Family Law in Nepal

What is Family?

A family is generally understood as a social group characterized by:

• Kinship Ties: Relationships based on:
• Consanguinity (Blood):  Biological relationships (e.g. parents and children, siblings).
• Affinity (Marriage/Partnership):  Relationships formed through marriage or similar committed partnerships.
• Adoption:  Legal and social processes that create parent child relationships.
• Shared Residence (Often, but not always):  Many families live together or have lived together, forming a household.
• Emotional Bonds:  Feelings of love, affection, loyalty, and attachment.
• Mutual Support & Care:  Providing emotional, physical, and often financial support to one another.
• Shared History & Future:  A sense of a common past and an expectation of continued connection.
• Social Roles & Responsibilities: Members often have certain roles and responsibilities within the family unit (e.g., parent, child, spouse, care giver).
• Socialization: Especially for families with children, a key function is teaching social norms, values, and skills.
• Families can be the scenes of some of the greatest joys, as well as some of the greatest sadnesses, that life can bring.

In Huang v Secretary of State for the Home Department, 2007 (UKHL 11, para 18), the House of Lords emphasised the importance of families to individuals:

Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.

Concept of Family Law

There is no accepted definition of family law. Family law is usually seen as the law governing the relationships between children and parents, and between adults in close emotional relationships.

Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.

Family law is generally understood as the branch of law that handles matters related to family and domestic relations, such as marriage, divorce, child custody (parenting arrangements), adoption, and support. It aims to regulate the formation, maintenance, and dissolution of family relationships, often adapting to societal changes like same-sex marriage and alternative family structures. It addresses not only traditional marriage and divorce but also emerging issues like surrogacy and child protective proceedings.

It is rooted in the recognition that family is the fundamental unit of society and that legal regulations are necessary to ensure its members’ well-being, stability, and protection.

Family law, according to Murphy (2005) and B. Stark (2005) (the growing significance of international family law) is seen as the law governing the relationships between children and parents, and between adults in close emotional relationships.

Family law is grounded in several fundamental concepts that shape its application and development:

1. Privacy: Recognition of the family as a private sphere with certain rights to autonomy.
2. Parens Patriae: The state’s authority to protect those unable to protect themselves, particularly children.
3. Contract: The contractual elements of family relationships, especially in marriage.
4. Conjugality: The legal recognition and regulation of intimate partnerships.

In the context of Nepal, Family law is found to be based on religion(dharma). Dharma is the appropriate and worthy action that a particular person should adopt or follow. If you look at the legal practices of the world, it is found that rules, conduct and manners related to the family laws are being followed by religion and tradition. If we look at the family law of Western and European Christian countries, its source is the Bible and custom. Similarly, if we look at the Muslim Society, the Quran is considered to be the source of the law governing their family, society.

Key Provisions of Family Law in Nepal

 

 

Nepal has adopted a multi-faceted approach, drawing on both national and international normative frameworks, to ensure gender equality and govern family relationships. The country’s legal system has undergone significant changes, particularly regarding family law, influenced by its cultural, religious, and social context, as well as popular movements and constitutional reforms.

The Constitution of Nepal 2072

The Constitution of Nepal  provides a clear and comprehensive framework aiming to end all forms of discrimination and inequality. It guarantees equal rights for men and women, including fundamental rights such as inclusiveness, representation, and social protection. It strictly prohibits violence and discrimination against women and girls. Women’s rights are guaranteed as a fundamental right, including equal rights to inherited property and family affairs, safe motherhood and reproductive health, education, health, employment, equal pay, social security, and inclusive participation in state bodies. The Constitution is strongly anchored in internationally recognised human rights and reflects Nepal’s commitment as a signatory to conventions like CEDAW. It also establishes the rights of gender and sexual minorities, including participation in state bodies based on inclusive principles.

