Dr Bipin Adhikari
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 may be analyzed from the gender perspective.
A task force to revise, update, and incorporate Nepal’s criminal law according to the needs of time, was formed as per the decision of the Council of Minister taken on 3 December 2008. Among the methodologies adopted by the task force were the review of legal principles laid down by the Supreme Court, international conventions on human rights to which Nepal is a signatory.
Therefore, it is logical for anybody to expect the draft Criminal Code, Criminal Procedure Code, Criminal Offence (Punishment and Implementation) Act, to be reassuring in the gender perspective.
The Criminal Code has unified the substantive law related to criminal offences hitherto this day. Criminal Proceeding Code lays down procedures that should be used in the matter of all criminal offences. 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 had 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, 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 the need for amendments to the provisions mooted in the Draft Civil Code, 2068 must be acknowledged.
There are some additional comments. There is a need to re-evaluate the legal age for marriage. As per the current bill, the legal age for marriage for male and female are 22 and 18 respectively. What if there is equal age restrictions for both male or female. Similarly, the need for an adequate definition for marriage in the draft bill as well as mandatory provisions for registration of marriage is also there. 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.
Again, what about the need to institutionalize marriage through an eligibility license system? Just like driving license, law practicing license, medical practitioner’s license, what is there is 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.
There is also a need to have stringent laws to deter perpetrators from remarrying. 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. 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?
