October 2013

Refugee Documentation Centre

Country Marriage Pack

Nepal

Disclaimer Country Marriage Packs (CMPs) are prepared by researching publicly accessible information currently available to the Refugee Documentation Centre within time constraints. CMPs contain a selection of representative links to and excerpts from sources under a number of categories for use as Country of Origin Information. Please note that CMPs are not, and do not purport to be, exhaustive with regard to conditions in the countries surveyed or conclusive as to the merit of any particular claim to refugee status or protection.

1. Types of Marriage

Civil Marriage

In a section titled “” a UNICEF document states:

“At present, the Country Code’s Chapter on Marriage is the main law in Nepal that governs matters relating to marriage. The other legislation includes the Marriage Registration Act, 1971, and the Birth and Death and Other Personal Events (Registration) Act 1977. Even if Nepal is a multi-religious and multi- ethnic country, the uniform pattern of marriage law is applicable to all religions and ethnic communities irrespective of their culture and religion. Law provides that the age of man and the getting married must be 18 years in case the marriage is solemnized with the consent of the guardians and 20 years in case the marriage is solemnized without the consent of the guardians. This way it is made non-discriminatory on the basis of sex.” (UNICEF (2008) Early Marriage in South Asia: A Discussion Paper)

Religious Marriage

The Muluki Ain (General Code) of Nepal, in a section titled “On Marriage”, states:

“Save within the relationship punishable under the Chapter on Incest, any marriage may be solemnized with one's consent according to one's own will and pleasure, subject to the provisions set forth in several Numbers of this Chapter.” (State of Nepal (12 April 1963) The Muluki Ain (General code))

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Traditional/Other Marriage

A page on the Everyculture.com website, in a paragraph headed “Marriage”, states:

“All groups in Nepal follow some form of clan, lineage, or local descent group exogamy, at least through the fifth generation. Hypergamy is not commonly practiced except among some Rajputs in the Terai and a few interethnic marriages where trade-offs are made between ritual status and class. However, for many groups marriages entail hypergamous relations among families and lineages as a post facto result of the higher status accorded wife takers over wife givers. For most high-caste Hindu groups dowry and bride- wealth is an important factor in marriages and an indication of the status of the families involved. Nevertheless, for most Tibetan-and Tibeto-Burman- speaking groups a ritual and often substantial payment is made by the groom to the bride's family. Cross-cousin marriage is not practiced among many groups such as the Sherpa and Hindu caste groups. However, the Thakuri permit and prefer cross-cousin matrilateral marriage. Other groups such as the Tamang and Nyinba prefer bilateral cross-cousin marriage. In general, most marriages are made between couples of the same generation. However, the average age of marriage partners is increasing as becomes more important and available. Monogamy is the most common form of marriage in Nepal, although a few Individuals in most groups also practice polygyny.” (Everyculture.com (undated) Nepali – Marriage and Family)

This webpage also states:

“A number of Tibetan-speaking people, such as the Nyinba, Sherpa, and Baragaonli, practice variant forms of fraternal polyandry. Throughout Nepal most marriages are arranged by the Parents of the couple, though with varying degrees of involvement and control. Among high-caste Hindus, marriages have typically been arranged wholly through the decisions of the couples' families. Young men and women of Tibeto-Burman-speaking groups in the middle hills, on the other hand, have more occasion to interact with one another and may induce their parents merely to arrange marriage ceremonies for them. An unusual, and perhaps more legendary than actual, practice among Tibeto-Burman-speaking groups is wife capture. In such a case, following the abduction of a woman, both she and her family need to agree to a marital arrangement or the relationship is dissolved. Eloping is mainly practiced among more impoverished families. After marriage, couples typically live with the husband's extended family for a number of years. However, among the Sherpa marriage takes place in stages, perhaps for years. Thus a husband and wife may continue to live with their respective natal families for years and only visit each other. Once the wife's dowry is arranged and/or they have children, they move in together.” (Ibid)

A report by United States Department of State, in a section titled ‘Women’, refers to polygamy as follows:

2 “Although the law generally prohibits polygamy, there are exceptions if the wife is infertile, sick, or crippled. According to the 2011 Nepal Demographic Survey, 4 percent of women and 2 percent of men lived in polygamous unions. Polygamists not covered under the above exceptions are subject to a one- to two-year prison term and a fine, but the second marriage is not invalidated.” (United States Department of State (19 April 2013) 2012 Human Rights Reports: Nepal)

Also in this report under the heading ‘National/Racial/Ethnic Minorities’ it states:

