Property Right of Nepalese Women

Sapana Pradhan Malla

PERSISTING INEQUALITY, DISCRIMINATION AND DISPARITIES

The status of women is defined in terms of their marital or sexual status; the right to ansha is fragile, temporary and imperfect. A woman is entitled to her husband’s property not as an independent co-parcener but because she is his wife. What she receives in terms of ansha from her husband is governed by the continuation of the marital relation with her husband. She can only continue to hold the right to ansha until she remains chaste or sexually faithful to the husband. She is uncompromisingly and strictly prohibited to have sexual relation with any man other than her husband, failure to maintain which deprives her of the right to ansha. A daughter is not entitled to ansha because she gets her status changed by marriage. Yet, under the existing legal system, once she reaches an age of 35 years, she is entitled to ansha because the general presumption is that the chance of changing her status through marriage then becomes almost rare.

The Constitution of the Kingdom of Nepal, 1990, under chapter 3 guarantees “right to equality” to all the citizens as a fundamental right. It states that the State shall not discriminate amongst citizens on grounds of race, caste, and sex. It also states that the Constitution is the fundamental law of Nepal and all laws inconsistent with it shall be void. However, discriminatory laws against women in relation to property right still prevail. Nepal has also become a State party ratifying the CEDAW on April 22, 1991, without reservation. Mandatory country report was submitted after a delay of 6 years. The State has made no deliberate effort to eliminate de jure and de facto discrimination against women in accordance the spirit of CEDAW.

Evidence of discrimination and disparities are as follows:

• a) A daughter is denied from equal inheritance rights,
• b) Daughter is denied the right to maintenance,
• c) Discrimination in the line of succession (The line of succession gives a right to inheritance to the daughter only after mother and brother),
• d) Discrimination on dolaji property,
• e) Discrimination against Married Women to get the Property,
• f) Divorcee Woman without Property Right (only conditional maintenance right),
• g) Unfaithfulness looses the right in the husband’s property,
• h) A victim of rape is considered as ex wife by the law,
• i) Discriminatory Property Right of a Widow,
• j) Discrimination on tenancy right,
• k) Discrimination on Transaction, and
• l) Consent needed to dispose off immovable property.

Barriers to guarantee equal Inheritance right for Women are as follows:

• i. Lack of Women in Decision-making Bodies,
• ii. Lack of Political Power or Political Commitment,
• iii. Deep Rooted Gender Discriminatory Value System,

Beliefs Reflecting the Derogatory Attitude Towards Girl Child/Women including the following:

• Dhilo paye, Chhora paye (“Let it be late, but let it be a son”);
• Chhora paye swarga jaane (“The birth of a son paves the way to heaven”);
• Chhori ko janma hare ko karma (“A daughter is born with a doomed fate”);
• Chhora paye khasi, Chhori paye Pharsi (“If a son is born, it is celebrated by sacrificing a goat, if it’s daughter, a pumpkin is enough”);
• Chhora bhaye sansar ujyalo, Chhori bhaye bhanchha ujyalo (“Son brightens the whole world, whereas a daughter brightens only the kitchen”);
• Kanya Daan (“a daughter should be given away as a gift”);
• Mare paap, pale punya (“It’s a sin if the groom kills the bride, charity if nurtured”);
• Srimati bhaneko paitalako dhulo ho (“Wife is the dust of the foot”);
• Chhori mari, thulo ghar pari (“If a daughter dies, we can say she has been married into a rich home”);
• Pothi base ghar mahscha (“A woman ruled house is sure to be destroyed”);
• and Swasni mancheko buddhi pachhadi (“Women are always shortsighted”).

Holding of such traditional values by both the lawmakers and many common Nepalese people have been detrimental for the realization of equal rights for both sons and daughters. Majority of the population is still exposed to such values because of lack of access to modern education.

Negative Campaign in the Media have had the following messages: The Nepalese society is not yet prepared to embrace equal property rights. Nepalese social structure would be badly disturbed by equal property rights. Hindu religion would be wounded if equal property right is given.

The Bill would destroy the prevailing harmonious family relationships. There already exists many court cases among brothers relating to property rights and equal property rights would only result in increasing their number, as there would be cases among the brothers and sisters as well.

