Uniform Civil Code Debate — Goa as Model

When the Supreme Court called Goa "a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion" in Jose Paulo Coutinho v. Maria Luiza Valentina Pereira (2019), it crystallised a debate that has run since the Constituent Assembly: can India deliver on Article 44, and does Goa show the way? Goa's family law — inherited from the Portuguese Civil Code, 1867 and continued by an Act of the Indian Parliament — governs marriage, divorce, matrimonial property and succession for Hindus, Muslims, Christians and everyone else under one statutory umbrella. This chapter examines what that code actually does, the constitutional and case-law debate it has fuelled, and the uncomfortable truth that even Goa's "uniform" code is studded with community-specific exceptions.

Article 44 and the Unfulfilled Promise

Article 44 of the Constitution, placed in Part IV among the Directive Principles of State Policy, declares that "the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." As a directive principle it is non-justiciable under Article 37 — no citizen can compel its enactment by writ — yet it embodies the framers' aspiration of one secular family law transcending religious personal laws. The Constituent Assembly debated it fiercely: members such as Mohammad Ismail Sahib sought a proviso protecting personal law, while B.R. Ambedkar and K.M. Munshi argued that a common code was integral to national unity and gender justice. The compromise was to place it as a goal, not a command.

Decades on, the Supreme Court has repeatedly lamented legislative inaction. In Jose Paulo Coutinho v. Maria Luiza Valentina Pereira the Court observed that "whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard." The Court noted that although Hindu law was codified in 1956, "there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court." Goa, said the Court, stands apart. To understand why, this chapter builds on the introduction to the Portuguese Civil Code and its universal application to all Goan domiciles.

Judicial Exhortations: From Shah Bano to Sarla Mudgal

The judiciary's calls for a uniform civil code form the backdrop to the Goa debate. In Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, a Constitution Bench held that a divorced Muslim woman was entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973, and Chandrachud, C.J. observed that Article 44 had "remained a dead letter" and that a common civil code would help the cause of national integration by removing disparate loyalties to laws with conflicting ideologies. The political backlash produced the Muslim Women (Protection of Rights on Divorce) Act, 1986, which was widely seen as diluting the ruling.

A decade later, in Sarla Mudgal v. Union of India, (1995) 3 SCC 635, the Court confronted Hindu husbands converting to Islam to contract bigamous second marriages. Kuldip Singh, J. held that a second marriage by a Hindu husband after conversion, without dissolving the first, is void and attracts Section 494 of the Indian Penal Code, and again pressed the Government to secure a uniform civil code. The principle was reaffirmed in Lily Thomas v. Union of India, (2000) 6 SCC 224, which clarified that conversion does not automatically dissolve the earlier marriage and the convert remains liable for bigamy. Yet in Maharshi Avadhesh v. Union of India, 1994 Supp (1) SCC 713, the Court declined to issue a mandamus directing Parliament to enact a common civil code, holding the matter to be one of legislative policy. The constitutional message is consistent: the courts may exhort, but cannot legislate the code into being.

A further illustration of judicial restraint is Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573, where the Court declined to strike down discriminatory aspects of various personal laws, holding that the remedy lay with the legislature and that such matters of state policy were unsuitable for judicial determination under Article 32. Read together, the line of authority establishes a clear separation: while Article 44 supplies a normative direction and the Court will not hesitate to remind the State of its unfulfilled duty, the actual enactment of a uniform civil code is a matter committed to legislative judgment. It is precisely because no national code exists that Goa's living example carries such weight in the debate.

How the Code Survives: Section 5 of the 1962 Act

Goa was liberated from Portuguese rule on 19 December 1961 and annexed by India by conquest on 20 December 1961, becoming part of India under Article 1(3)(c) of the Constitution. To administer the new territory, the President promulgated the Goa, Daman and Diu (Administration) Ordinance, 1962 on 5 March 1962, replaced the same day by the Goa, Daman and Diu (Administration) Act, 1962. Section 5(1) of that Act provided that "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 the Constitution (Twelfth Amendment) Act, 1962, Goa, Daman and Diu were added as Entry 5 in Part II of the First Schedule with retrospective effect from 20 December 1961.

This statutory continuance is the legal spine of the Goa code, a point developed in the chapter on the Goa, Daman and Diu Act, 1962. Crucially, the Coutinho Court held that this transformed the code's character: "the Portuguese Civil Code continued to apply in Goa only because of an Act of the Parliament of India. Therefore, the Portuguese law which may have had foreign origin became a part of the Indian laws, and, in sum and substance, is an Indian law. It is no longer a foreign law."

Conquest and the Continuance of Old Laws

A subtle but important strand of the debate is why the Portuguese code applies at all after Indian conquest. The general rule of public international law, reiterated by a Constitution Bench in Pema Chibar v. Union of India, AIR 1966 SC 442, is that when territory is acquired by conquest, annexation or cession, rights that accrued under the old laws do not survive against the new sovereign unless the new sovereign chooses to recognise them. The mere continuance of old laws does not by itself amount to recognition.

