Specific information on whether a widow is required to marry her late husband's brother because of social rules and on the state protection available to women in Goa could not be found among the sources consulted by the Research Directorate. For information on state protection available to women in India, please consult the October 1995 Human Rights Brief Women in India. IND30651.E of 15 December 1998 provides information on legislative initiatives affecting women.

The following September 1997 Communalism Combat article entitled "Goa's Family Law: Is it Really Uniform?" is based on a paper presented at a seminar on law in Goa, and is written by Pamela D'Mello, Goa correspondent for The Asian Age. This article provides the legal context of the status of women in Goa:

Unlike the rest of the country, Goa's Family Laws are based on the Portuguese civil code and other decrees promulgated for this region before 1961. ...

Uniformity in a 'Uniform Civil Code' implies that laws relating to marriage, divorce, adoption, succession and other matters of personal life are similar to all, irrespective of caste, religion or sex. It means that personal laws do not either govern or have precedence over civil laws.

Family Laws of Goa refers to the entire body of legislation dealing with marriage, divorce, adoption etc presently applicable in Goa. It includes the Portuguese Civil Code of 1867, subsequent amendments made in 1910 and 1946, and the three separate Codes of Customs and Usages for Hindus of Goa, of Daman, and of Diu.

MARRIAGE UNDER GOAN LAW: Lack of uniformity becomes more than clear from the very fact that there is a three-tier system of matrimonial law operating in Goa.

Marriage laws differ for those opting to marry outside the Catholic Church, those who opt for a Catholic Church marriage, and for non-Catholics as a whole.

Canonical marriages refers to those undergone through the Church. All parties have to compulsorily register their intent to marry at the civil registry. Next -- because of a treaty signed between the Catholic Church and Portugal in the 'forties -- Catholics ordinarily have to solemnise their marriage in church. Officiating priests are granted the power of a civil registry. Marriage records are transcribed by the church to the civil registry, and is then considered as having civil effects. Marriage of this form is considered to be a sacrament.

Civil marriages refer to Hindu and other non-Canonical marriages. These first require registration of the 'intent-to-marry' by the two parties, and subsequently the marriage itself takes place in the presence of the Civil Registrar, who makes a record of the marriage.

Only after these two procedures are complete does the marriage have civil effects.

Catholics can also opt for the civil form of marriage, instead of a canonical marriage. But, in practise, it is not that simple, due to societal and other pressures explained below.

In the past, many have argued that this is a "minor disuniformity". But its impact is significant.

For one, marriages of Catholics opting for what is commonly known as civil marriages are not recognised by the Church. Couples marrying under this provision are considered to be 'living in sin' by the rest of their community. One could say that, in Goa, what one has in effect is a Personal Law, alongside with an option for a civil marriage. Quite like the two existing parallel options of Personal Laws and the Special Marriage Act (available to those who opt for it) in the rest of the country.

Thus, since a colonial Decree of 1946, Catholics have been excluded from compulsorily registering their marriage at a civil registry, and routing this process through the church itself. This is a difference drawn on the basis of religion, and amounts to the operation of a personal law for Catholics in Goa, which is recognised by the State.

GOVERNING LAWS: This also makes a major difference in the marriage laws governing Catholics after they wed. Canonical marriages are governed by Canon Law of the Church. Canon Law, it may be noted, differs from both the Indian Divorce Act applicable to Christians elsewhere in the country, and the civil law in Goa.

One could well raise the issue of what is the role of a State which calls itself secular, and yet extends to a section of its people laws giving wide powers to the Church, even while portraying it as a uniform or common code.

'CUSTOMS AND USAGES': Under the 1880 Degree of the Customs and Usages for "Gentile" Hindus of Goa -- another Portuguese law dating back to colonial times --marriages performed under religious rites are recognised by the state and are governed by the civil laws, when the marriage is registered in the civil registry.

Similar provisions under the 1894 Decree for non-Christian inhabitants of Diu and the 1854 Decree for non-Christian inhabitants of Daman also recognise marriages performed under the religious rites and customs.

Due to this multiplicity of laws and exceptions, though, there prevails some confusion as to its application.

DIVORCE PROVISIONS: Divorce is once again governed on the basis of what law one is married under. Thus, the claim to uniformity is again belied.

Divorce is not permitted under the Canon Law of the Church. By the same 1946 decree and agreement between the Catholic Church and the Portuguese State, Catholics marrying under Canon Law were thus excluded from the divorce provisions under civil law.

Marriage for Catholics is considered to be a sacrament which is indissoluble. Thus, for most Catholics of Goa, who marry under Canon Law, divorce is not permitted as the Church does not recognise this concept.

Canon Law 1141 says a marriage which is ratified and consummated is absolutely indissoluble. It has been noted that the position of the Catholic Church on the indissolubility of marriage ignores the reality of increasing marriage breakdown among Catholics, and the acceptance by informed and practising Catholics that in the event of marriage failure, women suffer more and face greater difficulties. (See Monteiro, Rita. 'Belief, Law and Justice For Women: Debate on Proposed Christian Marriage and Matrimonial Causes Bill, 1990' Economic and Political Weekly, Bombay 24-31 Oct 1992: WS74-80.)

