A compelling piece of historical heritage in our legal landscape is the Portuguese Civil Code that is in force in Goa, Daman and Diu, making these the only places in India where a common civil code is in practice. For 163 years, it has not faced any opposition. The reason for its smooth operation can be traced back to the way it came about.
Enacted in 1867, it was extended to the colonies and is quite different in conception from any contemporary code. Its author, Viscount Antonio Luis de Seabra (1798-1895), was a High Court judge and had complete mastery of the entire range of civil law. He single-handedly wrote the code, by hand, from 1850 to 1858. The original manuscript is still preserved.
A code is a systematic exposition of a fairly wide area of law arranged together as a logical, philosophical, and juridical system. Seabra’s code covers a preliminary area dealing with civil capacity, that is the capacity to have and enjoy rights; the second part deals with acquisition of rights covering contract, marriage, and succession. Part three deals with property; Part four with enforcement, enjoyment, and protection of rights. It has a total of 2,538 articles. Its systematisation was original, unique, and never replicated.
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Portugal was a constitutional monarchy from 1822, which set the tone for the liberal and egalitarian nature of the code. It is an individualistic, rights-based code founded on the rights of a citizen. There is a bourgeois tone about it. Socialism, communism, and welfare states were yet to come.
At the time of the liberation of Goa, The Goa, Daman and Diu (Administration) Act, 1962, was passed, Section 4(1) of which reads:
“4. Continuance of existing laws and their adaptation: (1) All laws in force immediately before the appointed day in Goa, Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority.”
By virtue of this, the civil code remains in force. In 1963-1965, various Indian laws, including the Indian Contract Act, 1872, and the Transfer of Property Act, 1882, were extended to Goa, whereby the corresponding provisions of the civil code were automatically repealed.
The net result is that the substantial part of the code still survives, particularly in the areas of family law, succession, and property. The Supreme Court, in 2019, rightly held that the Portuguese Civil Code, 1867, is now an Indian law. The Portuguese Civil Code applied primarily only to Portuguese citizens; Goans were Portuguese citizens.
Therefore, it applies only to Goans; that is, persons who or whose parents or grandparents were governed by it before December 20, 1961. Thus, it has become a “personal law” for Goan people based not on religion but on former citizenship.
When we talk of the Portuguese Civil Code in Goa, we are really talking of Portuguese legislation in the civil area that remain in force:
1. The Portuguese Civil Code, 1867
2. Laws of Marriage, Divorce, Children, 1910-11
3. Law of Canonical Marriage, 1946
4. Code of Civil Registration, 1912
5. Portuguese Code of Civil Procedure, 1939
6. Notarial Laws
7. Code of Property Registration, 1952
8. Codes of Customs and Usages of Hindus of Goa and of Non-Christians of Daman and Diu.
The Laws of Marriage, Divorce and Children were enacted in 1910-1911, when Portugal become a republic and were modifications to the original code.
The Law of Canonical Marriage, 1946, permits linking of a church marriage to its civil registration.
In 2001, a committee was appointed to reorganise the civil code. This committee removed the law of succession from the code and re-enacted it as a separate Act.
How did the Hindus of Goa receive the code?
The usages and customs of Hindus were already safeguarded by a statute in 1853. When the code was extended to Goa, the said statute was revised and re-enacted in 1880 as the Code of Usages and Customs of Hindus, with 31 Sections, inter alia providing:
A 16th century Portuguese illustration from the Códice Casanatense, part of a three-piece depiction of a Hindu marriage ceremony. The inscription reads: Marriage of Kanarese. | Photo Credit: Creative Commons
1. Recognition to the Hindu Joint Family as a legal entity.
2. That, where there is no male child, Hindus can adopt a male son or marry a second wife with the consent of the first wife.
3. That Brahmins could swear an oath on the Bhagavad Gita and others on the coconut.
The second of these provisions is being widely used as a stick to beat the uniformity of the Portuguese Civil Code. Although the provision exists, I can certify that in 37 years of practice I have read only once about a long-dead gentleman who indeed took on a second wife.
