Introduction — Continued Application in Goa Post-Liberation

When Indian forces ended Portuguese rule over Goa, Daman and Diu in December 1961, the territory carried with it a legal inheritance that no other part of India possesses: a single, religion-neutral civil code rooted in the Codigo Civil Portugues of 1867. More than six decades later that code — long since repealed in Portugal itself — continues to govern marriage, matrimonial property and succession for persons domiciled in Goa. This chapter explains the constitutional and statutory machinery by which a foreign colonial enactment became, in the words of the Supreme Court, "an Indian law," why it survived liberation intact, and why courts and commentators repeatedly hold it up as the country's only working uniform civil code. The story turns on a single, deceptively modest provision — Section 5 of the Goa, Daman and Diu (Administration) Act, 1962 — and on a line of decisions culminating in Jose Paulo Coutinho v. Maria Luiza Valentina Pereira (2019).

What "continued application" means

The phrase "continued application" captures a peculiar feature of Indian legal history. When a territory is annexed, conquered or ceded, the new sovereign does not automatically sweep away the existing private law. Under settled principles of public international law and the law of conquest — recognised in India in cases such as Vinod Kumar Shantilal Gosalia v. Gangadhar Narsingdas Agarwal — the municipal laws of the absorbed territory continue in force until the new sovereign legislates to change them. Goa is the most striking modern Indian example of this doctrine in operation. The Portuguese Civil Code of 1867, together with the body of family and commercial legislation that the Portuguese had extended to their Estado da India, did not lapse on 19 December 1961 when the territory was liberated. It carried over, and Parliament then expressly preserved it.

This is not a matter of nostalgia or antiquarian curiosity. For a person domiciled in Goa today, whether to marry in or out of community of property, what share a surviving spouse takes, and who inherits an intestate's estate are all answered by rules whose pedigree runs back to Lisbon in the nineteenth century rather than to the personal-law statutes that govern the rest of India. Understanding the mechanism of continuance is therefore the gateway to the whole subject. The companion chapter on the Goa, Daman and Diu Act, 1962 examines the enabling statute in detail; here the focus is on the principle and its consequences.

The pre-liberation legal order

To understand what continued, one must first see what existed. The Codigo Civil Portugues was enacted in Portugal in 1867 (drafted principally by the Viscount of Seabra and often called the Seabra Code). By a royal decree of 18 November 1869 the Code was extended to Portugal's overseas provinces, and it came into force in Goa, Daman and Diu on 1 July 1870. From that date a single civil code governed obligations, property, the family and succession for the inhabitants of the territory, irrespective of the religion they professed — a structural choice that distinguishes Goa from British India, where personal law was deliberately left to be governed by religion-specific bodies of rule.

The Portuguese, however, did not impose a wholly uniform regime. Recognising long-standing local usage, they supplemented the Code with community-specific instruments. The most important is the Codigo dos Usos e Costumes dos Habitantes Nao-Cristaos de Goa — the Code of Usages and Customs of the Gentile Hindus of Goa — promulgated in 1880, which preserved certain Hindu customs (including, controversially, a limited toleration of bigamy in defined circumstances). For Catholics and others marrying civilly, the Decrees on Marriage and Divorce of 1910 (enacted by the newly republican Portuguese state) introduced compulsory civil registration and a civil law of divorce; for Catholics marrying in church, the Concordat-based Canonical Marriage Decree of 1946 governed celebration and recognition. The detail of these regimes is taken up in the chapter on the forms of marriage; the point for now is that the "law" that continued after 1961 was not the bare 1867 Code alone but this layered ensemble.

Liberation in 1961 and the question of the laws

On 19 December 1961 Indian armed forces brought Portuguese administration of Goa, Daman and Diu to an end, and the territories were incorporated into the Indian Union. The Constitution (Twelfth Amendment) Act, 1962 inserted the territories into the First Schedule with retrospective effect from 20 December 1961, formally constituting them a Union territory. Annexation, however, raised an immediate and practical problem: what law was to govern the daily transactions, contracts, marriages and estates of more than half a million people?