This was elaborated in Vinodkumar Shantilal Gosalia v. Gangadhar Narsingdas Agarwal, (1981) 4 SCC 226, where a three-Judge Bench held that the new sovereign is not bound by the rights residents held against their old sovereign; such rights end with the conquest and pass on only if expressly saved by statute. Applying this in Coutinho, the Court reasoned that the Portuguese Civil Code lives in Goa precisely because the Indian Parliament, through the Ordinance and the 1962 Act, chose to save it. The new sovereign "is at liberty to adopt the old laws wholly or in part" or to reject them. India adopted them — and in doing so, made an old colonial code an instrument of constitutional aspiration.

Communion of Assets: The Matrimonial Property Regime

The feature most often celebrated in the UCC debate is Goa's default matrimonial property regime, the communhao dos bens or communion of assets. On marriage, unless the spouses agree otherwise, the property each owned before marriage and acquired during it is blended into a common pool in which each spouse holds an undivided half share. As the Coutinho Court put it, "a married couple jointly holds the ownership of all the assets owned before marriage or acquired after marriage by each spouse. Therefore, in case of divorce, each spouse is entitled to half share of the assets."

This produces concrete gender-justice outcomes: a homemaker who brought no income to the marriage is nonetheless a half-owner of all matrimonial wealth, and neither spouse can alienate jointly held immovable property without the other's consent. The regime is not mandatory — the Court noted that "the law, however, permits pre-nuptial agreements which may have a different system of division of assets." Spouses may, by an ante-nuptial agreement, opt out of communion entirely or choose an alternative regime such as separation of assets. Even the Income-tax Act, 1961 recognises this regime: Section 5A apportions income (other than salary) equally between spouses governed by the Portuguese Civil Code. The mechanics of the marriage itself are taken up in the chapter on marriage forms under the PCC.

Succession, the Legitime and Forced Heirship

Goa's succession law is equally distinctive. Unlike the freedom of testation under the Indian Succession Act, 1925, the Portuguese code imposes forced heirship through the doctrine of the legitime. Article 1784 of the code (as quoted in Coutinho) defines the legitime as "the portion of the properties that the testator cannot dispose of, because it has been set apart by law for the lineal descendants or ascendants," consisting normally of half the testator's property. A person with children or parents can therefore dispose of only half his estate by will or gift; the remaining half must devolve on the heirs in the shares fixed by the code.

On death, inventory proceedings are commenced in which the entire movable and immovable estate is inventorised and one of the senior family members is appointed administrator, the cabeca de casal. The estate is then distributed according to the code, with any testamentary bequest in excess of the disposable half being invalid to that extent. The Court likened the legitime to coparcenary in Hindu law, but with a wider reach: "as far as Goa is concerned, this legitime will also apply to the self-acquired properties." These succession features sit alongside the system of registration of marriages in the civil registry, which records the property regime that will later govern devolution.

Coutinho: The Extraterritorial Reach of the Code

The actual ratio of Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, Civil Appeal No. 7378 of 2010, decided on 13 September 2019 by Deepak Gupta and Aniruddha Bose, JJ., concerned a narrow but consequential question: "whether succession to the property of a Goan situate outside Goa in India will be governed by the Portuguese Civil Code, 1867 as applicable in the State of Goa or the Indian Succession Act, 1925." Joaquim Mariano Pereira, a Goan domicile, had bequeathed a Bombay flat to his youngest daughter; the dispute was whether that out-of-state property fell under the code's inventory and legitime rules or under the Indian Succession Act.

The Supreme Court held that the Portuguese Civil Code is a special law applicable to all domiciles of Goa wherever their property is situated in India, and therefore governs succession even to the Bombay property, displacing Section 5 of the Indian Succession Act for Goan domiciles. The Court approved the Bombay High Court Division Bench view in A.P. Fernandes v. Annette Blunt Finch, 2015 (6) Mh.L.J. 717, and rejected the appellant's invocation of the doctrine of renvoi and private international law, holding the code to be Indian law, not foreign law. The principle of unity of succession under the code thus reaches across state borders.

The "Shining Example" Dictum

It was in this context that the Court delivered its most quoted passage. Immediately after lamenting the failure to frame a UCC, Deepak Gupta, J. wrote: "However, Goa is 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." The Court then described Goa's regime: a married couple jointly owns all assets so that each spouse takes half on divorce; at least half the property passes to legal heirs as legitime; "Muslim men whose marriages are registered in Goa cannot practice polygamy"; and "even for followers of Islam there is no provision for verbal divorce."

The observation is, strictly, obiter — the holding was about extraterritorial succession, not the constitutional validity of personal laws elsewhere. But its rhetorical force has been enormous, repeatedly cited by proponents of a national UCC and by the Law Commission. It is worth reading the dictum precisely: the Court called Goa a shining example "except while protecting certain limited rights" — an express acknowledgment that even Goa's code is not perfectly uniform.

The Limits of Uniformity: Community Exceptions

The phrase "certain limited rights" conceals a substantial qualification. The Goa code is best described as a common civil code with community-specific carve-outs rather than a strictly uniform one. The Codes of Usages and Customs of the Gentile Hindus of Goa (Decree of 1880) preserve certain Hindu usages — including, controversially, a limited provision permitting a Hindu man to take a second wife in narrow circumstances (such as the absence of male issue by a certain age), a relic that sits awkwardly with the code's egalitarian image.

