Goa v. India: A Comparative Study of Marriage and Divorce Law

Personal laws regulate matters such as marriage, divorce, inheritance, maintenance, and guardianship. In India, these personal laws are based on religion, with different laws applicable to individuals based on religious affiliations. Goa, a state in India, has its own Uniform Civil Code, which it inherited from the Portuguese. This Code applies uniformly to all Goans, uniformly irrespective of religious affiliation, and is followed in substance until date with minor, negligible modifications. Marriage is viewed differently by the different laws; Hindu law regards it as a sacrament, whereas Muslim law regards it as a contract. The Civil Code also recognizes it as a special contract with a definite purpose and objective. Similarly, the divorce laws, traditionally, are varied, with diverse grounds and consequences available, which vary based on both religion and gender. Some parity has no doubt been brought about by legislation; however, the current legislative scenario is far from ideal. It is a travesty that in India, civil status, rights, and obligations that flow from purely civil situations such as marriage and divorce are still regulated directly or indirectly by religion. One’s civil relations or circumstances should not depend on one’s religion or gender but rather should be substantially the same depending on one’s civil status. Though the Constitution of India makes equality a fundamental right and prohibits discrimination on grounds of religion and sex, the personal laws have by and large escaped the scrutiny of judicial review. It remains to be seen whether the new doctrine of constitutional morality will bring about substantial uniformity and end discrimination on extraneous grounds of religion and sex. This paper will be a comparative study of the various marriage and divorce laws as applicable to Hindus, Muslims, Christians, Parsis in the rest of India, and the Uniform Civil Code as applicable to all Goans. The paper will point out the best practices in the available laws, the changes brought about by legislation and judicial review, and critically suggest reforms.