SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

not on par. On the other hand the government pleaded that equality was guaranteed only
between equals under the Constitution and married and unmarried women could not be
treated as alike since the social position and family responsibilities of married women differ
greatly from those of unmarried women. It claimed that the law was drafted with the
understanding that marriage was a permanent consent expressed for having sexual relations.
It further stated that in any event if a man caused pain or suffering to his wife against her will
the option of divorce and the offence of battery were available to her as remedies. It further
claimed that it was against the Hindu religion and traditions to posit that consent was required
for a husband to have sexual relations with his own wife. The government also argued that
the petitioner did not have locus standi to file the case. Citing Indian case law which
expanded the notion of locus standi in the context of public interest litigation, the court
rejected this position.
Observing that the act of rape did violate a woman’s right to individual liberty, the court held
that its legal interpretation had to be made in the context of international law including
international instruments and treaty obligations. It noted that Article of the Universal
Declaration of Human Rights recognized the right of every human being to live with selfrespect,
Article 4 recognised the right against servitude. Similarly, it identified the right to
self-determination and protection against slavery and servitude under Articles 1 & 8 of the
International Covenant on Civil and Political Rights respectively. It observed that these
rights are guaranteed under the international human rights framework to all human beings,
including women irrespective of marital status. It pointed out that such inalienable rights
cannot be considered lost to women on them entering into marriage. It stated that any act
“which results in non-existence of women, adversely affects on self-respect of women,
infringes upon right of women to independent decision-making or which makes women slaves
or an object of property id not compatible in the context of the modern world, rather it is a
stone-age thought.” In light of these international principles of human rights, the court held
that marital rape is not permissible. It pointed out Article 1 of the Convention on the
Elimination of All Forms of Discrimination Against Women, which defines the term
‘discrimination against women’ and that Article 2 of the UN Declaration of Elimination of
Violence Against Women which includes marital rape within its rubric.
On Nepal’s international obligations the court pointed out Section 9 of the Nepal Treaty Act,
1991, which required that international treaties and instruments to which the country was a
party have to be accepted as law within Nepal and such instruments would prevail in case of
conflict with national laws. 473
Regarding religious and traditional beliefs, the court pointed out that those such as polygamy
have been now made punishable. Similarly, practices of untouchability had also been
prohibited. In this context it pointed out that there had been great change in the idea that
marriage was a permanent commitment what with developments in law such as divorce and
alimony. It stated that “bringing timely change in laws is to proceed towards globalization
with the concept of universal values and traditions. The main basis of globalization is
reciprocal international relations and the values and traditions determined by treaties and
conventions. It is in this context that laws are being made in the national level according to
the provisions of international treaties and instruments to which Nepal is a party.”
473 The unofficial translation of this law has been taken from the website of the UN Refugee Agency and is
available at www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=printdoc&docid=3ae6b51724
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