Women and Justice: Keywords

Domestic Case Law

J.Y. Interpretation No. 147 Constitutional Court of Taiwan (1976)

Divorce and dissolution of marriage

Article 1001 of the Civil Code provides that spouses have a “mutual marital obligation to cohabit” absent legally justifiable reasons for not cohabiting. The Court held that a husband’s taking of a concubine violates the “marital obligation of fidelity” and qualifies as a legally justifiable reason for the wife not to cohabit with the husband. Thus, the Court held that a husband’s taking of a concubine releases his wife from her marital obligation to cohabit, but only for the period during which he maintains the concubine.

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.

International Case Law

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.

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.