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

was married to she would acquire immense wealth, which would be unfair and inappropriate.
The government argued in support of the laws stating that they were in consonance with a
previous court order, which sought to achieve gender equality, especially in the Nepalese
context where patriarchy had created severe discrimination against women. The Supreme
Court found that the provisions did violate the right to equality but it refused to invalidate the
law and instead directed the government to conduct extensive consultations and research on
the issue with relevant stakeholders, and thereafter to enact a more appropriate bill.
Nepalese law recognises various types of property that a woman acquires in her capacity as a
daughter or wife (known as stri amshadhan) and these include property given to a woman by
her parental or maternal relatives (known as daijo) and property given by the husband or his
relatives (known as pewa). 203 Earlier, a woman had only limited rights in relation to such
property - she could enjoy and use all such property but could not dispose of more than half
of the immoveable property on her own. To dispose of the rest she needed the consent of her
husband or children (men did not have such restrictions in disposing of their property). The
Eleventh Amendment to the Country Code significantly reformed these discriminatory
provisions against women. As a result of public interest petitions filed before it, the Supreme
Court found the provisions of law as ultra vires the constitutional guarantee of equality in
relation to women. 204 The law has been amended since and now allows a woman to act
unilaterally to dispose of such property. 205
Despite significant improvements in the Country Code that assure rights and protection from
women vis-à-vis property, discriminatory provisions continue to exist. For instance, unlike
men who have the entitlement, married women are not entitled to a share in their parental
property. 206 Similarly, in matters of intestate succession the law continues to place married
daughters at considerable distance in the line of succession. 207
Sri Lanka is governed by multifarious personal laws based on religious and community
roots. Kandyan Law applies to ethnic Sinhalese whose can trace their lineage back to the
Kandyan provinces during the period of the Kandyan monarchy in central Sri Lanka. (the
Kandyan monarchy ceased to exist with the British takeover of central Sri Lanka in 1815).
Theswalamai Law is based on customs of Jaffna Tamils in Sri Lanka. It applies to Tamil
inhabitants of the Jaffna Peninsula in Northern Sri Lanka or to Jaffna Tamils who live
203 Recognised in clause 4 of the Chapter on Women’s Exclusive Property, Nepal Country Code, 1963. The
authors did not have access to the original text or an English translation of this law 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.
204
Prakashmani Sharma v Government of Nepal. 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.
205
Clause 2, Chapter on Women’s Exclusive Property, Nepal Country Code, 1963. The authors did not have
access to the original text or an English translation of this law 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.
206 Clause 1A, Chapter on Partition of Property, Nepal Country Code, 1963. The authors did not have access to
the original text or an English translation of this law 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.
207 Clauses 3,6,7 & 9, Chapter on Intestate Property, Nepal Country Code, 1963. The authors did not have
access to the original text or an English translation of this law 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.
63