Brothers would no longer show respect and fulfill their responsibilities to their sisters. Equal property rights leads to land fragmentation. Equal property rights in Nepal and prevailing discrimination in neighboring country India Daughters may refuse to get married since they would be economically independent after getting equal property rights.

A woman would be entitled to dual property, one from her father and the other from her husband. If wife is uneducated, her husband and his family might misuse her property and then throw her out of the house. Domestic violence would go up because of conflict of interest between the husband’s family and the natal home. Equal property rights would trigger divorce.

The number of spinsters, polygamy and abortion would increase if women get equal property rights. If daughters should get equal property rights, aged and/or disabled parents would be deprived of care from their sons Property right is a non-issue in a country where the majority of the population lives below poverty line.

What is important to girl child/women is access to education and opportunities and not property rights. In the Hindu tradition, a woman is entitled to her husband’s property making equal property rights irrelevant.

EFFECTS OF DISCRIMINATORY PROPERTY LAW

Effects of disparities in relation to unequal inheritance on women is envisaged to be deep-rooted in their life cycle in various aspects which have impaired their overall self-development as well as their capability in family, community and national development.

Impact on overall development of women and violation of Human Rights of Women The lack of equal inheritance right to women has disabled (without power) them in various fields. The affects in various aspects of a woman’s life can broadly be categorized as follows:

i. Economic dependency

Due to economic dependency, women have to face problems like domestic violence, psychological domination, polygamy, no decision making power in the family, harassment for dowry which in many cases, leads women to accept prostitution as a way of life. They have to bear all these problems as they are denied any financial security. They have hardly any choice during their marriage, which in many a cases, results in unequal or child marriage. As a daughter is taken as an obligation and a liability only, there is also no expectation from her, hence priority is given to male family members , as they are expected to take care of the family.

ii. No independent identity

The fact that women have no independent identity, can be seen from the discriminatory provisions in the Citizenship Act, 1963,and Constitution of the Kingdom of Nepal where father is the natural guardian of children. As a woman does not have an independent identity, she can not transfer citizenship to her children and husband, hence she is not recognized as an independent citizen of the country.

iii. Low social preference

As women do not have any inheritance right, they face discrimination right from childhood in matters of nutrition, health, education and distribution of family resources.

This discrimination continues against them all throughout their life till death. Hence one can firmly say that women face discrimination arising out of unequal right to inheritance which affects various aspects of a woman’s life which ultimately hinders their overall development.

This discrimination in relation to inheritance right violates Art 11 of the Constitution of Kingdom of Nepal, Art. 1, 2, 3, 5, 13, 14 and 16 of CEDAW, Art. 1, 3, 16 and 26 of ICCPR, Art 1, 9 and 11 of ICESCR, Art. 2 and 12 of UDHR and Art. 2 of the CRC.

State commitments to guarantee Equal Inheritance Right

State has made commitments to guarantee right to equality to both man and women in all sphere of their life including right to property in different policies, plan, constitution and international conventions which can be seen from the matrix below.

GOVERNMENT INITIATIVES

One of the initiatives taken by the government is the Country Code (11th Amendment) Bill 1997. Its major features are as follows:

Progressive preamble:

It is stated in the preamble of the Bill itself that the rights and interests of women in the existing Country Code require timely amendments. It further adds that the Bill was being proposed in view of the constitutional guarantees in favor of equal rights to women, Nepal’s ratification of the United Nations Convention on the Elimination of all Forms of Discrimination Against Women and as per the Directive Order issued by the Supreme Court to His Majesty’s Government to introduce an appropriate Bill within one year. Daughters are recognized as heir of the family: It recognizes father, mother, son and daughter as equal co-heirs.

Daughters are required to return the remaining property to the other co-heirs on their parents side, if they marry. Married daughters are not included while defining the co-heirs. Court grants wife a share of husband’s property before a divorce: It makes an attempt to eliminate women’s unequal access to property by authorizing the court to grant a share of the husband’s property (matrimonial property) to the wife before granting a divorce, as well as entitling the wife to a monthly or annual maintenance from the husband till the process of partition is complete. The wife is entitled to a share of her husband’s property only if the cause of the divorce is the husband or if the divorce is by mutual consent.

