Provisions related to marriage and divorce in the proposed Civil Code

The proposed Code includes provisions for annulment as well. The rights, as defined by law, of a child born as a result of a marriage about to be annulled have been fully protected.

June 26, 2014, 5:45 p.m. Published in Magazine Issue: Vol: 08 No. -2 June. 20- 2014 (Ashar 6, 2071)

For the first time, the proposed Civil Code has attempted to define marriage. Like the General Code of 1963, the proposed Civil Code implies that marriage can only happen between a male and female. It defines marriage as a sacred, social, and legal bond. Additionally, it states that marriage ceremonies must take place publicly, marital ties cannot be kept secret, the groom’s age must be 22 at the time of marriage and the bride’s 20, neither a bride or groom can be in other marital relations at the same time, and that no one shall be tricked into a marital relationship. 

The proposed Code includes provisions for annulment as well. The rights, as defined by law, of a child born as a result of a marriage about to be annulled have been fully protected. Under provisions in the Code, a marriage performed through deception or between people who have not reached the appropriate age can be annulled. But even if a marriage qualifies for annulment, if the wife is pregnant as a result of the marriage, the husband can only pursue annulment with the approval of his pregnant wife. In this manner, the rights of women and their children have been protected. 

If it is proven that a woman has become pregnant and given birth as a result of a physical relationship prior to marriage, there is a provision in the Code that automatically gives marital status to such relations, and thus attempts to protect the rights of women and children. Nevertheless, in the certiorari case of writ petitioner Annapurna Rana in 1996 (writ no. 2187), a joint bench at the Supreme Court issued the following statement: “assuming that marriage rituals have not been performed by the parents, as per customs, if a woman has consensual sexual intercourse with someone and becomes pregnant as a result, or gives birth, it cannot be automatically considered that the man and woman are married.” In this regard, the proposed provision contradicts the Supreme Court statement. Additionally, the Code remains silent on how the above-mentioned provision may or may not infringe on a person’s right to privacy. It is, however, clear on the fact that the provision does not apply to cases involving rape and/or incest. Finally, the provisions do not address the customs of Nepal’s Muslim communities.

According to prevalent laws, marriage registration is optional and the decision of a couple, but under the proposed Code, it is mandatory to register marriages with local authorities. For couples living abroad, there is a provision that allows for registration at embassies or consulate general’s offices. Under the General Code, court marriages are only allowed at the chief district officer’s office. Under the proposed Code, however, this can be done at district courts or at foreign embassies or consulate general’s offices.

Suggestions on provisions related to marriage:

1. In the chapter related to marriage, it is stated that marriage can only happen between a male and female. This provision excludes those who identify with the third gender category.

2. The words ‘male and female’ should be replaced with ‘persons’ in section 67, in order to legitimise all individuals’ right to marry. In the same section, ‘celebration and ceremony’ should be removed.

3. The definition of marriage must be reconsidered. Is it sufficient for a man and a woman to simply announce marital ties in order for them to be considered husband and wife? Or should both the bride and groom be physically present at their marital function? This needs to be clarified.

4. In section 70(d), a common legal age for marriage must be declared for everyone rather than specifying different thresholds for different genders.

5. The legal age for marriage for men and women are different. The legal age for ‘any person’ should be defined as 20.

6. At the beginning of 71(2)(d), ‘proven by the medical board to be’ should be added.

7. In 73(2), to say that “if a woman is pregnant, the marriage can be annulled only with her consent” creates confusion as to whether or not a marriage can be annulled without her permission if a child is already born. The sub-section should add: “if a woman is pregnant, or has given birth to a child…”

8. Section 73 talks about annulling a marriage that has taken place as a result of deception. If a woman chooses to annul a marriage under this provision, there should be another provision to establish a mechanism for compensation. There are many cases in Nepal where a married man marries another woman by telling her that he is single. Establishing a provision for compensation will alleviate the suffering of such victims.

9. Section 74(1) says that “if it is proven that a woman has become pregnant and given birth as a result of a physical relationship,” the relationship is automatically given marital status. But the provision does not make it clear if pregnancy itself is a sufficient condition or if the delivery of the baby needs to occur. The provision can be improved by changing it to say that “if it is proven that a woman has become pregnant or given birth as a result of a physical relationship…” Sub-section 2 should be adjusted accordingly.

10. In 74(2), “relations not acceptable for marriage” should be replaced with “relations acceptable for marriage.” Section 70(2), which is mentioned in the provision, talks about relations ‘acceptable’ for marriage.  

