Category: Article

In this case, Advocate Rajib Bastola filed a writ petition seeking the Supreme Courts decision to deem Section 8, 11 and 17 (2) of the National Broadcasting Act, 2049 BS unconstitutional as they were in contrast with Section 12(3), 15(1) and 27 of the Interim Constitution of Nepal, 2063. Legal provision on the broadcasting of the flow of information through the National Broadcasting Act 1993 targeted for the general public to get informed about impartial as well as authentic news and information taking place at the national and international level. This Act also aimed at making of the broadcasting media reliable, effective and strong with the use of modern technology in the field of information and communications.

Relevant Legislations

Interim Constitution, 2007:

• Section 12 (3): Right to freedom: a) Freedom of opinion and expression b) Freedom to practice any profession, carry on any occupation, industry and trade.
• Section 15 (1): Right relating to publication, broadcasting and press: (1) No publication, broadcasting or printing of any news item, editorial, feature, article or other reading and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing shall be censored.
• Section 27: Right to information: Every citizen shall have the right to demand or receive information on any matter of his or her interest or of public interest.

National Broadcasting Act, 1993:

• Section 8: Power to cancel license of broadcasting institution: (1) if, any broadcasting institution broadcasts any program in contravention of this Act or the Rules framed hereunder, Government of Nepal may cancel the license obtained by such broadcasting institution. (2) Prior to cancellation of the license under Sub-section (1), Government of Nepal shall give a reasonable opportunity to such broadcasting institution to defend itself.
• Section 11: Production and Broadcasting of Programs.
• Section 17 (2): Penalties: (2) If any person broadcasts, or causes to broadcast, any program in contravention of this Act or the Rules framed hereunder or commits, or causes to be committed, any act in contravention of this Act or the Rules framed hereunder, the prescribed authority may punish such broadcasting institution, broadcaster or other related person with fine of up to Ten Thousand Rupees or with imprisonment up to One year or with both punishments.

International Convention on Civil and Political Rights (ICCPR), 1976

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals

In response, the court did not find unconstitutionality with Section 11 and Section 17 (2) respectively. However, in terms of Section 8 regarding the power to cancel the license of broadcasting institutions, the Supreme Court found that this provision was in contrast to the constitutional principle enshrined in Section 15 of the Interim Constitution of Nepal. According to Section 15, ” No publication, broadcasting or printing of any news item, editorial, feature, article or other reading and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing shall be censored.” However, Section 8 of the National Broadcasting Act gives power to the Nepali government to cancel the license obtained by such broadcasting. The court opined that cancelling the license of a broadcasting network would garner the same result as providing censorship to the publication as licenses are an essential pre-requisite for the broadcasting agency to legally function in the country. In this regards, citing unconstitutionality between the parliamentary act and the constitution, the court nullified the provision stated in Section 8 of the National Broadcasting Act.

Comments

In this case, the judiciary has once again exercised its power of judicial review to declare Section 8 of the National Broadcasting Act, 1993 unconstitutional. In doing so, the Supreme Court has re-iterated its preeminence in the judgment as to invalid restrictions. From a governance perspective, arguments can be made that a judicial institution, which is essentially appointed and not elected, should not be allowed to discard rules made by an elected body, i.e. parliament. The lack of accountability for judiciary towards the voting demographic has been argued as a major reason for the possible pitfall for this system. In the United Kingdom, for example, in most cases, the parliamentary Act is seen as a supreme law and the power is vested within the judiciary to interpret the law and not amend it.

However, there is a second school of thought which sees great benefit in the judiciary’s power to exercise its rights to interpret the constitution at the exclusion of any parliamentary acts. The appointed nature of judiciary, according to them, is a huge benefit as it keeps the judiciary independent and unaffected by partisan interests. This, according to many, is the hallmark of a democratic society where checks and balances are provided to keep all the institutions in line with democratic norms. This school of thought has prevailed in Nepal.

