Family Law

Hindu influence on Nepal's family law

1. Introduction

Nepal's family law was for centuries based on Hindu dharmashastra. The Muluki Ain of 1854 (Jang Bahadur Rana) expressed that tradition, with caste hierarchy, male-centred inheritance and the husband's authority over the wife. Nepal was a Hindu kingdom until 2063 BS (2006), and the Constitution of Nepal 2072 declares the state secular (Article 4). The Muluki Civil Code, 2074 (2017), in force from Bhadra 1, 2075, replaced the Muluki Ain. The question is how far the old tradition survives.

2. To what extent is the influence still present? A balanced view

The influence is partial: much of the vocabulary, structure and many institutions come from Hindu law, but the Code has removed many of the discriminatory rules, and it applies to all citizens of every religion.

Where Hindu influence remains

• Marriage as a social and religious institution: the Code recognises marriage solemnised by the customary and religious rites of the parties, and it prohibits marriage within close degrees of kinship (a rule of Hindu origin, though also justified on health grounds).
• Family property: the idea of ancestral or joint family property (aunsa, partition or ansabanda) comes from Hindu joint-family law.
• Stridhan: the woman's own property received at marriage and from her natal family (including daijo and pewa) is recognised and protected.
• Adoption: the Code regulates adoption (dattak), with its traditional purpose of continuing the family line, but now subject to the child's best interest.
• Maintenance duties and the joint family: the duty to support dependants and aged parents reflects the Hindu ideal of family obligation.

Where the Code has broken from the tradition

• Equal inheritance: sons and daughters share family property equally, whether married or unmarried, a reform from the earlier discriminatory rules.
• Marriage age: 20 years for both men and women, with no exception for religious rites.
• No caste or religion-based rules: the Code removes caste hierarchy and the treatment of persons as of unequal status.
• Divorce and equality of spouses: both spouses have equal rights to seek divorce, and property acquired after marriage is shared; polygamy is an offence under the Penal Code, 2074, and the Code recognises the equal status of spouses.
• Rights of the child: the Code and the Act Relating to Children, 2075, treat the child's best interest as the central test.
• Recognition of diverse communities: customary practices of different communities are recognised only to the extent that they are consistent with the Constitution and equality.

3. Rights derived from the Hindu legal tradition now in the Code

1. Right to a share in family (ancestral) property and to partition, now extended equally to daughters.
2. Right of a woman to her stridhan.
3. Right to maintenance of wife, children, aged parents and dependent relatives.
4. Right to adopt and to be adopted, with legal effects on succession.
5. Right to solemnise marriage by customary religious rites, and prohibitions of marriage within prohibited degrees.

4. Conclusion

Nepal's family law remains influenced by Hindu tradition in its concepts and institutions, but the influence is selective. The Muluki Civil Code, 2074, reshapes these concepts according to constitutional values: secularism, equality and the dignity of women and children. The law is therefore best described as Hindu in origin but secular and egalitarian in operation.

Nepali law on the relationship between parents and children

1. Sources

The main sources are the Constitution of Nepal 2072 (Article 38 on rights of women, Article 39 on rights of the child, and Article 41 on the rights of senior citizens), the Muluki Civil Code, 2074 (Part on family relations), the Act Relating to Children, 2075, the Penal Code, 2074, and the UN Convention on the Rights of the Child, which Nepal has ratified.

2. Legal status of the child

• A child born in lawful marriage is the legitimate child of both parents. A child born outside marriage has a right to the identity and name of its parent(s), and the law prohibits discrimination against it.
• Persons below 18 years are children for the purposes of the Children Act; the age of majority for contracts and marriage is higher (marriage requires age 20 for both).