The other provision regarding Brahmins and the Gita is used to accuse the Portuguese law of “recognising” the caste system. But it is irrelevant because from the 19th century itself all citizens had begun to swear on the Gita. There were similar enactments to safeguard the usages and customs of non-Christian inhabitants of Daman and Diu.
Highlights
- Goa is the only place in India where a common civil code is in practice, the Portuguese Civil Code of 1867. It is a systematic exposition of a wide area of law, written by one man, Viscount Antonio Luis de Seabra, and has been in force for 163 years.
- It is a comprehensive exposition of civil law with four parts covering civil capacity, acquisition of rights, property, and enforcement of rights. Its smooth acceptance by the people is a testament to its efficacy.
- Its concepts like communion of assets and equal rights for sons and daughters in succession could be valuable for a potential civil code for all of India. However, framing a comprehensive code requires careful study and discussion.
Goa’s biggest contribution to the Portuguese Civil Code has been by the commentator Dr Luis da Cunha Gonçalves (1875-1956), who wrote a monumental 15-volume commentary to the Civil Code between 1929 and 1934, which remained the last word on the subject through the 20th century.
What is charming about the Portuguese Civil Code besides its uniformity, orderliness and systematisation of law is the smooth and graceful acceptance of the code by the people. It sank into their lives easily and gracefully. A civil code happily accepted and followed by all is the biggest blessing a nation can have.
The Portuguese Civil Code is the silent, unwritten, unknown, and perhaps unidentified cause of the cosmopolitan nature of Goan people and the relaxed bonding among its different sections. They and their ancestors all followed the same law. Even a villager from the most remote place knows that his wife is owner of half his assets, that to sell something he needs his wife’s signature. If they have to make a will, both have to do it together; the first thing in a marriage is to register it; children’s births are compulsorily registrable; one co-owner cannot sell without the consent of the other co-owners; parents cannot sell to children (since it bypasses the succession law). This and other provisions of law like Emphyteutic Permanent Lease under land grants make the system different.
The Basilica of Bom Jesus in Old Goa. The Portuguese Civil Code primarily governed Portuguese citizens. Thus, it become a personal law for Goan people based on former citizenship, not religion. | Photo Credit: Getty Images
Besides the civil registration system of births, deaths, and marriages which was highly organised, there was the property registration system by which every property was registered with the name of its owner on the side; verification of title was so simple.
The Portuguese Civil Code was effective, without ever being read by 99 per cent of the Goan population except perhaps the learned lawyers of the time. The code was not translated into English. In 1978 and 1986, two booklets containing family laws were published, which remained in use for about 30 years. The first comprehensive translation of all the surviving provisions of the full code was done in 2016 by this writer, who also did the official translations of the Portuguese Civil Code and the Portuguese Code of Civil Procedure, in 2018 and 2019, respectively, for the government of Goa under the High Court’s order.
“What is the big deal about this law in Goa?” is a question often asked. Let me point out a few of its distinctive features:
Exposition of law The Portuguese Civil Code is not a compilation but an exposition of law made by one man from beginning to end, something like a continuous discourse with a common line of thought through the text.
Comparison with Bentham There is an amazing though faint correspondence between the four broad parts of the Portuguese Civil Code and the well-known “ends” of Civil Law identified by Jeremy Bentham. Part I-Civil Capacity would correspond to Bentham’s “Subsistence”; Part II-Acquisition of Rights to Bentham’s “Abundance”; Part III-Right to Property to Bentham’s “Equality”; and Part IV-Violation of Rights and Remedies to what Bentham calls “Security”.
Doctrinal Code This is not a mere body of bald rules but a structured edifice of civil law concepts. Every single concept is explained and the relevant doctrine laid down.
Conceptual approach Legal phenomena and legal institutes are dealt with at a conceptual level in a language that is intellectual and philosophical and not at a purely empirical level. It is in everyday language, making legal discourse and rhetoric, that is, application of law to facts, easier for lawyers and judges, and avoiding the need for courts to do the conceptual research, exposition, and decision whilst deciding rights.
