womens Rights in India, International Perspectives of

Human Rights of Women (1994).

Manohar Sinai Usgocar, Birds Eye View of the Portuguese Civil Code of 1867 and
of the Portuguese Civil Procedure Code of 1939, Revista da Ordem dos Advogados
(1998)

Manohar Sinai Usgocar, Family Laws of Goa, Daman and Diu, Goa, (1988)

Nandini Chavan; Qutub Jehan Kidwai, Personal Law Reforms and Gender
Empowerment: A Debate on Uniform Civil Code, Hope India Publications (2006).

Paras Diwan and Peeyushi Diwan, Law of Marriage and Divorce, Universal Law
Publishing, (1997)

Partha S. Ghosh, The Politics of Personal Law in South Asia: Identity, Nationalism
and the Uniform Civil Code, Routledge (2012).

Shukla, V.N., Constitutional law of India E.V.C, Lucknow (2004).

V. Choudhary, A Proposal for Uniform Civil Code for Law of Succession in India, 13,
SSRN, (2000)
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V.R. Krishna Iyer, Unifying Personal Laws, The Hindu (2003).

Virendra Kumar, Towards a Uniform Civil Code: Judicial Vicissitudes [from Sarla
Mudgal (1995) to Lily Thomas (2000)] 42 JILI 315 (2000).

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