Discussion on the bill proposed to reform social practices

Many provisions have been added, while a few removed, in the proposed bill in comparison with the Social Practices (Reform) Act, 1976.

Feb. 16, 2014, 5:45 p.m. Published in Magazine Issue: Vol: 07 No. -16 Feb. 14- 2014 (Falgun 02, 2070)

The Social Practices (Reform) Act, 1976, was implemented to curb the ever-growing competitive pomp and worthless expenditures associated with social customs in today’s rapidly changing social context. The bill under review was proposed to improve this Act. Some of the social customs mentioned in the Act and the bill include: bratabandha, (the coming-of-age ceremony in Hinduism), chudakarma (the Hindu ritual on the occasion of a boy’s first haircut, where a patch of hair is left behind), pasni (the ritual of feeding a child rice for the first time), nwaran (the ceremony where a child is given a name, eleven days after birth), birthday celebration, chhaiti (a Hindu ritual observed on the sixth day after birth), budho-pasni (a ceremony that marks the eighty-fourth birthday), and pitri-karya (rituals performed in honour of one’s deceased parents, grandparents, and ancestors). Because the provisions related to wedding rituals – daijo and tilak in particular­­– have been elaborated extensively in both the Act and the bill, it is imperative to provide the appropriate legal definitions. Tilak is the money or property given – or an agreement of such nature – by the bride’s side to the groom’s side, or vice versa, as a precondition to marital relationship. Daijo, or dowry, is the money or wealth given in the marital context – in the guise of presents, offerings, gifts, donations, etc – by the bride’s side to the bride or the groom.

Comparative analysis of the existing Act and the proposed bill

Many provisions have been added, while a few removed, in the proposed bill in comparison with the Social Practices (Reform) Act, 1976. For instance, the Act limits the definition of ‘social practices’ to marriage, bratabandha, chudakarma, pasni, nwaran, birthday celebration, chhaiti, budho-pasni, and pitri-karya. The bill, on the other hand, expands the definition by saying that it includes birthday celebration, marriage, death rituals, and pitri-karya, as well as rituals and gatherings associated with custom, tradition, and religion – opting to replace bratabandha, chudakarma, pasni, nwaran, chhaiti, and budho-pasni. The implication is that “rituals and gatherings associated with custom, tradition, and religion” encompass all of the redacted customs. Another difference is that while the Act declares that it shall be immediately put into effect, the bill states that it will be implemented starting the ninety-first day after its authentication.

In the current Act, the section relating to the prohibition on tilak states that those who violate the provision shall be liable for a fine of NPR 12,000 to 25,000, or a prison sentence not exceeding 30 days, or both, and that the property or money given as tilak shall be forfeited. The bill, instead, states that the tilak shall be forfeited, and either an appropriate fine imposed based on the tilak, or a prison sentence not exceeding 90 enforced, or both (applicable to both the giving and receiving parties). Similarly, in the current Act, the section covering restrictions on dowry states that in addition to the jewellery set and ornaments worn on the day of the wedding, no more than NPR 10,000 or an equivalent may be given as dowry, not even by free will or obligations towards tradition and custom. The proposed bill raises the amount of dowry that can be given by free will, and accepted, to NPR 100,000 or something of equivalent value. In case of violation of the above provision, the bill proposes to confiscate the dowry, and either impose an appropriate fine, or a prison sentence of no more than 30 days, or both. If a dowry – more extravagant than the proposed limit – has not exchanged hands yet, a provision in the bill suggests a fine of up to NPR 50,000, or a prison sentence of up to 15 days, or both can be imposed. The current Act, on the other hand, proposes to confiscate the dowry, and either impose a fine of up to NPR 10,000, or a prison sentence of up to 15 days, or both. Taking into consideration that the person accepting the dowry can easily pay the fine, perhaps a prison sentence can be given greater consideration when creating legislation. 

(Participant’s input)

This bill makes new provisions for making void the agreements for giving and receiving tilak and dowry (article 5), and against the groom’s side rejecting or obstructing potential marital ties with dowry or tilak related intentions (article 6). Similarly, article 7 states that guests invited to weddings can give no more than NPR 200 cash each to the bride and groom, or gifts worth the same amount (this provision does not exist in the current Act). What gifts can you find worth NPR 200 at the current market prices? People on the bride’s side typically give at least NPR 500. If your entire family is invited, NPR 200 per person is not even enough to cover the cost of your meal. People are expected to give money and gifts in relation to their socio-economic status. Otherwise, you do not even feel like attending. Additionally, in our culture, people are expected to attend their daughters’ (defined more broadly, not biological daughter) weddings. You are expected to give gifts or cash based on the exact nature of the relation. How can we address such realities?

In the existing Act, the section concerning the restrictions on janta (a procession from the groom’s side that marches to the bride’s side on the day of the wedding) states that no more than 51 people, including the marching band, can attend the procession. In the proposed bill, article 8 adds that in the wedding ceremony not more than 15 people (excluding the groom) on the groom’s side and 21 on the bride’s side (excluding the bride) can attend.

There are provisions in both the bill and the Act regarding prohibition on bearing and forcing financial liability in the context of marriage. For example, in the existing Act, neither party is allowed to demand, accept, or provide money to meet the past or future educational expenses of the groom, or to collect the capital needed by him for business. But the proposed bill has made some further revisions and improvements. For example, under a new provision, the groom’s side is allowed to give the bride up to 40 grams of gold, and the bride’s side is allowed to give the groom no more than 20 grams of gold, or other jewellery/clothes/gifts of equal worth, by free will. To a certain extent, this provision attempts to include existing practices.

