PORTUGUESE CIVIL CODE IN INDIA

INTRODUCTION:

It dates back to history as to know the introduction of Portuguese law in India.

Portuguese who slowly found the sea route to India, started having trade and thereby made its
progress by acquiring territories but however did not emerge successful. But it placed it strong
routes in Goa, Damn and Diu and few other places major one being these. In these places even
the architecture, laws and everything finds its trace. The Portuguese Civil Code was constituted
in 1867, which is code adopted in Goa. Even though it got replaced by the Portuguese Civil Code
of 1966, the old Code was still followed in Goa. This was so much in debate in India. It was
assumed that Goa was actually having a uniform civil code and it was also debated that India
should also adopt such uniform civil code. This is majorly in laws relating to marriage,
inheritance and succession. All these questions raised were finally answered in the case of Jose
Paulo Coutinho vs. Maria Luiza Valentina Pereira recently. The Code followed in Goa was in
Portuguese text. It was only on October 2018, it was translated in English and was published in
the Official Gazette in India. This research work thus focuses firstly on the Portuguese advent to
India, how they eventually settled and spread its law especially in Goa. Then it focuses on Goa
Civil Code. The laws of marriage, succession and inheritance. The difference between the laws
of India and the Portuguese Civil Code applicable in Goa. Then it discusses about the current
scenario of its application and the recent grounds on which the Court upheld its decision.

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CHAPTER: 1

ADVENT OF PORTUGUESE IN INDIA:

In spite of the fact that India had kept up a type of a contact with the Western world both
during the old and medieval occasions, a direct naval contact with the Western world was built
up just in 1498 when Vasco da Gama cruised round the West bank of, Africa, crossed the
Arabian Sea and came to Calicut. The occasion was a defining moment throughout the entire
existence of India and denoted the beginning of the cutting edge period. Despite the fact that the
Portuguese didn't build up any regional realm in India and they had just some Trading Ports on
the West-Coast, they came to overwhelm trade and commerce with India. It might be noticed
that before the appearance of the Portuguese the sea-borne exchange among India and the West
was in the hands of the Arabs. The Portuguese not just stated their naval predominance by
ousting the Arabs yet in addition vanquished huge territories in India.

In 1505 they named Francisco D' Almeida as the Governor of these Territories in India.
During the following couple of years the Portuguese thought their Trade exercises in Goa and
carried on broad exchange with the neighboring kingdom of Vijayanagar. Next the Portuguese
built up their decent footing in Diu and Daman. The extension of the Portuguese in India was not
all smooth and they needed to look at any rate two adversaries. In the principal occasion the
Dutch East India Company put a keep an eye on the maritime exchange of the Portuguese in the
Indian Ocean. On the fundamental land the rising Marathas held up traffic of the Portuguese
extension.

The Marathas gave an extreme hit to the Portuguese Empire toward the North of Goa by
inflicting a thrashing on them at Thana and catching their solid hold at Bassein. The appearance
of the British likewise filled in as a keep an eye on the extension of the Portuguese impact.
Notwithstanding these elements the Portuguese neglected to win the compassion of the Indian
individuals because of their over-excitement for the reason for Christianity. Accordingly, at last
the Portuguese power declined in India. Nonetheless, it can't be denied that the Portuguese
practiced enormous social, monetary and social impact, extraordinarily in the Western Coasts.
The Portuguese enormously enhanced the Indian jargon and restorative science. The principal
treatise on the medicinal plants of India was composed by a Portuguese researcher Garcia da

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Orta. Likewise, the presentation of Printing and the foundation of Seminaries for the preparation
of the Indian Priests were other important commitments of the Portuguese. The Portuguese
impact is additionally unmistakable on the clerical design of India, particularly in Deccan. The
credit for advancing the lavish Manuelesque architecture1 in the Western Coast likewise goes to
the Portuguese. In the financial circle the Portuguese guaranteed a decent world market for the
Indian Goods—particularly spices and muslin.2 The Indian exchange with the Western world
developed an extraordinary scale. India likewise imported Goods from the European nations and
China. The biggest trade was continued with Persia, which provided horses in huge numbers to
the kingdom of Vijayanagar.3

