Women's Property Right Movement
and Achievement of the 11th Amendment of Civil Code
- by Binda Pandey
Nepal is still running under strong feudalistic social values
and norms. There were no clear provisions regarding Nepalese
women and property rights until 1975. Following the UN Declaration
of 1975, which was International Women's Year, the Nepali
government began to celebrate International Women's Day
on the 8th of March. That same year, the Civil Code was
amended and a clause on women's inheritance and property
rights included. The clause states that if a woman remains
unmarried up to 35 years of age, she would have a right
to inherit property. However, the amendment limits itself
as it continues "if she gets marriage after having
property that should be returned back to the brothers by
deducting the marriage cost."
With the restoration of multiparty democracy
in 1990, the new constitution guaranteed that no one should
be discriminated against on the basis of sex. Furthermore,
in 1991, the government ratified the UN Convention on the
Elimination of all forms of Discrimination Against Women
(CEDAW-1979). The nation's Women's Movement demanded that
all inequalities in Nepali law be eliminated and focused
attention on the equal right of women to inherit property.
All political parties have included this demand in their
respective election manifestos. The opposition party in
parliament, the Communist Party of Nepal-Unified Marxist-Leninist,
has raised this issue repeatedly but the government has
neither considered it seriously, nor taken any initiation
to amend discriminatory laws.
In 1993, a case was finally filed in the
Supreme Court with a demand to amend the Civil Code to give
women equal rights over property.
After two years, in 1995, the Supreme
Court issued a directive to the government to introduce
a Bill in parliament that would guarantee a woman's rights
to inherit property.
Following the Supreme Court directive,
the Ministry of Women and Social Welfare drafted a Bill,
popularly known as the "Women's Property Rights Bill"
in order to amend the existing Civil Code. It was tabled
for discussion in the 11th session of Parliament.
It took almost six years more to be passed
through parliament, despite a number of other Bills being
adopted in this time parliament. During this period, different
political parties and parliamentary committees have made
a number of changes to the original Bill.
On July 17, 2001, a parliamentary committee
unanimously declared that women should have equal rights
to inherit property. However, the ruling Nepali Congress
party expressed some disagreement and proposed that inherited
property "should be returned back to respective brother/s
if she gets marriage". The ruling party passed the
Bill with a majority vote in the Lower House of Parliament
in October 2001. But, the Upper House - National Assembly,
which is dominated by the opposition party, failed the Bill
and it was sent back to the Lower House for reconsideration.
In due process, the Bill came back to
the Lower House. Here, the ruling party was pressing for
the Bill to be adopted while the main opposition party,
supported by almost all women organizations, was pressing
hard to guarantee inherited property rights for women equivalent
to that of their brother/s.
In this situation, there was a risk that the Bill would
not be passed again and it might take several more years
to go through another round of discussion. At this point,
the opposition party made the tricky decision to vote for
a Bill with its reservation on the provision, which do not
recognize the equal right of sons or daughters to inherited
property after marriage.
Major Achievements through 11th Amendment
in Civil Code-2020 (1963)
After all these turning points, the bill
was finally passed in parliament on March 14, 2002. It was
sent to the King for his seal of approval and came into
effect from September 27, 2002. The major achievements of
this amendment are as follows:
· Women's Right to Property
Today, women in Nepal can enjoy their right to inherit property
from birth. But when they marry any property will be returned
to the parent's family. The new law establishes a wife's
equal right to her husband's property immediately after
marriage, rather than after she reaches 35 years of age
or has been married for 15 years as before. A widow's right
to claim her share of property from the joint family after
the death of her husband, and to use this property even
if she gets re-married, is now also established in law.
· Women's Right to Divorce
The Bill gives women the right to seek divorce from her
husband if he harasses her physically or psychologically;
if he establishes sexual relationships with other women;
if he is incapable of producing children; or if he is affected
by and STD, including HIV/AIDS. Previously, the law allowed
a wife to claim only food stuff from her husband for the
five years following their divorce. Today, a woman can also
· Increase Penalty for Polygamy
Polygamy is still rampant in Nepal, though it was declared
illegal in 1975. Previously, those who violate the law in
this regard face a punishment of 1 to 3 months in prison
or a fine of 1000 to 2000 Rupees, or both. The new amendment
increases these punishments, a man can now face 1 to 3 years
in prison or a fine of 5000 - 25,000 Rupees, or both.
· Women's Right to Abortion
Previously, abortion was illegal unless a doctor advised
that a mother's life was endangered unless a foetus was
aborted. Charged with this crime, more than five dozen women
are imprisoned across Nepal. The new law legalizes abortion
with some conditions. In normal cases a woman can make her
own decision to go through with an abortion, though only
within the first 12 weeks of pregnancy. However, if the
child's delivery endangers the mother's life, or if a women
becomes pregnant through rape or incestuous sexual relations
then abortions can take place within 18 weeks of pregnancy.
Nepal is the first South Asian country to legalize abortion
in this way.
· Stern Action against persons
involved in Rape
Rape is one of the major issues that has
been raised by the women's movement in Nepal. In this regard,
the amendments to the civil code make the law stronger and
increase the punishment for rapists. According to the new
provisions, a rapist can be imprisoned for 10-15 years,
if their victim is below 10 years of age; 7-10 years of
imprisonment, if their victim is between 10 and 16 years
of age; and 5 - 7 years of imprisonment, if the victim's
age is above 16 years.
In each category, an additional five years
of prison can be given if the victim is a pregnant or disabled
Lacunas still remain
It is a big achievement that women have been granted more
legal rights with this amendment. But, there remain issues
to be addressed. One major issue is to establish equal rights
of property inheritance regardless of a women's marital
status. The struggle to achieve rights based on gender is
ongoing. If gender equality has not been achieved even when
important goals are met then the struggle should continue.
There is a bigger challenge ahead of the women's movement.
Until and unless women and men in wider society are aware
of these new legal instruments, they cannot bring any remarkable
change to the real lives of Nepalese women. In this regard,
it is the role and responsibility of the women's movement
to make women and men aware of their legal rights. At the
same time, social and bureaucratic structures including
those in civil society and government must institutionalize
these changes. Only in this way will feudal and traditional
attitudes towards women's rights change.
To ensure the impact of these legal rights,
authority should be delegated in a practical way and the
implementing apparatus should be correctly managed. The
women's movement can lead the campaign to make people aware
and to check that the law is implemented properly. We can
prove that legal instruments are important tools and play
a crucial role in creating gender equality in society.