The Supreme Court on September 13, in the case of Jose Paulo Coutinho vs Maria Luiza Valentina Pereira, delivered a judgment pertaining to the Portuguese Civil Code which is applicable to Goan inheritance. While delivering the judgment, the apex court made an observance with regards to the Centre belaying the directive principles of the state policy, by not framing a Uniform Civil Code (UCC), despite being enshrined in the constitution of India. Article 44 of the constitution, which outlines the intent of the constitutional framers, reads as, "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

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Lack of a Uniform Civil Code

In the instant case, a bench comprising Justices Deepak Gupta and Aniruddha Bose observed, "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 endeavor to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court in the case of Mohd. Ahmed Khan vs. Shah Bano and Sarla Mudgal & Ors. vs. Union of India & Ors."

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During the time of delivery of the aforementioned judgments, the bench had remarked on the lack of efforts by the legislative body to introduce a UCC, which was the need of the hour. 

While delivering the judgment in Mohd. Ahmed Khan vs. Shah Bano case, the Supreme Court observed, "It is also a matter of regret that Article 44 of our Constitution has remained a dead letter." 

"There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so."

"We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform But, a beginning has to be made if the Constitution is to have any meaning."

In the Shah Bano case, the apex court had attempted to introduce applicability of Code of Criminal Procedure (CRPC) across religions by granting the Muslim women maintenance rights from their husband upon divorce. However, this judgment was subsequently nullified by the Parliament when it passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which essentially moved a step away from a UCC

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In the case of Sarla Mudgal & Ors. vs. Union of India & Ors, Justice Kuldip Singh began his delivery by stating that article 44 of the Constitution, which seeks to introduce a uniform personal law is a decisive step towards national consolidation. 

"Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said "I do not think that at the present moment the time is ripe in India for me to try to push it through". It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments - which have come and gone - have so far failed to make any effort towards "unified personal law for all Indians". 

"When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of "uniform civil code" for all citizens in the territory of India."

The Sarla Mudgal case, which deals with the issue of bigamy and conflict between personal laws on matters of marriage, is considered as a landmark judgment highlighting the need for a Uniform Civil Code.

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Portuguese Civil Code

In the instant case, Justice Deepak Gupta, speaking for the bench, stated, "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."

"Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam there is no provision for verbal divorce," the bench noted.

The Supreme Court also observed that "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 assests."

The Portuguese Civil Code 1867, governs the right to succession and inheritance, along with all other civil rights with respect to individuals of a Goan domicile, irrespective of the religion. In succession cases, even the location of the property in question, whether or not it is situated in Goa, is irrelevant. 

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