3. Duties of parents toward children

• Maintenance and care: parents must provide food, clothing, shelter, health care and education to their children according to their means.
• Guardianship: parents are natural guardians and manage the child's person and property in the child's interest.
• Protection: parents must not abuse, neglect, exploit or marry off the child; physical or humiliating punishment is prohibited by the Act Relating to Children, and the Penal Code punishes child marriage, abandonment, and abuse.
• Custody after separation: where parents divorce or separate, the court decides custody by the best interest of the child; young children are ordinarily kept with the mother, and the other parent has a duty to provide maintenance.

4. Rights of parents over children

• Right to the child's custody and upbringing, and to give the child's name and guidance.
• Right to be maintained by children in old age.
• Right to consent to the child's adoption, in the manner provided by law.

5. Duties of children toward parents

Adult children with the means must maintain and care for their parents and senior citizens. The Constitution and the Senior Citizens Act protect senior citizens, and neglect of the old and abandonment may be sanctioned.

6. Property and inheritance

Sons and daughters have equal rights in the property of their parents, including the right to partition on equal terms. The child's own property is managed by the guardian only in the child's interest.

7. Adoption

The Civil Code allows adoption subject to conditions: the adopter's age and capacity, the child's best interest and consent where applicable, and the approval of the authorities. An adopted child is treated as the child of the adopter with the same rights, including inheritance, and ordinarily ends the legal relationship with the birth family.

8. Conclusion

The law treats the parent-child relationship as one of reciprocal duties: parents protect, educate and maintain; children, when able, support their elders. The guiding principle is the best interest of the child and equality between sons and daughters.

Punishable marriages in Nepal

1. Meaning

A punishable marriage is a marriage that the law forbids and makes a criminal offence, so that the persons who enter into it, and those who help to arrange or solemnise it, are liable to punishment. Such a marriage is often also void or voidable under the Muluki Civil Code, 2074. The offences are in the Penal Code, 2074, which also governs the punishment.

2. Types of punishable marriage

1. Child marriage: marriage of a person below the legal age of 20 years. The punishment is imprisonment and fine, graded by the age of the child, and the marriage is void. Parents, guardians and anyone who arranges or solemnises such a marriage are also liable.
2. Bigamy or polygamy: marrying again while the first spouse is alive and the marriage subsists, without being legally divorced. Imprisonment and fine are provided, the second marriage is void, and the person who knowingly marries a married person is also liable.
3. Marriage by force, fraud or coercion: marriage made without the free consent of a party, or obtained by deceit, threat, abduction, or false representation. Such marriages are voidable and punishable.
4. Marriage within prohibited degrees of relationship (incestuous marriage): marriage between close relatives, which is void and punishable.
5. Marriage by concealing facts: for example, concealing an existing marriage or serious facts about the person's status.

Those who assist, such as relatives, priests and witnesses who knowingly take part, may be punished as abettors.

3. Reasons for the increase in child marriage

• Poverty and the burden of supporting daughters.
• Low education, especially of girls, and lack of awareness of the law.
• Social norms, tradition and fear of social stigma and "honour".
• The dowry system in some communities, where the dowry is lower for a younger bride.
• Elopement and early love marriage among adolescents, often with weak support to teenagers.
• Weak enforcement of law, with settlement of cases by social pressure.
• Migration, disasters (such as the 2015 earthquake) and the COVID-19 lockdown, which increased vulnerability and school drop-out.

4. Reasons for the persistence of polygamy

• Desire for a son, or the first wife having no children.
• Social acceptance in some communities and male dominance.
• Economic dependence of women, leading them to accept a co-wife.
• Many marriages are not registered, which makes proof difficult.
• Migration: long absence of husbands, who form second relations.
• Lack of awareness, weak enforcement, and out-of-court settlements.

5. Measures

Strict enforcement of the law, compulsory registration of marriage, education and economic opportunity for girls, awareness campaigns, and support for victims through legal aid and local government.

Family relations under Nepali law

The governing laws are the Muluki Civil Code, 2074, the Act Relating to Children, 2075, the Penal Code, 2074, and the Constitution of Nepal 2072.

1. Rights and duties of husband and wife

Equal status. The law treats spouses as equals: neither has authority over the other, and discrimination on the ground of sex in the family is prohibited.

