The National Civil Code, 2017 (2074) marks a significant milestone in Nepal's legal history as a landmark piece of legislation that governs key aspects of personal and family law, including marriage, divorce, property rights, and other family matters. Enacted with the vision of replacing antiquated legal provisions, the Code strives to align legal practices with contemporary values of gender equality and social justice while codifying various traditions and norms into a coherent and modern framework. This article provides a comprehensive analysis of the provisions related to marriage, divorce, and family matters under the Code.
 

Marriage Under the National Civil Code, 2017

Marriage in Nepal is legally recognized as a social institution and a contractual relationship between two individuals.
The Code outlines several essential provisions regarding marriage:

1. Validity of Marriage (Section 70-75) For a marriage to be legally valid, it must fulfill the following conditions:
   • Both parties must consent to the marriage.
   • The minimum legal age for marriage is 20 years for both men and women.
   • The marriage must not be incestuous (within prohibited degrees of relationship).
   • If either party is already married, they must have obtained a legal divorce or the first spouse must be deceased.
      
2. Registration of Marriage (Section 77)
   • Marriage must be registered with the local government authority.
   • Non-registration does not invalidate a marriage, but registration provides legal proof and facilitates the exercise of legal rights.
      
3. Rights and Responsibilities in Marriage (Section 79-81)
   • 
     Both spouses have equal rights and obligations in a marriage.
   • Mutual consent is required for decisions affecting the family, such as child-rearing, finances, and property.
   • Domestic violence and cruelty are grounds for legal action.

Divorce Under the National Civil Code, 2017

Divorce laws in Nepal have evolved to provide fair and equitable solutions while ensuring the protection of women and children.

The Code recognizes both mutual consent divorce and contested divorce.

1. Divorce by Mutual Consent (Section 93)
   • If both spouses agree to divorce, they can file a joint application in the court.
   • The court may grant divorce after ensuring that the decision is voluntary and that financial and custodial arrangements are in place.
2. Divorce by One Party (Section 94) One spouse can file for divorce on the following grounds:
   • Adultery
   • Cruelty or domestic violence
   • Desertion for three consecutive years
   • Severe mental illness or incurable disease
   • Non-fulfillment of marital obligations
3. Financial and Custodial Arrangements in Divorce (Sections 95-97)
   • The court determines child custody based on the best interests of the child.
   • The non-custodial parent must provide child support.
   • A dependent spouse may receive alimony or maintenance.
   • Division of jointly owned property is decided by the court, often granting equal shares.

Other Family Law Provisions Under the National Civil Code, 2017

1. Parental Rights and Child Custody (Section 100-105)
   • Both parents have equal rights over their children.
   • Custody is granted based on the child’s welfare, with preference given to the primary caregiver.
   • Child support is mandatory regardless of marital status.
2. Property Rights of Women (Section 115-118)
   • Women have equal rights to parental property.
   • A wife has rights over jointly acquired property in a marriage.
   • Upon divorce, women are entitled to claim their rightful share of the property.
3. Adoption Laws (Section 120-125)
   • Adoption is legally recognized and must be registered.
   • Both married and unmarried individuals can adopt under certain conditions.
   • Adopted children have the same rights as biological children.

Historical Context:

The National Civil Code, 2017 (2074), is a pivotal piece of legislation in Nepal's legal history, and its roots can be traced back to the country's evolving socio-political landscape and legal reforms.

1. The Muluki Ain (1854): Before the National Civil Code, Nepal's legal system was primarily governed by the Muluki Ain, a comprehensive legal code introduced in 1854 by Prime Minister Jung Bahadur Rana. While progressive for its time, the Muluki Ain was deeply influenced by the caste system and traditional norms, which often perpetuated social inequalities.
    

