Discourses on the uniform civil code (UCC) overlook the impact of religious personal laws or secular laws such as the Special Marriage Act on human rights violations within the family or those perpetrated by the state. For that matter, the many human rights questions that arise from the lived experiences of Goan families despite the family laws that are near uniform in Goa are also drowned by the Muslim-men-and-four-wives discourse engulfing the whole country.
Take the case of Sundorem (all names changed), a childless tribal widow in Goa. Her husband died 10 years ago, leaving behind a small house and 243 square metres of land on which it is built. But his death was not registered and Sundorem did not have a death certificate. She did not have a marriage certificate either. Her maiden name as recorded in her birth certificate was Sumoti. Upon her husband’s death, she wanted to transfer the marital house and property to her name. Before the review of the law, this woman would have had several challenges in navigating Goa’s family laws, popularly referred to elsewhere in India as Goa’s uniform civil code.
Access to law
Access to the law becomes difficult without documentation. For instance, to file an Inventory Proceeding, which is what is required to establish succession and to partition property according to Goa’s family laws, the applicant has to have a document proving her relationship with the deceased and her entitlement to the properties of the deceased. Without a death certificate and a marriage certificate, it was impossible for Sundorem to proceed.
Yet another way to establish succession is to draw up a Deed of Succession before a Special Notary of the taluk. But here again, documentation is necessary. So Sundorem was stumped even though the matter pertained to a law uniformly applicable to all Goans. Sundorem was differently impacted by the law because of her social location. Situations such as these finally led to changes in the Inventory Law in Goa. Despite knowing this, when the pitch for a uniform civil code is made, there is no discussion on the problems of access in the respective laws and how to deal with them.
Ownership without control
Samantha has a different story to tell. She has a marriage certificate, but it has not been easy for her to assert her rights to the marital property because her relationship with her husband is strained. Following the marriage, she and her husband lived in the marital home—a flat purchased by him—for a few years, and then he cleverly suggested that she go for a break to her parents’ home and dropped her there. In the meantime, he leased out their marital home to third parties, while he himself went on to stay in his ancestral house.
“There are other choices a couple can make regarding matrimonial property, but very few couples know about this when they register their marriage.”
Goa’s family laws indeed include the concept of Communion of Assets. This means that upon marriage, all properties inherited by, gifted to, or acquired by either one or both spouses before or after marriage become part of the couple’s common pool of assets. Thus, Samantha had a 50 per cent (moiety) undivided share in the marital property. But its control was with her husband, according to a patriarchal provision that stipulates that the management of the property shall be the exclusive privilege of the male spouse. Using this provision, he has effectively ousted Samantha from her marital home—without physically doing so but by leasing the home out. Are the proponents of a UCC willing to lift the veil of “uniformity” when such threats to homelessness pop up? Or will they acknowledge the need for non-discriminatory provisions that would enable women to have control over the marital home?
Lack of awareness about the law
There are other choices a couple can make regarding matrimonial property, as per Goa’s laws, but very few couples, particularly the female partners, know about this when they register their marriage. Neither do they know that they are signing into the default system of Communion of Assets upon marriage by not making an option. Or that they do not have an option of changing anything after marriage. This points to the need for appropriate legal education.
But even lawyers have limited knowledge of Goa’s family laws. Many people believe that even basic education about family laws is unnecessary because “in our families, there has never been any divorce case or any problem”.
Seema, a graduate and an educator, confesses that she did not even read what was in the marriage form before registering her marriage. When told about it, she realised the significance of reading any document that one signs. What if there was something that her spouse had not disclosed to her but was mentioned in the form? But Seema points out that if she had read the form at the time of registration of marriage, the groom’s family and even her own family would have considered it as a sign of lack of trust. So, what does “uniformity” of law have to do with this issue?
Women’s groups have in the past called for legal education for women not just about the process of marriage registration but about succession and inheritance laws. They have demanded a system whereby the completed form is read out to the couple before marriage and for pre-registration legal education to be given to the couple. But no one seems to have paid any attention. As things stand, the law recognises two types of marriage, civil marriage and canonical marriage (the latter an option available to Roman Catholics, which recognises the Church marriage after declaration of intent is made by the Catholic couple before the Civil Registrar of Marriages). Catholics who go down the canonical marrriage route—the case with most Catholic couples—are required by the Church to go through a marriage formation course during which they are educated about what they are legally signing up to. Therefore, to that extent, the law covering marriages is not uniform either. The State will have to take the initiative to incorporate this aspect of Catholic marriages into its procedural systems. But this is where legal pluralism helps, till the state considers such positive provisions.
