Nepal’s Law Treats Married Women Differently: Here’s How

April 2023 | NEPAL

The society envisioned by the Universal Declaration of Human Rights (UDHR), where “everyone is born free and equal in dignity and rights”, does not hold true for many people and groups even today. An example would be the inability of married women in Nepal to register their personal events (such as the marriage itself, childbirth, or death) from their permanent residence, forcing them to register these at their husband’s permanent residence. 

I got married two years ago. My husband is originally from a rural area of Dolakha, a hilly district where he still maintains his permanent residence. Meanwhile, I have a permanent residence in Kathmandu, the nation’s capital. 

We both decided to make my address our permanent home once we got married. So, I went to my local ward to register my marriage, but after learning of my husband’s permanent address, they told me to travel to Dolakha instead because I was no longer entitled to get things done from this office. This came as a shock. As a lawyer, I had never come across a law stating that marriage may only be registered at the man’s permanent address.

I didn’t want to travel a whole day to reach my husband’s permanent residence – an unfamiliar place where I didn’t know anyone. So, despite the law requiring us to register our marriage within 35 days, we haven’t done so in more than two years. The reason? Bureaucratic hurdles and a patriarchal society. 

Law Deems Married Women Inferior to Both Men & Unmarried Women

One of the reasons for the denial of a woman’s legal capacity to register her personal events from her permanent address can be found in the assumption that once married, a woman will effectively move to her husband’s home. This is largely true in a patriarchal society like Nepal. However, in the 21st Century, that is not necessarily the case as the choice of family for a married couple is changing. This has also been foreseen and accepted by Section 87 of the Civil Code, which says that a married couple can choose their own place of residence; it is not ipso facto the man’s permanent address that becomes the permanent address of a woman after marriage.

Registration of personal events at the man’s permanent address seems to be a simple problem, but the roots and consequences run deep. It implies that a married woman’s legal status is seen through the lens of her husband, that her status and legal capacity are inferior to that of her husband, and that she does not have the same rights exercised by unmarried women. Thus, the discrimination of not allowing a married woman to get her personal events registered from her permanent address is not only discrimination based on gender but also intersectional discrimination among women based on their marital status. 

The Impact of This Law on Married Women

Article 18 of the Constitution of Nepal, 2015 has guaranteed the right to equality, with Article 18(3) specifically stating that “the State shall not discriminate citizens on the grounds of origin, religion, race, caste, tribe, sex, economic condition, language, region, ideology or on similar other grounds.” 

Sometimes, due to plain acceptance, lack of ample attention, or lack of societal appetite for gender equality, lawmakers fail to follow the Constitution’s progressive path. The requirement to register a married woman’s personal events at the husband’s permanent address is an example of such a law. This requirement forces a woman to change her permanent address without her choice, giving a man an upper hand and an undue advantage in marriage. 

It becomes a bigger problem in a society like ours, where marriage is often only registered when a couple wants a divorce (marriage registration is a prerequisite for divorce). For instance, if a woman wishes to apply for a divorce without mutual consent and the marriage is not yet registered, it will be difficult for the woman to get her papers from the local registrar as the man’s family may know the members of the local ward office. The situation becomes even more dire when a woman wants a divorce along with her share of property from her husband, and the husband is unwilling. Similar problems persist with the registration of the birth of a child. What if the woman is no longer married to her husband by the time of childbirth and is already living in a different city than her husband? 

While Section 76 of the Civil Code makes it compulsory to register a marriage, Section 87 states, “where the husband and wife have not agreed to another address as their permanent address, the permanent address of the husband shall be considered the address of the couple.” This section clearly assumes that the husband and wife can agree on a different address. It is aligned with the Constitution’s guarantee of the progressive right to equality. On one hand, the section allows a couple to choose a place of residence, on the other, one of the two free individuals does not have the right to register their marriage from the permanent address of the woman. This, in my opinion, is a blatant violation of the essence of the right to equality. 

Section 4 of the Birth, Death and Other Personal Events (Registration) Act, 1976 mentions that both man and woman should jointly apply for marriage registration. However, the section fails to explain ‘where’ as it only says ‘concerned authority’. Section 3(2) mentions that the staff of the concerned local village development committee and municipality shall perform the responsibilities of a local registrar. A closer look into the Act does not tell us that the marriage should be registered in the permanent address of the man. But it is instead the term ‘concerned VDC or municipality’ of Section 3(2) that has given an implied interpretation that the ‘concerned authority’ is the one in the permanent address of the man. So, only when the married man and a woman go to the local authority of the permanent address of the man, the marriage is registered. 

Furthermore, every individual has a right to choose a place of residence, enshrined within the right to freedom of movement of Article 13(1) of the Universal Declaration of Human Rights. 

If we are to argue that a marriage can only be registered in a ward office of the man’s permanent address, we are denying a married woman this right to choose a residence. This also amounts to discrimination based on marital status since an unmarried woman is able to register her personal events from her own permanent address.

This is also a violation of Article 2 of the Convention on Elimination of all Forms of Discrimination against Women (CEDAW), which creates an obligation on Nepal, as a state party, to progressively eliminate any stereotypical and discriminatory provisions in practice today. Similarly, Article 3 requires Nepal to take steps in social, political, and cultural fields to ensure that women are able to exercise their rights on equal terms as men. The CEDAW Committee has also reiterated this commitment in General Comment 28, stating that a woman will be able to exercise all her human rights as equal to men irrespective of her marital status through progressive steps taken by governments. However, despite international legal obligations as well as Constitutional guarantees, Nepal has failed to enable married women to exercise the same rights as unmarried women or married/unmarried men.

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