Women and Justice: Jurisdiction

Reports

Our Time to Sing and Play: Child Marriage in Nepal, Human Rights Watch (2016)

Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Statutory rape or defilement

While there are certain legal protections in place, such as a law establishing the minimum age of marriage at 20, enforcement is weak. Police and local governments rarely intervene to prevent child marriages. Nepal’s Post-2015 Sustainable Development Goals, Goal 5, targets ending child marriage by 2030. Further developing the National Plan of Action to End Child Marriage would advance Nepal’s National Strategy to End Child Marriage. 37% of girls in Nepal marry before age 18, 10% percent marry before age 15, and many marry around the time they begin menstruating. Child marriage, mostly resulting from forced marriage arrangements, is most prevalent in marginalized and lower caste communities. The key factors contributing to child marriage include poverty, lack of access to education and reproductive healthcare, child labor, social pressures and gender inequality, and the institution of dowry, which is payment by a bride’s family to the husband’s family for the marriage. In Nepali society, girls are often seen as a burden to a family, because they are expected to live with the husband’s families, as opposed to staying with and financially providing for their own families. The negative impact of child marriage includes dropping out of school, bearing and raising children too early in a child’s life, and domestic violence by the husband or husband’s family.



International Case Law

Sharma, et al. v. Nepal Human Rights Committee (ICCPR) (2018)

Gender-based violence in general, International law, Sexual violence and rape

The Government of Nepal declared a state of emergency in response to a rebellion by the Maoist party and granted powers to the Royal Nepal Army to arrest individuals on suspicion of involvement in terrorist activities through and to keep them in detention for up to 90 days without charge.  The first author, Sarita Devi Sharma, is the sister of Himal Sharma, Secretary-General of a Maoist-affiliated political party in Nepal.  Ms. Sharma and her friend B.M. were followed and asked about Ms. Sharma’s brother, then they were handcuffed, placed in a van and taken to Army barracks.  She was detained and held from October 2003 through 30 June 2005.  Once her husband, the second author, became aware of her disappearance, he submitted an application to the National Human Rights Commission denouncing her disappearance and submitted a writ petition to the Supreme Court of Nepal demanding an order of habeas corpus, which the court rejected, claiming lack of evidence proving her illegal detention.  He also informed Amnesty International about her disappearance, but they never received a reply from the Government when they inquired about her.  During the first four-five months, she was routinely interrogated, beaten, held underwater for long periods of time and threatened with rape.  After that, she suffered ill health and was taken to a hospital.  In the hospital, she sent a letter secretly to her husband who, after several months of not hearing any further information, shared it with members of All Nepal National Independent Student Union Revolutionary who included information about her condition in a press release.  As a result, Ms. Sharma was interrogated harshly and beaten.  Ms. Sharma was then moved to a small, dark room and kept in isolation.  Her husband filed a new petition for habeas corpus with the Supreme Court, which ordered her release.  The Committee determined that Nepal produced no evidence to show that, while Ms. Sharma was held in incommunicado detention, it met its obligations to protect her life, and that this failure resulted in a violation of article 6(1) of the Covenant.  In addition, the Committee found that the enforced disappearance and incommunicado detention of Ms. Sharma, and the acts of torture and conditions to which she was exposed constituted violations of article 7 of the Covenant.  Further, the Committee concluded that the enforced disappearance and arbitrary detention of Ms. Sharma amounted to a violation of article 9 (1-4) of the Covenant.  The enforced disappearance deprived her of the protection of the law and her right to recognition as a person before the law in violation of article 16 of the Covenant.  The anguish and distress suffered by Ms. Sharma’s husband and son, the third author, due to her enforced disappearance also were found to constitute a violation of article 7 of the Covenant.  The Committee determined that neither Ms. Sharma did not receive an adequate remedy (246,000 Nepalese rupees), in violation of article 2 (3), in conjunction with articles 6, 7, 9 (1-4) and 16, and her husband and son received no interim relief, which constituted a violation of article 2 (3), read in conjunction with article 7 of the Covenant.  Moreover, the Committee stated that Nepal was obligated to provide an effective remedy.  This remedy should include:  (1) conducting a thorough and effective investigation into the facts surrounding the detention and the treatment suffered in detention; (2) prosecuting those responsible for the violations committed and making the results public; (3) providing detailed information about the results of the investigation to Ms. Sharma and her family; (4) ensuring that any necessary and adequate psychological rehabilitation and medical treatment is provided; and (5) providing adequate compensation and appropriate measures of satisfaction for the violations suffered.  Further, in order to prevent the occurrence of similar violations in the future, the Committee stated that Nepal should ensure that its legislation:  (1) criminalizes torture and enforced disappearance and provides for appropriate sanctions and remedies; (2) guarantees that such cases give rise to a prompt, impartial and effective investigation; (3) allows for the criminal prosecution of those found responsible for such crimes; and (4) amends the 35-day statutory limit for claiming compensation for torture, in accordance with international standards.