   Key features of the Muluki Ain:

   The Muluki Ain, introduced in 1854 by Prime Minister Jung Bahadur Rana, was Nepal's first comprehensive legal code. It aimed to regulate various aspects of public, private, and religious law while reflecting the socio-cultural norms of the time. Here are its key features:
   • Caste-Based Legal Framework: The Muluki Ain categorized Nepalese society into hierarchical caste groups, such as Tagadhari (Sacred Thread Wearers), Matawali (Alcohol Drinkers), and Untouchables. Legal provisions and punishments varied based on caste.
   • Uniform Punishment System: The code emphasized uniformity in punishment, ensuring that penalties corresponded to the severity of the crime and the caste of the offender.
   • Codification of Hindu Jurisprudence: It was heavily influenced by Hindu legal traditions, blending them with Western codification practices to create a synthesized legal framework.
   • Comprehensive Coverage: The Muluki Ain addressed a wide range of issues, including criminal law, family law, property rights, and social practices like widow-burning and witchcraft.
   • Abolition of Ordeal System: It abolished the ordeal system, which involved physical trials to determine guilt or innocence.
   • Humanitarian Provisions: The code included protections for vulnerable groups, such as women, children, and the poor, ensuring their rights in legal proceedings.
   • Principle of Res Judicata: It adopted the principle of res judicata, preventing the same case from being tried multiple times.
   The Muluki Ain was a groundbreaking legal document for its time, but it also reinforced social hierarchies and discriminatory practices. Its legacy paved the way for modern legal reforms in Nepal.
    

   Impact of the Muluki Ain have on Nepalese society:

   The Muluki Ain of 1854 had a profound and multifaceted impact on Nepalese society, shaping its legal, social, and administrative structures. Here are some of its key influences:
   • Legal Standardization: The Muluki Ain was Nepal's first comprehensive legal code, providing a unified framework for governance. It replaced fragmented and localized legal practices, creating a standardized system that applied across the country. This helped establish a sense of legal uniformity and state authority.
      
   • Reinforcement of the Caste System: While the Muluki Ain aimed to codify laws, it also institutionalized the caste system by categorizing society into hierarchical groups. Legal rights, duties, and punishments were often determined by caste, reinforcing social stratification and discrimination.
      
   • Modernization of Governance: The code introduced elements of modern legal systems, such as codification and uniformity in punishment. It marked a shift from traditional and oral legal practices to a written and structured legal framework, aligning Nepal with contemporary governance trends.
      
   • Social Reforms: The Muluki Ain addressed certain social issues, such as the abolition of the ordeal system (physical trials to determine guilt) and the regulation of practices like widow-burning (sati). These reforms reflected a move toward more humane legal practices.
      
   • Gender and Property Rights: The code included provisions for women's rights, such as inheritance and property ownership, albeit limited and influenced by patriarchal norms. It marked an early attempt to address gender disparities within the legal framework.
      
   • Cultural Preservation: By codifying laws based on Hindu jurisprudence, the Muluki Ain sought to preserve Nepal's cultural and religious identity. However, this also meant that the legal system was heavily influenced by Hindu traditions, often marginalizing non-Hindu communities.
      
   • Foundation for Future Reforms: The Muluki Ain laid the groundwork for subsequent legal developments in Nepal. While it had its limitations, it provided a foundation for the evolution of more inclusive and equitable legal codes, such as the National Civil Code, 2017.
   In summary, the Muluki Ain was a landmark in Nepal's legal history, balancing modernization with tradition. However, its reinforcement of caste-based hierarchies and gender inequalities also highlighted the need for continued legal and social reforms.
    
2. Democratic Movements and Legal Reforms: The mid-20th century saw significant political changes in Nepal, including the end of the Rana regime in 1951 and the establishment of a constitutional monarchy. These shifts created a demand for legal reforms to align the country's laws with democratic principles and human rights.
    
3. The 1990 Constitution: The promulgation of the 1990 Constitution marked a turning point in Nepal's legal framework. It emphasized fundamental rights, gender equality, and social justice, laying the groundwork for more inclusive laws.
    