Complete authority of widow in her property: The proposed Bill removes the age restriction placed on widows to claim property and live separately. It also entitles her to have complete authority over her property. However, she must return her remaining assets to the heirs of her first husband if she remarries.

Unmarried daughters are included in the line of succession: In the case of a woman’s exclusive property, even though an unmarried daughter has been included, a married daughter has been placed last in the line of succession. A women’s Daijo and Pewa, unless otherwise stated, must pass in the following order: son or daughter, husband, and then only to the married daughter. The Chapter on Succession also placed the married daughter last in the line of succession.

Recognition of discrimination on inheritance right in the Initial Report to CEDAW In the Initial Report submitted by Nepal to CEDAW, the Government recognized the legal discrimination against women prevailing in the country. It also accepted the fact that girls are assigned unequal legal status in comparison to boys, that the law is silent on the maintenance right of daughter and that in regard to property rights, a male child is entitled to inheritance right from birth while a girl child acquires such property right only if she remains unmarried until the age of 35 years. However, it has not specified initiatives and constraints to guarantee equal inheritance right to the daughter as well as fail to explain limitations of widows, wife and divorcee women to get a share of husbands property.

Political Commitment through the Party Manifestos on equal inheri-tance right

All the political parties have been making various commitments towards women’s upliftment and equality in their manifestos since the restoration of democracy. However, no substantially effective programs have been undertaken to bring about such reforms as yet. The two communist parties, CPN (UML) and CPN (ML) both issued whips to their Parliamentarians to favor the Country Code (11th Amendment) Bill in Parliament in 1998. Unfor-tunately, the whip could not be used for the desired outcome. The major political party, the Nepali Congress, which has been in the Government for the longest duration after the restoration of the multi party system, and other parties which have been in the Government, have not taken any initiatives or actions to fulfill their commitments under their political manifestos. Three major political parties, the Nepali Congress, CPN (UML) and CPN (ML) have pledged to bring about social, economic, legal and other reforms for women, in their party manifestoes for the 1999 general elections for Parliament. The two communist parties have made commitments for the equal inheritance rights of women. How much of these grandiloquent speeches and commitments are actually carried out by these political parties remain to be seen.

Besides their commitment in the election manifesto and being in the Government for the longest period, Nepali Congress has not taken any steps to fulfil their commitments except the submission of Country Code Amendment Bill. Voice of the women Parliamentarians has been margina-lized. Similarly, UML, RPP and Sadhvana party’s’ commitments towards women’s equality is not being fulfilled, despite them being in the Govern-ment. Women’s participation in the cabinet is also very nominal.

Weaknesses in the Government Bill--Discriminatory inheritance provision in the Country Code (11th Amendment) Bill, 1999

The proposed Bill accepted the daughter as an heir of the family. However, the married daughter has been excluded. If an unmarried daughter gets married after succession or partition, the remaining property must be returned to the maternal relatives.

A widow may undergo separation and take away the share of property she receives on behalf of her deceased husband if she so wishes. If she remarries, the remaining property must be returned to the heirs of her former husband.

Married daughters are excluded from equal succession right. The proposed Bill provides that once a woman files an application for divorce, the court should direct partition and should provide one share of the family property to her but it applies only in cases in which the cause of the divorce is the husband.

The proposed Bill makes some effort to reform the discriminatory legal provisions. Accepting daughter as an equal heir as the son, increased punishment and unavailability of bail for polygamy, making abortion legal under certain conditions, etc. are some positive aspects of this Bill. However, it is still discriminatory against women as it fails to deal with the important issue of equality in relation to inheritance right and the problem of different forms of violence against women .

If the property rights provisions in the proposed Bill is examined, it becomes quite clear how even the Bill proposed violates basic human right of non-discrimination. Thus, the proposed property Bill, rather than making women self-reliant, creates inequality between sons and daughters, making them dependent on the father until they marry, and on the husband after marriage. Granting women rights on the basis of their marital status is clearly against Article 1 of CEDAW.

Interpretation of the Court

The Court only declared that the existing provisions for daughters to inherit paternal property is conditional as a daughter has to remain unmarried until the age of 35 to do so, whereas son is entitled to inherit right after his birth. Thus, instead of declaring the laws void, the court passed a directive to the Government to introduce a Bill in the legislature within a year, reviewing laws related to property rights. At the same time, the court also asked the Government to take into consideration the patriarchal nature of the society, social structure, and fears of positive discrimination against men.

