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

The aforementioned reform of the Country Code is of significance to sexual health rights of
women and children in particular. 198 For instance, the traditional practice of dolaji was
repealed in which if parents were unwilling to send their married daughter to the
bridegroom’s home they searched for another bridegroom or dole and would marry her to
him. 199
Property rights changes, too, have brought parity between males and females. For instance,
the amendment provides that some daughters who were earlier excluded, are also entitled to
have inheritance rights to ancestral property. Earlier this was permitted only for unmarried
daughters above the age of 35. Furthermore, the law required that if the daughter later
married, she had to return half her share in the property. This law therefore forced women to
choose between marriage and property entitlements. In the case of Meera Dhungana for
FWLD v. Government of Nepal the Supreme Court declared this law unconstitutional. The
amendment also removes the condition that women must attain 35 years of age and complete
15 years of marriage before they can live separately and claim a share of property from their
husband. Another discriminatory aspect of the Country Code, which has now been removed
is a provision which denies a female the right to property from her parents and her in-laws in
the case of divorce. The amendment also requires that partition of property must be made
between the husband and wife at the time of divorce. Also, until she remarries a divorced
woman is given the choice of obtaining yearly or monthly expenditures to be paid by the
husband instead of taking her lumpsum share, on the basis of the husband's property and level
of earnings. Further, unmarried daughters are given an equal right to intestate property as
unmarried sons, which was not the case prior to the amendment. 200
Prior to amendments in the Country Code a woman who remarried was not allowed to keep
custody of her children from the first marriage, thereby making her choose between her
children and a second marriage. This provision has now been repealed. 201
In the case of Shyam Krishna Maskey v. Government of Nepal, 202 the petitioner challenged
the constitutionality of clauses of the Chapter on Husband Wife in the Country Code that
require the husband to provide a share of property or maintenance cost to the wife in the
event of divorce. The petitioner contended that such provisions of law violate the right to
equality of husbands as guaranteed by the Constitution, arguing that it was unnecessary to
provide such entitlements to a divorced wife, as the relationship of marriage no longer exists.
The petitioner claimed that if a woman received a share of property from every husband she
198 The authors did not have access to the original text or an English translation of the Country Code (Eleventh
Amendment) Act. This overview is based entirely on a note prepared by the Forum for Women, Law &
Development and available at its website: http://www.fwld.org.np/11amend.html and an unpublished study
and analysis on sexuality and rights undertaken by the FWLD, which was made available to the authors.
199 Regmi, M.C., “Regmi Research Series, Year 13, No. 6”. Kathmandu, Nepal Regmi Research (Private)
Ltd December 1, 1981, p. 83 available at http://dlxs.library.cornell.edu/cgi/t/text/pagevieweridx?c=regmi;cc=regmi;q1=dolaji;rgn=full%20text;idno=013regmi;didno=013regmi;view=image;seq=0090;nod
e=013regmi%3A7
200 The authors did not have access to the original text or an English translation of this judgment and relied on an
unpublished study and analysis on sexuality and rights undertaken by the Forum for Women, Law &
Development, which was made available to the authors.
201 The authors did not have access to the original text or an English translation of this provision and relied on an
unpublished study and analysis on sexuality and rights undertaken by the Forum for Women, Law &
Development, which was made available to the authors.
202 The authors did not have access to the original text or an English translation of this judgment and relied on an
unpublished study and analysis on sexuality and rights undertaken by the Forum for Women, Law &
Development, which was made available to the authors.
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