A vacuum was unthinkable, and wholesale extension of Indian law overnight was both impractical and politically delicate. The Government's answer, following the well-worn template used for other acquired territories, was to freeze the existing legal order and extend Indian law selectively over time. This was achieved first by ordinance and then by the Goa, Daman and Diu (Administration) Act, 1962, the central statute that gave legal form to the continuance principle. The next section turns to the operative provision.

Section 5 — the saving of existing laws

The hinge of the entire subject is Section 5 of the Goa, Daman and Diu (Administration) Act, 1962. Its first limb provides that all laws in force immediately before the appointed day (20 December 1961) 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. The provision is a classic "saving" clause: it does not re-enact the Portuguese law, but it preserves it as existing law of the territory, giving it continuing legal vitality within the Indian constitutional order.

The second limb of Section 5 conferred a transitional adaptation power: for the purpose of bringing the saved laws into accord with the Constitution and facilitating their administration as a Union territory, the Central Government could, within two years of the appointed day, by order make adaptations and modifications, whether by way of repeal or amendment. The two-year window has long since closed; what was not repealed or adapted within it (and the Civil Code's core family and succession provisions were not) remained on the statute book as ordinary law of the territory. Because no competent legislature has since repealed those provisions, they remain in force to this day. The structure and reach of Section 5, and the parallel provisions on extension of central enactments, are analysed further in the chapter on the 1962 Administration Act.

From foreign law to Indian law

A recurring confusion is whether the Portuguese Civil Code, as applied in Goa, remains "foreign" law to be treated under conflict-of-laws principles, or whether it has been domesticated into Indian law. The Supreme Court resolved the question decisively in Jose Paulo Coutinho v. Maria Luiza Valentina Pereira (2019). Speaking through Deepak Gupta J. (Aniruddha Bose J. concurring), the Court held that although the Code "may have had foreign origin," once it was continued in force by parliamentary action it "became a part of the Indian laws and, in substance, is an Indian law."

The reasoning matters for examination purposes. Because Section 5 of the 1962 Act saved the Code as the law of an Indian territory, and Parliament has the constitutional competence to legislate for that territory, the Code derives its continuing authority from Indian sovereign will, not Portuguese sovereignty. It is therefore applied by Indian courts as domestic law — interpreted, enforced and, in principle, amendable by the Indian legislature — rather than as the foreign law of a foreign state proved as a fact. This characterisation has concrete consequences, the most important of which the Court worked out in the same case in relation to the territorial reach of succession.

Coutinho v. Pereira — the leading authority

Jose Paulo Coutinho v. Maria Luiza Valentina Pereira (Civil Appeal No. 7378 of 2010, decided 13 September 2019) is the single most important modern decision on the continued application of the Code. The question framed was whether succession to the property of a Goan domicile situated outside Goa — in that case immovable property in Bombay — would be governed by the Portuguese Civil Code, 1867 as applicable in Goa, or by the Indian Succession Act, 1925.

The Supreme Court held that it is the Portuguese Civil Code, 1867 as applicable in the State of Goa that governs the rights of succession and inheritance of a Goan domicile in respect of all his properties wherever situated in India, whether within Goa or outside it. The Code, being a special law applicable to the domiciles of Goa, prevails; the general law of succession in the Indian Succession Act does not apply to such persons. To hold otherwise — to apply the Code to Goa-situate property and the Indian Succession Act to property elsewhere — would fracture an estate into two regimes and could defeat the spouse's vested half-share under the regime of communion of assets simply by the device of buying property outside Goa. The Court's insistence on a single succession regime for the Goan domicile is the practical core of the judgment, and it flows directly from the continued-application principle examined in this chapter. The downstream property consequences are developed in the chapter on the effects of marriage on person and property.

Domicile, not religion, as the connecting factor

One of the most important conceptual points to extract from Coutinho is that the connecting factor for the Code's application is domicile in Goa, not religion and not the situs of property. This is the inverse of the position elsewhere in India, where personal law follows the individual's religion. A Hindu, a Catholic, a Muslim or a person of no faith, if domiciled in Goa, is in principle governed by the same civil code on marriage, matrimonial property and succession — subject to the limited community-specific carve-outs preserved from the Portuguese period.