Resistance to intercaste marriage remained high and in some cases resulted in forced expulsion from the community. On July 1, according to media reports, a Dalit boy married a non-Dalit girl in Dhading District even though the bride’s parents opposed the marriage. As a result of the animosity, clashes broke out between Dalits and non-Dalits, forcing 10 Dalit families to leave their village under the threat of more violence. (ibid)

However a report by Social Institutions & Gender Index (SIGI) under the heading ‘Discriminatory Family Code’ states:

Polygamy is illegal in Nepal and is subject to two months’ imprisonment and a fine, but the law does not invalidate the second marriage itself. The 2006 DHS estimated that 4.4 per cent of married women in Nepal aged 15-49 were living in polygamous marriages, slightly fewer than the figure recorded in the 2001 census (5.7%). The 2010 CEDAW report notes that polygamous marriages, the first wife occupies a very low status in the family, leaving her more vulnerable to domestic violence than second wives (Social Institutions & Gender Index (SIGI) (undated) Nepal)

A report published by the Asian Human Rights Commission states:

“The Asian Human Rights Commission (AHRC) has been informed of innumerable cases of caste based discrimination in Nepal. Though Nepal has enacted Caste Based Discrimination and Untouchability (Offence and Punishment) Act, 2068 (2011) and has established a National Dalit Commission (NDC), caste based discrimination and human rights violations committed on the basis of caste remain pervasive in Nepal.” (Asian Human Rights Commission (9 March 2012) A Dalit man stabbed to death -- his family members are under threat following an inter-caste marriage)

Another report published by the Asian Human Rights Commission states:

“Most seriously, they are also refused the right to marry non Dalit partners. However, in spite of the continuity of the atrocities inflicted on Dalits in cases of inter-caste marriage, temple entrance and departures from the traditional occupations, the Government of Nepal has not seriously attempted to introduce or enforce legal provisions to deal with such practices. As mentioned earlier the society reaction to inter-caste marriage is particularly revealing of the extent to which the caste system continues to be deeply entrenched as marriage between a Dalit and a non-Dalit constitutes a direct challenge to the traditional hierarchy.” (Asian Human Rights Commission (23

3 July 2010) Nepal: ‘If not now maybe never’; Implementation of Anti-caste- based discrimination laws)

A document published by the Advocacy Project, in a paragraph headed “Harassment”, states:

“Inter-caste couples face violence and harassment from their community, and often end up living in isolation from friends and neighbors.” (Advocacy Project (January 2009) The Threat to Inter-caste marriage)

A paragraph headed “Forced separation”, states:

“Parents of the non-Dalit often try to intervene to prevent inter-caste relationships. Some even go as far as to forcibly separate their child from a Dalit partner.” (Ibid)

A paragraph headed “Displacement” states:

“Frequently inter-caste couples are forced to leave their village and even flee the country, to live far away from their parents and family.” (Ibid)

An Australian Government Refugee Review Tribunal research response on the topic of inter-caste marriage in Nepal states:

“According to the available information, inter-caste marriage does occur in Nepal, although it is still not that common, and such marriages can create problems between the lower-caste spouse and his or her in-laws. Sources suggest that attitudes to inter-caste marriage are slowly changing; however, recent reports were still found of inter-caste couples facing discrimination and violence within their community” (G. Australian Government Refugee Review Tribunal (21 January 2008) How prevalent is intercaste marriage? Is there any information suggesting that persons belonging to different castes who marry or have relationships suffer discrimination or more serious mistreatment for reason of their intercaste relationship?

Proxy Marriage

No information on the above issue could be found among sources available.

2. Formalities of Marriage (Consent, Minimum Age and Registration of Marriage)

The Muluki Ain (General Code) of Nepal, in a section titled “On Marriage”, states:

“While contracting a marriage, no one shall arrange to marry nor cause to be married where the male and the female have not completed the age of Eighteen years with the consent of the guardian and that of twenty years in case of absence of the consent of the guardian.” (State of Nepal (12 April 1963) The Muluki Ain (General Code))

4 An IRIN News report states:

“Along with Niger, , and , Nepal has the highest levels of child marriage in the world, according to Nepal’s Demographic Health Survey, which estimated that over 63 percent of Nepalese girls marry before the age of 18, while 7 percent marry before reaching 10 years old. Within Nepal, the district of Kapilbastu has the highest number of child marriages, the DHS said.” (IRIN News (19 October 2006) Nepal: Child marriage still common in rural southwest)