Going back to the topic of jantaregulation, the current Act states 51 people as the maximum limit for the procession. The bill, however, raises this limit to 75, inclusive of the wedding band and load-bearers. The Act stipulates a fine of NPR 10,000, or a prison sentence of no more than 15 days, or both for any violation of this provision. The bill, on the other hand, has increased the fine to NPR 25,000. But if we look at the context of rural Nepal, attendance of 1000 people in the jantais normal.

(Participant’s input)

A new provision has been proposed, whereby no more than 150 people can be invited to a wedding feast from both the bride’s and groom’s sides. Failure to comply will lead to a fine worth twice the cost of the entire feast, or up to one month’s imprisonment, or both. The current Act demands the invitation of no more than 51 guests, and the corresponding fine is NPR 20,000, or up to 15 days of imprisonment, or both. But Tamang communities in Nepal, for instance, are required by custom to invite not only their relatives, but also to feed others, including ascetics and beggars, should they wish to attend the wedding. In light of this, how practical is the idea of enforcing an upper limit on the number of attendees?

(Participant’s input)

It seems that the proposed bill has added a provision necessitating the release of pro forma information regarding the official meeting of the in-laws prior to the wedding. Similarly, articles 15 and 16 have provided detailed descriptions on the restrictions related to religious, social and charitable functions, which are missing from the current Act. Providing a false statement of expenditures can lead to a fine of NPR 50,000 under a provision in the bill. A provision in the current Act imposes a penalty of up to NPR 3,000, or three days of imprisonment, or both for those who do not provide a financial statement. How practical are these provisions? It is a hassle to provide such statements, and there are no mechanisms to check their accuracy. On what basis can it be proven that a statement is false? This is a big challenge. 

The current Act contains an article for addressing restrictions on chhaiti, nwaran, birthday celebrations,pasni, chudakarma, bratbandha, and bhudho-pasni collectively, and a separate article for addressing the restrictions related to the feast of pitri-karya. The bill, in contrast, proposes an article titled ‘restrictions on other social practices’ to include all these customs. A provision for the Government of Nepal to stipulate a maximum expenditure limit exists in both the Act and the proposed bill. The bill also gives continuity to the provision against decorating the house in a pomp manner, in the context of social functions. But instead of the existing provision which states “buildings shall not be decorated unnecessarily by lightening in a pomp manner,” the bill proposes that not more than NPR 20,000 shall be spent.

In article 19 of the bill, clarification is needed on the provision that states that programs related to social practices shall not be conducted in certain places. Which locations are inappropriate? Perhaps places of historical and cultural importance, like Basantapur, should be off limits.

(Participant’s input)

The proposed bill makes several new provisions: against incitement and conspiracy (article 20), for additional penalties (article 21), to stall promotion (even for public officials) (article 22), to reward those who register complaints (article 24), to protect the informant’s identity (article 25), to keep a record of those who have been penalised (article 26), about the time limit for filing a complaint (article 27), against dropping cases once registered (article 31, sub-articles 3,4, and 9), for running cases and penalising the guilty as per current laws (article 32). But the bill gives the impression that it was aimed at the social practices of a single ethnicity. The Newar community has traditionally given goats to its daughters as dowry, with the hope that they would not have to suffer from economic hardships. While that practice is outdated, the practice of giving away other things as dowry has carried on, and is related to the concept of cultural rights. Nonetheless, the new provisions will surely play an important role in curbing the malpractices around dowry and tilak.      

Conclusion

Social practices are complex. What we need to understand is that we live in a united Nepali community. And our culture is as such. Therefore, one must ask, how realistic are the above-mentioned provisions relative to the present context? For instance, the provision that enforces a fine for inviting more than 150 people to a wedding seems impractical. I would like to give an example: A friend of mine has 80 relatives; his grandfather had five wives. At any wedding in the family, all 80 relatives would have to be invited. Including friends, the number of attendees would easily exceed 150. My aunt’s daughter married into the Newar community. Whenever they have a nakhate feast at home, just the members of the immediate family – including brothers, sisters, and their families – will add up to 150. Not everyone has large families, but each individual has a unique identity and social reality. 

To sum up, to bring a bill on the table for reform is in itself a good thing. The provisions presented have been improved and refined. In formulating new laws, national and international standards have to be taken into account. Simultaneously, in order to bring such laws into practice, the state has to be pressured into creating the appropriate mechanisms, and informative programs have to be conducted, and regularly monitored, at the local level. Widespread discussion is needed on the issue presented above. With the motto of “information for all”, the proportional participation of all ethnicities has to be encouraged in such discussions.   

This research and recommendation paper prepared by legal expert Motikala Subba Dewan for the Nepal Constitution Foundation has been finalised based on the inputs given by various pressure groups: women’s, ethnicity-based, Dalit, Madeshi, youth, and others. The Constitutional Foundation would like to thank Gopal Dahal, Kalpana B.K., Shiva Bisankhe, Anita Sapkota, Sandhya Basnet, Pradip Rajbamshi, Basanti Shrestha, Om Kumari Saha, Tara Maharjan, Rajeshwori Shrestha, Kripasur Niraula, Purna Rajbamshi, Bibek Poudel, Yam Bahadur Kisan, Phurpa Tamang, Namit Wagle, Sabin Rana, Ganesh Datta Bhatta, and Dr. Bipin Adhikari.

This research has been supported by The Asia Foundation and opinions expressed in this report are of the authors and don't necessarily reflects of The Asia Foundation.

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