Because domicile is the trigger, the Code travels with the Goan domicile across India for succession purposes, as Coutinho confirms. Conversely, a person who is not a Goan domicile does not become subject to the Code merely by owning property in Goa; ordinary Indian succession law continues to govern such a person, with Goa-situate immovables dealt with according to the appropriate rules on immovable property. The centrality of domicile, and the way it makes the Goan regime genuinely "universal" within the territory, is taken up in the chapter on universal application.

Goa as a "shining example" of a uniform civil code

In Coutinho the Supreme Court went beyond the narrow succession question to make a broader constitutional observation. Article 44 of the Constitution directs the State to endeavour to secure for citizens a uniform civil code throughout the territory of India. The Court lamented that no attempt had been made to frame such a code despite repeated judicial exhortation — echoing earlier appeals in Mohd. Ahmed Khan v. Shah Bano Begum (1985) and Sarla Mudgal v. Union of India (1995) — and then held up Goa as "a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights."

For the student of the subject, two cautions attach to this celebrated dictum. First, the observation is an obiter reflection on policy, not the ratio of the decision; the binding holding concerns the territorial reach of succession. Second, the Goan code is "uniform" only in a qualified sense: it preserves several community-specific exceptions — notably the customs preserved for Gentile Hindus by the 1880 Code and the distinct treatment of canonical Catholic marriage — so that the label "uniform civil code" must be read with the carve-outs in mind. The continued-application story is thus also a story about the limits of uniformity, a theme returned to throughout these notes and on the subject hub.

What exactly continues — the component laws

It is a common error to speak loosely of "the Portuguese Civil Code" as if a single instrument continues. In truth, the continued body of law is a composite. The 1867 Code supplies the general civil law — obligations, property and the framework of family and succession. Layered onto it are: the Code of Usages and Customs of the Gentile Hindus of Goa, 1880, preserving defined Hindu customs; the Decrees on Civil Marriage and Divorce of 1910, which made civil registration of marriage compulsory and introduced civil divorce; the Canonical Marriage Decree of 1946 governing church marriages of Catholics; and ancillary instruments such as the Code of Civil Registration. Each of these was "law in force" on the appointed day and each was therefore saved by Section 5.

Notably, the Indian central family-law statutes were not extended to Goa. The Hindu Marriage Act, 1955, the Hindu Succession Act, 1956 and the rest of the 1955–56 Hindu Code, the Indian Christian Marriage Act, 1872, the Indian Divorce Act, 1869 and the Indian Succession Act, 1925 (so far as it relates to the personal succession of Goan domiciles) do not govern persons domiciled in Goa. This deliberate non-extension is what leaves the field clear for the saved Portuguese-era law to operate. The mechanics of marriage under this regime are set out in the chapters on the procedure for civil marriage and registration in the Civil Registry.

Repealed in Portugal, alive in Goa

A point that frequently appears in objective questions and surprises newcomers is that the 1867 Code is no longer the civil law of Portugal. In 1966 Portugal enacted a new Civil Code that replaced the Seabra Code of 1867. That replacement, however, had no effect in Goa. By 1966 Goa was already part of India; Portuguese legislation could no longer operate there, and the saved law preserved by Section 5 of the 1962 Act was the 1867 Code as it stood, not whatever Portugal might later enact. The result is a legal curiosity of considerable practical significance: the 1867 Code lives on as Indian law in Goa even though it is dead law in its country of origin.

This severance underscores the earlier point that the Code's continuing authority is Indian, not Portuguese. After 1961, amendment or repeal of the Goan civil law could be effected only by a competent Indian legislature — initially the administrator and Parliament for the Union territory, and after statehood the State Legislature of Goa — and never by Lisbon. The 1966 Portuguese reform is therefore irrelevant to the law of Goa, a proposition that follows inexorably from the continued-application principle.