Muluki Civil Code 2074

The Muluki Civil Code 2074 (2017) sets out legal provisions governing family matters, primarily in Part 3. It aims to consolidate and modernize various legal provisions related to marriage, divorce, property rights, and family matters. Key areas covered by the Civil Code include:

• Marriage: It addresses the legal aspects of marriage, including its formation. Conditions for a valid marriage include the consent of both individuals, not being in prohibited relationships (except as allowed by ethnic custom), absence of existing marriage, and attaining twenty years of age. Marriage by registration is recognised and provides legal validity and rights. Monogamy is the legal norm.
• Divorce and Separation: The Code outlines provisions regarding the separation of husband and wife, recognizing both legal separation and divorce.
• Property and Financial Matters: Family law addresses the division of marital property and financial support. The Muluki Ain (Civil Code) governs inheritance laws, influenced historically by Hindu law, with amendments aimed at addressing gender disparities in land and property rights. The Civil Code includes provisions on equal rights to property and family affairs and clarifies coparceners for property partition (husband, wife, father, mother, son, and daughter). Daughters have equal rights to ancestral property, though challenges in enforcement remain due to patriarchal mindsets. Tax exemptions are provided to promote women’s ownership of land.
• Children: The Code addresses matters related to children’s status, including child custody, visitation rights, and child support, aiming to protect the best interests of the child. It also governs the legal procedures and requirements for adoption and guardianship. The Code sets conditions and procedures for adopting a child, including inter-country adoption. Paternity establishment is also covered.

It includes provisions related to gender justice and encompasses many facets of crimes, including violence against women and girls (VAWG). It introduced key provisions to protect women’s rights, criminalizing various forms of violence and harmful practices. Crimes addressed include:

• Domestic violence.
• Rape and sexual harassment.
• Human Trafficking.
• Dowry system. The code prohibits transacting property in marriage (dowry).
• Other harmful social practices and violence, such as incest, pedophilia, polygamy, forced marriage, non-consensual marriage, child marriage, Chhaupadi (practice of banishment during menstruation), and sex-selective/forced abortions are criminalized.

Specific Acts addressing Family-Related Issues

• Domestic Violence (Offence and Punishment) Act, 2066 (2009). It is addressing domestic violence, defining it as any form of physical, mental, sexual, or economic harm perpetrated by a person with whom the victim has a close relationship. It recognises domestic violence as a public health emergency.
• Sexual Harassment at Workplace (Prevention) Act, 2014.
• Labor Act, 2017. This Act ensures equal pay for equal value of work for both men and women, prohibits gender-based wage discrimination, and includes provisions for maternity leave and social security.
• Free and Compulsory Education Act, 2018. This Act establishes the constitutional right of every child to receive free basic and secondary education.
• Human Trafficking and Transportation Act, 2063 (2006). This Act declares human trafficking a crime.
• Crime Victims Protection Act, 2018. This Act contains provisions on the right to justice, compensation, and social rehabilitation for victims.
• Citizenship Act (2006) While not solely a family law, it impacts family members’ rights (e.g., women’s ability to transfer citizenship to children or spouses).
• Local Level Election Act, 2017. This Act promotes gender representation in local government by requiring one candidate for mayor or deputy mayor to be female.

Scope of Family Law

The scope of family law is broad and covers a wide range of issues and legal matters that arise within family relationships. The concept and scope of family law are significant as they govern the legal framework within which family dynamics and relationships are managed and resolved. Some of the key areas within the scope of family law include:

Marriage and Divorce

• Marriage Conditions: Marriage requires mutual consent, prohibits incestuous relations (except where permitted by ethnic or clan practices), and mandates that both parties be at least 20 years old. Legal validity necessitates registration, which can be done at the District Court or the Nepalese Embassy/Consulate abroad.
• Divorce Provisions: Divorce can be by mutual consent, which is quick and cost-effective, often issued within days, though it may involve forfeiting property claims. Court-ordered divorce is available on grounds such as living separately for three years, adultery, or physical/mental torture, with slight variations by gender. For instance, wives can cite marital rape, while husbands may claim deprivation of maintenance.

