Divorce Law in Goa: An Analysis

Divorce, also known as the dissolution of marriage or termination of the marriage. It usually implies dissolving the bonds between two people living together as a married couple, it indicates the neutralizing or making alterations to the legal obligations and accountabilities of marriage. Divorce laws differ reasonably around the world, but in most countries, divorce mandates the sanction of a court or other authority in a legal process, which may pertain to subjects of distribution of property, child custody, alimony (spousal support), child visitation/access, parenting time, child support, and division of debt. There are varied divorce laws throughout the world. The state of Goa, situated to the west coast of India has its own code of procedure known as the Goa Civil Code also known as the Goa Family Code.

History

The Goa Civil Code has been adopted from the Portuguese Civil Code of 1867 which was introduced in Goa in the year 1870. After its merger with the Indian Union in 1961, the Civil Code was retained. All Indian laws were extended to the state, except family laws that fall under the Portuguese Civil Code, when Goa attained liberation from Portugal in 1961. The civil code of Goa cannot be called. a uniform civil code as it has certain provisions for distinct communities under different situations.

Grounds for Divorce according to Goa Civil Code

Article 4 of the Divorce Act of 1910 provides for the grounds of divorce in the State of Goa

• If a wife commits Adultery, then it is a ground for divorce to the other spouse.

• If a husband commits Adultery, then it is a ground for divorce to the other spouse.

• If the spouse is being finally convicted to one of the Spouses to undergo major penalties provided under Sec 55 and 57 of the Indian penal code.

• If any spouse suffers from serious injuries or there is Ill-treatment by one of the Spouse, then it is a ground for divorce.

• Complete desertion of conjugal home for the period for three years or more but not less than three years.

• If the spouse is being absent or nothing has been heard of absentee for not less than four years.

• When at least three years have been passed and the spouse is suffering from Incurable disease or unsoundness of mind after its decree by judgment, become final for want of appeal according to Article 419 of the code of civil procedure,

• De Facto separation of spouses freely consented for more than ten years, does not matter what is the cause of it.

• Chronic Vice or Constant involvement in gambling,

• Contagious or Incurable disease involving sexual aberration.

A Christian marriage could be declared invalid/annulled only in the Ecclesiastical Court, according to Article 25 of Concordat.

Where to file a Divorce?

The legal proceeding in order to file for a divorce petition is as under:

Either of the spouses can file for a divorce petition at the place of marriage, where the respondent resides or works, or where the parties to the marriage last resided together.
An appeal against said order can be filed before the concerned High Court. He/she can remarry if no appeal is preferred by the aggrieved party within one month from the date of the final order conferring a divorce, .
The Jurisdiction for a divorce petition lies under the District Court of Goa and the Goa bench of Bombay High Court.

Maintenance and Subsidy after Divorce

Article 29 of the Law of Divorce 1910 in Goa provides the liberty to the partners to affirm a subsidy and perpetual maintenance from the other. The sum of such maintenance depends on the needs of the spouse who has to attain it and the position of the one who has to provide it. The amount of permanent allowance/allotment cannot exceed one-third of the cumulative earnings of the one who provides, the amount fixed is not variable. If in the future the provider proves that his conditions do not permit him to continue imbursing the amount either fixed or that her necessities are lesser than the fraction of the amount he is paying, the Court may suitably reduce it.

In the same manner, the court can increase the allowance if in the future the attaining partner proves that her needs are greater than the amount fixed as the maintenance for her and that the spouse can afford to pay her a bigger subsidy in view of his improved financial position. Furthermore, the right to maintenance ceases if the providing partner is no more in a stance to proceed with the payment or the receiving partner does not need it. It also gets terminated if the attaining partner remarries or satisfies the ground of being undeserving of such benefits by her moral demeanor.

Communion of Assets

A distinctive concept of matrimonial property rights, unusual of the Indian personal laws is practiced in the State of Goa under the Goa Civil Code, where there is no formal concept of matrimonial property and hence the property ends up being in the names of males and therefore the domain of the male-only, which he can mortgage, or retail, as he pleases. In Goa, the default system is the regime of the communion of assets, if nothing is spelled out at the time of marriage, as soon as a person gets married, his spouse gets half of the undivided right in each other’s assets, which means that upon marriage, couples will wield whatever assets they have each or together acquired or inherited before or after marriage as co-owners of the property. But at the time of marriage, couples do have an option of contracting themselves out of this default system of the communion of assets, by entering into a pre-nuptial agreement where they decide whether the properties before marriage will be held separately and those after marriage will form the communion or if properties, whether acquired before or after the marriage, will all be held separately.

There are many uniformly applicable prerequisites, as, for instance, a married man or woman is limited to half of his/her share in the properties in order to make a will and they will have to have the consent of both the spouses. This is a positive provision that is present in the uniformly applicable provisions (though it is quite another thing that there are ways of circumventing this provision).

After the divorce is sanctioned by a civil court or the court of jurisdiction, everything the couple owned before — and after — marriage becomes part of a common pool, and half of that belongs to the wife. Now, if the couple gets a divorce, the husband will have to part with half of everything.

However, irrespective of which system of holding the matrimonial properties the couple opts for, the right to administration of the properties of the couple, without exclusion of the exclusive properties of the wife, is the prerogative of the husband. Thus the law makes the ‘control’ button available to the husband. This provision is uniformly applicable to all communities.

Also, uniformly applicable is the visualization of the concept of property. The women that can avail of the matrimonial property provisions are those whose marital families have owned property. This means that for a woman whose husband does not have ownership rights in the property, dividing matrimonial property at the time of divorce can mean she gets half of nothing. So, for instance, if a woman divorces and her husband is a tenant worker or is a tenant in the marital house, she has no right to 50 percent of the tenurial interests.

No Verbal Divorce or Polygamy for Muslim Men

In India according to the Muslim Personal Law i.e (the Shariah law) the controversial authority given to the Muslim men where he can initiate a divorce also known as talaq in Islam by just verbally announcing to his wife that he repudiates her. The method of divorce that is the triple statement of divorce and also in respect of their right to divorce their equality issues are the two main queries relating to Muslim law that is to be taken into consideration.This form of talaq becomes irrevocable on the expiry of the period of iddat. Furthermore, Polygamy is the most common practice in Islam where a Muslim man according to the Muslim Personal Law can be married to multiple women up to four at any point in any life if they are financially able to treat them all equally.

Under the Portuguese Civil code, Muslim men can neither practiced polygamy nor is verbal divorce recognized in the state, because no such provision exists in the Code. Secondly, the Muslim Personal Law Application Act, 1937 has not extended to the State of Goa.

Conclusion

The divorce Law in Goa is a distinct form and it’s standard is one that can be applied throughout the country. It is further equality centric and provides equal rights to both men and women Every coin has two sides, although the law provides with some do’s and don’ts to all religion which in the normal course of nature is authorized throughout the country in the ambit of personal laws., it nonetheless helps in balancing the dynamics of equality and coats the element of secularism provided in our preamble with an amber shine. As India looks forward to the establishment of the Uniform Civil Code provided under Article 44 of the Indian Constitution, the Goan Law can be an enormous influence to establish a code, one of its kind.

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