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

Prakash Mani Sharma v His Majesty’s Government, Ministry <strong>of</strong> <strong>Law</strong>, Justice etc. (Nepal)
granted to everyone all the time. The respondents also argued that the law did not
discriminate against women because a wife <strong>of</strong> the deceased person could inherit a
tenancy.
The respondents argued that precedent supported their position. They also argued
that a general law like the Constitution could not be used to interpret a specific law
such as the Act Relating to Land.
Decision
The Court held that section 26(1) was lawful. The Court recognised that there were
inconsistencies between the Act Relating to Land and the Constitution, but these
must be seen in light <strong>of</strong> the fact that the right to tenancy is not an absolute right, but
a conditional one. The Court accepted the argument that since a wife may inherit the
tenancy, the law did not discriminate based on gender. The Court ruled that section
26(1) was consistent with the principle <strong>of</strong> equality guaranteed in the Constitution.
Further, the Court stated that it was reasonable to exclude daughters and daughters-inlaw
from inheriting tenancy because this ensured the smooth functioning <strong>of</strong> land after
the death <strong>of</strong> a tenant. A daughter was likely to become a member <strong>of</strong> her husband’s
family, and if she inherited a tenancy, the tenancy would leave the original family and
disrupt their use <strong>of</strong> the land. The Court also stated that daughters were in different
situations to sons because they were entitled to inherit from their husbands.
The Court directed the government to study the issues further and examine the
possibility <strong>of</strong> new legislation to deal with the issues raised in this case.
Commentary
This case was not positive for Nepalese women. The Supreme Court refused to
recognise that tenancy laws discriminated against women and in doing so reinforced
traditional roles and stereotypes <strong>of</strong> Nepalese women. The Court took the view that
to give women the same rights as men in tenancy law would provide an additional
privilege to daughters who would receive a “double share” <strong>of</strong> property as they would
also inherit through their husbands. This viewpoint masked the truth <strong>of</strong> women’s
relative economic weakness.
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