A hurried ACT

A hurried ACT

Herald Review April 13, 2014

The government's move to quietly apply the Special Marriage Act 1954 to Goa, the only State in the country which is governed by the uniform civil code, has naturally raised suspicions over its real intent. The attempt has drawn widespread criticism.

LISA ANN MONTEIRO

On January 17 this year, the Manohar Parrikar government issued an extraordinary gazette notification that went largely unnoticed, because the law it intends to enforce was not discussed in government, in the State assembly or in any public fora. The notification seeks to apply the Special Marriage Act 1954 to Goa which is already governed by the Uniform Civil Code.

Legal experts have slammed the move as irrational, uncalled for and maleficent.

Trying to enforce the Special Marriage act when the Uniform Civil Code already exists in the State is seen as a retrograde move by most lawyers this newspaper spoke to. They said it also goes against Article 44 of the directive principles in the Constitution that seeks to implement a uniform civil code throughout the country. Goa has a head start with the uniform code in operation in the State, and most advocates cannot see any logical reasoning in trying to bring the Special Marriage Act into force here. Others believe the motive is to “ please” friends, but who these are and how exactly, none can say.

Ironically on January 1 this year the much appreciated Portuguese Civil Registrations Code ( Codigo do Registo Civil) completed a century.

It was made applicable to Goa on January 1, 1914. The code is recognized as a superb piece of legislative drafting and forms an intrinsic procedural part of the uniform civil personal laws governing Goans that was continued by the Government of India after Liberation.

The law which deals with registration of births and marriages makes registration mandatory and only such registered facts are admissible as proof. Birth and marriage registrations were declared as the juridical foundation base to determine juridical stats and hence the identity of the Goans. Under the Special Marriage Act registration of one’s marriage is not mandatory.

The Goa Marriage Code has been appreciated by Indian jurists on the background of article 44. The former chief justice of India was also impressed with the code. Therefore the real reason for bringing the Special Marriage Act to the state is bewildering, say lawyers.

A major bone that the legal fraternity have to pick with the State government’s notification is that such an Act, which is a Central Act, can only come into force in Goa by a notification from the Centre. Section 1( 3) of the Special Marriage Act states, “ It shall come into force on such date, as the Central Government may, by notification in the Official Gazette appoint”. The notification by the state government holds no value and is null and void, they say.

Parallel jurisdiction

Lawyer Fernando Jorge Colaco calls it illegal.

“ Only the Centre can notify this Act.” He goes on to say that the Central Government never wanted to repeal the civil code laws in the State.

“ The highest level of administration at the Centre had decided not to repeal the Goa code as it was considered an example for the rest of India.

We have a system of civil laws which govern the private lives of individual citizens of Goa which is socially accepted by all communities in the State. Why disturb this with an optional law on the side? This is not only ignorance on the government’s part but arrogance. If this law is brought into force it will lead to chaos and more litigation. There will be parallel jurisdictions— two jurisdictions and two books of registration.

The Special Marriage Act is good but it is not required in Goa.”

To think that the Special Marriage Act gives tax benefits to non Goans registering their marriages in the State, is foolish he says. “ The benefit of commune of assets is only applicable to Goans under the Goa Civil Code.”

Elgar Noronha, another lawyer conversant with Portuguese law says the move by the government was misconceived. “ When we already have a code in place which integrates all the provisions, the State doesn’t require the Special Marriage Act which is a loose law and has nothing to do with the substantive law of the place.” Should the Act come into force, he says it will create chaos.

“ We need to update our existing laws, at most, but certainly not bring in this Act. The Special Marriage Act was passed with the intention of having a secular marriage law. But our State doesn’t need it because our law is already a secular one.” He calls it an erroneous legal policy.

He also doesn’t see any possible benefit the Act can have in Goa. Even if the Act was meant to help someone, it was misconceived, he says.

