Court: Supreme Court of Nepal (Cases)
Women and Justice:
1.Pun Devi Maharjan v GoN, Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)
>Gender discrimination
A petition was brought forward, alleging that the traditional practice of selecting young girls as Kumaris, also known as "goddesses," and imposing certain social restrictions on them, as well as their participation in religious festivals, violated the rights of children. Following an order for an investigation, the Court determined that this practice did not hinder the Kumaris' access to education nor qualify as child labor. Instead, the Court recognized Kumaris as a significant cultural and religious institution. It directed compensation for former Kumaris who hadn't been successfully reintegrated into society and commissioned a study to propose recommendations for safeguarding the rights, interests, and social well-being of both current and former Kumaris. This case exemplifies a thoughtful examination of the delicate balance between preserving cultural heritage and upholding children's rights in a nation deeply rooted in cultural and religious traditions. Moreover, it establishes a crucial precedent of prioritizing the practical well-being and rights of children when enacting human rights reforms.
2. Meera Dhungana v Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2007)
>Gender discrimination, Property and inheritance rights
The petitioner sought to modify a provision within the pension system of the Nepalese Army that withheld payments from married daughters. The Court ultimately deemed this provision invalid, as it ceased pension payments to children at the age of 18, which is prior to the legal age of marriage, rendering it irrelevant. However, the Court also recognized that this provision contradicted Article 11 of the Constitution of the Kingdom of Nepal, which guarantees equal rights to all individuals. In particular, the Court emphasized that equality should be understood practically, which sometimes requires the implementation of positive discrimination. By interpreting Article 11 of the Constitution to encompass positive discrimination, this case paves the way for proactive defense measures of human rights.
4. Sapana Pradhan Malla v Office of Prime Minister and Council of Minister and Others Supreme Court of Nepal (2007)
>Gender discrimination
The Supreme Court received a petition from the Forum for Women, Law, and Development in Nepal, advocating for a comprehensive law that would safeguard the privacy of vulnerable groups, particularly women, children, and individuals living with HIV/AIDS. After careful consideration, the Court determined that protecting the right to privacy for these marginalized groups, as well as others facing sensitive circumstances, is inseparable from other Constitutional rights, such as the right to life and dignity. Recognizing the importance of upholding justice, the Court issued a directive mandating the creation of a law that ensures the right to privacy, and in the meantime, outlined detailed guidelines for maintaining privacy. This landmark decision guarantees a vital right for victims of gender violence and other forms of abuse, enabling them to seek justice without the fear of additional harm stemming from social stigma, discrimination, or retaliation. Moreover, the ruling acknowledges the necessity of actively enforcing certain Constitutional rights through legislative measures.
5. Jit Kumari Pangeni (Neupane) and Others v. Prime Ministers and Council of Ministers and Others Supreme Court of Nepal (2008)
>Domestic and intimate partner violence, Gender discrimination, Sexual violence and rape
A woman who had endured repeated instances of marital rape filed a petition with the Supreme Court of Nepal, urging for equal sentencing for marital rape as compared to other forms of rape. Upon examination, the Court determined that the differential punishment for marital rape, as opposed to other types of rape, contravened the provisions of equal rights outlined in the Interim Constitution and international law. It highlighted the fact that previous sentencing guidelines of three to six months exposed the victim to the risk of continued violence and rape. While the Court lacked the authority to alter the sentencing terms for existing offenses, it directed the legislative authorities to revise the sentencing provisions for marital rape. This decision demonstrates the Court's acknowledgment of the severity of rape as a violation of rights and dignity, while also showcasing its proactive stance towards reforming legal codes in pursuit of equality.