What the Church does allow though is judicial separation, or so- called annulment of the marriage, which is based on the assumption that the marriage has not taken place or not been consummated. Decisions on this are taken not by any civil court, but by the Ecclesiastical Court of the Church itself. It may be also noted that the grounds for annulment available to Catholics and divorce granted to others is rather different from each other.

In 1974, the provision of the 1946 Marriage Decree denying divorce was judicially struck down [E Nunes of Bicholim v. P Nicolau Fernandes of Merces, AIR 1974 Goa 46] for being ultra vires of the Indian Constitution. The judicial verdict has still not been given legislative recognition, though. Thus the right to divorce for many Catholics rests tenuously on a judgement, that itself could be reversed.

Under the Civil Law, divorce is permitted on grounds which range from adultery by either party, to illtreatment, absence without notice for over four years, prolonged incurable mental illness, divorce by mutual consent, incurable contagious diseases or sexual aberrations, freely consented-to separation for ten consecutive years for whatever cause, or even the "chronic vice of gambling".

Under the Customs and Usages for "Gentile" Hindus, divorce is permitted only on the grounds of adultery by the wife. Whether this provision still applies or not is unclear.

'LIMITED' POLYGAMY: Under the Usages and Customs of "Gentile" Hindus of Goa, bigamy was recognised to have civil effects (i) if there is a 'failure' by the first wife to give birth to a male child by the time she reaches 30 years of age or (ii) if the first wife is unable to deliver by the time she attains 25 years of age.

There appears to however be considerable confusion, even in legal quarters, over interpreting whether 'polygamy in a limited sense' is still allowed or not.

OTHER INEQUALITIES: Other inequalities are visible in Goa's Family Laws in terms of adoption rights, and the right of illegitimate children suing their fathers for a declaration of paternity. These rights depends on the religion one belongs to.

In the name of 'Customs', the law also gives its approval to caste-based differences for oath-taking in court, permitting even ex-communication by religious heads, and also took into cognisance the exploitative system of so-called 'dancing-girls' *Bhavinas), which in actual fact was a thinly disguised form of prostitution. ... (Communalism Combat Sept. 1997).

Fred Noronha writing for Goa News corroborated the un-uniformity of Goa's "uniform" civil code, stating that in practice, the different communities (and even caste groups), have differing laws (29 July 1996).

According to a 1992 survey carried out in Goa,

"14 per cent of marriages in Goa took place within the family with such marriages being acceptable to both the religious communities (meaning Hindus and Catholics).

Intra-family marriages were often a choice in Goa for numerous reasons, one being to avoid the splitting of family wealth and property since inheritance laws provide for equal division between all siblings irrespective of gender" (Express News Service July 1997).

Bailancho Saad ("Women's Voice"), a women's group in Goa, stated that marriage customs "weigh heavily on Catholic brides" within Goa's Catholic community, and that "seemingly tokenistic traditions manage to repeatedly underline the less-than-equal position of the woman" (Goa News 29 July 1996). Although such aspects as religion, caste, educational background and family status are sought after in the groom, the bride is expected to have these, as well as be good looking, be able to cook and look after the house, be employed, and bring a dowry (ibid.). According to tradition, once the husband dies, the woman is not supposed to wear bright colours (ibid.).

However, a government law officer speaking with The Indian Express stated that "Under the marriage laws prevailing in Goa since Portuguese times, all property brought in by the couple at the time of marriage jointly belongs to the couple" (12 Mar. 1999). Furthermore, "according to legal opinion in the State, the old Portuguese laws-which included compulsory registration of marriages with a civil authority-were mandatory for all citizens, irrespective of caste or creed. The property and inheritance laws were similarly binding on citizens" (ibid.).

Noronho adds that women have no say in the commonly-held village lands ("gaunkari" or "communidade"), although male descendants from the early "dominant" settlers automatically inherit rights once they become teenagers (Goa News 29 July 1996).

"Women-headed households have become a markedly visible reality" in parts of Goa, because of the large-scale migration to other parts of the country and abroad by Goa's Catholic communities; however this is a result of necessity-because the men are absent-not choice (ibid.).

In Goa, women's groups have been campaigning for a number of issues for almost 15 years, education has spread, girls are excelling in certain academic areas, and there is a noticeable change in perceptions, as is seen by people being reportedly "wary" about asking for dowry (ibid.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

Communalism Combat. September 1997. Pamela D'Mello. "Goa's Family Law: Is it Really Uniform?" http://www.goacom/news/news97/sep/law.html [Accessed 21 Oct. 1999]

Express News Service. July 1997. "Mental Sickness Rate High Among Goan Citizens." http://www.goacom/news/news97/jul/mental.html [Accessed 20 Oct. 1999]

Goa News. 29 July 1996. Fred Noronha. "Goan Women Complain: Women in Goa Find Marriage Customs Weigh Heavily on Them." http://www.goacom.com [Accessed 20 Oct. 1999]

Indian Express [Mumbai/Bombay]. 12 March 1999. Shiv Kumar. "Goa Officials Struggle to Interpret Dowry Act." http://www.indian-express.com [Accessed 20 Oct. 1999]

Additional Sources Consulted

Electronic sources: various Internet sites, IRB Databases.

Non-documentary sources:

Unsuccessful attempts to contact the Research Institute for Women, Goa.