PORTUGUESE CODE OF 1867

1. Context

It was a strange demand. F E Noronha had got a call from the Cabeca de Casal, an administrator appointed to make an inventory of assets for partition in his maternal family, asking for his mother’s dowry certificate. Noronha’s parents married nearly six decades ago and his mother died a few years ago. But the certificate was crucial to decide his mother’s inheritance, which his father would share in half.

2. Introduction

The Portuguese Civil Code of 1867 holds a significant place in legal history due to its establishment during the colonial rule of Portugal in its territories, particularly in India. This code's unique features, its impact on Goa, Daman, and Diu, and its relevance in the context of a uniform civil code for India have stirred discussions and debates.

3. Background

A parliamentary standing committee, led by Sushil Kumar Modi, is examining the Portuguese Civil Code of 1867 in Goa regarding the demand for a uniform civil code.
The Portuguese occupied Goa and established religious-based customary laws.
In 1869, the Portuguese Civil Code was extended to Goa, Daman, and Diu, while maintaining local customs that were not against morality or public order.
Over time, various marriage and family laws were introduced, forming a mix of civil and religious laws.

4. Legal Developments

After Independence, Goa became a Union Territory (UT) and later a state in 1987, preserving its pre-liberation family laws.
The Goa, Daman, and Diu Reorganisation Act of 1987 allowed adaptations and modifications of laws, but none were implemented.
In 2014, Goa passed the Succession, Special Notaries and Inventory Proceedings Act, amending certain provisions of the civil code.
In 2019, Daman and Diu merged with Dadra and Nagar Haveli, but family law systems remained unchanged.

5. Current Contemplations

The law ministry suggests a review of the Portuguese civil code in Goa.
The idea of a uniform civil code under Article 44 is discussed, aiming for uniformity of personal laws across India.
The Law Commission's opinion against a uniform civil code and the need for a substantial majority's support for change are highlighted.

6. Creation and Implementation

The Portuguese Civil Code of 1867, also known as the "common civil code," was a comprehensive legal framework that governed various aspects of personal and family law.
It was enacted to streamline and codify legal norms related to marriage, inheritance, property, and other civil matters.
The code aimed to provide a structured legal framework that applied to the non-Catholic population in Goa, Daman, and Diu, which included Hindus, Muslims, and other communities.

7. Features and Significance

Usages and Customs: The code recognized the diversity of religious and cultural practices within the territories it governed. It allowed non-Catholic inhabitants to adhere to their customs on specific subjects, as long as they did not conflict with morality or public order.
Local Adaptations: The code allowed for local usages and customs to be followed, which played a significant role in preserving some traditional practices despite the imposition of a foreign legal system.
Blend of Civil and Religious Laws: The code represented a fusion of civil and religious laws, as it incorporated various religious communities' practices while maintaining certain overarching legal principles.

8. Legacy and Contemporary Relevance

The Portuguese Civil Code of 1867 continued to shape family and personal laws in Goa, Daman, and Diu even after India gained independence.
The code's longevity and its incorporation of diverse practices have sparked discussions about the need for a uniform civil code in India.
The debate revolves around whether it's appropriate to continue with a colonial-era code or move towards a unified legal framework that addresses the complexities of modern society while respecting religious and cultural diversity.

9. Challenges and Considerations

Cultural Diversity: Goa's population comprises various religious and cultural groups, making the application of a single uniform code a complex endeavor.
Legal Modernization: As society evolves, there's a growing need to update laws to reflect changing societal norms and values.
Constitutional Directive: Article 44 of the Indian Constitution emphasizes the importance of a uniform civil code. Balancing this directive with the rights of religious and cultural communities poses challenges.

10. Conclusion

The Portuguese Civil Code of 1867 stands as a testament to the complex interplay between colonial influences, local customs, and legal systems. It's historical legacy and contemporary relevance highlights the ongoing debate surrounding uniform civil codes in diverse societies. As legal systems continue to evolve, finding a balance between tradition and modernity remains a vital challenge for legal scholars, policymakers, and society at large.

For Prelims: Portuguese Civil Code of 1867, Uniform civil code under Article 44, Union Territory (UT).

For Mains: 1. Discuss the historical significance, features, and contemporary relevance of the Portuguese Civil Code of 1867 in Goa and its implications for the ongoing debate on implementing a uniform civil code in India. (250 Words).

Previous year Questions

1. With reference to Pondicherry (now Puducherry), consider the following statements :(UPSC 2010)

1. The first European power to occupy Pondicherry were the Portuguese.

2. The second European power to occupy Pondicherry was the French.

3. The English never occupied Pondicherry.

Which of the statements given above is/are correct?

A. 1 only

B. 2 and 3 only

C. 3 only

D. 1, 2 and 3

Answer: A

Source: The Indian Express

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