Goa, Daman and Diu (Administration) Act, 1962 — Continuance of Civil Code

When Indian forces ended 451 years of Portuguese rule on 19 December 1961, an awkward legal question arose at once: what law now governed the marriages, property and inheritance of nearly six lakh people in Goa, Daman and Diu? The answer that Parliament chose was not abrogation but continuance. By Section 5 of the Goa, Daman and Diu (Administration) Act, 1962, every law in force on the appointed day — including the Portuguese Civil Code, 1867 — was carried forward intact until amended or repealed by a competent authority. The result is one of the most remarkable survivals in Indian legal history: a Napoleonic-era European code that still supplies Goa's family and succession law, and which the Supreme Court in 2019 hailed as a "shining example" of a uniform civil code. This chapter explains exactly how that continuance worked, what Section 5 says and means, and how courts have construed it.

Liberation, Annexation and the Risk of a Legal Vacuum

Goa, Daman and Diu were incorporated into the Union on the morning of 20 December 1961, the day after the Portuguese Governor-General signed the instrument of surrender. The territories were first administered under a Presidential regulation and then formally absorbed by the Constitution (Twelfth Amendment) Act, 1962, which inserted Goa, Daman and Diu into the First Schedule and Article 240 as a Union territory with retrospective effect from 20 December 1961. Annexation, however, transfers sovereignty; it does not automatically transplant the conqueror's private law onto the conquered population. Indian succession, marriage and contract statutes did not extend proprio vigore to the new territory.

Had Parliament done nothing, the inhabitants would have faced a vacuum: their existing rights in marriage, matrimonial property and inheritance — all built on the Portuguese codes — would have hung in legal uncertainty. The settled doctrine of international and constitutional law, that the municipal laws of a ceded or annexed territory continue until the new sovereign alters them, supplied the principle; the Goa, Daman and Diu (Administration) Act, 1962 supplied the express statutory machinery, removing any doubt by codifying the continuance in clear terms rather than leaving it to be inferred from general principle. For the broader picture of how the Code reaches the population, see our chapter on universal application and the subject hub.

The 1962 Act: Title, Assent and Scheme

The statute is short and administrative in character. Its long title declares it to be "An Act to provide for the administration of the Union territory of Goa, Daman and Diu and for matters connected therewith." It received the President's assent and was published in the Gazette of India on 27 March 1962, but its substantive operation is keyed to the "appointed day", defined in Section 2 as "the twentieth day of December, 1961" — so the continuance of laws is anchored to the date of Liberation rather than the date of enactment.

The Act's design is that of an integration statute. It applies the Constitution and Indian governance to the territory, it preserves the existing local law as a bridge, and it equips the Central Government with tools to harmonise that local law with the wider Indian legal system over time. The three operative pillars are Section 5 (continuance and adaptation of existing laws), Section 6 (power to extend Indian enactments to the territory) and the now-repealed Section 7 (judicial arrangements). Of these, Section 5 is the one that kept the Portuguese Civil Code on the statute book.

Section 5(1): The Continuance Clause Verbatim

Section 5(1) is the keystone. It provides: "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." Three features deserve close reading.

First, the clause is comprehensive — it speaks of "all laws," not merely Indian-style enactments. It therefore swept up the Portuguese Civil Code of 1867, the Portuguese Code of Civil Procedure of 1939, the codes of usages and customs and the body of decrees that constituted the territory's pre-Liberation legal order. Second, the clause is territorial and date-fixed: only laws in force "immediately before the appointed day" within the territory are continued, freezing the corpus as it stood on 19 December 1961, so that no law introduced in the territory after Liberation can claim the benefit of continuance. Third, the continuance is defeasible — it lasts only "until amended or repealed by a competent Legislature or other competent authority," which is why later Indian statutes extended to Goa have been able to displace parts of the old code. The procedural and substantive consequences of this freeze are explored further in our note on the effects of marriage on person and property.