Catholic marriages enjoy their own track: a marriage solemnised in church under canonical form (recognised through the Decree of 1946) is registered and dissolution requires recourse to the ecclesiastical tribunal, with limited access to civil divorce. These differential rules mean that the same life event — marriage, divorce, a second union — can be governed by different rules depending on the parties' religion. Goa therefore demonstrates both the possibility of a common code and the political reality that even a model code accommodates community sensibilities, a tension explored further under universal application.

The 2012 Act and Modern Codification

The code is not frozen in 1867. The Coutinho Court recorded that "with effect from 22.12.2016 certain portions of the Portuguese Civil Code have been repealed and replaced by the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012 which, by and large, is in line with the Portuguese Civil Code." This state legislation re-enacted the inventory, succession and notarial provisions in modern statutory form while preserving the substantive scheme — the legitime, communion of assets and the role of the cabeca de casal.

The 2012 Act illustrates a point often missed in the national debate: a uniform code need not be a single monolithic statute frozen in time, but can be a living body of law periodically updated by the competent legislature. It also confirms that the Goa Legislative Assembly is the "competent Legislature" contemplated by Section 5 of the 1962 Act, empowered to amend or repeal the inherited provisions. The procedural machinery for solemnising a civil marriage under this evolving framework is set out in the chapter on the procedure for civil marriage.

Goa as a Model: The Case For

Proponents of a national UCC draw several lessons from Goa. First, it demonstrates feasibility: a single civil law has governed a religiously plural population — Hindu, Catholic and Muslim — for over a century and a half without communal rupture, refuting the claim that one family law is impossible in a diverse society. Second, the regime delivers measurable gender justice: the communion of assets gives wives an automatic half share in matrimonial property, the prohibition on registered Muslim polygamy and "verbal divorce" protects women, and the forced-heirship legitime prevents the disinheritance of daughters.

Third, the Coutinho dictum gives the model the imprimatur of the Supreme Court, which expressly invoked Goa while urging the Centre to act on Article 44. Fourth, compulsory civil registration of marriages — central to the code and discussed under registration in the civil registry — creates documentary certainty about marital status and property rights that benefits both spouses and third parties. For these reasons the Law Commission and successive governments have repeatedly pointed to Goa when canvassing a wider code.

Goa as a Model: The Case Against

Critics caution against romanticising the Goan code. The first objection is the one the Supreme Court itself flagged: it is not truly uniform. The Gentile Hindu usages, the limited bigamy provision for Hindus, and the separate ecclesiastical track for Catholic marriage mean different communities remain governed by different rules in important respects. A code with such carve-outs cannot be transplanted as a finished template.

Second, the code is a product of a specific colonial and demographic history — a small, predominantly Catholic-influenced territory with continuous Portuguese administration — and may not scale to a subcontinent of far greater religious and regional diversity. Third, the regime is in archaic legal language (much of it in Portuguese), poorly accessible, and unevenly understood even within Goa. Fourth, federalism concerns arise: personal law falls under the Concurrent List (Entry 5 of List III), and states such as Uttarakhand have since enacted their own UCC statutes, raising questions about a patchwork rather than a single national code. The constitutional debate, then, is not whether Goa proves a UCC is possible — it does — but whether its particular, exception-ridden model is the right one to generalise.

A fifth and subtler critique is methodological. The praise of Goa often conflates two distinct virtues — uniformity (one law for all) and progressiveness (gender-just content) — when the two do not always coincide. The communion of assets and the bar on registered Muslim polygamy are progressive, but the surviving Gentile Hindu bigamy provision is uniform neither in spirit nor in effect. A faithful UCC for India would have to choose its substantive content deliberately rather than simply replicate a code that has accreted exceptions over a century and a half. Goa is thus better understood as proof of concept than as a finished blueprint — evidence that plural communities can share a civil law, but not a ready-made statute to be lifted wholesale onto the national stage.

Conclusion: A Living Debate

Goa occupies a unique position in Indian constitutional law: the only jurisdiction where, by virtue of an Act of the Indian Parliament, a single body of civil law governs marriage, matrimonial property and succession across religious lines. Through Jose Paulo Coutinho v. Maria Luiza Valentina Pereira the Supreme Court both confirmed the code's reach to Goan domiciles' property anywhere in India and elevated Goa to a "shining example" in the Article 44 debate, while the lineage of Shah Bano, Sarla Mudgal and Lily Thomas shows a judiciary repeatedly urging a national code it cannot itself command.

Yet the same judgment, read carefully, contains its own caveat — "except while protecting certain limited rights" — acknowledging that even the model code accommodates community exceptions. The honest conclusion for the exam is that Goa demonstrates the practical possibility and the gender-justice promise of a common civil code, while simultaneously illustrating that uniformity in a plural society is a matter of degree, negotiated through history, statute and judicial interpretation. For the foundations of this scheme, return to the Portuguese Civil Code (Goa) hub.