A discussion paper published by UNICEF states:

“The most notable data from Nepal is 83.1% of girls of some ethnic groups marry before they are 15 years old. 79.6% Muslim girls marry before they are 15 years old. 69.7% girls in the mountainous and hilly regions marry at the age of 15 whereas 55.7% in rural Nepal marry before they turn 15. Early marriage is more common in Surkhet district of mid-western Nepal. One of the findings of the study is that higher caste girls do not feel the pressure to marry at a very young age and while they are in primary school. But when they reach 13 years, pressure is put on them especially if they fail their school exams. If they are doing well their parents will often let them continue with their studies. Lower caste girls have much higher pressure and less choice.” (UNICEF (2008) Early Marriage in South Asia: A Discussion Paper)

A report by United States Department of State under in a section titled ‘Child Marriage’ states:

“The law prohibits marriage for girls before the age of 18. While families in many areas sometimes forced their young children to marry, the rate of underage marriages decreased since 2002. The country’s 2011 Demographic and Health Survey indicated that 71 percent of women between the ages of 15 and 19 in 2011 were unmarried, compared with 60 percent in 2001. In the same period, it added, the marriage rate of girls under the age of 15 dropped from 24 percent to 5 percent. Social, economic, and religious values promoted the practice of child marriages. The law sets penalties for violations according to the age of the girls involved in child marriage. The penalty includes both a prison sentence and a fine, with the fees collected going to the girl involved. According to the civil code, the government must take action whenever a case of child marriage is filed with authorities. There were no government programs to prevent child marriage (United States Department of State (19 April 2013) 2012 Human Rights Reports: Nepal)

However a report by Social Institutions & Gender Index (SIGI) under the heading ‘Discriminatory Family code’ states:

“Recent amendments to the chapter on Marriage in the Country Code have raised the age of marriage to 20 for both sexes. Although the rate of early marriage is declining, there is evidence that it is still practiced widely in Nepal. In 2006, 32.3 percent of girls between 15 and 19 years of age were married, divorced or widowed, compared to 10.5 percent of men. Between 1996 and 2006, the median age of a woman at marriage rose from 16.4 to 17.2” (Social Institutions & Gender Index (SIGI) (undated) Nepal)

5 A report published by the United Nations Economic and Social Commission for Asia and the Pacific, in a section headed “Early or child marriage”, states:

“Child marriage is perceived to be an established practice of generations in Nepal. Both religious and cultural traditions have favoured the marriage of daughters from even less than ten years of age or very early after menarche (first menstrual bleeding), while husbands could be much older. The incidence of such marriages varied, with a high rate in the Terai region in the south and greater flexibility among those of Tibeto-Burman origins, as seen by the fact that the mean age of marriage was 15 years in the Terai and 18 years in the hill and mountain districts and the Kathmandu Valley (Dhital, 2007). Quantitative data, however, is apt to be somewhat inconsistent. The World Health Organization (2000) reported that 3.2 per cent were married by the age of 15 years and 36.0 per cent by 18 years. The Centre for Reproductive Rights (2004) has stated that 7 per cent of the girls were married by the age of 10 years, 40 per cent by 15 years, and 60 per cent by 18 years. The United Nations Children’s Fund (UNICEF), as reported in Dhital (2007), stated that 40 per cent were married by the age of 15 years. The legal minimum age of marriage in Nepal is 18 years for females and 21 years for males. It has been argued that it is difficult to counter old traditions in a country with a relatively high level of illiteracy and low education status. Apart from tradition, there is economic pressure on large families to reduce their burden of dependents and the incentive of lesser dowries demanded for younger girls. It has also been suggested in these studies that penalties prescribed by laws were too light and not properly enforced, while social acceptance prevented complaints to law enforcement agencies.” (United Nations Economic and Social Commission for Asia and the Pacific (undated) Harmful Traditional Practices in Three Countries of South Asia: culture, human rights and violence against women)

Chapter 2 of the Marriage Registration Act of 1971, in a section headed “Marriage Application Detail Register” (section 6), states:

(1) The Marriage Registration Officer shall maintain the detail of the application, received pursuant to Section 5, in the marriage application detail register so prescribed and shall also keep the application in the official record. Such application detail register shall be shown to the person interested to inspect the register without charging any fees.

(2) The Marriage Registration Officer shall make a decision regarding whether or not to conclude the marriage, within seven days upon receiving the application pursuant to Section 5.

