Under the Weight of the Muluki Ain

The legal fight for gender equality in Nepal involves in large part the effective implementation of legislation which already exists, to counter the retrograde legacy of the Muluki Ain.

The Muluki Ain, the general civil and criminal code that governs Nepali society, reflects traditional mores and in today's modern context, can be called extremely discriminatory against women. First formulated under the reign of Surendra Bickram in 1853 (1910 B.S.), it was last modified by King Mahendra in 1963.

Under Hindu law, as sanctioned by the Muluki Ain, fathers, brothers, husbands as well as male and female in-laws have traditionally exercised proprietory rights over the woman. Because there is no separate personal law for separate communities, the Muluki Ain, with a few exceptions, brings many hill communities also within its ambit. As long as women from such communities remain outside the ambit of the law, they are able to enjoy customary rights, but not when the Muluki Ain catches up with them.

The primary problem with the Muluki Ain as far as gender discrimination is concerned, is in the area of property rights, family rights and what might be called sexual rights. Legislative attempts over the last four decades have been well-intentioned, but half-hearted, attempts to weaken the legacy of the Muluki Ain.

LEGISLATIVE AGENDA

In Nepal, effective legislative initiatives in favour of women's rights were lacking until the enactment of the Nepal Interim Constitution 1950 (Nepal Antarim Shushan Bidhan 2007). Chapter II of this historic document, which deals with directive principles of state policy, provided several provisions which sought to change the status of women from chattels to that of human beings. Among other things, it directed that no discrimination be made between men and women, and that there be equal pay for equal work, regardless of gender. The law also provided room for special legislative measures for women's protection and empowerment.

Unfortunately, the provisions of the 1950 Constitution, while achieving a first in terms of written law, were not translated into practice.

The concept of equality of the sexes envisaged in the 1950 Constitution was converted into a fundamental right under the Constitution of Nepal 1958 (Nepal Adhirajya ko Sambidhan 2017). This Constitution was abrogated by King Mahendra in 1960. The B.P. Koirala Government, elected under this Constitution, never had the time or opportunity to adopt legislative measures in the field of gender equality.

The Constitution of Nepal 1962 (Nepal ko Sambidhan 2019) also followed the same track of legislating equality of men and women before the law. In addition, it provided the executive with blanket powers to legislate special laws for the protection and empowerment of women. This Panchayat Constitution was high-sounding and did have progressive ideals, but over three long decades the lofty constitutional provisions remained untranslated into appropriate legislative measures to empower women.

Following the successful people's movement, the Constitution of Nepa11990 (Nepal Adhirajya Ko Sambiditan 2047) was promulgated on November 1990. The new Constitution broke new ground in terms of women' s rights to equality and fair play. To begin with, as earlier, women enjoy the fundamental right to equality as citizens and the State has been given authority to legislate special laws for the protection of the special rights of women.

In making provision for gender equality, the Constitution has legitimised 'affirmative action' by providing that the government may lay down laws which discriminate in favour of women. Thus the fettered mandate has been given for the first time to make special laws in favour of women. Recognising that the problems of discrimination arise from women's minimal participation in the political process, the Constitution has made express provision to ensure minimum representation of women in both houses of Parliament (reserving three seats in the Upper House and five percent of all party candidatures for the Lower House.) The experience of the General Elections of last June showed, unfortunately, that the major parties are not prepared to make the most of this unique provision in order to improve the status of women.

Under Article 131 of the new Constitution, all existing laws that are contrary to its provisions shall cease to exist if not repealed within one year from the date of promulgation of the Constitution. This means that all laws that conflict with the Constitution will be automatically repealed as of 22 Kartik 2048 (i.e., 8 November 1991).

There will be a very long list of such provisions, however, such as among laws which discriminate against women and in favour of men in subjects such as property rights, family matters and sexual rights. This so-called automatic repeal of laws could lead to a situation of confusion and uncertainty, particularly having to do with whether a particular law or part of it is or is not contradictory to constitutional provisions. Additionally, it seems that vested interests in society will not easily accept the repeal of so many laws which serve their interests.

There are several provisions in the Muluki Ain which not only conflict with the Constitution but treat women as second-grade citizens and even as chattels. These laws may be divided broadly into three groups: laws relating to a) property rights, b) family rights, and c) sexual rights.

PROPERTY RIGHTS

The provisions of the Muluki Ain chapter on partition, inheritance and women's property deal with different modes of acquiring the right over property. Provisions under each of these chapters discriminate against women in terms of acquiring and disposing rights over property.

Right to Partition: To take the example of the right to participate in parent's property, under the Muluki Ain chapter on Partition, the son shares equal rights with his father the day he is born, whereas the daughter has to wait, unmarried, till the age of 35 to be eligible for acquiring such property. Moreover, her share of property devolves to her brothers if she gets married after receiving her share of parental property. There are several problems and impracticalities here. Brothers may prefer to partition parental property before the sister or daughter reaches the age of 35. The law is so discriminatorily rigid that even if a benevolent brother wishes to partition property in favour of his unmarried sister before she reaches 35, he has no legal means to do so. Other indirect and artificial means of ownership transfer have to be sought.