Section 5(2): The Power of Adaptation and Modification

A frozen colonial code cannot operate unchanged inside a new constitutional order — references to the Portuguese Crown, the Estado da India and obsolete authorities had to be re-pointed at their Indian successors. Section 5(2) addressed this by empowering the Central Government, by order, to "make such adaptations and modifications, whether by way of repeal or amendment, as may be necessary or expedient" to bring the continued laws into accord with the Constitution and the administration of the territory, within a limited window after the appointed day.

This adaptation power is a familiar device in Indian constitutional practice (compare Article 372(2) for laws in force at the commencement of the Constitution). Its purpose is technical assimilation, not substantive reform: it allows the machinery of an old law to be made workable without altering its essential rights and obligations. The distinction matters because it explains why the substance of Goan family and succession law remained Portuguese even after the adaptation orders — the orders fixed nomenclature and competent authorities, leaving the legitime, the communion-of-assets regime and the rules on marriage forms intact. Those rules are taken up in our chapters on marriage under the PCC and the civil registry.

Section 6: Extending Indian Enactments to the Territory

If Section 5 preserved the old, Section 6 introduced the new. It empowers the Central Government, by notification in the Official Gazette, to "extend, with such restrictions or modifications as it thinks fit, to Goa, Daman and Diu any enactment which is in force in a State." This is the engine by which the all-India statutory order was gradually grafted onto the territory.

The interplay of Sections 5 and 6 is the heart of the constitutional dynamic. A continued Portuguese law remains in force until a competent authority displaces it; an Indian enactment extended under Section 6 is precisely such a displacing instrument pro tanto. Thus, for instance, the Code of Civil Procedure, 1908 was extended to Goa, Daman and Diu in 1965, with the consequence that suits and executions thereafter proceeded under the 1908 Code and the Portuguese Code of Civil Procedure, 1939 stood substantially superseded for those purposes. Yet — crucially — no general personal-law statute (the Hindu Code, the Indian Succession Act, the Special Marriage Act) was ever comprehensively extended to displace the Portuguese Civil Code's family-law core. That selective extension is the reason Goa's common civil code endures.

Section 7 and the Judicial Architecture

The 1962 Act also dealt with courts. Section 7, as originally enacted, concerned the extension of judicial jurisdiction to the territory, but it was repealed by the Goa, Daman and Diu Judicial Commissioner's Court (Declaration as High Court) Act, 1964, which set up the Court of the Judicial Commissioner and, ultimately, the route to the Bombay High Court's jurisdiction over Goa (today the High Court of Bombay at Goa).

For students the point is structural: continuance of substantive law under Section 5 had to be matched by continuance and then reorganisation of the fora that apply it. The Portuguese Civil Code could only function if there were courts competent to construe terms such as legitima, meacao and comunhao de bens. The post-1962 judicial scheme ensured that Indian courts inherited and continued to administer this distinctively continental body of private law — a task they perform to this day.

What Exactly Was Continued? The Portuguese Legal Corpus

The Portuguese Civil Code of 1867 (the Codigo Civil Portugues, often called the Seabra Code after its drafter Antonio Luis de Seabra) was extended to Portugal's overseas provinces by a Decree of 18 November 1869 and came into force in the Estado da India on 1 July 1870. Subject to it, and supplementing it for the local Hindu and Catholic communities, were instruments such as the Codes of Usages and Customs of the Gentile Hindus of Goa (1880) and various decrees on civil registration and marriage. Procedurally, the Portuguese Code of Civil Procedure, 1939 governed suits, inventory and the partition of estates, supplying the mechanism through which the substantive succession rules of the Civil Code were actually enforced in court.

On 20 December 1961 all of this was "in force" within the meaning of Section 5(1) and was therefore continued. The continued corpus was not a single homogeneous statute but a layered colonial order — a common Civil Code applicable across communities, modified by community-specific usages where the Code itself permitted. This layered quality is why Goa is described as having a common civil code rather than a perfectly identical one for every group; our chapter on universal application unpacks that nuance.