6. Somprasad Paneru and Others v. Office of the Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2006)
>Trafficking in persons
Citing findings that a traditional practice known as Kamlari involves more than 10,000 children aged 7 to 8 being placed into servitude for affluent households or small businesses, a petition was filed to impose stricter regulations on this practice, as it violates both Nepalese constitutional law and the Convention on the Rights of the Child (CRC) of 1989. Responding to the petition, the Court issued an order directing the Government of Nepal to establish laws that would abolish Kamlari and safeguard the rights of the affected children. Furthermore, the Court urged the government to develop comprehensive legislation addressing the underlying factors that perpetuate such harmful practices, including education and employment opportunities, particularly for girls and women. By addressing the root causes of detrimental traditional practices, the Supreme Court of Nepal demonstrated a crucial willingness to identify and confront the societal issues that drive these harmful practices, instilling hope for tangible improvements in women's and human rights.
7. Tek Tamrakar and Others v. HMG Cabinet Secretariat and Others Supreme Court of Nepal (2005)
>Gender discrimination
The Badi women, who belong to an ethnic minority facing social and economic marginalization in Nepal, often find themselves compelled into prostitution and subsequently become single mothers. The petition aimed to address the prevalent practice of denying citizenship and other rights to children of Badi origin when their fathers cannot be located. In response, the Court declared that denying citizenship based on such grounds was unconstitutional. Furthermore, the Court made amendments to a law that previously prioritized men over women in birth and death registrations. Recognizing the numerous abuses endured by the Badi community, the Court also mandated a comprehensive study on the challenges faced by the Badi community and directed the implementation of all resulting recommendations. This case is remarkable not only for acknowledging the profound impact of ethnic and gender discrimination but also for surpassing the petitioner's request by taking proactive measures to address a broader range of associated rights abuses.
Domestic Case Law
8. Prakash Mani Sharma and Others v GON, Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (1999)
>Gender discrimination
Citing the high prevalence of uterus prolapse among pregnant women in Nepal, the petitioner argued that the government has a responsibility to establish infrastructure to support women's reproductive health in accordance with Article 20 of the Interim Constitution of Nepal, which guarantees the right to reproductive health for all women. The Court determined that reproductive health is a fundamental right interconnected with other basic human rights. However, unlike rights such as freedom of speech, reproductive health necessitates the implementation of proactive infrastructures to be effectively upheld. Consequently, the Court ordered the passage of a bill to provide reproductive health services specifically for pregnant women. In this ruling, the Court emphasized the importance of taking proactive measures to ensure that women, who encounter distinct societal and health challenges, are granted the same rights as men. This highlights a significant distinction between merely guaranteeing rights and actively promoting equality.
9.Sapana Pradhan and Others v. Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)
>Gender discrimination
The Forum for Women, Law, and Development in Nepal lodged a petition with the Supreme Court, urging for a revision of a law that permitted men to marry a second wife if their first wife was significantly ill or disabled and granted her consent. The Court determined that this law contradicted Article 11 of the Constitution of the Kingdom of Nepal, which guarantees equal rights for women, as well as international women's rights conventions like CEDAW. In its verdict, the Court emphasized that it is the responsibility of a husband to care for a sick or disabled spouse, and requiring consent could potentially fuel domestic violence. By taking steps to amend this law, the Court demonstrated a commitment to substantial reforms based on the constitutional mandate for gender equality, acknowledging the need to reassess accepted traditional practices.
10. Punyabati Pathak and Others v Ministry of Foreign Affairs and Others Supreme Court of Nepal (2005)
>Gender discrimination
In response to a petition, the Court upheld the request to invalidate a provision in the Nepalese Passport Act that imposed a requirement on women under the age of 35 to obtain a letter of consent from a guardian in order to obtain a passport. The Court determined that this provision was in conflict with Article 11 of the Constitution as it violated the principle of equal treatment between men and women. Moreover, it went against the mandate for positive discrimination to ensure gender equality and impeded a woman's right to enjoy the freedoms guaranteed by the Constitution and international human rights treaties. Consequently, the Court nullified this provision and instructed the Ministry of Foreign Affairs to issue passports to Nepali women without the need for a permission letter. This decision put an end to a highly discriminatory practice that had hindered women from accessing education, employment, and cultural opportunities outside of Nepal.
