A troubled marriage, an errant husband, and the law as her only lifeline. This has been Amarja’s life for the past few months now. “A girl will act on trust; after all, he was my friend from college. I married because I trusted him,” says the 28-year-old Panjim resident.
Today, after being estranged from her husband of less than a year, Amarja, who works as a lower division clerk with the state government, says she understands that the law works a tad differently in Goa. For instance, marriage in Goa entails a “communion of assets”.
What this means is that after marriage, everything that Amarja and her husband owned before — and after — marriage, becomes part of a common pool, and half of that belongs to Amarja. “Now, if we divorce, he will have to part with half of everything, including the flat that we invested in together. I know from friends that this is only possible in Goa,” she says. “The marriage crisis has taught me a lot about laws in Goa.”
A clutch of “unique” clauses such as the “communion of assets”, equal property rights for both sons and daughters, and the fact that the laws apply uniformly to all state citizens has made the Goa Civil Code a “special” case, now being hailed as a model for the Uniform Civil Code in the country. The Code, a remnant of the state’s colonial past, was enforced in 1870 in the former Portuguese colony of Goa, and is often touted by the ruling party as a model that guarantees uniformity and gender justice.
UNIFORM CIVIL CODE: A TIMELINE
As the demand for a UCC is being fiercely contested, at the heart of the matter is the objective of “gender justice”, that UCC supporters claim will only be achieved by securing a common set of family laws for everyone.
So, do family laws in the smallest state in India advance the cause of gender justice?
In Goa, the answer to that question is both yes, and no.
How the law rules
When Goa attained liberation from Portugal in 1961, all Indian laws were extended to the state, except family laws that fall under the Portuguese Civil Code. Under the PCC, everyone married under the civil law and both spouses had equal property rights, as did their children.
For the state’s Catholic population, however, an exception was made — they could solemnize their marriages in the Church after declaring their intent of marriage at the office of the civil registrar. The church would send the marriage document for ratification and registration by the civil registrar. For non-Catholics, however, only the registered marriage at the office of the Civil Registrar was recognised.
Another exception was made for Hindus — the practice of bigamy was allowed in case there was no male heir.
F. Elgar Noronha, a well-known lawyer in the state, says the Portuguese made the exception to accommodate the concerns of Hindu businessmen, who wished to retain the concept of the ‘Hindu Undivided Family’ to avoid fragmentation of land and “ensure their lineage”.
Bigamy was never practiced, says Noronha. Instead Hindus resorted to adoption when there was no male heir.
The contradictions in uniformity apart, the highlight of the Goa Code is the equal division of property between husband and wife. The husband cannot sell the property without the wife’s consent, and neither can the children, in case the father dies. Despite these clauses that are meant to protect the woman, lawyer-activist Albertina Almeida, says that there are several loopholes in the law.
Sitting in her office in the town of Taleigao, a few minutes away from the city of Panjim, Albertina says that in Goa, ownership and control mean two different things. The property might be shared equally, but its “management” lies with the husband. As a “manager” the husband can, for instance, rent out the premises without the wife’s consent. In Amarja’s case, she and her husband jointly invested in a flat, which he has since given on rent, and Amarja claims that the rent was never shared with her.
Forms of property have changed too, says Albertina. “Shares in a co-operative society, for example, can be easily transferred by the husband without the wife’s consent without breaking any laws. Moreover, if the husband dies, the law puts the wife way down in the succession line of the husband’s share. She only comes after his children, parents and siblings. This may endanger the widow’s rights,” she says. Albertina says that she has also seen cases of husbands having willed away their share in the property without the knowledge of the wives, and at times, even fled the country.
Much like the way the law plays out in the rest of the country, in Goa too, women’s rights activists contend that in a patriarchal society, women are seldom encouraged to seek their rights — first as daughters, and then as wives. Sabina Martins, a prominent activist in the state says that daughters, for instance, are pushed by brothers to relinquish their rights over parental property. Of late, however, some daughters have begun claiming their rights — only because their husbands are pushing them to do so, creating new grounds of conflict within the family.
Property rights apart, Sabina says that the women’s story in Goa is pretty much the same as it is outside of the state. “What do equal rights mean when there are women who can’t even access their salary, or their jewellery in their marital homes?” asks Sabina. She says that there’s a perception that women in Goa are more liberated, and assertive. “And Goans also want to keep up that image. But that’s really misleading,” says Sabina. She says that women’s groups in Goa demanded for the Dowry Prohibition Act, 1961, to be extended to the state because the law was enacted before the liberation of Goa (laws enacted before Goa’s liberation in 1961 were not applicable to the state), and activists such as her felt that there was a need for it in Goa too.
Until recently, salaries were joint property too. But Goan residents were using the clause to evade taxes, (by showing only half of their salary as their own, and hence, taxable) and so, salaries were made “individual” property. But many women in Goa struggle to claim ownership of that too, she says.
Sabina says that for many women, an equal share in property has only meant equal liabilities. Many men took loans to spend money on Goan casinos, and left their wives to pay those loans off. “Now, the women are trying to pay off that money that they didn’t even know their husbands had taken!” she says.
A case for legal awareness
For a Code that has been around since 1870, Noronha says that legal education and awareness on its several clauses has been lacking, at times, even among lawyers. One reason has been the fact that the Code was never properly translated from Portuguese to English — a few translations of important clauses being an exception, he says. Last month, the state Assembly has passed the Goa Succession, Special Notaries and Inventory Proceedings Bill, 2012, which is an English version of the PCC.
Noronha, who translated marriage, property and succession laws recently says that the need for translation increased since the 90s, when a boom in land prices meant that litigation went up several fold.
“There were now several claims on a single piece of ancestral property. Confusion ensued among lawyers as to how to resolve property matters,” he says. One of the confusions was resolved by the enterprising builder industry who doubled up as arbitrators and got warring siblings to sell off their individual rights to the builders.
Awareness about other protections such as mandatory registration to avoid fake marriages also needs to be increased. Though Amarja feels that many Goan women insist on “proper legal procedures”, some do also end up being duped. Women assume that the first signature at the Civil Registrar’s office (the declararion of intent; confirmation follows after a few days) is enough. “They do not know that a second signature is required. When they come to us, we realise that the marriage never happened. What use is the law then,” says Sabina.
“uniqueness” apart, the Goa Code also has some scope for improvement, says Albertina. “Of course, the Domestic Violence Act enables women to get immediate relief, but more needs to be done when it comes to claiming property. If the rest of the country can take some lessons from the Goa Code, why can’t Goans take the lead from other personal laws?” she says. Albertina feels that Goan women should have the concept of mehr and stridhan too, apart from affirmative provisions for women to claim their rights.
But changes are hard to bring about, she says. For one, the Goa Civil Code is matter of pride and the state’s “unique” identity.
However, some such as Noronha feel that common laws in state have helped shape its “cosmopolitan identity”, and must be studied for the nation at large. In fact, during the Shah Bano controversy in 1985-86, Muslim women in Goa resisted the state’s conservative clergy’s attempt to impose Muslim personal laws in the state, and reinforced their adherence to the common family laws .
For ordinary women such as Amarja, however, the complex debates around legal uniformity, religious identity and gender justice are irrelevant. “I know if I separate, I will get half of the property. But I want to reform him so I am using the Domestic Violence Act . That way I will get to stay in our flat and buy time. I hope he will learn his lesson. Do you know any other clause I could use?”