A number of questions have been raised in this regard – Is Directive Order for the submission of a Bill alone sufficient to guarantee equal rights to women? If the Parliament does not pass the Bill, what will be the consequence of the court order? Will the human rights of women be protected through judicial intervention in such an eventuality? How do we see the interpretation of the court that is more concerned about protecting patriarchal values than women’s basic human right to equality and to live with dignity? Is the judiciary just shifting its burden to other Government organs by not declaring the challenged provisions and just issuing mere directive orders? Does the judiciary have any role in interpreting or implementing international conventions through its decisions?

Recommendations for Government Activities

Discriminatory provisions as shown in the Evidence of Discrimination chapter should be amended. The law should be enacted on the basis of the principle of equality and without discriminating on the basis of marital status. Advocacy programs and training on state obligations/commitments Judicial Activism

INITIATIVE BY CIVIL SOCIETY

No serious efforts from the Government sector to formulate appropriate legislation were observed following the Supreme Court’s verdict. Therefore several NGOs got together to formulate appropriate Bill.

NGO achievements

Directive Order of the Supreme Court to submit the Bill in the Parliament in regards to property right of women. Despite the negative interpretation of this issue, the challenges against the existing laws has had a positive impact, as a result of which women have become relatively more empowered. Due to the court decisions in the inheritance right case, the entire society has been forced into rethinking about the patriarchal structure, male supremacy, and the status of individual freedom of women. Women have begun to be vigilant about the issues and link them with the broader issue of equality.

In spite of an increasing need for an amendment in the existing legal provisions in order to create a just and equitable society, there have been diverse views and opinions regarding the issue of granting equal property rights to women. Education, political participation, distribution of productive assets and income, employment, social, cultural, religious and legal situations have proved that disparities/ discrimination exists between man and woman in Nepal.

Economic and socio-cultural discriminations have an adverse affect on the lives of women, leaving them far behind men to compete or take part in national development. Various cultural, practical, attitudinal, conceptual, social and political factors have limited women from moving in equal footing with men. Economic rights are one of the measures by which both women and men can achieve self-development. The majority of the Nepalese women are illiterate, have poor health, and are dominated by conservative social value system which makes them dependent on their fathers, husbands or sons, as well as easy victims of domestic and social violence. Thus, it is crucial to enact new legislation guaranteeing equal inheritance right for women to address the problem of discriminatory social and cultural practices.

There is a debate on the question of which should come first - the law giving equal inheritance right to women or an attitudinal change in the society in favor of giving equal inheritance to women? Review of the history of legal changes in Nepal reveal many instances where laws have preceded the change in social attitude and behavior, e.g. abolition of slavery, abolition of wife burning together with the dead husband (sati system), age of consent for marriage etc. This reinforces the fact that if the equal inheritance right law is introduced, it will gradually bring about positive changes in discriminatory attitudes and practices and there shall be an instrument to enforce the law.

There have been arguments that the Bill, if adopted, may upset the social and cultural milieu. It may be true that once the Bill is introduced some upheaval might occur in society as is inevitable with all kinds of changes and transition. Democracy was reinstated in the country in 1990 and even now the country is still undergoing a lot of instability and disorders. That does not mean we should go back to the period before democracy, or even further back to the autocratic Rana regime when there was no democracy at all. So the question facing us today is - do we retain the situation of gender inequality in the country despite the commitment made by the Government in our policy, Plan of Action, Constitution and various UN Conventions for fear of temporarily disturbing the discriminatory social milieu of the country; or look beyond that and work for permanent changes that will benefit the future generation and help to establish a developed society based on gender equality?

By ratifying the Convention and providing equality clause in the Constitution, State recognizes the existence of discrimination and inequality and the need to enact equal inheritance right law. We, as women, have to develop criteria for State action and responsibility. We have to learn to use the state obligation under convention as an advocacy tool to interpret the principles of equality and justice.

END NOTES

1. This article is largely based on my report entitled Baseline Study on Inheritance Right of Women published by Forum for Women, Law & development (FWLD) in March 2000.