Tek Tamrakar and Others v. HMG Cabinet Secretariat and Others Supreme Court of Nepal (2005)

Gender discrimination

Women of Badi origin, an ethnic minority subjected to social and economic exclusion in Nepal, are often forced into prostitution and become single mothers. The petition sought to rectify the common practice of denying citizenship and other rights to Badi children when the father cannot be found. The Court ruled that it was unconstitutional to deny citizenship on such claims and, furthermore, amended a law that gave men precedence over women in birth and death registrations. Finally, in light of the range of abuses suffered by the Badi, the Court ordered a study on problems faced by the Badi community directed that all recommendations produced be implemented. This case is remarkable not only in recognizing the impacts of ethnic and gender discrimination but also in going beyond the petitioners request to proactively address the wider range of related rights abuses.



Pun Devi Maharjan v GoN, Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

A petition claimed that the traditional practice of electing young girls as Kumaris, or “goddesses”, who are expected to follow certain social restrictions and appear at religious festivals violated the rights of the child. After ordering a study the Court found that this practice did not prevent the Kumari from getting an education or qualify as child labor. Rather, the Court found Kumaris to be an important cultural and religious institution and ordered compensation for former Kumaris who had not been socially reintegrated and ordered a study to find recommendations for preserving the rights, interests, and social security of current and ex-Kumaris. This case shows an astute consideration of the balance between cultural preservation and child’s rights in a country with deep cultural and religious traditions. Additionally, it sets the important precedent of considering the practical well-being and rights of the child before implementing human rights reforms.



Meera Dhungana v Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2007)

Gender discrimination, Property and inheritance rights

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.



Sapana Pradhan Malla v Office of Prime Minister and Council of Minister and Others Supreme Court of Nepal (2007)

Gender discrimination

The Forum for Women, Law and Development in Nepal brought a petition to the Supreme Court filing for an exhaustive law ensuring privacy for vulnerable groups; particularly women, children, and persons living with HIV/AIDS. The Court ruled that enforcing the right to privacy for these and other sensitive parties in legal proceedings is inextricable from other Constitutional rights, including life and dignity, and vital to ensuring justice. Therefore, the Court ordered a directive for a law to be passed ensuring the right to privacy and set forth detailed guidelines for maintaining privacy to be followed in the interim. This ruling guarantees a crucial right to victims of gender violence and other abuses, opening a window for them to seek justice without fearing further injury from social stigma, discrimination, or retaliation. Furthermore, the ruling acknowledges that certain Constitutional rights much be positively enforced through legal codes.



Sapana Pradhan Malla and Others v, Office of Prime Minister and Others Supreme Court of Nepal (2006)

Gender discrimination

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.