11. If a man is in several marital relationships, such relationships still remain valid if he pays or does not pay compensation. It is more important to create a situation where a man cannot marry more than one woman at once.

12. Section 82(c) states that if a wife, prior to obtaining a legal divorce, marries another individual, the previous marriage is terminated. Instead, there should be a provision that does not recognise the new marriage. But an additional provision should be made to protect the legal rights of a child born from such marital relationships.

13. If a woman marries a married man before he gets a divorce, fully aware of his marital status, the relationship should not receive legal recognition. A provision should be made accordingly, in addition to another provision that, regardless of the illegitimacy of a marriage, protects the rights of any child that is born through such a relationship. 

This provision will be implemented a year after the Code comes into effect. This time lag must be utilised by governmental and non-governmental organisations to spread awareness. The subject matter should even be included in school curriculums. Finally, since this provision has also been kept in section 177 of the Criminal Code, the provisions must be made consistent with each other.

14. Section 83 states that a husband or wife might remarry if it is proven that his/her spouse has contracted a sexually transmitted disease. Since this provision can lead to violence against women by promoting a second marriage, it is better to necessitate a written agreement between the couple before remarrying.

15. The chapter on marital consequences states that if a male and female get married, they shall remain husband and wife. This provision does not include the third gender category. 

16. The General Code states that a husband must provide a suitable lifestyle to his wife, as per his status and income. Section 89 of the Civil Code tries to change this, but in the name of equality, it creates more burdens for women. This should be adjusted.

17. There are contradicting provisions related to marriage in the proposed Civil Code and Criminal Code. Adjustments should be made.

Provisions on divorce:

If a husband or wife wants to end marital ties, there are legal provisions for divorce. A married couple can get a divorce under the following circumstances:

A) Conditions under which a husband can get a divorce:

a. Unless legally separated, if his wife stays separate from him for more than three years without his permission.

b. If his wife does not allow him to subsist or throws him out of their home.

c. If his wife plans, or acts, to inflict physical or mental suffering on him, to take his life, or physically injure him.

d. If his wife has a sexual relationship with someone other than him.  

B) Conditions under which a wife can get a divorce:

a. Unless legally separated, if her husband stays separate from her for more than three years without her permission.

b. If her husband does not allow her to subsist or throws her out of their home.

c. If her husband plans, or acts, to inflict physical or mental suffering on her, to take her life, or physically injure her.

d. If her husband get married to another woman.

e. If her husband has a sexual relationship with someone other than her.

f. If it is proven that her husband has raped her, as defined by rape laws.   

Suggestions on provisions related to divorce:

1. Sections 94(a) and 95(a) mention ‘a husband and wife that are legally separated’. But it is not clear what that means.

2. Under section 95, which talks about conditions under which a wife can get a divorce, the following subsection should be added: “if she suffers from domestic violence from her husband”.

3. Prevalent laws state that a divorce can be completed only after a division of property between the husband and wife. Section 99(1) of the proposed Code, however, says that a division is only necessary if the ‘wife requests for it’. The provision should be changed to make sure that a division of property is mandatory. A provision should be made whereby the division is skipped only if the wife sends a letter to a district court stating that she does not want to acquire any property from her divorce.

The Code also includes provisions for wills. But it remains silent on what happens after divorce, once the provisions for wills come into effect. There should be a provision to make sure that wives receive property.

4. Section 101(2) states that it is not necessary for a man to support his ex-wife after divorce (in cases where the woman does not get any property from the divorce), if he does not have a regular income or earns less than his wife. This provision should be removed.  

5. The provisions under 103 increase the possibility of lawsuits. If a woman who divorced her husband, independent of whether or not she remarried, passes away, the property acquired from the divorce settlement should be given to her children or a person or an institution that took care of her, or whoever she wished would inherit the property. The provision which brings a former husband and in-laws into the equation should be removed.

6. It would be wise to rethink the provision that makes a husband to pay compensation even if the divorce happened because of his wife, especially in this day and age.

This research and recommendation paper prepared by legal expert Lila Devi Gadtaula for the Nepal Constitution Foundation has been finalized 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 Sujan Lopchan Tamang, Bishnu Basyal, Mohammadi Siddiqui, Anita Sapkota Chapagain, Dina Shrestha, Rama Parajuli, Ram Kapali, Shanta Sedhain, Kamala B.K., Moti Lal Dewan, Khambu Bahadur, Bishnu Gurung, as well as Abhishek Adhikari, Ganesh Datta Bhatta and Dr. Bipin Adhikari.

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

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