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In Jose Paulo Coutinho v. Maria Luiza Valentina Pereira (2019) , the Supreme Court has yet again revived the debate on a uniform civil code (UCC) and referred to Goa as “a shining example of an Indian State which has a uniform civil code applicable to all…”. There are rumours that the government may surprise everyone in the winter session of Parliament by introducing a UCC Bill, just as it did by diluting Article 370 on August 5. But in fact it has been the judiciary, rather than the Bharatiya Janata Party or the Rashtriya Swayamsevak Sangh, that has been relentlessly pushing for the enactment of a UCC. Some earlier cases In some cases that dealt with the issue of a UCC, the apex court’s observations have been unnecessary obiter dicta (such as in Mohd. Ahmed Khan v. Shah Bano Begum , 1985). In some others (such as in Sarla Mudgal v. Union of India, 1995, in which four Hindu men converted to Islam to take second wives), the court’s observations have been reflective of flawed and problematic judicial reasoning. Instead of condemning the men in Sarla Mudgal , the court demonised Muslims by saying, “Those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation theory or three-nation theory and that in the Indian Republic there was to be only one Nation — Indian nation — and no community could claim to remain a separate entity on the basis of religion” (sic). It also stated there “there is an open inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is subsisting, to become a Muslim”. In this judgment, the court completely negated the idea of legal pluralism; overlooked the fact that while all Congress leaders including Jawaharlal Nehru, Sardar Patel and Mahatma Gandhi voted for Pakistan, Maulana Abul Kalam Azad stood his ground and voted against it; overlooked V.D. Savarkar’s two-nation theory; and also overlooked the history of the Hindu Right’s resistance to the Hindu Code Bill. With reference to the court’s judgment in Jose Paulo Coutinho , it is important to understand that the reality of Goa is a little complex. The Goa Civil Code of 1867, which was given by the Portuguese, begins in the name of God and the King of Portugal. Uniformity is not necessarily a promise for gender justice. On the opposition of Hindus, the Code permitted limited polygamy for Hindus on certain conditions, including “absolute absence of male issue, the previous wife having completed 30 years of age, and being of lower age, ten years having elapsed from the last pregnancy”. The Code gives certain concessions to Catholics as well. Catholics need not register their marriages and Catholic priests can dissolve marriages performed in church. Church tribunals are similar to the so-called Sharia courts and dissolution by them is mechanically approved by the High Court. Why the court did not, as a first step towards a UCC in Goa, recommend the adoption of a reformed Hindu Code Bill in preference to the Portuguese Civil Code is not clear. The provision of matrimonial properties being jointly held and equally divided between spouses on divorce exists under the 1867 Code. However, through pre-nuptial contracts, parties may opt out of this joint ownership of properties. In many marriages, would-be wives are forced to sign on dotted lines. Thus, even where such joint ownership of assets exists, the control over property remains with the husband. Even the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012, enacted by the BJP government in 2016, mentions the surviving spouse only as the fourth preference in Section 52 (order of legal succession), after descendants, ascendants, and brothers of the deceased.
Source : https://www.thehindu.com/todays-paper/tp-opinion/legal-pluralism-in-personal-law/article29827745.ece