Rights

• Right to live together and to the company, love and respect of the spouse.
• Right to maintenance by the spouse who is able to provide it.
• Right to a share in property acquired during marriage, and the wife's right to her stridhan as her own.
• Right to seek divorce on the grounds provided by law, equally for both.
• Right to residence in the family home.

Duties

• Duty to live together, to remain faithful and to care for one another.
• Duty to maintain the spouse and children according to means.
• Duty to respect the spouse's family, to avoid cruelty, and not to commit domestic violence, which is punishable under the Domestic Violence Act, 2066.
• Duty not to contract a second marriage while the first subsists.

2. Mutual rights and duties of parents and children

• Parents must maintain, educate, protect and care for their children and manage their property in their interest; they must not abuse, neglect or marry off a child.
• Children have the right to name, identity, nationality, care and education, and equal rights in family property irrespective of sex.
• Adult children have a duty to maintain and care for aged parents who cannot provide for themselves.
• On separation, custody is decided in the best interests of the child, and the non-custodial parent still has the duty of maintenance.

3. Factors contributing to fragmentation of families in contemporary Nepal

1. Migration: large-scale foreign employment, and movement from villages to cities, separates spouses and splits joint families into nuclear ones.
2. Urbanisation and housing costs: shifts from the joint to the nuclear family.
3. Economic pressures and individualism: the need for income, job mobility, and changing values and aspirations.
4. Education and women's empowerment: women's economic independence and awareness of their rights make them less willing to tolerate abuse, and increase divorce and separation.
5. Weakening of traditional institutions: loss of elders' authority and decline of religious and community controls.
6. Marital conflict, domestic violence, infidelity and polygamy.
7. Property disputes among siblings and in-laws, leading to partition.
8. Social media and technology, which changes communication patterns, plus alcohol and drug abuse.
9. Early and arranged marriage with no real consent of the couple.
10. Legal changes: easier divorce and equal inheritance rights, which reduce dependence on the joint family.

4. Conclusion

Nepali law defines family relations as reciprocal, with equality of spouses and the child's best interest at the centre. Social changes, particularly migration and women's empowerment, are changing the family structure, so the law must adjust through counselling, mediation and support for vulnerable members.

(b) Void marriage

A void marriage is one that is invalid from the very beginning (void ab initio); in law it is treated as never having existed, and no decree of a court is needed to make it void. It differs from a voidable marriage, which is valid until a court annuls it at the request of the affected party.

Grounds under Nepali law (Muluki Civil Code, 2074):

• Marriage while a spouse is living and the earlier marriage still subsists (bigamy).
• Marriage between persons within the prohibited degrees of relationship.
• Marriage below the legal age of 20 years.
• Marriage of a person who lacks the capacity to understand it.
• Marriage without observance of the essential legal requirements.

Effects: no rights or duties of husband and wife arise from the marriage; the parties may be punished under the Penal Code in the case of child marriage and bigamy; the law still protects the children and the innocent party, who may claim maintenance and protection.

(c) Difference between jari and adultery

Jari is the traditional term, from the old Muluki Ain, for sexual relations between a married person and someone other than the spouse, treated as an offence against the husband. The old law was gender-biased: it was aimed mainly at the wife's lover, and the husband's rights were the focus. Adultery in the modern sense is voluntary sexual intercourse of a married person with someone who is not the spouse, whether the person is a man or a woman.

(d) Difference between alimony and child custody

(a) Family law in the Lichhavi period (c. 400-750 AD)

Family law in the Lichhavi period is known mostly from inscriptions and from the influence of Hindu dharmashastra. Marriage was regarded as a sacrament, usually arranged within the caste, and polygamy was known, especially among the ruling class. Sons were the main heirs, women had rights to stridhan, and adoption was used to continue the family line. Divorce was limited, widows were socially restricted, and offences against the family were punished by the state according to caste. The period shaped the later Hindu character of Nepali family law.