(3) In case, the Marriage Registration Officer denies to conclude the proposed marriage, for finding it in against of the prevailing law, any of the proposed party to the marriage may file an appeal before the concerned Court of Appeal within thirty days of such denial. In such case, the decision of the Court of Appeal shall be final and the Marriage Registration Officer shall proceed as per the decision of the Court of Appeal.” (State of Nepal (1971) Marriage Registration Act, 2028)

A section of this chapter titled “Procedure of Marriage” (section 8) states:

6 “(1) Before concluding a marriage pursuant to this Act, the parties to the marriage and at least three witnesses shall sign a deed of declaration (affidavit) in a prescribed format and submit it to the Marriage Registration Officer and the Marriage Registration Officer shall also put signature in this document.

(2) Whether any religious, ethnic or dynastic custom, tradition, usage or practice has been followed or not or it has to be followed or not, to conclude a valid marriage pursuant to this Act, the parties to the marriage shall address the following statement in front of the Marriage Registration Officer and witnesses who have signed in the deed of declaration (affidavit): I ...... hereby, accept/agree to you...... as my legal husband/wife.” (Ibid)

3. Divorce

A document published on the Women’s Foundation of Nepal website states:

“It is very difficult to get a divorce in Nepal. Recent legal changes have made it possible for a woman to divorce her husband and still keep some of the property, and even to gain custody rights. However, such court cases are lengthy and expensive. It typically takes six months to get a divorce case through court if the woman makes any kind of property or custody claims. Even worse than the time and money required to get a divorce is the overwhelming negative social stigma put on a divorced woman. Many women are so terrified of being ostracized from society if they get a divorce that they will endure years of abuse instead.” (The Women’s foundation of Nepal (undated) Divorce)

The Muluki Ain (General Code) of Nepal, in a section titled Husband and Wife states:

“A party willing to dissolve the conjugal relation under Section 1 of Number 1 of this Chapter or both the husband and wife in case they desire to dissolve the relation with their mutual consent under Section 3 of Number 1, shall file a petition to the concerned Village Development Committee or the Municipality, as the case may be, and such Village Development Committee or the Municipality257 shall, to the extent possible, convince both the parties and make them have compromise. If such compromise shall not be reached even upon so convincing and reminding them and if it shall be better to het the relation dissolved than to maintain the marriage, it shall, with in one year of the filing of the Petition, forward the received Petition, accompanied by its opinion too, to the concerned District Court having authority to dissolve the relation.” (State of Nepal (12 April 1963) The Muluki Ain (General Code) Chapter 12 paragraph 1.a)

An article published by the Global Press Institute states:

“The original law in 1963 legalized divorce if spouses resided at separate locations for a period of at least three years, if one spouse engaged in a conspiracy against the life of the other or committed a crime of serious

7 physical assault against the other, and if a spouse engaged in extramarital sexual affairs or eloped with another person.

The 11th Amendment to the Country Code in 2002 legalized divorce for cases in which a spouse has an incurable sexually transmitted disease, suffers from incurable mental disability, is incapable of movement, suffers from blindness in both eyes, if the spouses live separately and if the wife isn’t able to bear any children because of a medical condition confirmed by a government recognized medical board. The updated law also gave women the right to property after divorce.

But institutional biases and socially discriminatory practices many times block women from exercising this right to property after divorce, according to a 2011 shadow report on the Nepali government’s fourth and fifth periodic reports on the Convention on the Elimination of All Forms of Discrimination Against Women, which was coordinated by the Forum for Women, Law and Development.

In 2006, the Supreme Court struck down a law allowing men to divorce women on the grounds of infertility. The Gender Equality Act of 2006 also addresses discriminatory laws governing divorce.

The Civil Code Bill, introduced in 2011, would make marital rape legal grounds for divorce.” (Global Press Institute (4 May 2012) Rising awareness of legal rights doubles divorce rates in Nepal’s capital)

A report by Social Institutions & Gender Index (SIGI) under the heading ‘Discriminatory Family code’ states:

“Legally, parental authority rests with both parents. However, according to a 2003 CEDAW [Committee on the Elimination of Discrimination against Women] report, ‘the conventional assumptions on women’s role and position have not changed very much in Nepal. Traditionally, women are supposed to hold an inferior position at home and in the society. Their primary role is to take care of the children and perform household work.’ However, in child custody cases following divorce, changes to the Country Code Chapter on Marriage mean that courts now give preference to the mother. Legally, women and men have the same rights to divorce, following amendments to the legislation that had previously made it more difficult for women to obtain a divorce. Under the current interim constitution, Nepalese women have gained the right to pass Nepalese citizenship onto their children.