CHAPTER: 2

THE PORTUGUESE INDIA POST ANNEXATION:

Goa, Daman and Diu, Dadra and Nagar Haveli are the places annexed by Portuguese. Dadra and
Nagar Haveli became independent in 1954. After 1961, the most important concept that emerged
was democratic election and also the replacement that was made pertaining to language that is
conversion of Portuguese to English as the general language in education as well as an
governmental language. But at later point of time in 1987, Konkani gradually became the official
language in Goa. But certain institutions still ran with Portuguese base and it was not disturbed
and hence it was not out of the Portuguese background that was created. India did not disturb the
Portuguese Civil Code in Goa and it continued to have it. And it was observed that Goa is the
only state that ran on a common civil code basis. This Portuguese Civil Code came into force
during the 19th century. The Uniform Civil Code in Goa is a dynamic law that permits equivalent
division of Income and Property paying little heed to gender among husband and wife and
furthermore between children. Each birth, death and marriage must be necessarily registered.
For divorce there are extreme provisions. Muslims that have their relationships registered in Goa
can't take more than one wife or divorce by articulating "talak" thrice. Over the span of marriage
all the property and riches claimed or procured by every life partner is ordinarily held by the
couple. Every life partner if there should be an occurrence of divorce is qualified for a half

1
It is a colonial Portuguese architecture.
2
It is a very light weight kind of cotton fabric.
3
“Advent of Portuguese in India.” History Discussion - Discuss Anything About History, 10 June 2016,
http://www.historydiscussion.net/history-of-india/advent-of-portuguese-in-india/6037.

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portion of the property and in the event of death of either of the partner, the responsibility for of
the property is held by the other. As per the Uniform Civil Code regardless of whether the
children (both male and female) have hitched and gone out, the other half must be isolated
similarly among them. Subsequently the guardians can't exclude the children absolutely as they
can arrange just 50% of the property in a Will and the rest must be necessarily and similarly
shared among the children.4

CHAPTER: 3

THE GOA CIVIL CODE:

The Portuguese Civil Code was sanctioned in the year 1867 and by an announcement, on
18 November 1869; the Civil Code of 1867 was stretched out to the Overseas Provinces of
Portugal. The Portuguese ruled Goa for a long time and when at long last, Goa was attached to
the Union of India, the Portuguese deserted a uniform common code relevant to all inhabitants of
Goa regardless of their religion. This was not normal for the remainder of India where the
individual laws vary for each religion and there is an absence of complete codification of the law.
After 1961 all Portuguese period laws were canceled by the Indian Parliament, with the
exception of the Portuguese Civil Code of 1867 which keeps on staying in power in Goa even
now despite the fact that the Portuguese Civil Code of 1966 has supplanted the old code in
Portugal. By ethicalness of the Goa, Daman and Diu (Administration) Act 1962, all laws in
power in the past domains of Portugal added into India as Goa and Daman and Diu, including the
Civil Code, were kept in power. Likewise, they ended up inner laws of the new Union Territories.
This code, when brought into power, secured every affable risk of people dwelling in Goa
including matters identified with marriage, conjugal property, divorce, maintenance, legacy and
progression and so forth. From that point forward, some lawful demonstrations of the Indian
Union concerning Common Law matters, for example, the Indian Contract Act 1872 and the
Indian Transfer of Property Act 1882, were reached out to Goa, Daman and Diu and the
comparing arrangements of the Civil Code were canceled. The rest of the arrangements of the

4
GoaHolidayHomes.com. “Uniform Civil Code in Goa, Goa Uniform Civil Code Information, Portuguese Civil
Code in Goa, Uniform Civil Code in Goa.” Uniform Civil Code in Goa, Goa Uniform Civil Code Information,
Portuguese Civil Code in Goa, Uniform Civil Code in Goa,
https://www.goaholidayhomes.com/information/uniform-civil-code-in-goa.html.