Child Custody and Welfare

• Child custody decisions prioritize the “best interests of the child,” as per the Civil Code. Physical custody of children under five is typically granted to the mother, presumed to be the natural guardian, while both parents usually retain legal custody, sharing responsibilities for care and major decisions. Courts consider factors like the child’s age, health, and parental capacity, ensuring continuity in care post-divorce.
• In the case of Dr. Alokraj Chalise v. Siru Chalise, NKP 2053, Part 3 D.N. 6162, when the father of the child filed a writ of habeas corpus against the mother, the court held that the writ of habeas corpus cannot be issued against the mother. It has further been affirmed in Bibek Chalise v. Satyawati Chalise, NKP 2061, D.N. 7389 child with the mother cannot be termed as illegal detention. In these kinds of cases, the Supreme Court of Nepal affirmed the general belief that the mother has priority over the child. In these cases, no further analysis has been made on what is the ‘best interest’ of the child. The assumption is made that as long as the child is with the mother, that is in the best interest of the child.
• In the case of Shova Shrestha v Maya Tamang, NKP 2071, D.N.9219, the mother was the plaintiff who filed the case against the father and the one whom father had trusted the child with. In this case, the court did not go with the assumption that the mother is the priority. Here, the case is considered where the child’s happiness lies.

Property and Succession

• Partition of Property: Coparceners include husband, wife, father, mother, son, and daughter. The deed of partition must detail names, ages, addresses, property received, debts, and living arrangements post-partition, ensuring transparency and no hidden assets. Courts encourage mediation for disputes, considering factors like income, marriage length, and health.
• Succession Order: The succession hierarchy starts with the husband/wife in an undivided family, followed by sons, daughters, widowed daughter-in-law, parents, stepmother, grandchildren, and extends to separated relatives and grandparents, with specific disqualifications like killing for property.

Adoption and Surrogacy

Adoption eligibility includes couples without children after 10 years of marriage or unmarried/widowed/divorced individuals over 45 with no children, with a minimum 25-year age difference between adopter and adoptee. Adopters must provide maintenance, healthcare, education, and exercise parental authority as for biological children. Procedures differ for Nepalese (court petition) and foreigners (via the Inter-country Adoption Board with extensive documentation).

International Family Law

This area deals with cases involving family matters that cross international borders, such as international child abduction and international divorce.

LGBTQ+ Family Rights:

Family law has evolved to include the legal rights and responsibilities of LGBTQ+ individuals and couples in areas like marriage, adoption, and parenting. In the case of Sunil Babu Pant and Others v Nepal Government and Others, NKP 2064, LGBTQ were recognized.

Case Laws

Adv. Sharmila Parajuli others. vs HMG & others NKP 2061. D.N.7449

The court decision addresses the issue of sexual harassment in the workplace. It emphasizes the importance of creating a safe and respectful environment, outlining what constitutes sexual harassment and the negative impact it has on individuals and society.

Advocate Prakash Mani Sharma et al. vs Office of the Prime Minister and Council of Ministers, Singhadurbar et al. NKP 2062 D.N. 7577

Supreme Court decision regarding the inheritance rights of daughters. It ensures alignment with principles of gender equality and fairness regarding property rights after marriage.

Janahit Sanrakshan Manch (Pro Public) v. Ministry of Law and Justice & Others, NKP 2068 Decision No. 8628

Supreme Court decision particularly on the legality of marriage laws requiring parental consent for individuals aged 18-20, while those 20 and older do not need such consent.

Lakshmi Dhikta & Others v. Government of Nepal, NKP 2066

 

Conclusion

In a nutshell, family is at the very heart of who we are, a source of our greatest joys and deepest sorrows. It’s the bedrock of society, where we first learn to be human. But trying to pin down exactly what a “family” is has become incredibly tricky.

The old picture of a mom, dad, and two kids isn’t the reality for most people anymore. Families now come in all shapes and sizes: single-parent, blended, cohabiting, same-sex, and even “families of choice” made up of close friends. Our laws are slowly catching up to this new reality. Cases like Fitzpatrick v Sterling Housing Association Ltd show that the law is starting to see family less about blood ties or a marriage certificate, and more about love, care, and commitment. It’s about what we do for each other, not just what we are on paper.

However, the law still has a bit of a split personality. It will automatically call a married couple a “family” even if they’re unhappy, but an unmarried couple might have to prove their commitment to be seen the same way. This shows there’s still a kind of hierarchy, with marriage at the top.

At the same time, life keeps changing. Divorce rates, cohabitation, and shifting roles for mothers and fathers constantly challenge old ideas. This means family law can’t stand still; it has to evolve to keep up with the messy, beautiful, and ever-changing ways we live and love. The ongoing conversation is how to make sure the law supports and protects all families, no matter what they look like.