Review of the Bill created to amend various Acts aimed at establishing gender equality and ending gender violence

Any act of force or discrimination against someone on the basis of gender, whether in private or public, is known as gender violence.

Sept. 14, 2014, 5:45 p.m. Published in Magazine Issue: Vol: 08 No. -7 September. 12- 2014 (Bhadra 27, 2071)

It is necessary to amend and improve existing laws, and to create new legislation, aimed at addressing all forms of gender violence in a sensitive manner, by giving victims the appropriate compensation and medical treatment, social acceptance, right to stay with one’s family, and increased access to justice, as well as by punishing perpetrators in a timely manner.

Any act of force or discrimination against someone on the basis of gender, whether in private or public, is known as gender violence. It encompasses everything from physical, mental, and sexual assault to economic, social, cultural, and political bias along gender lines. It can victimize anyone, whether male, female, or the third gender. But, usually, women and girls are more often found to be the victims of such acts.

In order to control gender violence, it seems necessary that the following aspects be considered while amending the existing laws:

Provisions for compensation: In cases related to rape and sexual abuse, victims do not seem to have easy access to compensation due to excessive red tape, having to turn up in court several times, and other lengthy procedures along the way. Provisions are thus needed to clearly define appropriate compensations to be disbursed as soon as a court announces a verdict, and to release some additional money immediately so that a victim can have access to medical treatment. 

Penalization: The punishment and fines established by current laws for cases of gender violence need to be made more severe.

Right to privacy: Although a provision currently exists to ensure that a female victim has access to a female officer while giving her statement, this has not been implemented properly.

Closed trials: Although a provision allowing closed trials has attempted to preserve victims’ right to privacy, this has also not been effectively implemented.

Priority in courtroom procedures: In deciding the order in which court hearings are arranged, a provision that says that cases with women as plaintiffs should be prioritized has done Nepali women a great service. Similarly, cases that cannot be appealed in the Supreme Court, but can be shown to have been impacted unfavourably by the inadequate representation of women, can be appealed under a special provision.

Provision for salaried lawyers: A provision has been kept for arranging a salaried lawyer at all three tiers of courts to provide free legal representation for those who cannot afford to hire a lawyer.

Provision related to legal help: A provision has been made for legal assistance, targeting the helpless, poor, and marginalised groups. But the victims of gender violence have been left out from that list.

Rehabilitation centre: To protect women who have suffered from violence, a rehabilitation centre seems necessary. If necessary, victims should also be given access to psychological counselling.

Provisions for security: Appropriate arrangements for victims and their witnesses should be made.

Medical treatment: Free medical treatment should be given to victims as appropriate.

Review:

This Bill that is under review proposes to amend 31 different acts including: Foreign Employment Act 2007, Human Trafficking and Transportation (Control) Act 2007, Police Act 1955, Libel and Slander Act 2016, Public (Crime and Punishment) Act 1970, Press and Publication Act 1991, National Broadcasting Act 1993, Government Cases Act 1992, Domestic Violence (Crime and Punishment) Act 2009.

(1) General Code, Part 2, Chapter 1: On court proceedings

The following should be added to 11:

Case related to gender violence, domestic violence, or property rights where a woman is the plaintiff.

Case where those above sixty years of age or the differently-abled are involved.

(2) General Code, Part 2, Chapter 12: On husband and wife

The selection of words for the chapter heading in Nepali has been poorly chosen. It would be much better to say ‘pati’ and ‘patni’.

1A. To divorce his or her spouse, one should have the right to directly submit an application to a court.

5. “If a member of the husband’s immediate family uses a woman’s dowry, bride price, or inherited wealth, the woman shall be compensated from the family’s wealth, immediately upon request.   

(3) General Code, Part 2, Chapter 13: Division of property

The current legal provisions that send a woman to her groom’s house after marriage and leave her economic situation to the groom’s family seem very discriminatory. These provisions create an environment for domestic and gender violence after marriage. In order to minimize such incidents, sons and daughters must be given equal access to their parents’ wealth. The Bill addresses the above concern appropriately.

Some additional provisions are needed:

10D. A husband cannot interfere with his wife’s inheritance given by his in-laws.

19. Replace unmarried daughter with daughter. At the time of dividing property, parents should give equal consideration to both sons and daughters, regardless of their marital status.

(4) General Code, Part 2, Chapter 14:  Women’s share of property

Women shall have the full right to do as they please with their wealth and property.

To add: (Since it has been proposed to abrogate number 7) Number 8 should be reintroduced as 7, after removing the following: ‘from the date of the other marriage’.

(5) General Code, Part 2, Chapter 15: On adoption

In order to strive towards gender equality, everybody should be given the legal right to adopt a son or daughter. It seems unfair to allow only married couples to adopt.

2. To amend: A single man or woman should be legally allowed to adopt. And so should a married couple that has no children of its own.

11. To amend: Once an adoption is complete, there should be no grounds for revoking it. Many adopted children are orphans, whose identities become invalid once an adoption is revoked since birth certificates, educational certificates, citizenships, passports, etc. all contain the name of the acquired parents. To give, on the one hand, adopted children the same rights within the family as biological children and, on the other, to allow taking away those rights seems contradictory.

(6) General Code, Part 2, Chapter 16: On inheritance

Sons and daughters should not be discriminated in between by the law on marital basis. Daughters’ inheritance rights should be preserved even after marriage.

In discussing inheritance, it is best to leave the topic open only for three generations. Finally, the phrase referring to the family branch from a male should be scrapped since daughters should also get their share or property.

(7) General Code, Part 4, Chapter 8A: Kidnapping/abduction and hostage taking

To add: Since these illegal activities are increasing day by day, the punishment for kidnapping and hostage taking should be made more severe. A provision should be made to make a perpetrator of such crimes pay one to two lakhs and serve three to five years in jail.

