All states must be brought into the mainstream of family laws

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In Goa, Daman and Diu, the Portuguese rulers had recognised locally prevailing personal laws by the name “native customs and usages”, which were separately compiled for the three territories and given the force of law by royal decrees issued from Lisbon. The Portuguese Civil Code of 1867 was extended to these places in 1869, with a rider that native customs and usages will be safeguarded “so far as they are not inconsistent with morality or public order.” The new laws of civil marriages enacted in Portugal in 1910, and of canonical marriages enforced there in 1946, were also later extended to the three territories, but with a similar protective provision for the local customary laws. Upon the merger of these territories into the Indian union after Independence, the Goa, Daman and Diu Administration Act of 1962 maintained the status quo by laying down that “all laws in force” there earlier shall continue to apply until and unless amended or repealed by a competent authority.

None of the central family law Acts has been extended to the said territories till date — the Portuguese Civil Code remains in force there along with the codes of native customs and usages and the matrimonial decrees of 1910 and 1946 cited above. Formation of Goa as a state in 1987 made no change in this regard. That Goa is governed by a common civil code is, in fact, a commonly prevailing myth shared even by some learned judges. What will be the position in Daman and Diu after their merger with Dadra and Nagar Haveli in 2019 to form a single Union territory is yet uncertain.

In Puducherry, during the French rule, the native population had been given an option to choose between the personal laws then in force there and the Code Napoleon of 1804, and those who had opted for the latter were called renoncants (renouncers). After the gradual merger of the territory into the Union of India after independence, the Pondicherry (Laws) Act of 1968 extended all the central family law Acts, but each with a rider that they would not apply to the renoncants.

The exclusionary provision relating to Jammu and Kashmir found in the central family law Acts had emanated from Article 370 of the Constitution. Last year, in 2019, the Constitution (Application to Jammu and Kashmir) Act and the Jammu and Kashmir (Reorganisation) Act have drastically changed the position in that part of the country. The latter Act has extended there all central family law enactments and repealed the parallel local laws — as many as 15.

Bringing Jammu and Kashmir into the country’s mainstream of family laws is an exercise that needs to be undertaken also for Goa, Daman and Diu, Puducherry, Nagaland and Mizoram, where the present situation is an antithesis to the constitutional doctrine of uniformity in family law for the entire nation. There is no justification for keeping some chosen groups of Indian citizens perpetually tied down to family laws based either on outdated foreign laws or on archaic local customs. The citizens’ fundamental rights to equality before law and equal protection of the laws guaranteed by the Constitution call for a similar action in respect of these territories as well. So does the provision of Article 44 enjoining the state to make endeavours to secure for the citizens a uniform civil code throughout the territory of India.

The writer is distinguished jurist chair and professor of eminence, Institute of Advanced Legal Studies, Amity University