Statehood in 1987 and the Code's survival

Goa's constitutional status changed again in 1987. The Goa, Daman and Diu Reorganisation Act, 1987 separated Goa from Daman and Diu and elevated Goa to full statehood, the new State of Goa being added to the First Schedule with effect from 30 May 1987 (Daman and Diu continuing as a Union territory, later merged with Dadra and Nagar Haveli in 2020). Statehood did not disturb the continued application of the Portuguese-era law. The saving and continuance effected in 1961–62 survived the reorganisation, and the State Legislature of Goa inherited the competence to amend or repeal the saved law.

The practical upshot is that the body of law continued by Section 5 of the 1962 Act is today the civil law of the State of Goa, amendable by the State Legislature on subjects within its competence and by Parliament on Union and Concurrent List subjects. The Legislature has from time to time tinkered at the edges — for instance modifying aspects of the marriage and registration regime — but the central structure of the Code remains substantially as it was saved in 1961. The institutional detail of how the saved laws are administered through the Civil Registry is examined in the chapter on registration of marriages.

Judicial recognition of continuance

The continued application of the Code has been recognised by the courts in a steady stream of decisions, not merely in Coutinho. The Bombay High Court (and its Goa Bench) has repeatedly applied the Portuguese-era law to Goan matrimonial-property and succession disputes, treating it as the governing law of the territory rather than as foreign law requiring proof. In matters of intestate succession, partition of communion property and the rights of the surviving spouse, courts proceed directly on the saved Code and its connected decrees.

The judicial attitude is significant because it confirms the doctrinal characterisation discussed earlier: the Code is applied as the lex loci of Goa and as the personal law of the Goan domicile, with judicial notice taken of its provisions. There is no requirement, as there would be for genuinely foreign law, that a party plead and prove the Code as a fact. Coutinho crystallised what the High Court practice had long assumed — that the Code is Indian law and that its succession provisions follow the Goan domicile throughout India. For aspirants, the safe formulation is that continued application is now settled beyond argument; the live questions concern the content and reach of particular provisions, not the survival of the regime as such.

Reform debates and the UCC question

Precisely because Goa is so often cited as India's working uniform civil code, the continued-application question is entangled with national debate over Article 44. Critics point out that the Goan model is a colonial inheritance carrying patriarchal features — the surviving toleration of limited bigamy among Gentile Hindus under the 1880 customs, gendered defaults in the matrimonial-property regimes, and language and access difficulties created by a code originally written in Portuguese. Defenders emphasise that a single domicile-based code, applying common rules on marriage and succession across communities, has operated for over a century without the communal friction that attends personal-law reform elsewhere.

For examination purposes the balanced position is this: Goa demonstrates that a uniform civil code is administratively feasible and socially workable, but the Goan code is not a model of perfect uniformity or gender justice; it is a saved colonial regime with significant carve-outs. The Supreme Court's praise in Coutinho should therefore be read as endorsing the principle of a common code, not the specifics of the Portuguese text. Whether and how the saved law should be modernised — by the State Legislature, by Parliament, or in the course of any future national uniform civil code — remains an open and politically charged question. The thematic threads of these debates are gathered on the subject hub.

Exam takeaways

Several propositions recur in judiciary and CLAT-PG questions and should be memorised precisely. First, the Portuguese Civil Code of 1867 was extended to Goa by decree of 18 November 1869 and came into force there on 1 July 1870. Second, after liberation on 19 December 1961, the existing laws were saved by Section 5 of the Goa, Daman and Diu (Administration) Act, 1962, which continues them in force until amended or repealed by a competent legislature; the central adaptation power under the same section was time-limited to two years. Third, the central Hindu, Christian and Indian succession statutes were not extended to Goa, leaving the saved law to operate.

Fourth, in Jose Paulo Coutinho v. Maria Luiza Valentina Pereira (2019) the Supreme Court held that the Code is "an Indian law" and that it governs the succession of a Goan domicile's property anywhere in India, to the exclusion of the Indian Succession Act, 1925; the Court also called Goa a "shining example" of a uniform civil code under Article 44, though that remark is obiter. Fifth, the 1867 Code was replaced in Portugal in 1966 but that reform did not touch Goa. Sixth, statehood under the Goa, Daman and Diu Reorganisation Act, 1987 did not disturb continued application. With these anchors fixed, the detailed substantive rules examined in the sibling chapters fall readily into place.