4. The 2015 Constitution: Following the abolition of the monarchy and the declaration of Nepal as a federal democratic republic in 2008, the 2015 Constitution was adopted. This constitution enshrined principles of equality, non-discrimination, and social justice, creating a mandate for the modernization of existing laws, including family law.
    
5. Codification and Modernization: The National Civil Code, 2017, was introduced to replace the outdated Muluki Ain and to codify various aspects of personal and family law. It aimed to address contemporary issues, promote gender equality, and ensure social justice in line with Nepal's constitutional values.

The Code reflects Nepal's journey toward a more equitable and just legal system, balancing traditional values with modern principles. It represents a significant step in the country's legal evolution, addressing the needs of a diverse and dynamic society.

Since the enactment of Nepal's National Civil Code in 2017 (2074), several landmark judgments have shaped the legal landscape concerning marriage, divorce, and family matters.
Below is a summary of notable cases:

• Recognition of Same-Sex Marriages
  • Case: Pinky Gurung et al. v. Office of the Prime Minister and Council of Ministers (2023)
    Summary: In June 2023, the Supreme Court of Nepal issued an interim order directing the government to establish a transitional mechanism for registering marriages of same-sex and non-heterosexual couples. The court emphasized that denying marriage rights based on sexual orientation violates the constitutional right to equality.
  • Case: Adheep Pokhrel & Tobias Volz v. Ministry of Home Affairs & Department of Immigration (2023)
    Summary: Earlier in 2023, the Supreme Court recognized marriage equality by directing the Ministry of Law and Justice to draft or amend legislation to accommodate equal marriage rights, highlighting the need for legal recognition of same-sex marriages.
     
• Visa Rights for Foreign Same-Sex Spouses
  • Case: Suman Panta v. Ministry of Home Affairs & Department of Immigration (2017)
    Summary: The Supreme Court ruled that a foreign national married to a Nepali citizen of the same sex is entitled to a non-tourist visa as a dependent. The court held that denying such a visa violates the fundamental right to live with dignity without discrimination.
     
• Gender Equality in Marriage Dissolution
  • Case: Sapana Pradhan and Others v. Prime Minister and Council of Ministers and Others (2007)
    Summary: The Supreme Court found that provisions allowing a husband to dissolve a marriage due to the wife's infertility were discriminatory. The court declared such provisions inconsistent with the constitutional right to equality and directed the government to amend the law to ensure equal treatment for both spouses regarding marriage dissolution.
     
• Non-Recognition of Non-Heterosexual Marriages by Lower Courts
  • Case: Maya Gurung and Surendra Pandey v. Kathmandu District Court (2023)
    Summary: Despite progressive Supreme Court rulings, the Patan High Court upheld a decision by the Kathmandu District Court refusing to register the marriage of a transgender woman and a gay man. The courts cited the National Civil Code's definition of marriage as being between a man and a woman, highlighting ongoing challenges in achieving marriage equality at all judicial levels.

These judgments reflect Nepal's evolving legal stance on marriage, divorce, and family matters, particularly concerning the rights of sexual and gender minorities. While the Supreme Court has issued progressive rulings, implementation and recognition at all levels of the judiciary remain areas for continued advocacy and legal development.
 
Conclusion
The National Civil Code, 2017 (2074) marks a significant step towards modernizing Nepal’s family law framework. It ensures gender equality, protects the rights of spouses and children, and provides clear legal pathways for marriage, divorce, and other family matters. While the Code aligns with international human rights principles, challenges remain in its effective implementation, particularly in rural areas where customary practices still prevail. Strengthening awareness and legal enforcement mechanisms will be crucial to ensuring that family law in Nepal serves the best interests of all individuals. As Nepal continues its journey toward progress, the effective implementation and evolution of the National Civil Code will undoubtedly play a pivotal role in shaping a fairer and more inclusive society.

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