In terms of the case at hand, the Constitution recognizes the following grounds for restricting freedom of expression: sovereignty and integrity of Nepal; harmonious relations subsisting among the peoples of various castes, tribes, religion or communities; defamation; contempt of court; incitement to an offence; and acts contrary to public decency or morality. However, the restriction based on protecting “harmonious relations subsisting among the peoples of various castes, tribes, religions or communities” (Article 12 para 3 (1) of the Constitution, as well as in Article 15 of the National Broadcasting Act 1993), is problematic from the perspective of freedom of expression. While it is important to promote harmonious relations, this restriction is too broad and can undermine legitimate expression such as a frank discussion about the caste or ethnic discrimination which is a prevalent issue in Nepal.

In addition, there should be appropriate provisions that impose obligation to establish close and causal links between banned statements and risk to national security. This is a norm in international law. This lack of clarity has been abused in Nepal during the Maoist conflict and was one element in the justification for the widespread clampdown on journalists, media workers and human rights defenders. In essence, regulation of broadcasting should be controlled by a transparent body rather than a ministry to avoid future abuses.

The verdict to amend the National Broadcasting Act to adequately protect the right to freedom of expression in line with international requirements and the protection of media guaranteed in the Constitution is a welcome move. In light of this, the government must create regulatory laws according to international standards and establish regulatory bodies that are independent from government and that operate transparently.

The development of lease contract went through various stages. It started from being a nominal part in the property law later become an integral part of contract law and finally has developed into a distinct part of contract law.

This development bears some correlation with the economic development of the state. The more economically developed the state the more developed the lease and contract laws they will have.

Lease agreement can be categorized according to various criteria: residential lease/commercial lease; tenancy for year/tenancy for year/tenancy at will; tenancy of sufferance. Further, The duties on the parties while entering into a lease contract are also laid down.

Our existing laws, the Muluki Ain, relating to lease is more an ancient and outdated law. Muluki Ain does not cover issues of modern time.

The drafters of the Bill could have clubbed present Chapter with Chapter 9. Both chapters relate to leasing of property and it would be logical to club them together. The Bill must be applauded for incorporating modern principles such as ‘peaceful enjoyment of property’ and ‘delivery of possession’ which are progress steps. However, definition of the leasable property/item is not clearly defined.

The rights and duties of the lessor and lessee have been prescribed. However, it is strange that the responsibility has been cast upon the lessee to check for the fitment of the property in question. Is it not the responsibility of the lessor to disclose all material fact regarding the usability of the property?. A lessor has to disclose all defects in the property.

Further, the Bill tries to cover aspects relating to sub-lease but fails to address the assignment aspects of the lease. Thus, in general, the Bill is good in concept but the provisions of the Bills need some refinement.

The Bill must clarify the liability of lessor and lessee to pay tax. It is silent as to who has to pay the house tax: whether the lessor who is the owner of the property or the lessee who is enjoying the property?.

The Bill should also incorporate provisions regarding insurance of the property and the duty of which part to bear the cost of insurance. Further, it must contain a phrase wherein it categorically states that the agreement to enter into a lease contract has to be for lawful purpose with bonafide intention. Even though there is a non obstante clause there will be conflicts between the present Bill and existing Contract Act.

The Bill mandates compulsory registration of lease agreement but does not specifically state the authority or institution where the lease agreement has to be registered. The concerned authority or institute where the lease agreement has to be registered needs to be explicitly mentioned in the Bill.

The current effort of bringing everything in one single Act should be avoided in some cases. Contract Act which is a special Act dealing with agreements between party should be amended to insert the provisions contemplated in the present Bill. This will avoid conflict between statutes. Further, the period of the contract must be open for the parties to decide. Deciding the period of contract for the parties is not in the legislative domain and parties must be allowed to decide for themselves.

The Draft Code aims to codify all the offences which were scattered or were unregulated. The main purpose of the Draft Code is to provide uniformity and consolidate laws into one single enactment.