Jose Paulo Coutinho: The Leading Modern Authority

The most important judicial pronouncement on the continued operation of the Code is Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, (2019) 20 SCC 85, decided by a Bench of Deepak Gupta and Aniruddha Bose JJ on 13 September 2019. The dispute concerned a flat in Bombay owned by a Goan domicile, Joaquim Mariano Pereira, who had bequeathed it to one of his daughters. The question was whether succession to that out-of-Goa property was governed by the Portuguese Civil Code, 1867 (as continued in Goa) or by the Indian Succession Act, 1925.

The Supreme Court held that the Portuguese Civil Code, being a special law applicable to the domiciles of Goa, governs the succession of a Goan domicile in respect of all property wherever situated in India — within Goa or outside it — and that Section 5 of the Indian Succession Act, 1925 (the general lex situs rule for immovables) does not displace it for such domiciles. The Court reasoned that to split a single estate between two succession regimes by the accident of where each asset lay would make it virtually impossible to compute the legitime — the protected reserved share — and would let an owner defeat the reserved rights of spouse and heirs by locating property outside Goa. Coutinho is therefore the definitive statement that the law continued by Section 5 of the 1962 Act attaches to the person of the Goan domicile, not merely to the soil of Goa. The Court treated domicile, not situs, as the connecting factor for the succession of Goans — a personal-law characterisation that flows directly from continuance under the 1962 Act, because what Section 5 preserved was a code of personal status rather than one tied to land within the territory.

Coutinho, Article 44 and the 'Shining Example'

Beyond its succession holding, Coutinho is constantly cited for its observations on the uniform civil code. The Court recorded that "Goa is a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion," and lamented that, despite the directive in Article 44 of the Constitution that the State shall endeavour to secure a uniform civil code, no such code had been framed for the rest of India in the seventy years since independence.

For the examinee the analytical link is precise: the very thing the Court praised — a single civil code binding Hindus, Muslims and Christians alike in Goa — exists only because Section 5 of the 1962 Act continued the Portuguese Civil Code in force. The UCC celebrated in Coutinho is thus not a fresh Indian enactment but a continued colonial one. This is also why care is needed: Goa's code is not a perfect UCC (it preserves certain community-specific rules and historically contained gender-unequal provisions), a caveat the Court itself implicitly acknowledged and which later reform efforts addressed.

What Substance Survived: Legitime and Communion of Assets

Because Section 5 continued the substance of the Code, two distinctive institutions of continental private law continue to operate in Goa. The first is the legitime (forced heirship): a fixed reserved portion of a deceased's estate that descends compulsorily to the legitimate heirs and cannot be defeated by will, so that testamentary freedom extends only to a "disposable" quota. The second is the default matrimonial property regime of communion of assets (comunhao dos bens): absent an ante-nuptial agreement, the spouses' assets merge into a common pool of which each is entitled, on dissolution, to one half (the meacao or moiety).

These institutions have no equivalent in the general Indian personal laws, which is precisely why Coutinho stressed that a single estate cannot be carved up between the Code and the Indian Succession Act without rendering the legitime incalculable. The continued regime's practical operation — registration of the marriage and of the chosen property regime in the Civil Registry — is detailed in our chapters on the civil registry and the effects of marriage on person and property.

Defeasible Continuance in Action: The 2012 Goa Succession Act

Section 5(1) made continuance conditional on the absence of contrary action by a "competent Legislature." The most significant exercise of that competence is the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012, enacted by the Goa Legislative Assembly to codify, in English and in modern statutory form, the succession and inventory provisions that had until then been read out of the Portuguese Civil Code and the 1939 Procedure Code. The 2012 Act restates and, in places, amends those provisions — for example aligning the succession rights of married daughters — while preserving the underlying scheme of legitime and reserved shares.

