SECTION 5A: Portuguese Civil Code in Income Tax

The Income Tax return form has included a new column with a query asking if the individual is governed by the Portuguese Civil Code.

If the taxpayer is subject to the laws of any of the above-mentioned jurisdictions, he or she should choose "Yes."

If, on the other hand, the taxpayer is not subject to the laws of any of those locations, he or she should pick “No” as an answer.

Apportionment of Income between the spouses Governed by Portuguese Civil Code

Income in India is taxable in the hands of the person who earns it, according to the Income Tax Act of 1961.

However, there is an exception to this rule in the case of Section 5A. This section deals with the division of income between spouses, which is controlled by the Portuguese Civil Code and is solely applicable to the state of Goa.

According to the code, whatever quantity of income produced by the husband and wife from all sources (excluding income from prolonged work or merely pay/ salary income from employment) must be divided equally between the couples.

The money so distributed shall be added to each spouse's total income separately, and each of them is required to report just his/her share of income in the Income Tax Return.

The reason for this is because 98 percent of marriages are governed under Community of Property Law.

Further insight on the four laws governing marriages under the Portuguese civil procedure code: - Community property law
- Complete dissolution of property
- Separation of pre-existing assets before marriage and congregation of property post marriage
- Dotal regime

Community property law

According to community property law, each spouse instantly obtains combined ownership of the assets currently in their possession as well as those assets inherited by them.

In other words, the whole amount of assets (and liabilities) fall under the purview of common property.

Complete dissolution of property

As the title itself suggests, this law vests the ownership of properties to each spouse based on the way it was existing before marriage.

Dotal Regime

It is the provision that renders the husband with rights over the property of the wife, in which case he would be required to return it on account of the dissolution of marriage or death. These clauses apply to the residents of the state of Goa irrespective of their religious background and the laws concerning each of them. These assets particularly, may not be disposed or restrained in any way by one spouse without the explicit and direct consent of the other. In this way, women are protected and saved from the risk of the husband recklessly squandering the capital assets or handling them as per their sole personal choice.

Is the Portuguese Civil Code a Uniform Civil Code?

A unified civil code is a single body of legislation that applies to all Indian citizens in personal affairs such as marriage, divorce, custody, adoption, and inheritance.

Goa has common family law and is thus the only state in India with a consistent civil code regardless of religion, caste, creed, sexuality, or gender. In Goa, regardless of one's beliefs, everyone is bound by the same basic legislation whether it comes to marriage, divorce, or succession.

How does the Portuguese Civil Code compare to other Indian Civil Code laws?

People in India belong to a variety of castes, religions, and have their own beliefs and belief systems.

A specific set of rules determines their beliefs, which are designed in consideration of the many practices that are observed by that religion.

Hindu Personal Laws include, for example, the Hindu Marriage Act of 1955, the Hindu Succession Act of 1956, the Hindu Minority and Guardianship Act of 1956, the Hindu Adoptions and Maintenance Act of 1956, and the Hindu Disposition of Property Act of 1916. For the purposes of these regulations, the umbrella word "Hindu" also encompasses Sikhs, Jains, and Buddhists.

Muslim personal law is based on religious scriptures, however, certain parts of these are explicitly recognized in India by statutes such as the Shariat Application Act and the Dissolution of Muslim Marriages Act.

The Indian Christian Weddings Act supervises and regulates all Christian marriages and divorces in India.

On the contrary, the Portuguese Civil Code of 1867 applies to all citizens of Goa, regardless of religion or ethnic background. It makes no difference if you are a Hindu, Christian, or Muslim. If you are a Goan citizen, the same set of civil laws will continue to apply to you.

Even though it emphasizes equality before the law, the idea of the Uniform Civil Code clashes with the right to freedom of religion ( Article 25 of the Constitution )
To conclude, the best way would be to safeguard and maintain the personal laws but at the same time making sure that they do not contradict the fundamental rights of the citizens.

CA Abhishek Soni
CA Abhishek Soni

Abhishek Soni is a Chartered Accountant by profession & entrepreneur by passion. He is the co-founder & CEO of Tax2win is amongst the top 25 emerging startups of Asia and authorized ERI by the Income Tax Department. In the past, he worked in EY and comes with wide industry experience from telecom, retail to manufacturing to entertainment where he has handled various national and international assignments.