A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

CONSTITUTIONAL LAW
Nepal
Discriminatory <strong>Law</strong>s/Equality
Women’s <strong>Law</strong> and Development Fund, Women and Development
Forum (Petitioners) v His Majesty’s Government, Ministry <strong>of</strong> <strong>Law</strong>
and Justice, Ministry <strong>of</strong> Parliamentary Affairs, Cabinet Secretariat,
House <strong>of</strong> Representatives, Special Assembly (Respondents)
Supreme Court, Special Bench (unreported)
21 May 1998
<strong>Law</strong>s Considered
Constitution <strong>of</strong> Nepal 1990, Article 11;
Birth, Death, and Other Personal Events Registry, Sections 4(a), (b);
Bonus Act, Sections 10(1)(b), (c), 10(2)(b), (c);
Chapter on Husband and Wife, No. 1(2), No. 2;
Chapter on Adoption, No. 2, No. 12;
Armed Forces Act, Section 10.
The Court in this case considered whether certain Nepalese laws were discriminatory
and in breach <strong>of</strong> the equality provisions contained in Article 11 <strong>of</strong> the Constitution
<strong>of</strong> Nepal 1990 [“the Constitution”]. The five laws considered by the Court were
challenged for the following reasons.
The Birth, Death, and other Personal Events Registry distinguishes between husbands
and wives. The Bonus Act provides a son may receive a benefit in the absence <strong>of</strong> a
husband and wife in the family. By contrast, daughters can only receive a benefit if
there are no sons in the family hence leading to unequal treatment between daughters
and sons.
The Chapter on Husband and Wife provides for the automatic dissolution <strong>of</strong> a
marriage where the wife is proven to have committed adultery, whereas the wife may
only dissolve the marriage if the husband has a second wife or concubine. The Chapter
also differentiates between the custodial rights <strong>of</strong> fathers and mothers over minors.
The Chapter on Adoption states that a husband without a son may adopt a son, but
a wife without a son cannot adopt one. This Chapter also treats sons and daughters
unequally in other provisions.
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