The Draft Code does not define Public Justice, however, it provides for 14 instances when an act is deemed to be offence against public justice. The acts of forgery and perjury have been given utmost importance in the provisions relating to offence against the public justice. And they have come with new perspectives.

Punishing any act which obstructs judicial or investigation procedure is punishable under the Draft Code. The Draft Code further requires all citizens to report to concerned authority when there is commission of any crime. Failure to do so might be an act punishable under the Draft Code. A person instituting a malicious or frivolous complaint/suit is to be punished under the Draft Penal Code.

The laws concerning public interest, health, morality and safety were scattered in various legislation. Some acts were not criminalized or remained unregulated. The Draft Code consolidates all the acts relating to public interest, health, morality and safety in one single statute. Some of the acts put together by the Draft Code include acts of polluting water, forcing someone into begging, assisting and abetting prostitution and gambling etc. One of the new features of the Draft Code is that it criminalizes act which involves display of pornography in the public place. Further, any act or gesture which undermines social integrity or integrity of women, children of ethnic minority may be punishable under the Draft Code.

The Draft Code also has provisions regarding compensation. One can be skeptic regarding effective implementation of the provisions which have been main problem in Nepalese judicial system. The provisions are not victim sensitive. The compensation that is levied from the guilty person/convict goes to state treasury instead of victims. There are many cases where people institute malicious and frivolous suits to implicate or harass other person. There are measures to curb such practices but were unsuccessful. Many people fall prey to such ill practices and are subjected to confinement. These people must be strictly punished as their action has curtailed and infringed his personal liberty. The actions relating to domestic violence are regulated by a separate Act but the Act is not capable of discharging justice to victims. If the provisions relating to domestic violence could be consolidated into this chapter then there might be a possibility that those provisions can be effectively implemented. Further, the compensation aspect does not bear any correlation with imprisonment. The compensation or fine must be increased as the amount stipulated in the Draft Bill is not deterrent enough. Beside, judges tend to impose only fine rather than resorting to imprisonment.

The person who forces or asks another person to make fake document gets a lesser sentence/imprisonment than the person who is making fake document on behest of someone else. Further, the provisions only punish sexual activities which have been seen by public. She was of the opinion that if it comes to knowledge that sexual activities had taken place in a public place all guilty parties must be punished.

 Dr Bipin Adhikari

The Draft Code is a major departure from the Muluki Ain. The language used is very simple and easily understandable by a layman. Section 211(2) of the Draft Code recognizes the right of fetus to inherit property. Further, Section 212 states that any child born out of void or voidable marriage or divorced parents will have the right to inherit property from their parents. Son and daughter both have been allocated responsibility of care of parents. Section 215 states that if a husband/father has already taken his share from the ancestral property during partition then his wife or children’s can only claim a share from husband/father’s property. The wife and children are barred from making any claims from the ancestral property of their husband/father after partition. 

The Draft Code provides for infrastructural development such as road and sewerage aspect to be taken into consideration.



One can express concerns regarding exclusion of provisions when a coparcener is a person who has renounced the world. The existing Code has a provision wherein if a person renounces the world then the person loses his/her right to claim a share from the parental property. Likewise, the present Draft Code is silent regarding the expenditure incurred during marriage of children. Further, the Draft Code has completely overlooked good provision such as casting responsibilities on single parents (widow/widower) in maintaining and providing quality education and health facilities of their minor child until they reach the age of majority. Such expenses may be deducted from the share of the minor if the parents are not capable of meeting such expenses by themselves. As such, the provisions regarding Partition need serious consideration which cannot be improved by minor alterations.



I wonder if there is contradiction between laws relating to partition of property and laws relating to Wills. Does Section 252 relating to ‘Will’ override Partition provisions? The section states that a person by way of a Will can exclude their children’s from inheriting any property from parents. The existing provisions have defined ancestral property as an inherent right and many landmark judgments have been delivered by the Supreme Court on the basis of this inherent right over the property. However, the Draft Code deviates from age old concept regarding property rights of a person which might have consequences. It maybe good or bad, only time will tell. Further, the definition of coparcenaries must be expanded to include brothers and sisters. 