4|Page
Code, quite those concerning Family and Succession Law, Property Law (with the exception of
its exchange) and Tort Law, are anyway still in power in Goa, Daman and Diu.5

A portion of the arrangements of this code are one of a kind to the extent that comparable
arrangements are not seen any place crosswise over India. For example, as indicated by the code,
all property claimed by a companion or on the other hand procured after marriage are together
held by the couple and if there should arise an occurrence of a separation, every mate is
qualified for half of the absolute property mutually held during marriage. In any case, the Goan
law permits prenuptial understandings changing or constraining the property holding or the
qualification. Hence, a couple may go into a prenuptial understanding expressing that the spouse
will have no directly over the property possessed by the spouse before marriage is solemnized in
the event of a separation. Such prenuptial understandings went into just before marriage can't be
altered or renounced upon marriage. The Income Tax Act perceives the joint holding of property
by a couple if there should arise an occurrence of Goa and treats them as a solitary unit for issues
of tax assessment.

Another distinctive arrangement is that as indicated by the Code, no parent can totally
exclude their youngsters from prevailing to their property. At any rate half of the parent's
property must be partitioned similarly among the youngsters and this can't be contradicted even
through a confirmation. Much the same as the possibility of consistency, no close to home law is
given extraordinary position under the Code and Muslims are not permitted to pursue Shariat
diktats6. For occurrence, a Muslim man in Goa can't rehearse polygamy or give verbal divorce.
Also, no marriage as indicated by the Code ends up legitimate till it is enlisted with the common
marriage enlistment framework set up in Goa, while the idea of marriage is carefully contractual.
7
A remarkable arrangement in that is about the enrollment of births and relationships being made
required and just such enrolled actualities to be an acceptable verification thereof. Likewise the
birth also, marriage enlistments have been announced as the juridical establishment base to
decide juridical status and henceforth the personality of the Goans. Different highlights

5
Vicente, Dario Moura. The Civil Code in Portugal and Goa: Common Heritage and Future Prospects.
http://www.fd.ulisboa.pt/wpcontent/uploads/2014/12/Vicente-Dario-Moura-The-Civil-Code-in-Portugal-and-
GoaCommon-Heritage-and-Future-Prospects.pdf.
6
An order or a decree which is imposed to be followed.
7
Mukopadhyay, Souradeep. All That Is Uniform Is Not Gold: UCC in Goa and India's Predicament. The World
Journal On Juristic Polity, Nov. 2017, jurip.org/wp-content/uploads/2017/12/Souradeep-Mukopadhyay.pdf.

5|Page
incorporate the simply common nature of marriage enlistment, wherein any two people of
inverse gender, including outsiders, can wed here while holding their own strict and other
foundation affiliations. The field of contention of laws in relationships between people of various
nationalities has likewise been accommodated. The way that Goa is the main State in India to
have a type of a Uniform Civil Code has made it exceptionally basic for people battling for UCC
to refer to the case of Goa while requesting a comparable code for the remainder of India. In any
case, not many individuals commenting on the Goa Family Law have really broke down the
arrangements, or truth be told, understood it. It is maybe stunning that while most Goa
inhabitants may know the major precepts of the code which controls their lives and know about
the shared rights and commitments of spouses what's more, spouses or know about the essential
arrangements of separation, not many have really perused the code itself. One of the most
significant purposes behind the equivalent is the way that a far reaching deciphered rendition of
the whole code was, as of not long ago, not by any means accessible also, the code was
accessible just in Portuguese, which continuously less people living in Goa get it. The attorneys
and judges have, for since a long time ago, worked utilizing truncated interpretations of parts of
the code which are most regularly utilized or required.8 Aside from this colossal disadvantage of
availability of the code, the inquiry emerges, how uniform is the uniform common code truly?