The 2012 Act is doctrinally important because it demonstrates the dynamic built into Section 5: the continued colonial law is not frozen forever but is progressively replaced, provision by provision, by competent Indian legislation. It also generated litigation over the relationship between the codified Act and the surviving Portuguese provisions, illustrating that continuance under the 1962 Act and replacement by later law coexist as a continuing process rather than a single historical event.

Interpretive Principles: How Courts Read a Continued Law

Courts approach a Section 5 law with three settled propositions. First, a continued law retains its original character and content; adaptation under Section 5(2) changes machinery, not substance, so the continued Portuguese provisions are construed as they were understood under Portuguese jurisprudence to the extent consistent with the Constitution. Second, continuance is subject to the Constitution: a continued provision repugnant to fundamental rights would, like any pre-Constitution law under Article 13 and the assimilation principle, be void to the extent of repugnancy. Third, continuance yields to later competent legislation, whether an Indian enactment extended under Section 6 or a State law such as the 2012 Act — applying the ordinary rule that a later, special or extended law prevails over the continued one pro tanto.

In Coutinho these principles converged: the Court treated the continued Portuguese Civil Code as a subsisting special law of personal status, read it harmoniously against the Indian Succession Act, and resolved the conflict in favour of the special law for Goan domiciles, applying the maxim generalia specialibus non derogant — a general statute does not derogate from a special one. The case is a model of how a continuance clause is operated — not as a museum exhibit, but as living law that courts must interpret, harmonise and apply alongside the rest of the Indian statute book.

Continuance Compared: Section 5 and the Article 372 Analogy

Section 5 of the 1962 Act is best understood as a territory-specific cousin of Article 372 of the Constitution. Article 372(1) provides that all laws in force in the territory of India immediately before the commencement of the Constitution continue in force until altered, repealed or amended by a competent authority; Article 372(2) confers a parallel adaptation power on the President. Section 5(1) and 5(2) of the 1962 Act reproduce precisely this architecture for a territory that joined the Union later and whose pre-existing law was not Indian but Portuguese.

The analogy is more than cosmetic. It tells the interpreter that the body of learning developed around Article 372 — that continuance preserves the law with its existing content, that adaptation cannot work substantive change beyond what is necessary to fit the new constitutional framework, and that continued laws remain subject to Part III of the Constitution — applies with equal force to the laws continued under Section 5. It also explains the constitutional confidence with which the Supreme Court in Coutinho treated the Portuguese Civil Code as an ordinary subsisting law of India: continuance under a statute traceable to the Union's plenary power over the territory gives the Code the same juridical status as any other law carried into the Indian legal order. A continued law is, for all practical purposes, an Indian law of foreign origin.

For examiners the comparison is a ready framework: where Article 372 continued pre-Constitution Indian law in 1950, Section 5 of the 1962 Act continued pre-Liberation Portuguese law in the new Union territory from 20 December 1961 — the same technique, applied to a different territory and a different vintage of preserved law.

Exam Takeaways and Common Traps

For judiciary and CLAT-PG candidates, the high-yield points are tight. (1) The continuance vehicle is Section 5 of the Goa, Daman and Diu (Administration) Act, 1962, anchored to the appointed day, 20 December 1961. (2) The Portuguese Civil Code, 1867 survives in Goa because of that clause — it was not separately re-enacted. (3) The leading case is Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, (2019) 20 SCC 85, holding that the Code governs a Goan domicile's succession to property anywhere in India and calling Goa a "shining example" of a uniform civil code under Article 44.

Common traps: do not confuse the 1962 administration statute with the Twelfth Amendment (which effected the constitutional integration); do not say the Code applies by the lex situs — for Goan domiciles it follows the person, per Coutinho; and do not overstate the "uniform" label, since the code preserves some community-specific usages and was later partly recast by the 2012 Goa Succession Act. Tie every proposition back to the statutory hook in Section 5 and you will rarely go wrong. Continue with our chapters on the introduction and procedure for civil marriage.