On the long and murky road to justice, women have to straddle different worlds. If family support can be retained by resolving an issue before a religious authority or group, most women will opt for that even if it is not satisfactory.
“In Goa, when family laws were being reviewed in the early 2000s by an all-male lawyer committee, women’s groups demanded an inclusive process.”
In effect, even in a State where family laws are near uniform, there is legal pluralism at work. What is needed, therefore, is for the functionaries of various mediums of dispute resolution, such as judges, to be gender-sensitised. And to prioritise cases of divorce.
What would be the problem if every family law also sought to incorporate an element of sensitisation and orientation about the laws and about the human rights standards that they are informed by? The way it has already been incorporated under the Protection of Women from Domestic Violence Act, 2005, or the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013? But the Goebbelsian drum will keep beating to the Muslim-men-can-have-four-wives tune.
As a matter of fact, the profiling of the Muslim community and its laws as being unjust to women, by a pro-Hindu Rashtra government, is done without any appraisal of the laws that are being extolled as model laws, whether they be Hindu laws or Goa’s “uniform” civil code. What about the sexist provisions relating to the Hindu Undivided Family in the Code of Customs and Usages of Gentile Hindus of Goa? For instance, it has a provision that the joint family shall be governed, managed, and represented by the senior-most male member having civil capacity and, in his absence, by the next male senior in age, and only in the absence of a capable male, then by the wife of the head of the family. The government should have already repealed the sexist provisions in this law. Is this not clearly a case of doublespeak?
- Access to legal documentation, gendered interpretations of the law, and legal illiteracy are significant obstacles to implementing a uniform civil code.
- What is needed is legal education about the process of marriage registration and succession and inheritance laws; and an inclusive process of law-making.
- In a diverse and culturally varied society like India, the state has a responsibility to enable marginal stakeholders in the family to be active participants in law-making processes.
Even if it sounds neutral, a law can be framed in ways that discriminate against some sections of society. For example, the provisions relating to matrimonial property are gender-neutral. But in a patri-local society, where women generally have to move into the husband’s household, they add value to their spouse’s houses by physically maintaining or contributing financially towards maintaining the houses and property. The opposite is not always true. But when the wife files a petition for maintenance, it is a practice nowadays for the husband to raise claims for a share in the inherited property of the wife. This leads to her family pressuring her to withdraw the claim to protect their property. How much of the need for affirmative provisions in family laws is reflected in the dominant discourse in the country today?
The discussions and rhetoric that precede any laws inform the interpretation of the law. Here, it is significant to note that since there is no memory of any such struggles ahead of application of the Portuguese Civil Code in Goa, the logic, for instance, of introducing concepts of matrimonial property have little or no presence in the day to day application of that law in courts. Therefore, the female spouse is often expected to give up most of her claims.
In the discussions we saw before the enactment of anti-conversion laws in some States, every statement was peppered with the “love jehad” expression in order to drum up support for the law. Although this expression or its variants do not find place in the final anti-conversion law, the manner in which they are framed has precisely the Muslim as reference point. Therefore, the rhetoric that precedes a law determines its possible content.
A democracy calls for deliberations through vibrant participatory processes. In Goa, when family laws were being reviewed in the early 2000s by an all-male lawyer committee, women’s groups and those working on rights issues demanded an inclusive process with wide consultations and for the committee to have representation from the marginal stakeholders in the family.
The government of Goa responded by asking women’s groups to suggest the name of a person who would represent them; that is how this writer came to be on the committee. The government did not call for representation of stakeholders from other marginalised groups. The committee was quietly disbanded after the draft of the chapter on Succession was finalised. The remaining chapters under discussion were put in cold storage. Therefore, even the Goa Code, in terms of family laws, did not materialise fully.
For people to be able to participate in conceptualising a law in an informed way, there has to be adequate, purposeful research that scientifically brings the lived experiences of people on board. Besides, there has to be a conducive environment for marginalised stakeholders to speak. But when some communities are targeted, the rhetoric of the state forces women and marginal stakeholders to slink into a shell created by religious heads and secular liberals. Goa witnessed this after the Gujarat riots of 2002.
The state has a responsibility not just to desist from communal rhetoric, but to actively create an environment that enables marginal stakeholders in the family to speak up and thus be active participants in law-making processes. All the stakeholders in India should take a call on whether there is the need for a uniform civil code, and what the reforms should look like.
Albertina Almeida is a Goa-based lawyer practising for the past 34 years, a human rights activist, teacher and columnist, has a PhD in law on matrimonial property rights of women under the family laws of Goa, and was a member of the Permanent Lok Adalat of North Goa for close to 18 years.