Initially, the Code isolates relationships into three classifications

Marriage between Catholics directed at a Catholic Church.

Marriage between Catholics not directed at a Catholic Church.

Marriage between Non-Catholics.

While the enrollment of marriage is to be done at the common vault for the last two
classifications, if there should arise an occurrence of the main class, the enlistment is directed
through the Church which sends a duplicate its marriage library to the Civil Registry and that it

8
“Portuguese Civil Code Becomes Accessible, Translated to English.” Times of India, 4 Feb. 2016,
timesofindia.indiatimes.com/city/goa/Portuguese-civil-code-becomes-accessible-is-translated-to-
English/articleshow/50843876.cms.

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is viewed as adequate evidence of marriage. A marriage led in the Catholic Church adheres to
the Canon Law of Catholic Marriage and this is far beyond the Code. 9

Common relationships allude to Hindu and other non-Canonical relationships. These first
require enlistment of the 'aim to-wed' by the two gatherings, and in this manner the marriage
itself happens within the sight of the Civil Registrar, who makes a record of the marriage. As it
were after these two methods are finished does the marriage have common impacts. Catholics
can additionally settle on the common type of marriage, rather than a standard marriage. In any
case, by and by, it isn't that straightforward, because of cultural and different weights since
relationships of Catholics picking for what is usually known as common relationships are not
perceived by the Church. Couples wedding under this arrangement are viewed as 'living in
wrongdoing' by the remainder of their network. Therefore, the circumstance in actuality winds
up like the remainder of India wherein there exists individual law, with a choice to have a really
thoughtful marriage similar to a marriage under the Special Marriage Act, 1954. This is a
distinction drawn based on religion, and sums to the activity of an individual law for Catholics in
Goa, which is perceived by the State.10

The Catholics wedding in the congregation are prohibited from separation arrangements under
the common law and must comply with group law which doesn't take into account separate if
there should be an occurrence of relationships culminated between two Catholics as it is viewed
as a constant holy observance. What the Church allows however is legal partition, or supposed
invalidation of the marriage, which depends on the presumption that the marriage has not
occurred or not been fulfilled. Choices on this are taken not by any considerate court, yet by the
Religious Court of the Church itself. It might be additionally noticed that the justification for
abrogation accessible to Catholics and separation allowed to others is fairly unique in relation to
each other. In 1974, the arrangement of the 1946 Marriage Decree denying separation was
judicially struck down in E. Nunes of Bicholim v. P Nicolau Fernandes of Merces 11
for being
ultra vires of the Indian Constitution. The legal decision has still not been given authoritative
acknowledgment, however. Along these lines the privilege to separate for some, Catholics lays
9
Mukopadhyay, Souradeep. All That Is Uniform Is Not Gold: UCC in Goa and India's Predicament. The World
Journal On Juristic Polity, Nov. 2017, jurip.org/wp-content/uploads/2017/12/Souradeep-Mukopadhyay.pdf.
10
Position of Women in Goan Society, IRB-Immigration and Refugee Board of Canada.
https://www.ecoi.net/local_link/179996/282536_en.html.
11
E. Nunes of Bicholim v. P Nicolau Fernandes of Merces, AIR 1974 Goa 46.

