The Nepali Supreme Court’s landmark decision against virginity tests is not any more progressive than it needs to be.
In the changing social context, to preserve virginity, or to indulge in sexual activities with the person of one’s choice is an individual decision. Some people are open about their sex lives; others have secret relationships. Having a sexual relationship does not change a woman’s legal status.
Some people first have a child and then decide to get married; others live as husband and wife for all practical purposes but never tie the nuptial knot.
Since society is modernising on all fronts, and individual freedom is being emphasised more and more, having sex alone cannot establish that a marriage has taken place. Neither can parents absolve themselves of their responsibilities towards a daughter who has had sex.
Loss of virginity and marriage are not considered the same in legal terms. Loss of virginity cannot be construed to mean that marriage has taken place. A grown up woman having sex with a man has become common. In such cases, a child can be born, intentionally or otherwise. That is natural.
Only if a girl has been married in the traditional manner or has married in a simple ceremony or has registered her marriage according to law can a marriage be said to have taken place. (writer’s translation)
The above was part of the land- mark decision handed down on 29 July by a bench of Nepal Supreme Court made up of Justices Arbindanath Acharya and Rajendra Nath Nakkha in response to an appeal filed by petitioner Annapurna Rana against a lower court decision.
Annapurna Rana had filed a case in the Kathmandu District Court seeking “sustenance” from the family property administered by mother Ambika Rana and the ‘legal heir’ brother Gorakh Bahadur Rana (who last year married King Birendra’s only daughter, Shruti). The respondents had claimed that the petitioner had already been married in Naini Tal, India, and had even borne a child, and was thus ineligible for “sustenance” (mana chamal), which the law provides only to unmarried daughters.
The mother and brother pleaded with the judge to order physical tests on Annapurna to confirm her marital status. These tests were to prove that: a) she was not a virgin; and b) she had given birth to a child. The district court acceded to the request and ordered a medical examination on Annapurna; a decision that was confirmed by the appellate court. It was only on further appeal that the Supreme Court handed down what is seen to be a precedent-setting decision.
This progressive and forward-looking judgement by the Supreme Court, which has a public image of being composed of staid gentlemen (no women up there), must be seen as an attempt to establish new principles of social relations in a traditional society that is being buffeted by demographic and cultural changes. The judges sought to inject new mores into existing middle class morality, which assumes that anyone who is a mother has to be necessarily married.
There is no doubt that the Supreme Court has corrected the travesty of the lower courts’ decision, both on a woman’s right to privacy and on the principle of what constitutes ‘marriage’. The judges were correct to stay with the legal definition of marriage, which requires either registration or a socially accepted ceremony (which in a society as diverse as Nepal’s, changes from one ethnicity and caste group to another).
Quite expectedly, the judgement was lambasted and lampooned in the Kathmandu press for having sanctioned “Western-style promiscuity” in Nepali society. Media commentators asserted that the ruling would unleash rampant pre-marital promiscuity, and lead to insecurity among young women who give birth out of wedlock. Wrote a columnist, “The ruling has brought shame to every Nepali girl because she can go ahead and live with a man, have children and still not be married to him…A man can now have sex with a woman, have children and then abandon her.”
These arguments, advanced by men, patronisingly ignore the obvious fact that women are also endowed with innate intelligence, and can make proper decisions for themselves. Women are not so vulnerable that they are unable to fend off the sexual advances of men. In fact, women are, by and large, careful about their sexuality and seek to protect its so-called ‘market value’. They know fully well that sex without marriage is a tricky affair, and that in a society to live a good life and to bring up children, having a man in the house helps. The verdict, that having a child does not constitute marriage, should ring as a strong warning bell to all women.
Should the verdict be well-publicised, men used to having their way with women may now find them less accommodating. It is likely that a woman will be more insistent on knowing the man’s intentions before entering into sexual relations. By encouraging both sides to weigh the pros and cons of their actions, it makes the sexual act itself more meaningful, and if such a union can be idealised, ‘sacred’. As for promiscuity, the licentious did not have to wait for a court verdict to carry on.
To reiterate, now that responsibility for individual action rests upon oneself, it becomes all the more important that every woman in Nepal get to know about this Supreme Court verdict, and all its nuances. The present case should become part of adult literacy classes as well as senior-level school textbooks.
The Annapurna Rana case is also significant in that it compels Nepali society to take another look at parental/familial attitudes towards non-conformist individuals (read women). The dominant conservative forces are usually able to undermine individual rights in the name of ‘tradition’; in this case the law was sought to be used to implement the yardstick of a set of norms that militates against the very concept of individual choice.
The issue of property rights for women, which has generated much debate in Nepal, is one area where the court decision could have far-reaching implications. The law at present provides only for unmarried daughters who have reached the age of 35 to be equal heir to parental property. The definition of marriage as laid out in the decision makes it possible for a woman in a live-in relationship to demand a share of parental property.
All told, the Nepali Supreme Court’s decision is not any more forward-thinking than it needs to be, and will not necessarily force ‘modernisation’ on the Nepali population. In a real democracy, there is room for people with contesting philosophies, opinions and lifestyles. We must realise that Nepal is a country with a multitude of ethnic groups that have very different norms and values regarding life’s rites of passage. If there is polygamy among some groups, there is polyandry among others.
The Supreme Court decision, in being broad and progressive, emphasises and empowers these diverse streams. It reaffirms that as long as people are law-abiding citizens, it does not matter what their personal lifestyles are. A functioning democratic society does not allow for the undue advantage of one group at the cost of another. Blind and selective adherence to tradition, without a feel for the pulse of changing norms and values, will not help us determine our direction as a democratic nation.