The Women, Law and Development Forum of Nepal won a petition calling for the Supreme Court to order revision of a law setting the legal age for marriage at 18 years for women and 22 years for men. The Court held that this law promoted gender inequality in contradiction of Article 11 of the Constitution and acknowledged that it can cause significant harm in a country where female literacy rates are low and there are high levels of gender discrimination. The Court also ordered for better enforcement of these laws in light of the continued prevalence of child marriage. Here the Supreme Court of Nepal has once again heeded a petition from a civilian organization and privileged gender equality in reformulating laws, showing a willingness to uphold women’s rights, promote social change, and respond to activism from groups such as the Women, Law, and Development Forum.
Women and Justice: Keywords
Domestic Case Law
Sapana Pradhan Malla and Others v, Office of Prime Minister and Others Supreme Court of Nepal (2006)
Meera Dhungana v Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2007)
The petitioner filed to amend a provision in pension payments by the Nepalese Army that withheld payments from married daughters. The Court ruled to invalidate this measure based on the grounds that pension payments to children were stopped at 18 years, before the legal age of marriage, making it obsolete. However, the Court also acknowledged that this provision was contrary to Article 11 of the Constitution of the Kingdom of Nepal which guarantees equal rights to all, in particular highlighting that equality is meant in practical terms sometimes necessitating positive discrimination. By interpreting Article 11 of the Constitution to include positive discrimination, this case opens the door to proactive human rights defense measures.
Meera Dhungana v Prime Minister and Office of Council of Ministers and Others Supreme Court of Nepal (2005)
Meera Dhungana, an important women’s rights advocate in Nepal, petitioned the government to deem void a provision of the Bonus Act in the Constitution of the Kingdom of Nepal that prevents married daughters of a deceased from receiving compensation upon his death. The petitioner claimed that this provision discriminates against women based on their gender and marital status, thus contradicting the Constitution and international gender rights conventions. The Court denied the petition, finding that the Bonus Act treats male and female successors equally unless a daughter is married, in which case she has equal inheritance rights with her husband. This case marks the limitations to legal reforms that the Supreme Court will consider in the defense of gender equality, showing a consideration of Constitutional law, international conventions, and practical outcomes for women.
Sapana Pradhan and Others v. Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)
The Forum for Women, Law and Development in Nepal petitioned the Supreme Court to revise a law allowing men to take second wives if their first wife is significantly ill or handicapped and gives consent. The Court found that this law was inconsistent with Article 11 of the Constitution of the Kingdom of Nepal, which guarantees equal rights for women, and with international women’s rights conventions, including CEDAW. In its ruling, the court stated that a husband should care for a sick or handicapped spouse and that requiring consent could promote domestic violence. By taking action to change this law the Court showed a dedication to real reform based on the Constitutional mandate for gender equality, crucially recognizing that accepted traditional practices must be reappraised.
Meera Dhungana and Others v. Office of the Prime Ministers and Others Supreme Court of Nepal (2004)
After hearing a petition from the Forum for Women, Law and Development in Nepal, the Supreme Court ruled to invalidate a law allowing men to seek a second wife if, after 10 years of marriage, they have not had a child with their first wife. The Court recognized that this law gave unequal treatment to women and men by not giving comparable recourse to women and implying that infertility was the fault of the woman. The law was therefore inconsistent with Article 11 of the Constitution of the Kingdom of Nepal and with international gender rights conventions including CEDAW. This ruling represents an important step in reevaluating widely accepted laws from a gender equality standpoint. In addition, the Court acknowledged that it was constitutional to employ positive discrimination to guarantee equal rights for women, allowing for proactive defense of women’s rights in Nepal.
Meera Dhungana v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2006)
A petition on behalf of the Forum for Women, Law and Development in Nepal called for revision of a law prohibiting dowries. The law imposed a much stricter sentence on the bride’s family than the grooms, making it inconsistent with the equal rights provisions in Article 11 of the Constitution of the Kingdom of Nepal and international human rights standards. The Court’s decision to revise the law, which cited earlier rulings based on Article 11, shows a continued dedication to transforming the Nepalese legal code in the interest of gender rights and equality.
Rama Panta Kharel and Others v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)
A petition to replace the existing limitations on dowry size in the Interim Constitution of Nepal (2007) with a prohibition of all dowries based on the mandate for gender equality in Article 11 of the Constitution and international conventions such as CEDAW was quashed on grounds that there was not sufficient proof that allowing limited dowries was discriminatory. However, in recognition of the social harm caused by large dowries including impoverishment, competitiveness, and negative views of women, the Court directed that current laws limiting dowries be enforced more effectively and that sensitization on the harmful aspects of dowries be implemented. This ruling demarcates the limits of petitioning for gender equality against traditional and constitutional law while still showing the willingness of the Court to promote women’s rights through means outside the Constitution.