Dr Bipin Adhikari
Everyone is aware that women have been denied justice and have had to bear added injustice due to certain trends and behaviors that are in common practice aimed at women solely due to the fact that they are women. Equality between men and women is much discussed about, but in general equality has not been achieved because the focus remains on maintaining the official equality based on the principles of equality. Due to the prevalence of patriarchal thought, even the law of the land which is supposed to provide justice is lacking unknowingly in giving gender justice. Unless the legal framework can address the special status and needs of women as a result of their natural characteristics and the biological body processes, justice will not be balanced.
In addition if the discrimination created from the social gender is defined as culture and used as a resource or the basis of creating laws, it will not be able to achieve equality. Until a century ago there were provisions in the law that allowed for women who were accused of practicing “witchcraft” to be forced to consume human feces. From the gender perspective it is proof that the laws are completely unjust because discriminatory clauses within currently prevalent laws of Nepal have been clearly identified.
A taskforce to correct, update, and incorporate Nepal’s criminal law according to the needs of time, was formed as per the Council of Minister’s decision taken on 3 December 2008. Among the methodologies adopted by the taskforce were the review of periodic legal principles by the Supreme Court, international conventions on human rights that Nepal is signatory to.
In the changed context of Nepal, the draft Criminal code, Criminal Proceedings Code, Criminal Offence (Punishment and implementation) Act, is expected to give full justice from the gender perspective. The Criminal Code is a united a substantive law that has related to criminal offence. Criminal proceeding code is the process that should be used in terms of criminal offence. In the context of the changes that have taken place in giving and administering punishment, the Criminal Offence (Punishment and Implementation) Law was made to punish the offender according to the gravity of the crime and the role of the offender.
In light of this, the Draft Civil Code 2068 was brought forward to provide protection for women against the prevalent ills in the society. Historically, marriage was been defined as: “A ceremony, civil or religious, that creates the legal status of husband and wife and the legal obligation arising from that status,…parties to marriage must be respectively male and female as determined at birth sex change operation have no legal effect must not be already married to someone else and must enter into marriage freely.” However, modern day conceptions of marriage have been broadened to include unions between a man and another man or a woman and another woman. The validation of gay rights has led to the legalization of gay marriages in various jurisdictions around the world.
Similarly, CEDAW (Art. 16) has provided equal rights for marriage for men and women and equal rights to choose their respective life partner as well as equal rights for consensual marriage. In light of this, according to the presenter, the proposed bill is a welcome step in the right direction. Similarly, in the context of abortion, Roe v Wade has been identified as a landmark decision. The historic Supreme Court decision overturning a Texas interpretation of abortion law and making abortion legal in the United States has had subsequent knock on effect on various jurisdictions around the world. This has been further codified in subsequent international treaties as well as domestic legislations of various states. In light of this, Nepal’s efforts to provide adequate abortion laws, to protect both the mother and the unborn child, have to be commended. However, the presenter acknowledged the need for amendments to the provisions mooted in the Draft Civil Code, 2068.
In light of this, some of the recommendations for the proposed bill on “Marriage related Offences” and ” Abortion related Offences” are as follows:
1. As per the current bill, (Sec 176) the legal age for marriage for male and female are 22 and 18 respectively. Experts have advocated for equal age restrictions to be put for either male or female. Similarly, experts stressed the need for an adequate definition for marriage in the draft bill (Sec 173) as well as mandatory provisions for registration of marriage. This will deter the parties from entering into a marital bond for devious purposes. In addition, this will provide protection to the parties in seeking their rights granted to them post marriage.
2. Experts highlighted the need to institutionalize marriage through an eligibility license system. According to him, just like driving license, law practicing license, medical practitioner’s license, there should be an evaluation system to ascertain the eligibility of citizens to marry. This has many benefits: Firstly, it will institutionalize marriage. Secondly, it will gradually eradicate the prevalence of child marriages. Thirdly, it will create awareness among the contracting parties of their rights prior and subsequent to marriage. And finally, it will create an even standard for citizens of any gender to enter into a marital bond.