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dubiously on a judgment, that itself could be turned around. Under the Civil Law, separate is
allowed on grounds which range from infidelity by either party, to abuse, nonappearance without
notice for more than four years, delayed hopeless psychological maladjustment, separate by
common assent, serious infectious maladies or sexual variations, uninhibitedly agreed to division
for ten sequential a long time for whatever reason, or even the constant bad habit of betting,
while under the Customs furthermore, Usages for Hindus, separate is allowed uniquely on the
grounds of infidelity by the spouse. Another incredible crime which exists in the Code is that it
grants polygamy under certain conditions, the conditions itself being incredibly misogynist and
inadmissible in the cutting edge world. Magnificent Portugal, while it controlled Goa, passed a
declaration on December 16, 1880 titled "Codigo de Usos e Costumed de Goa' (or the Code of
Usages and Customs) which keeps on staying in power as a major aspect of the rule book. This
declaration, notwithstanding the Portuguese Civil Code of 1867 perceived and classified
conventional uses and traditions s of the Hindus living in the domain of Goa after Hindu
gatherings appealed to the pilgrim organization. This, according to Article 2, enabled Hindus to
wed by their strict ceremonies while having a similar status in law as a catholic and common
marriage. Well beyond this, Article 3 permitted polygamy by Hindu men on the off chance that
their better half had no offspring at all till the age of 25 years or had no male issue till the age of
30 years or being of lower age, if 10 a long time had slipped by from the last pregnancy, just as
on partition according to any lawful ground in the event that there is no male issue. This anyway
should have been demonstrated in court and furthermore, on the off chance that of no issue till 25
years or on the ground of having no male issue till 30 years old or inside 10 years of past
pregnancy, the spouse's agree was to be given in an open deed in order to permit a subsequent
marriage while the past subsisted. The previously mentioned arrangements still keep on existing
as law, however the equivalent are infrequently utilized in present occasions.12

12
Mukopadhyay, Souradeep. All That Is Uniform Is Not Gold: UCC in Goa and India's Predicament. The World
Journal On Juristic Polity, Nov. 2017, jurip.org/wp-content/uploads/2017/12/Souradeep-Mukopadhyay.pdf.

8|Page
CHAPTER: 4

CURRENT SCENARIO:

In the case of Jose Paulo Coutinho vs. Maria Luiza Valentina Pereira, the following
questions were raised. It was, whether a citizen of India who is a Goan but residing outside Goa
will have laws applying under the Goa civil code which is a trace of Portuguese Civil or the
Indian laws in case of inheritance and succession? In this case a bench comprising of Deepak
Gupta and Aniruddha Bose held as following,

1. They said that there is nothing about the applicability of private international laws here.
Even though it was Portuguese law, it gained applicability in India only because it was
recognized by specific Acts under the Constitution of India. Thus it now becomes a
codified Indian Law. And hence it is nothing about private international laws.
2. And for a Goan person who is residing outside Goa in India, even to such a person the
Goa Civil Code will apply and not India Succession Act because that is an Act
exclusively for the Goan as mentioned in the Constitution.13

13
Kini, Ashok. “Succession And Inheritance Of Goan Domicile Shall Be Governed By Portuguese Civil Code, Holds SC
[Read Judgment].” Live Law - Legal News India, Law Firms News, Law School News, Live Law, 13 Sept. 2019,
www.livelaw.in/top-stories/succession-inheritance-goan-domicile-governed-by-portuguese-civil-code-
148044#targetText=Portuguese%20Civil%20Code%20is%20an%20Indian%20Law&targetText=It%20is%20no%
20longer%20a,the%20Act%20referred%20to%20above.

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CONCLUSION:

In this way, the Civil Code of Goa is a long way from flawless and however the State
Government in 2005 had framed a Committee to draft another Code, and according to its
proposals, a piece of the proposed Code was presented in the Assembly long back as 2005, it was
distinctly in August 2016 that the Bill was passed as Goa Succession, Special Notaries and
Inventory Proceeding Act, 2016, which looks to supplant the Portuguese Civil Code regarding
the matter of Succession, Stock and Notarial Law to meet the present day necessities, and to
make it useful. No noteworthy advancement in such manner has been accounted for, yet the
experience of UCC in Goa makes one thing inexhaustibly clear, it isn't adequate that a solitary
Code direct all. The parts of the bargains are accomplished even without receiving a Uniform
Code and the State-Religion detachment recipe utilized in the West may not make a difference
well in an eminently different country like India, where religion keeps on assuming an
overwhelming job in all circles of life. In any case, the right way is certifiably not a strong
burden of consistency, without due thought for the welfare everything being equal. Neither
would a namesake Uniform Code with inbuilt adaptabilities holding network based contrasts fill
any need however of a political trick. Hence, one should genuinely think about whether the most
ideal approach forward is to push for modernization and change in every single Personal Law,
rather than causing some serious problems.14

14
Mukopadhyay, Souradeep. All That Is Uniform Is Not Gold: UCC in Goa and India's Predicament. The World
Journal On Juristic Polity, Nov. 2017, jurip.org/wp-content/uploads/2017/12/Souradeep-Mukopadhyay.pdf.