Positive features of the Common Civil Code as pointed out by PVS Sardessai former Registrar and Head of Notary Services, are the purely secular nature of the marriage registration where in any two persons of opposite sex including foreigners can marry here, while retaining their personal religious and other background affiliations. The field of conflict of laws in marriages between persons of different nationalities has also been provided for. The beneficial provisions, administrative orders, annotations and opinions as consolidated in the Code and by way of statutory annexures make it a model Code and irons out most of the practical problems in matters relating to the registration of marriages.

Cause for chaos

Constitutional expert Amrut Kansar too feels the Act is completely unnecessary and if enforced will lead to confusion. “ The Common Civil Code has more situations covered under it and even has the law of divorce. Marriage under civil code is the personal law of Goans. The Special marriage act is not the personal law of the people of Goa. It will create a huge problem. The present law should not be changed.”

Unable to understand the exact intention of the government through this notification, Kansar takes a dig at the government. “ The government does not have an open mind. With every passing day we’re becoming a closed society. The intention of this notification is not known.”

Adv Uday Bhembre says the special marriage act is not on par with the existing law. “ When there is already a law in force in Goa, to bring in another law for the same purpose could create problems.” He believes the Act is being introduced to accommodate “ a friend”. But he also reiterates that under the Special Marriage Act one cannot avail of any tax benefits.

Goa Congress chief John Fernandes had alleged that the gazette notification was brought in for the benefit of the son of a high profile Supreme Court lawyer who married in the State.

Herald Review found that it wasn’t the son, but the daughter of the lawyer who got married in Goa in February this year.

Domicile relaxation

The same month the Chief Minister also announced the government planned to relax domicile for women from outside the State who marry Goan men. The relaxation would permit the women to apply for a government job with a mere two- year domicile instead of fifteen years. Bhembre cites this relaxation in the rules to be another ploy to accommodate people from outside the State. “ This puts the local woman at a disadvantage as she has to show 15 years domicile. This also goes against the interest of the local people.”

The Goa Family Code Bill Committee constituted to recast the existing personal laws in Goa has been dormant for some years now.

The committee was to redraft the existing personal laws which were in Portuguese and fit them within the conceptual framework of the Indian Constitution. Several Goan legal experts and eminent judges worked for close to three years to produce the initial legislations of a Goa Code comprised in The Goa Succession, Special Notaries and Inventory Proceeding Bill, 2005 which was submitted to the Goa Legislative Assembly on January 3, 2005. The Bill was reintroduced in the Assembly in August 2008. One senior advocate who was in the committee said work stopped because frivolous objections were raised by non experts for the sake of objection. The committee spent two Sundays and month and worked conscientiously from 9:30 to 5pm.

“ If a law cannot be understood and needs to be recast in English and there are people of high repute and standing doing it, what’s wrong with that?” Sardessai who was also in the committee asks.

Ramakant Khalap former chairman of the Goa State Law Commission feels the government took this move to make it convenient for people to settle in Goa from other States. He has another point of view on the Goa Civil Code.

“ The uniform civil code is a dream of the country. There is no uniform civil code in the State. This is a misconception. When the civil code came into force in Goa the Customs of Usages of Hindus in Goa was also enacted to protect the Hindus. There is an impression that there is a common civil code but some Hindus opted for the Hindu law and it was accepted by the Portuguese. The Hindu Undivided Family prevailed in addition to the civil code. But this new notification will only cause confusion.”

Sardessai says efforts should be made to apply the uniform civil code to the whole of India.

“ Piecemeal efforts like this gazette notification shouldn’t be done. When we have the uniform civil code that is a model for the whole of India why dilute it, unless there is a vested plan. It can be nullified by the court of law if someone challenges it. It should be revoked.”

An official from the Law Department when contacted said the Special Marriage Act was already applicable in the State as it was notified by the government. When questioned about Section 1( 3) in the Act, the official first said the subject was a matter of interpretation and later said he wouldn’t like to comment on it.

“Whether wrongly or rightly, the State has enforced this Act. If someone feels differently he can challenge it,” he said. Review Bureau