LEGAL LEGACY

Margaret Mascarenhas

There is no question that over 400 years of Portuguese rule have left an indelible imprint on Goa .  We see the colonial period reflected in its Iberian architectural style and in many of the customs and traditions of its people.  Part of this cultural heritage, for better or for worse, depending on ones point of view, has begun to fade over the past thirty-seven years.  Today, in a great number of homes and in the academic arena, as a direct result of the Indian governments decision to dispense with the Portuguese system of education following the conquest of 1961, the Portuguese language has increasingly been replaced by Marathi, Konkani and/or English.  And, while this transformation has been welcomed by many native Goans, it has also created an educational vacuum which is most noticeable in the realm of Law.

Perhaps the most valuable living legacy left in Goa by the Portuguese is a codified system of Law:  the Portuguese Civil Code of 1867 and the Code of Civil Procedure of 1939, which encompass the entire spectrum of Civil Law.  It is a codification divided into four sections.  Part I contains  Articles 1 through 17 delineating the basic provisions of the Code, the most important of which is Article 7, which establishes the principles of racial and gender equality.  Part II further develops these provisions.  Part III deals exclusively and comprehensively with property rights.  Part IV concerns itself with matters of civil responsibilitiesinfringement of rights and their restitution.

In 1910, with the replacement of the monarchy by the Republic in Portugal, substantive changes were introduced in the area of Family Laws.  The performance of marriage before the Office of Civil Registration was made compulsory and only those registered in this way were considered valid under the Law.  For the first time, provisions were made permitting divorce.  These laws were applied uniformly to all sections of society and were in force in Goa in 1961.

In 1962, an enactment of  the Indian Parliament, the Goa, Daman and Diu Administration Act,  provisionally kept Portuguese civil laws in force in Goa until or unless repealed by the Legislature or another competent authority.  Thereafter, with the passing of a number of other Parliamentary Acts pertaining to legislation in areas such as Contracts, Transfer of Property , Easement Rights , Registration and so forth,  the corresponding provisions in the Civil Code of Goa have been superseded.  Only those provisions in the Civil Code pertaining to Family Laws and Usages  have so far survived incursion.  These include the laws appropriate to marriage/divorce, succession, guardianship, property, Torts, domicile, possession, access, and waterways, among others.   However, these laws have yet to be translated into English, the language of the  new generation of lawyers in Goa, and so, increasingly, the number lawyers and judges conversant with these laws is on the decline, creating a significant impediment in the adequate dispensation of justice.

There are a number of reasons why the Portuguese Civil Code is of paramount significance in the Indian legal context.  But I will be addressing only  two of the most primary here.

The first has to do with the concept of absolute equality.  For the most part, the civil laws currently in force in Goa that pertain to marriage, divorce, protection of children and succession are non-discriminatory in terms of caste, ethnicity or gender.  And 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.  Under Portuguese Law, marriage is a contract and the civil registration of marriage is mandatory.  There are four different marital  options under the lawcommunity 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 our discussion.  Under 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.  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.  In addition, 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.  And in the event of legal separation, a woman is entitled to 50 percent of her husbands income, and not dependent on his charity.

Under the Civil Laws of Goa, registration of births and deaths are also mandatory.   The children of deceased parents fall in the category  of what is known as mandatory heirs.  They cannot be disinherited whether male or female, 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.  If  the deceased parent(s) leave(s) no will, all mandatory heirs are entitled to an equal share of the estate of the deceased.  If, on the other hand , the deceased has made a will,  he/she may only dispose of 50 percent of the estate in the manner of his/her choosing.  This is known as the quota disponivel.  The remaining 50 percent must be divided equally among all mandatory heirs.  Such a provision ensures the just distribution of assets among all children, whether male or female.  In fact, the only way a woman living under the Civil Law system can be deprived of her legitimate inheritance is by her own express renunciation.  The possibility of parents coercing their daughters to renounce their share is reduced by a provision which says that such a renunciation is only valid if done subsequent to the death of the parents.  Moreover, in the event of divorce, the legitimate share of the wife, who in a majority of cases is not the major breadwinner, is not contingent upon the munificence of her ex-husbandunder Community Property Law, she is automatically entitled to half of all assets.  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.

This brings us to a discussion on  the potential of the Civil Code to serve as a basis for the codification of Indian laws.  Article 44 of the Indian Constitution enjoins the Indian Legislature to create a uniform civil code for all Indiaa constitutional mandate which has yet to be implemented 50 years after Independence.  In light of this deficiency, and in an effort to initiate debate and discussion, a conference was held by the Goa, Daman and Diu Bar Association in 1979.  At the time, the then Chief Justice of India, Y.V Chandrachud, made the following observations:   It is heartening to find that the dream of a uniform civil code in the country finds its realization in the Union Territory of Goa, Daman and DiuIn my view it would be a retrograde step if Goa too were to give up uniformity in its personal laws which it now possesses.  Thereafter, in spite of several short-sighted and politicized attempts made at a local level to repeal Goas existing family laws in favour of the Hindu Succession Act and the Hindu Marriage Act,  the Goa State Government to its credit  has repeatedly rejected such moves.  Recently, in  May of  1997, another conference was held in Goa which brought together a number of legal luminaries from Portugal and India.  A brainchild of  Advocate M.S. Usgaocar, currently Goas Advocate General, the conference was organized by the Vaikuntrao Dempo Centre of Indo-Portuguese Studies in collaboration with the Ordem dos Advogados de Portugal and in association with the Bar Council of Maharashtra and Goa.  It was  dedicated to the memory of  Dr. Luis da Cunha Gonsalves, who wrote The Treatise of Civil Law, an exhaustive study of the Portuguese Civil Code of 1867, and today considered by scholars of Portuguese Law as a  magnum opus without equal in jurisprudence.  For three days, some of the leading legal minds in India and Portugal, which included the Chief Justice of India and the Attorney General of Portugal, came together , presenting papers to a packed auditorium and  entering into dynamic exchange of information on topics ranging from Marital Regimes of Property under the Civil Code, to a comparative analysis of the Portuguese Civil Codes of 1867 and 1966, to  the Writ Jurisdiction and Administrative Law as practiced in India.

One of the most gratifying results of the conference was the resolution to encourage the State Government of Goa to endorse the entire Civil Code of 1867 and Civil Procedure of 1939 following its complete translation from Portuguese to English.  Those Indian lawyers hitherto unfamiliar with the Civil Code, proposed its use as a basis for the codification of the entire system of Indian Law.  And the Portuguese delegates were inspired by the discovery of Writ Jurisdiction and its potential for application in Portugal.  All the delegates expressed the desire for a follow-up conference.

The enormous benefits of exchanges of this nature cannot be denied.  Not only do they broaden the horizons of those who participate, but frequently, they galvanize further activity.  The upcoming Youth Study Tour organized by the Indo-Portuguese Friendship Society , and those tours to follow, will provide an excellent opportunity for students of Law to examine more in depth the Portuguese Civil Code of 1867 and the amendments that were ratified in 1966 for the purposes of comparative study.   It is the hope of many  that this salubrious climate of cultural and intellectual dialog will continue to flourish between India and Portugal.