3.Further, experts stressed the need to have stringent laws to deter perpetrators from remarrying (Sec 178). In addition, it is suggested that even under circumstances which grant legal rights to couples for remarrying (e.g. sexually transmitted disease such as HIV AIDS), there should be finalization of the first marriage, i.e. divorce, prior to entering into second marriage [Sec 178 (2) ] . In terms of limitation, there is a need to clarify whether the stipulated 3 month period is to file a case at the local police station or whether it is to go to court. Also, the limitation section needs to declare what would be the outcome in case the limitation period has been exceeded in terms of polygamy/endogamy. Would the court validate either?
4. Under Sec 174 (3): The registration of Marriage should be conducted in the presence of both husband and wife. In light of the prevalent abuses in Nepal, it is suggested that the bill should include provisions for women to register their marriages, on their own, at the registration agency upon the reluctance of the husband to do so. This, according to experts would prevent husbands to abuse the law through non-registration.
5. Further, Under Section 174, Subsection 5 should be added which includes the responsibility for the marrying pandit, priest, and pastor (depending upon respective religions) to document the marital ceremonies of each couple. Further, the subsection should oblige the priests to keep a register of all the marriages undertaken with witness signatures and provide that to the marriage registration agencies on an annual basis.
6. Under Section 176 (2): Age limit of men and women for marriage to be 18, if consent is granted by the parents. This, according to experts, should be extended to 21 years for both men and women. Keeping in mind the reproductive health of the women, it is widely accepted scientifically that conception during teenage years could pose a risk to the mother’s health. In light of this, the proposed bill should increase the age limit even if the consent is granted by respective parents.
7. Under Section 176, Subsection 5 should be added, which provides protection to the identity of the “marriage related offence” informant.
8. Under Section 177, Subsection 2 should be added, that provides equal inheritance rights to son as well as daughter and prohibits dowry altogether.
9. Under Section 178 (Prohibiting Second Marriage) , Subsection 5 should be added providing protection to the born child given that the second marriage has taken place without wife’s knowledge. The child born out of wedlock should be able to claim inheritance from both the mother and father, subsequent to the termination of marriage. In addition, the child’s nurturing aspects such as: nutrition, education, health care should be undertaken by both parents equally. In case, the mother is unable to take care of the child, then the father should bear the responsibility for the child’s nurture.
10. Under Section 178, Subsection 6 should be added that protects the inheritance rights of the first wife and their children in case the husband marries a second wife. In such wedlock, the second wife will not be entitled to any inheritance at the exclusion of the first wife and her children. However, if the second marriage has taken place in which the second wife had no knowledge of the first marriage, then, the second wife will be entitled to compensation from the husband’s potion of this property, ascertained after partition with the first wife and her children.
11. Section 179 should be added penalizing civil servants from multiple marriages. In such cases, it is advocated that such perpetrators should be terminated from their services with immediate effect.
12. Under Section 190 (6), regarding abortion, the sentence for intentionally causing abortion through physical or mental distress, to the pregnant woman, should be increased. Please find below the existing provision and, in bracket, the suggested penal sanction:
i) If the pregnancy is 12 weeks, then the punishment should be 1 month ( Increased to 3 months)
ii)If the pregnancy is 25 weeks, then the punishment should be 3 months ( Increased to 6 months)
iii) If the pregnancy is more than 25 weeks, then the punishment should be 6 months ( Increased to 1 year)
13. To minimize unsafe abortion which is still persisting in villages, messages about legalization of abortion should be well informed by media and women should be educated to seek services as early as possible.
14. Abortion related cases should be conducted in closed in camera proceedings. In addition, even if the perpetrator of abortion is the pregnant woman herself, she should not be discarded from receiving the adequate nutritional and health care services provided by the state.
It is suggested that, in addition to enacting laws, there should be other implementation aspects initiated by the state. For example, school curriculums need to incorporate “marriage” as a taught module. Village Development Committees need to make youth clubs mandatory in every regions. The awareness program regarding the enacted laws should be widely conveyed to the public through radios, television etc.
After internationally committing to end all types of discrimination against women, Nepal must try to maintain gender justice from all angles in its state administration. For this it is important to analyze all policies, laws, and regulatory mechanisms through the gender perspective. In this context some of the newly made clauses of the criminal offence Act draft have been analyzed from the gender perspective.
