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

Marriage and Family Life
Inheritance and Succession
Prakash Mani Sharma (Petitioner) v His Majesty’s Government,
Ministry <strong>of</strong> <strong>Law</strong>, Justice, and Parliamentary Affairs, Secretariat
<strong>of</strong> the Council <strong>of</strong> Ministers, House <strong>of</strong> Representatives, National
Assembly (Respondents)
Supreme Court, Special Bench (unreported)
8 February 1996
Mohan Prashad Sharma, Krishna Jung Rayamaghi, Govind Bahadur Shrestha JJ
<strong>Law</strong>s Considered
Act Relating to Land, Section 26(1);
Constitution <strong>of</strong> Nepal 1990, Articles 11, 17.
This case examines sex discrimination in Nepalese inheritance and tenancy law.
The Court considered whether a law authorising the transfer <strong>of</strong> tenancy after the
death <strong>of</strong> the tenant to his wife provided she did not marry, and to male relatives,
but not other female relatives was in breach <strong>of</strong> the Constitution <strong>of</strong> Nepal 1990 [“the
Constitution”].
The petitioner, Prakash Mani Sharma, claimed that section 26(1) <strong>of</strong> the Act Relating
to Land discriminated against women. Section 26(1) stated that when a tenant died,
the tenancy could be transferred to the husband, wife, or son <strong>of</strong> the deceased person.
Section 26(1) also stated that the tenancy could not be transferred to a daughter,
married woman, or widowed daughter-in-law <strong>of</strong> the deceased person.
The petitioner argued that section 26(1) was contrary to the equality provision <strong>of</strong> the
Constitution and was therefore unlawful.
The respondents argued that this issue was not within their area <strong>of</strong> responsibility and
the proceedings should not have been brought against them. However, if the Court
did find them responsible, they argued that section 26(1) <strong>of</strong> the Act Relating to Land
had not infringed any fundamental rights. They argued this on the basis that the
right to acquire tenancy was a conditional right, and not a right that was generally
79
CONSTITUTIONAL LAW
Nepal