The Draft Code is being enacted to replace the Muluki Ain. It does not however disclose why the change or overhauling of the Muluki Ain was needed. 

The Draft Code regulates the acts which were earlier regulated by Muluki Ain and does not have any radical change in legal provisions.It criminalizes 8 acts including acts of espionage.



The Draft Code aims at repealing the Espionage Act, 2018. However, it criminalizes act of accumulation of arms and treasury in two separate provisions. This repetitive criminalizing of same act is inconceivable.



The act of treason is punishable with incarceration for life or 15 years. However, the terms of life sentence or 15 years should be avoided. The drafter should either use life sentence or imprisonment up to 15 years.



The drafting of the Draft Code is fundamentally flawed as two acts of different degree of offence are clubbed together. Further, the Draft Code punishes many acts but fails to define the offence per se or the element constituting the offence.



The Draft Code criminalizes 14 acts as offences against the Public tranquility. It is clear that most of the acts there are interrelated and very similar in nature. There was no law to regulate unlawful assembly before. Hence the provision regarding unlawful assembly is a welcome move as much needed provision. The provisions regarding offences against public tranquility are also important.



Overall, the offences based on the nature and degree of crime must be segregated with appropriate punishments. Further, the provisions must define the crime and the elements constituting them for effective implementation.



Regarding the offence relating to arms and ammunition, the definition of arms and ammunition must be widened to include tools which cause physical or grievous hurt.



Any act which obstructs a government or state function must be brought under the offences against public tranquility. This step will widely help land acquisition process and assist in rapid development of the country. The concept regarding common intention must be clarified to prevent innocent individuals from being victimized.

The reason why only attack on the President constitutes offence against the state was mainly because the President is regarded as the head of the state. However, even Prime Minister and other constitutional heads must be included. 

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. 

 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? 

 Dr Bipin Adhikari

The provisions regarding debtor-creditor relationship is scattered all over Muluki Ain. There is no specific chapter in the Muluki Ain which deals with relationship between creditor and debtor. The present Bill keeping that in mind has made an attempt to compile all the provisions relating to debtor-creditor relationship into one single chapter.

There is definition of debtor-creditor relationship in Section 495 of the Bill. It is defined as the relationship between two or more people in lieu of exchange for money or goods. Further, Section 496 slightly deviates from existing provisions when it defines any liability in terms of money or goods to create relationship of debtor and creditor.

The provisions of the Draft Code seem to be reader friendly and usage of simple language has made the understanding of law more comprehensible to laymen.

The present provisions builds on the old and existing provisions of the Muluki Ain. The provisions are refurbished in a simpler language without conducting any scientific study about the problems and the challenges faced during the implementation of the present provisions. There is a fear that the existing problems in the laws have not been properly addressed by the present Draft Bill.

It is wrong to believe that the Draft Code will revolutionalize the Nepalese legal system. The provisions do not fully address the prevailing loopholes in the law. For example, there is a provision attempting to regulate interest. It is well within its right to regulate interest rates when one of the parties is State but interest amongst the private parties should be left upon their discretion. Private parties must be free to determine their own interest rates.

The parties especially Creditor tends to keep the interest rate ambiguous by using various phrases such as ‘interest rate as per the market rate’. This kind of practice has led many Debtors being victimized. The Draft Code should strictly ask the parties to enter into a written agreement which clearly states the interest rate and duties of the parties. Section 508 of the Draft Code states the Karta/Head of the Family may enter into an agreement wherein the common property may be kept as collateral with the Creditor. However, the term karta or head of the family is not defined in the Draft Code. The Draft Code should clearly state who can be termed as a head of the family and what are his/her duties towards the property against which loan amount is secured.

The usage of term ‘competence’ and ‘quasi competence’must also be clear.