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Published : August 22, 2016 | Author : ms. chitraloungani
Category : family law | Total Views : 2737 | Rating :

  
ms. chitraloungani
2nd year student (B.A.LL.B.) from symbiosis law school Hyderabad
 

Uniform Civil Code in Goa

The word uniform civil code consist three terms ‘uniform’ ,’civil’, ’code’. The term uniform means all people are same in all circumstances ; the term civil derives from the Latin word ‘civils’ means citizen when use as a adjective to the term ‘ law’ meaning the right of citizen ; the word code derived from Latin word ‘ codex’ which means book. So therefore it denotes the meaning that uniformly laws that are applicable to all citizen of India irrespective of their caste, religion, birth, sex, tribe.

Personal laws in India:
India has a verity of family laws. The Christian have their Christian marriage act 1872 the Indian separation act 1869 and the Indian progression act 1925. The Jews have their unmodified standards marriage law and in their progression matter they are administer by progression demonstration of 1925. In the same way the Parsis, Hindu, Muslim has their own marriage and divorce act and their own separate law of inheritance contained in the succession act. They have their separate personal law. Hindu laws have large secularized and modernized by statutory enactment. On the other hand Muslim law is still unmodified and traditional. There is also a law of special Hindu marriage act 1956 which is a secular code of marriage under which two Indian irrespective of their religion may marry with each other but what law should be apply is totally depends upon the religion thus for this matter Muslim law is non-statutory portions and I s divided into a number of schools and sub schools. In the same way the Hindu schools are also divided into several sub schools. In present day personal law is thus a maze. To come up with a uniform law the uniform civil code is very much important. Now we have to understand first what uniform civil code is?

Uniform civil code is the term which is originated from the concept of CIVIL LAW CODE. Which govern the people of different community, religion; regions .which ids basically, based upon right of citizen subject t their personal laws.

The main areas covered by civil code that includes:
· Personal status of person
· Rights relate to acquisition and administration of property
· Marriage, divorce and adoption of child

All these terms are mentioned in the constitution of India to lays down the administration of uniform civil code as a directive principal but in India it has not been implemented. the secular uniform civil code is opposed by different communities such as Muslims, Christian and many others. Thus there are some communities they are in favor of uniform civil code. Those are the Bharatiya Janata Party, the Rashtriya Swayamsevak Sangh and the Vishwa Hindu Parishad . Thus in India those who are the opponents of this law are called as “Secularists” and those who are In favor of secular law are called as “communalists”.

Uniform civil code is the uniform form of law which replaced the personal law based on the customs of each religious community for which there is a common set of rules governing the citizen. Article 44 of directive principal in India (“the state shall Endeavour to secure for citizen a uniform civil code through the territory of India”) sets the duty of state to implement all the duties. Apart from this regarded the issue of secularism in India. The topic became the most controversial topic regarding this issue in the case of SHAH BANO CASE in 1985 from this case the debate raised on the Muslim personal law. Basically the Muslim personal law is based upon the SHARIA LAW. The conflict between the issue of secular and religious authority over the issue of uniform civil code under this case the main issue was Bano seeks maintenance from her husband. He had given divorce to Bano after 40 years of his marriage and he gave divorce by pronouncing “Talaaq” thrice. she was granted ,a inheritance by local court but the decision was challenged in supreme court and according to “ maintenance of wives, children , parents” provision under section 125 of the all India criminal code which applied to all citizen irrespective of their religion from this judgment the uniform civil code was came into effect . The case soon became nationwide political issue. From this case Muslim Women (right to protection on divorce) act 1986 comes under force. Thus after the issue in many cases such as:

State of Bombay v. Narasu Appa Mali. in this case while deciding the validity of Hindu bigamous marriage act 1946 the court comes to the conclusion that the framers of the Indian constitution did not wish to challenged the personal laws of a community by fundamental right.

Later on in the case of Ahmadabad Women Action Group v. Union of India in this case a writ petition was challenged in the personal Muslim laws which allows polygamy as offending the article 14 and 15 of Indian constitution but refused as the matter of state policy which is outside the courts domination Kerala high court in P.E. Mathew v. Union of India in this case high court said that Christian personal laws are outside the scope of fundamental rights.