The conceptual or doctrinal approach is at two stages:
• Preliminary title: The most general concepts and principles going even beyond civil law are laid in Articles 1 to 16.
• Thereafter, at the beginning of every Part, Book, Title, Chapter, Section and subsection, the relevant legal concept is first clearly explained and defined. Thereafter, the rules of law relating to it are expounded in simple and flowing yet exact and classic language. The code is a literary masterpiece. Besides lawyers, any educated person would be delighted to read it.
Communion of Assets gives the wife half right in all the assets of the husband, who cannot dispose of them without her consent.
Registration of marriage over and above religious ceremony and interlinkage between religious and civil marriage.
Equal treatment of sons and daughters in succession.
Legitime gives all children, without gender distinction, equal rights in 50 per cent of the parents’ estate by sheer operation of law.
Disposable quota forbids parents from disposing by will or gift more than 50 per cent of their estate, the balance being the legitime, which devolves on the children equally by operation of law or intestacy.
“Aforamento” or Emphyteutic Lease A typical institute of European law, it is land that belongs to the government or to a public institution and is given on lease for a specific purpose; the lessee enjoys the property but the title remains with the owner. The lease is transferable. The lessee is also given a right to acquire absolute ownership by paying 20 years emphyteutic fee in a lumpsum.
Should the whole of India have a civil code?
It needs no discussion, the Constitution said so in 1950. It is not the idea of any person or party, it is the clamour of a nation. A major nation like India should certainly have a civil code. It is no pretext to say that the UK or the US do not have one—that is by default. In the US, several States like Louisiana and California do have State-level civil codes.
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The acceptance of a common civil code is part of being a citizen, an Indian. Religion is a private affair. Nobody has the right to have more than one wife, to divorce her at will, to keep daughters and wives out of inheritance, and so on, and flaunt it as religion. Such things are perversions of religion. Just because India is a free country does not mean that anyone can weaponise their religion. At the same time, the civil code is not a weapon for extremists to oppress other communities; they would do better to look within their own communities.
“Many ideas like communion of assets and equal rights of succession to sons and daughters in the Portuguese Civil Code can be certainly included in the Indian civil code.”
Is there merit in replacing the existing system with a similar code across India?
In India, the law does not follow a system as such. I dare say, there is no system; the lack of system makes lawyers rich and judges unnecessarily important. Judges are meant to implement the law and nothing more. When the civil code comes, judges will be cut to size, and the practice of law will become less of a money-making proposition.
This problem has bedevilled England and is bedevilling India. In India, we are lost between codified statutes of the British era and the case law system, also of British origin. The British, under the influence of Bentham, did try to codify the law in India, which they could not do in their own country. In India now, law is an occupation, a trade, a skill, it is not really a subject of study. There is no jurisprudence or legal theory worth the name. There are teachers, not jurists, and any person with a long innings in the law is referred to as a “jurist”.
Civil law has not been taught as a subject in law colleges. Teaching of civil law and the growth of Indian civil jurisprudence are the prerequisites for having a civil code in India.
The Portuguese Civil Code of Goa, Daman and Diu cannot be simply and mechanically extended to the rest of India, but many ideas like communion of assets, equal rights of succession to sons and daughters, and so on can be certainly included in the Indian civil code; they would empower Indian women like never before. Most of all, as stated above, a civil code would bring order in the civil law of India, into the legal practice, judicial process, and forensic systems. It would certainly reduce the pendency of cases because there would be clarity in the law.
It would empower all citizens who, by holding a civil code volume in their hands, would know the bulk of their rights in a vast area of law.
What needs to be done first is to frame a code. A discussion could take place on the draft. Nowadays, exhaustive discussion takes place not on a draft code, but on social, religious, and political issues. And what emerges in the first place is the total ignorance of the subject by all concerned. In such a situation, nothing can be expected. Acrimony is no substitute for honest study.
F.E. Noronha is an advocate of the Bombay High Court. He did the official translations of the 1867 Portuguese Civil Code and the 1939 Portuguese Civil Procedure Code for the Goa government.
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