Recent legal amendments have improved inheritance rights for women in Nepal: daughters, widows and divorced women are now recognised as being rightful inheritors of family and ancestral property, and the discriminatory provisions of the Country Code that forced daughters to return property upon marriage has been amended. It is unclear whether the law is being effectively implemented.” (Social Institutions & Gender Index (SIGI) (undated) Nepal)

4. Marriage between Non Nationals and Nationals

A page on the website of the United States Embassy in Nepal refers to the requirements for US citizens marrying in Nepal as follows:

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“Nepal requires U.S. citizens marrying in Nepal to have an Affidavit of Eligibility to Marry, notarized by a U.S. Embassy Consular Officer and available at the Embassy.” (Embassy of the United States, Kathmandu, Nepal (undated) Getting married in Nepal)

In a paragraph headed “Registering your marriage at the CDO” this webpage states:

“To apply for a Government of Nepal-issued marriage certificate, you must submit the Affidavit of Eligibility to Marry with other required papers at the CDO office. The CDO also requires evidence of your nationality (U.S. passport), photographs, and a nominal processing fee. After you apply, the CDO will check your legal status in Nepal with various government offices. This process may take some weeks. After the CDO processes your application, they will issue a marriage certificate, which is usually written in both Nepali and English. (Ibid)

References

Advocacy Project (January 2009) The Threat to Inter-caste Marriage http://www.advocacynet.org/page/intercaste

Asian Human Rights Commission (9 March 2012) A Dalit man stabbed to death -- his family members are under threat following an inter-caste marriage http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-043- 2012/?searchterm=Marriage Nepal

Asian Human Rights Commission (23 July 2010) Nepal: 'If not now maybe never'; Implementation of Anti-caste-based discrimination laws http://www.humanrights.asia/news/ahrc-news/AHRC-STM-154-2010/

Australian Government Refugee Review Tribunal (21 January 2008) How prevalent is intercaste marriage? Is there any information suggesting that persons belonging to different castes who marry or have relationships suffer discrimination or more serious mistreatment for reason of their intercaste relationship? http://www.refworld.org/docid/4b6fe2c40.html

Embassy of the United States, Kathmandu, Nepal (undated) Getting married in Nepal http://nepal.usembassy.gov/service/passports-notaries-and-other-support-for- u/marriage-to-a-nepali.html

Everyculture.com (undated) Nepali - Marriage and Family http://www.everyculture.com/South-Asia/Nepali-Marriage-and-Family.html

Global Press Institute (4 May 2012) Rising awareness of legal rights doubles divorce rates in Nepal's capital

9 http://www.trust.org/trustlaw/news/rising-awareness-of-legal-rights-doubles- divorce-rates-in-nepals-capital

IRIN News (19 October 2006) Nepal: Child marriage still common in rural southwest http://www.irinnews.org/printreport.aspx?reportid=61758

Nepal (1971) Marriage Registration Act, 2028 http://www.jafbase.fr/docAsie/Nepal/marriage-registration.pdf

Nepal (12 April 1963) The Muluki Ain (General Code) http://www.lawcommission.gov.np/en/documents/law-archives/old-acts/func- startdown/605/

Social Institutions & Gender Index (SIGI) (undated) Nepal http://www.genderindex.org/country/nepal

UNICEF (2008?) Early Marriage in South Asia: A Discussion Paper http://www.unicef.org/rosa/earlymarriage(lastversion).doc

United States Department of State (19 April 2013) 2012 Human Rights Reports: Nepal http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dli d=204407

United Nations Economic and Social Commission for Asia and the Pacific (undated) Harmful Traditional Practices in Three Countries of South Asia: culture, human rights and violence against women http://www.unescap.org/sdd/publications/gender/SDD_pub_2530.pdf

The Women’s Foundation of Nepal (undated) Divorce http://www.womenepal.org/index.php?option=com_content&view=article&id=4 5&Itemid=45

Sources Consulted

Advocacy Project Asian Human Rights Commission BBC News Electronic Immigration Network European Country of Origin Information Network Freedom House Google Immigration and Refugee Board of Canada IRIN News Nepal Law Commission Refugee Review Tribunal Social Institutions and Gender Index State of Nepal

10 UNHCR Refworld UNICEF United Kingdom Embassy in Nepal United Kingdom Home Office United States Department of State Untied States Embassy in Nepal Women’s Foundation of Nepal

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