In this case of Sarla Mudgal v. Union of India in this case Supreme Court directed the guidelines of article 44 of Indian constitution. The question was raised whether a Hindu husband married according to Hindu law and changed his religion according to Islam that person can do second marriage. The court held that a marriage performed according to Hindu law shall be dissolved according to Hindu law under certain grounds specified under the Hindu marriage act 1955. But the conversion of religion in Islam and marrying itself dissolved the Hindu marriage act and second marriage after converting religion is against the Islamic law under section 494[5] of the Indian penal code.

Supreme court remind to the government of India that the obligation to enact uniform civil code came in July 2003 [6] when a Christian priest go to the doors of court and challenge the validity of constitution of section 118[7]of the Indian succession act. The priest from Kerala, John Vallamatton field a writ petition in the Supreme Court in the year of 1997 saying that the section 118 caused discrimination against Christian and it imposed unreasonable restriction on the account of donation of property for the religious purpose. The bench compromising of justice V.N.Khare,justice S.B.Sinha and A.R.Lakshamanan and said that the section 118 it to be unconstitutional.

chief justice Khare stated that: “The article 44 provides uniformity in state through the territory of India secure the common purpose of uniform civil code. He said that it is a very great matter of regret that the article 44 is not still in the effect. The Parliament is still developing the common civil code in the country”.

After dealing with all these cases the Supreme Court come to a conclusion that uniform civil court should be implemented in India. the supreme court asserted that “ a common civil code will help in national integration by removing disparate loyalties of laws which came in the results of conflicting ideologies” but the parliament was not agree with the conclusion of supreme court they thought it never ripe enough to bring a uniform civil code in India . But there is one state which brings all the religious community under the umbrella of a common law that is uniform civil law, the state of Goa.

Uniform Civil Code in Goa
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. 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.

Special Marriage Act, 1954

This form of marriage act provides a civil marriage of two person of different sex irrespective of their religion. This law prevailed in Indian to have their marriage outside the customs of their personal law. This law is applied in all over the India except Jammu and Kashmir because they have given the special status under article 370. His law is almost identical to the Hindu marriage act 1955 this law gives idea of how the law is secularized towards the Hindus. 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 the same ratio.

Secularism v/s Uniform Civil Code

In the spin of controversy we live in a secular state and according to preamble of the Indian constitution state that the India is a “secular democratic republic”. This means that there is no state religion a secular state should not intervene with the customs of others religion and make discrimination against other community people on the grounds of their religion which means there should not any intervention with other community people rights.

In the case of S.R.Bommai v. Union of India as per justice Jeevan Reddy it was held that the religion is the matter of individual communities people faith and to follow their own customs a law cannot mixed it with a uniform law and the secular activities can be regulated by them with their own personal law .In India the concept of “positive secularism “. The concept is basically deals with the separation of positive individual spiritualism with individual faith. Article 25 of Indian constitution guarantee right to freedom of religion and also that every person can follow their own religion and practice their own religion. But this right is always subjected to right of public order, morality, peace and order.

Uniform civil code is not opposed to secularism and against to article 25 and 26. Article 44 is basically is that the religion, their customs their personal laws can be prevailed. Marriage, succession other matters related to secular nature of state. The purpose of uniform civil code is not to interfere with the customs and their tradition the basic purpose behind id equality tat should be given to each and every citizen of India.

While explaining the reason why uniform civil code should be imposed in India is that the atmosphere should be created from which all section of society feel secure and sits together and there will be no riots in the community. For this matter the law minister DR. Ambedkar said that for the unity in the country there should be a codified law. Through the idea of uniform civil code we can implement this all over the religion and every person of society is abiding by that law.

Goa civil code collectively called as family law. And that formed and enforced by the Portuguese colonial rulers. The most significant result of this law is to enact pre nuptial public deed regarding the disposal of property in the situation of divorce and death. As the uniform civil code is the backbone of Goa.

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.

References
· Outlines of Indian legal & constitutional history
# Prof.M.P.Jain
# AIR 1985 SC 945
# 1979 AIR 141 1979 SCR (1) 931
# AIR 1997 SCC 573(1)
# AIR 1999 KER 345
# AIR 1995 SC 153(1)
# 1994 AIR SCC 1




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