The right of married women to acquire rights to the family property [of her husband] is also problematic. A married woman cannot claim for partition so long as her husband or in-laws provide her with food and lodging. Even if it becomes impossible for a woman to live with her husband or in-laws, she cannot claim for partition until she reaches the age of 35, and 15 years of marriage have been completed.

Right to Management and Deposition: Though the existing law grants some limited right of partition over family property, women are denied the right to manage such property. Even if ownership over property has been transferred to them by virtue of partition, women have only limited rights to dispose of such property. A man who is head of the family can dispose of the entire movable and up to half of immovable property without the consent of his wife, unmarried daughter over the age of 35, or daughters-in-law. But similar authority is not granted to a woman even if she is the senior-most and otherwise legally capable of managing family matters. A woman or unmarried daughter cannot dispose of more than half of her immovable property acquired through partition without the consent of her sons or father. Provisions made in Sections 10, 10A, 16, 19 of the Muluki Ain chapter on Partition and Section 2 of the Chapter on Women's Property provide for the discrimination cited above.

Right to Inheritance: Section 5 of the Muluki Ain chapter on Women's Property and Section 2 of the chapter on Inheritance provide for discrimination in inheritance and succession. Even unmarried daughters are not seen as fit to inherit property as long as the son or the grandson of a deceased patriarch is alive. Not only is a daughter discriminated against in inheriting her father's or ancestor's property, she cannot even inherit her own mother's self-earned property so long as her brothers and father are surviving.

Tenancy Right: The role of rural women in cultivation, harvesting and other activities relating to agriculture is vital. However, Section 26 of the Land Reform Act 2021 (1964) completely ignores this reality and prevents the daughter or daughter-in-law from inheriting tenancy rights of her father's or father-in-law's land. The problem created by the law is especially excruciating for a family which only consists of daughters and widowed daughters-in-law of a deceased male tenant.

FAMILY RIGHTS

There are many instances of laws which discriminate against women in deciding family matters. Under the law of adoption (Section 2 of the Muluki Ain chapter on Adoption), a married man who does not have a son can adopt one, but his wife cannot do so as long as he survives. Neither can she if there is a son from her co-wife. Section 9 prohibits a married woman with a surviving husband from adopting a daughter whereas a similar restriction does not apply to men.

SEXUAL RIGHTS

Besides keeping them from enjoying equal rights in property and family matters, the Muluki Ain also regards women as sexual "vessels" for the enjoyment of men. The ownership of the wife by the husband is never questioned in the chapters on Husband and Wife and Adultery". If it is proved under Section 2 of the chapter on Husband and Wife that the wife has had a sexual relationship with another man, or if she elopes, her relationship with her husband is automatically terminated. The marital relations will also be terminated if she confesses before a competent court that she had had sexual relations with a man though in reality she might not have. (It is very common in the Nepali courts for women to confess under duress, to adultery they have not committed). A man will be considered by law to have remained faithful to his wife even if he has had sex with several women with the knowledge of his wife.

Section 9 of the chapter on Marriage permits a man to have a second wife under certain conditions such as if the first wife is barren, has an incurable communicable disease, or otherwise has physical 'defects'. But a woman does not enjoy such a right against her husband (but may marry another if he dies). She cannot take a second husband even if her first husband is sterile, impotent, disabled or suffering from an incurable disease. If the wife does take a second husband under these circumstances, she is subjected to punishment with a prison term and fined under Section 2 of the chapter on Adultery.

The husband of a wife who had committed adultery can prosecute both his wife and her lover. If convicted, both the wife and her lover are subject to punishment. However, if the husband dies before or after conviction, only the lover benefits by having charges dropped or by being released. The law does not grant the same privilege to women.

THE SOURCE OF THE PROBLEM

The problem of women's inequality is of course, deeply rooted in the social system, and the Muluki Ain is but the means through which the Establishment has sanctioned such inequality. Legislation is the modern means to counteract traditional discrimination, and fortunately, the Constitution of 1990 provides the best base so far to try and undermine the discriminatory elements in the Muluki Ain. The deeply rooted evil cannot be done away with overnight. Political awareness and legal literacy among women is important. In addition, there is a need for committed and sustained effort on the part of women and men in government, the political parties and the private sector to lead to the ultimate moment when all legal provisions, at least, will be free of discrimination. After that, the challenge will be to transfer such law into day-to-day social behaviour and interaction.

Upreti is a corporate lawyer who does pro bono work on empowerment.

A CITIZEN'S RIGHT DENIED

The 1990 Constitution of Nepal followed earlier constitutions in maintaining discrimination against women in the matter of citizenship. Under Article 9 (5), if a male citizen of Nepal marries a foreign wife, she gets Nepali citizenship upon the fulfilment of certain conditions. However, if a female Nepali citizen marries a foreign husband, the latter is not eligible for citizenship. This is clear discrimination against the Nepali woman, for she will be forced to leave her society, job and family and migrate abroad against her will because the law will not allow her husband to live with her. There is an increasing number of couples who are facing this problem, but their joint lobbying has yet to lead to any resolution.

The supporters of this discriminatory provision in the Nepali Constitution justify it on the ground that so-called foreign husbands may take undue advantage of illiterate, economically backward women. This is neither logical nor the proper means to protecting the interests of such women. A blatantly discriminatory provision such as this must be struck down by the Parliament, which has the power to do so.