Jit Kumari Pangeni (Neupane) and Others v. Prime Ministers and Council of Ministers and Others Supreme Court of Nepal (2008)

Domestic and intimate partner violence, Gender discrimination, Sexual violence and rape

A woman who had been a repeated victim of marital rape petitioned the Supreme Court of Nepal to make sentencing for marital rape on par with sentencing for other types of rape. The Court found that punishing marital rape differently from other forms of rape violated equal rights provisions in the Interim Constitution and international law, especially considering that prior sentencing guidelines of three to six months put the victim in danger of repeated violence and rape. Although the Court did not have the power to change sentencing terms on existing offences, it directed the legislative authorities to change sentencing terms for marital rape, showing recognition of the gravity of rape as a violation of rights and dignity while also exhibiting a proactive will to reform legal codes in the name of equality.



Somprasad Paneru and Others v. Office of the Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2006)

Trafficking in persons

Citing reports that a traditional custom called Kamlari sends over 10,000 children between the ages of 7 and 8 into servitude for wealthy households or small businesses, a petition called for new controls on this practice which is against both Nepalese constitutional law and the Convention on Rights of the Child, 1989 (CRC). The Court ordered the Government of Nepal to frame laws to abolish Kamlari and ensure protection of affected children. In addition, the Court called on the government to develop comprehensive legislation addressing the underlying issues that perpetuate such harmful practices, such as education and employment, especially amongst girls and women. By rooting out the base causes for harmful traditional practices, the Supreme Court of Nepal showed a crucial willingness to identify and address the societal problems driving harmful practices, providing hope for real change in women’s and human rights.



Domestic Case Law

Sapana Pradhan and Others v. Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

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.



Prakash Mani Sharma and Others v GON, Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (1999)

Gender discrimination

Citing the prevalence of uterus prolapse in pregnant women in Nepal, the petitioner filed that the government should be responsible for providing infrastructures to support women’s reproductive health under Article 20 of the Interim Constitution of Nepal which guarantees the right to reproductive health for all women. The Court ruled that reproductive health was a right tied to all other basic human rights but that, unlike freedom of speech and others, it requires positive infrastructures to be upheld, therefore ordering that a bill be passed providing reproductive health services to pregnant women. In this ruling the Court emphasized that proactive measures must be taken to ensure that women, who face different societal and health challenges, are given the same rights as men; this marks an important distinction between guaranteeing rights and practicing equality.



Meera Dhungana and Others v. Office of the Prime Ministers and Others Supreme Court of Nepal (2004)

Gender discrimination

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.



Punyabati Pathak and Others v Ministry of Foreign Affairs and Others Supreme Court of Nepal (2005)

Gender discrimination

The Court upheld a petition to quash a provision of the Nepalese Passport Act that requires women under the age of 35 to procure a letter of consent from a guardian before obtaining a passport. The Court ruled that the provision was contrary to Article 11 of the Constitution because it infringed on equal treatment between men and women, was contrary to the mandate for positive discrimination to ensure equality for women, and inhibited a woman’s right to enjoy the freedoms guaranteed by the Constitution and international human rights treaties. Thus, the Court quashed this provision and directed the Ministry of Foreign Affairs to issue passports to Nepali women without a letter of permission, putting an end to a highly prejudiced practice that had prevented women from accessing education, employment, and cultural enrichment outside of Nepal.



Meera Dhungana v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2006)

Gender discrimination, International law

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.



Meera Dhungana v Prime Minister and Office of Council of Ministers and Others Supreme Court of Nepal (2005)

Gender discrimination

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.



Rama Panta Kharel and Others v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

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.



Achyut Prasad Kharel v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

A petition to require consent from the woman’s husband in a law in the Constitution of the Kingdom of Nepal allowing women to have an abortion on fetuses of less than 12 weeks cited CEDAW conventions mandating equality between men and women on matters relating to family planning. The Court dismissed the petition emphasizing that CEDAW is intended to promote and protect women’s rights and to consider the wording of equality in such absolute terms would, in fact, be contrary to this original intent. With this ruling, the Supreme Court of Nepal shows remarkable dedication to protecting and empowering women as the primary goal in interpreting legal conventions on women’s rights.