The Landmark Decisions of THE SUPREME COURT, NEPAL on GENDER JUSTICE NJA-Nepal Publisher: National Judicial Academy Hariharbhawan, Lalitpur Nepal The Landmark Decisions of the Supreme Court, Nepal on Gender Justice Editor Dr. Ananda Mohan Bhattarai NJA - Nepal National Judicial Academy Hariharbhawan, Lalitpur Nepal Advisor: Hon. Tope Bahadur Singh, Executive Director, NJA Translators: Hon. Dr. Haribansh Tripathi, Judge – CoA Mr. Shree Prasad Pandit, Advocate Mr. Sajjan Bar Singh Thapa, Advocate Management & Editorial Assistance Hon. Narishwar Bhandari, Faculty/Judge – DC, NJA Mr. Nripadhwoj Niroula, Registrar Mr. Shree Krishna Mulmi, Research Officer Mr. Paras Paudel, Statistical Officer Mr. Rajan Kumar KC, Finance Coordinator Assistants: Mr. Bishnu Bahadur Baruwal, Publication Assistant Ms. Poonam Lakhey, Office Secretary Ms. Sami Moktan, Administration Assistant Ms. Patrika Basnet, Personal Secretary Copy Rights: © National Judicial Academy/ UNIFEM, Nepal, 2010 Publishers: National Judicial Academy, Nepal Harihar Bhawan, Lalitpur & United Nations Fund for Women (UNIFEM) 401/42 Ramshah Path, Thapathali, Kathmandu Nepal Printing Copies: 500 Copies Financial Assistance: United Nations Fund for Women (UNIFEM) 401/42 Ramshah Path, Thapathali, Kathmandu Nepal Tel No: 977-1-425510/4254899 Fax No: 977-1-4247265 URL: www.unifem.org Printing: Format Printing Press, Hadigoan, Kathmandu Editor’s Note The decisions in this volume basically represent the second generation cases relating to gender justice in Nepal. I call them second generation because in the first generation (1990- 2005) the struggle was for securing women’s right to parental property, their rights against discrimination, their reproductive rights etc culminating in the parliamentary enactment 2005/6 which repealed many provisions of the National Code and other laws, found to be discriminatory on the basis of sex. Now, this volume contains many splinter cases which have been filed challenging the very the amendment brought about to rectify discrimination. Besides, It brings cases in areas not covered by the first generation PIL petitions. The cause is again taken up by the same group of people who spearheaded the first generation cases- Sapana Pradhan Malla, Meera Dhungana, and Prakash Mani Sharma representing two leading civil society organizations, the FWLD and the Pro-Public. But others have also joined the struggle this time around. In the first case Sapana Pradhan Malla and Others1 challenged the amended provision of the National Code (Muluki Ain), Number 9 and 9(a) of the Chapter on Marriage, which still allowed the husband to have second marriage, if the wife suffered from any incurable contagious sexual disease, or was incurably mad. It is very selfish on the part of husband to desert the wife when she is in trouble.Thankfully the Supreme Court rejected this. According to the Court, such grave conditions of mental and physical disease required to be confronted by the husband and not run away from his responsibility. Creation of the possibility of another marriage and the validation of another marriage would create domestic violence which had to be stopped. No civilized society would envisage the provision of laws where a spouse would terminate her marital relationship due to her health and being incurably sick. Here, the Court however did not declare the provision ultra vires but took a pragmatic approach and issued a directive order to the Prime Minister and to the Council of Ministers asking them to see that the provisions prescribed under Section 9 and 9 (a) on the Chapter of Marriage are consistent with the Interim Constitution, 2063 and with the provisions prescribed in the Convention Against Elimination of All Forms of Discrimination against Women (CEDAW) and to amend the law and to make arrangement for appropriate laws. 1 Sapana Pradhan and Others v Prime Minister and Council of Ministers and Others (Writ no 064-WS-0011) In the second case in the volume, Meera Dhungana and Others2 challenged Clause (1) of Section 1 of the chapter On Husband and Wife in the National Code (Naya Muluki Ain, 2020) which allowed the husband to seek dissolution of conjugal relation “if it is certified by a Medical Board recognized by His Majesty’s Government that no child was born within ten years of the marriage due to infertility of the wife” The petitioners claimed that it was discriminatory against women because the law does not even presume that a child may not be born even due to a male person. Here, the respondents had maintained that since the law also allowed the wife seek dissolution if the husband was impotent, the provision was not discriminatory. The Court distinguished the lexical meaning of infertility and impotency and took the view that separate treatment was meted to husband and wife on the same issue. The Court found the impugned provision of Section 1(1) of the Chapter “on Husband and Wife” discriminatory against women and inconsistent with the principle of