(8) General Code, Part 4, Chapter 9: On physical assault

To add: 1. Compensation: A provision should be made for a perpetrator to pay anywhere in between one to two lakhs as compensation. If the offender should not have that amount, the money should be made available to the victim from Nepal Government’s domestic violence fund, and collected later from the perpetrator.

(9) General Code, Part 4, Chapter 13: On sexual assault

1. ‘Unnatural behaviour’ has been replaced with ‘unnatural, inappropriate or indecent behaviour.

To add: Gender violence shall include unnecessary physical contact made while on public transportation and in public places.

The mention, in point number 1, of attempts to open the inner garments of a person should technically count as rape. It should therefore be moved under a different provision.

(10) General Code, Part 4, Chapter 14: On rape

The amendments proposed in the Bill for this section are very positive. For instance, a provision has been made to preserve the innocence of a victim should he/she take the life of the perpetrator, accidentally, in self-defence. A time limit for filing cases has also been removed. This new provision, however, should perhaps be reconsidered.

10A. To Add: To secure the right of a victim to privacy, the testimony or statement should be taken behind closed doors, whether in a police officer’s or public attorney’s office or in court.

10C. The following sentence has been added to the provisions:

‘If a perpetrator is without the sufficient resources to pay compensation to the victim, the court can order the Ministry of Women, Children and Social Welfare to make available the appropriate amount.’

To add: For an offense listed under this chapter, a perpetrator, in proportion to the nature and extent of his offense, shall have to pay the victim anywhere between one and two lakhs. Additionally, the offender will have to pay for the victim’s medical expenses.

11. ‘Within 35 days’ has been replaced with ‘6 months’. In case of juveniles, a new limit has been added: within six months of reaching adulthood (18 years). To add: in case of children, within six months of reaching adulthood.

(11) General Code, Part 4, Chapter 15: On incest

To add:

1. Those who have engaged in acts under this provision are liable to receive a life sentence and pay a penalty of three to six lakhs. 2. Those who have engaged in acts under this provision shall receive a jail sentence of 10 to 15 years and pay two to five lakhs. 5. The offenders under this provision shall receive a life sentence and pay three to six lakhs. 6. And the offenses under this provision are liable to spend 10 to 15 years in prison and pay two to five lakhs.

(12) General Code, Part 4, Chapter 17: On marriage

Definition: A man or a woman who is old enough may marry of his or her own volition. A couple, after marriage, must obtain a certificate of proof within three months after the ceremony. Such a certificate can be obtained by registering at either the VDC or municipality office where the man or woman has been residing. If a man and woman have been living together like a couple, it will be proven that they are married on precisely that basis.

To add:

Increase the punishment for child marriage.

9. If a man lies about the fact that he is married in order to marry for the second time, his second marriage will be annulled, and an appropriate compensation will have to be paid by him to his first wife, in between one and two lakhs. If a child should be born to the second marriage, then he will have to divide his property to this family as well.

(13) General Code, Part 4, Chapter 19: On etiquette

To add: 10B. In cases of gender violence involving indecent behaviour following the labelling of a woman as a witch, a perpetrator will have to spend one to three years in jail and pay the victim one to two lakhs in compensation, as appropriate.

Other Acts:

Amendments for Public (Crime and Punishment) Act 1970:

To add: One to three years of jail sentence.

To add: A provision is needed for making a perpetrator pay a compensation of twenty-five to fifty thousand. If the offender is unable to pay that amount, the government should offer compensation to the victim and collect the money owed by the offender later.

Human Trafficking and Transportation (Control) Act 2007:

The amendments proposed by the Bill for this Act are broadly positive. But a provision for compensating victims should be made clearer. Because of using phrases like ‘appropriate compensation’, victims have not been able to get properly compensated.

The following should be added to section 15 (6):

‘The government must provide security and housing to a victim between the time that a case is filed and when the final verdict is announced.’

17 (1A) has been added after 17 (1):

(1A): Notwithstanding whatever is written in subsection (1), if a victim cannot receive compensation from the perpetrator, due to the offender’s economic situation or any other reason, the court deciding the case can, pursuant to section 14, decree that the victim be compensated from the rehabilitation fund.

Domestic Violence (Crime and Punishment) Act 2009:

To add: It would be more appropriate to keep district administration offices as the designated body for hearing complaints related to this Act.

Domestic violence should also encompass ill will and actions that inflict emotional wounds.

The following should be added to the proposed section for replacing 13 (1):

Three to eight years of prison sentence can be given to an offender, in addition to having to pay two to three lakhs as compensation. If the perpetrator does not have the means to pay that amount, the Government of Nepal shall provide it and collect it later from the offender.

Subsection (1A) has been added after that subsection, to which the following should be taken into consideration:

The offender must be made to pay a compensation of fifty thousand to one lakh rupees, depending on the nature and extent of the offence.

58 (A) To add: A compensation of fifty thousand to one lakh rupees is to be paid by a perpetrator to the victim.

This recommendation paper prepared by legal expert Shashi Adhikari 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 Kamala Bishwokarma, Irada Gautam, Indira Phunyal, Durga Sob, Rachana Shrestha, Bharat Raj Gautam, Sadhana Shrestha, Binod Kumar Yadav, Sunita Roka, Ang Dawa Sherpa, Yagya Prasad Adhikari, Chandeshwori Shrestha, Mira Kumari Dhungana, Kopila Rijal, Sarita Dahal, as well as Sabin Rana, Phurpa Tamang, Ganesh Datta Bhatta, B.P. Bhandari, and Dr. Bipin Adhikari.

This research has been conducted with the help of The Asia Foundation. But the thoughts presented here belong to the author; they do not represent the Foundation or its point of view.

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