11.Meera Dhungana and Others v. Office of the Prime Ministers and Others Supreme Court of Nepal (2004)
>Gender discrimination
Following the submission of a petition by the Forum for Women, Law, and Development in Nepal, the Supreme Court rendered a verdict declaring a law invalid, which permitted men to pursue a second marriage if, after ten years of wedlock, they were unable to have a child with their first wife. The Court acknowledged that this law treated women and men unequally by not offering comparable options for women, thus implying that infertility was solely the fault of the woman. Such provision was deemed inconsistent with Article 11 of the Constitution of the Kingdom of Nepal and international gender rights conventions, including CEDAW. This ruling marks a significant stride in reevaluating established laws through a gender equality lens. Moreover, the Court recognized the constitutional permissibility of employing positive discrimination to ensure equal rights for women, enabling proactive protection of women's rights in Nepal.
12. Meera Dhungana v Prime Minister and Office of Council of Ministers and Others Supreme Court of Nepal (2005)
>Gender discrimination
Meera Dhungana, a prominent advocate for women's rights in Nepal, filed a petition urging the government to invalidate a provision in the Bonus Act of the Constitution of the Kingdom of Nepal. This provision restricts married daughters from receiving compensation upon the death of their father. The petitioner argued that this provision discriminates against women based on their gender and marital status, thus contravening the Constitution and international gender rights conventions. However, the Court rejected the petition, determining that the Bonus Act treats male and female heirs equally, except when a daughter is married. In such cases, she maintains equal inheritance rights alongside her husband. This case underscores the limitations that the Supreme Court considers in implementing legal reforms in the pursuit of gender equality. It demonstrates the Court's thoughtful examination of Constitutional law, international conventions, and practical outcomes for women.
13.Meera Dhungana v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2006)
>Gender discrimination, International law
The Forum for Women, Law, and Development in Nepal filed a petition seeking the revision of a law that prohibited dowries. The law imposed a significantly harsher penalty on the bride's family compared to the groom's family, thereby contradicting the provisions for equal rights outlined in Article 11 of the Constitution of the Kingdom of Nepal and international human rights standards. The Court's decision to revise the law, building upon earlier rulings based on Article 11, reflects a steadfast commitment to transforming the legal framework in Nepal in favor of gender rights and equality.
14. Rama Panta Kharel and Others v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)
>Gender discrimination
A petition calling for the replacement of the existing restrictions on dowry size in the Interim Constitution of Nepal (2007) with a complete prohibition of dowries, based on the principle of gender equality outlined in Article 11 of the Constitution and international conventions like CEDAW, was dismissed. The Court concluded that there was insufficient evidence to establish that allowing limited dowries was discriminatory. However, acknowledging the societal harm caused by large dowries, such as impoverishment, competition, and negative perceptions of women, the Court directed the more effective enforcement of current laws that limit dowries and the implementation of awareness programs highlighting the detrimental aspects of dowries. This ruling delineates the boundaries within which petitioning for gender equality can operate in relation to traditional practices and constitutional law. Nonetheless, it also demonstrates the Court's willingness to advance women's rights through mechanisms beyond constitutional provisions.
15.Achyut Prasad Kharel v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)
>Gender discrimination
A petition was submitted to require spousal consent in law from the Constitution of the Kingdom of Nepal that allows women to have an abortion within the first 12 weeks of pregnancy. The petition relied on CEDAW conventions, which advocate for equality between men and women in matters concerning family planning. However, the Court dismissed the petition, emphasizing that CEDAW is intended to promote and safeguard women's rights. Interpreting the principle of equality in absolute terms would run counter to the original intention of CEDAW. Through this ruling, the Supreme Court of Nepal demonstrates a commendable commitment to protecting and empowering women as the central objective in interpreting legal conventions related to women's rights.