equality enshrined in Art 11 of the 1990 Constitution and international human rights instruments and declared it ultra vires. The Court also issued a directive order to the respondents including the Office of the Prime Minister and the Council of Ministers to make appropriate provisions which are equally applicable to husbands and wives on the basis of equality and also not inconsistent with the Constitution of the Kingdom of Nepal, 1990 and the provisions of the international Covenants. The third and the fourth case relate to Social Event Reforms Act where receiving and taking of dowry is prohibited. In Meera Dhungana3 the petitioner claimed that Section 4 of the said Act discriminated those who give and demand dowry when it came to imposition of punishment the Court observed that unless two parties agreed to take and give dowry the commission of the said offence would not be possible. No reasonable criteria existed to discriminate the bride and the groom side simply on the ground that one side paid and the other side asked for. The Court found the said legal provision to be inconsistent with the rights to equality as enshrined in Article 11 of the Constitution of the Kingdom of Nepal, 1990. It issued an order in the name of the Office of the Prime Minister and Council of Ministers of the Government of Nepal directing it to make the appropriate legal arrangement based on the principle of equality. Similarly, in a petition Rama Panta Kharel and Others4, challenged Section 5 (2) of the said Act which allowed the payment of certain ornaments to the groom side. Section 11 which prohibited pompous display of dowry tacitly allowed the payment of the same whereas, the petitioner claimed, the need of the hour was to totally eradicate dowry. They also maintained that these provisions were inconsistent with Art 11 of the Constitution and human rights instruments including the provisions of CEDAW. The Court disagreed with the claim of the petitioners that the impugned sections were inconsistent with Art 11 of the 2 Meera Dhungana and Others Vs Office of the Prime Ministers and Others, (Special Writ No. 64 of the Year 2061) 3 Meera Dhungana Vs Office of Prime Minister and Council of Ministers and Others (Writ No. 131 of the year 2063 BS) 4 Rama Panta Kharel and Others v Office of Prime Minister and Council of Ministers and Others (Writ no: 063-WS-0019 of the Year 2060) 1990 and Art 12 of the Interim Constitution. It nevertheless issued an order to incorporate the Social Practice Reform Act in the school and college curricula, in order to sensitize and raise awareness among school going children in particular the college going students on the intention, objective and provision of the Act along with its economic aspect. It asked the Nepal government to determine the level of students to be targeted in the Act. The Court also directed the government to uphold or cause to uphold the law in letter and spirit and establish mechanism deemed necessary for effective monitoring of the implementation of the provision of the Act. Further, the Court also issued a directive order in the name of the Prime Minister and Council of Ministers to include the provision prescribed under the Social Practice (Reform) Act, 2033, under the provision of code of conduct of the government employees to ensure its strict compliance. The Court directed that where any civil servant performed any thing contrary to the Act, such act should be deemed to be contrary to his conduct warranting departmental actions against such employee. It also required that each employee submitted his/her accounts pursuant to Section 15 of the Act where such employee performed any social events. In Sapana Pradhan Malla and Others5, the petitioners challenged Section 4 (3) of the Marriage Registration Act, 2028 (1971 A.D) which prescribed different age for men and women (i.e. 22 and 18 years respectively) for solemnizing the marriage which was against the provision of the Constitution and international human rights instruments that guaranteed the right to equality and proscribed discrimination on the basis of sex. The petitioner cited a report prepared by the UNICEF6 which showed the danger of early marriage. She further claimed that the provision in the Marriage Registration Act also did not correspond to the provision of the National Code that prescribed a common age for both men and women.7 Accepting the contention that there seemed to be no consistency between the provisions enshrined in section 2 of the chapter On Marriage in the National Code and Section 4(3) of the Marriage Registration Act, 2028 the Supreme Court called upon the government to effect amendment to the relevant laws in order to bring about consistency and uniformity between them. The Court did not declare the provision of the Marriage Registration Act ultra vires but issued a directive order to the government to introduce amendments to the relevant laws with a view to acquiring consistency and uniformity between them.