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BIBLIOGRAPHY:

Books:

1. Chavan, Nandini, and Qutub Jehan. Kidwai. Personal Law Reforms and Gender
Empowerment: a Debate on Uniform Civil Code. Vol. 2, Hope India, 2006.
2. GHOSH, PARTHA S. POLITICS OF PERSONAL LAW IN SOUTH ASIA: Identity,
Nationalism and the Uniform Civil Code. ROUTLEDGE INDIA, 2019.

Journals and Articles:

1. Vicente, Dario Moura. The Civil Code in Portugal and Goa: Common Heritage and
Future Prospects. http://www.fd.ulisboa.pt/wpcontent/uploads/2014/12/Vicente-Dario-
Moura-The-Civil-Code-in-Portugal-and-GoaCommon-Heritage-and-Future-Prospects.pdf.
2. Mukopadhyay, Souradeep. All That Is Uniform Is Not Gold: UCC in Goa and India's
Predicament. The World Journal On Juristic Polity, Nov. 2017, jurip.org/wp-
content/uploads/2017/12/Souradeep-Mukopadhyay.pdf.
3. LUTHERA, VED PRAKASH. “GOA AND THE PORTUGUESE REPUBLIC.” The
Indian Journal of Political Science, vol. 17, no. 3, 1956, pp. 261–280. JSTOR,
www.jstor.org/stable/42743855.

Websites:

1. Kini, Ashok. “Succession And Inheritance Of Goan Domicile Shall Be Governed By

Portuguese Civil Code, Holds SC [Read Judgment].” Live Law - Legal News India, Law
Firms News, Law School News, Live Law, 13 Sept. 2019, www.livelaw.in/top-
stories/succession-inheritance-goan-domicile-governed-by-portuguese-civil-code-
148044#targetText=Portuguese%20Civil%20Code%20is%20an%20Indian%20Law&am
p;targetText=It%20is%20no%20longer%20a,the%20Act%20referred%20to%20above.
2. Position of Women in Goan Society, IRB-Immigration and Refugee Board of Canada.
https://www.ecoi.net/local_link/179996/282536_en.html.
3. http://goaprintingpress.gov.in/downloads/1819/1819-29-SI-OG-0.pdf
4. https://timesofindia.indiatimes.com/city/goa/Portuguese-nationality-is-fundamental-right-
by-law/articleshow/28808047.cms

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 5. GoaHolidayHomes.com. “Uniform Civil Code in Goa, Goa Uniform Civil Code
Information, Portuguese Civil Code in Goa, Uniform Civil Code in Goa.” Uniform Civil
Code in Goa, Goa Uniform Civil Code Information, Portuguese Civil Code in Goa,
Uniform Civil Code in Goa, https://www.goaholidayhomes.com/information/uniform-
civil-code-in-goa.html.
6. https://www.thehindu.com/todays-paper/tp-national/tp-karnataka/portuguese-citizens-
cannot-contest-polls-faleiro/article5472699.ece
7. https://www.hindustantimes.com/india-news/all-in-the-family-is-the-goa-civil-code-a-
model-for-the-rest-of-the-country/story-4ImvwP0OrAST2hUnsZxtiL.html
8. https://www.ijariit.com/manuscripts/v2i6/V2I6-1279.pdf

9. “Advent of Portuguese in India.” History Discussion - Discuss Anything About History,

10 June 2016, http://www.historydiscussion.net/history-of-india/advent-of-portuguese-in-
india/6037.

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