Actus non facit reum nisi sit mens rea is a Latin maxim which means "an act does not make a person guilty unless the mind is also guilty." It is one of the fundamental general principles of criminal law. The maxim lays down that a person cannot be held criminally liable merely because he has done a prohibited act; it must also be proved that he did that act with a guilty mind (mens rea). In other words, both a guilty act (actus reus) and a guilty mind (mens rea) must exist together to constitute a crime. The physical act alone, without the mental element, is not sufficient to impose criminal liability.

Justification of the principle:

1. Requirement of two elements: Every crime consists of two essential elements — actus reus (the physical act or conduct) and mens rea (the mental state such as intention, knowledge, recklessness or negligence). The maxim stresses that the union of these two elements is necessary for criminal guilt.

2. Protection of innocent persons: If mere commission of an act were enough to create liability, then even a doctor performing a lawful operation, a person causing an accident without fault, or a child playing with a sharp object could be punished. The principle protects such innocent persons from unjust punishment.

3. Basis of moral blameworthiness: Criminal law punishes a person because he deserves blame. A person deserves blame only when he chooses to do a wrongful act with a guilty mind. Without mens rea, there is no moral culpability and hence no justification for punishment.

4. Distinction between crime and tort or accident: An act causing harm may give rise to civil liability or may be a mere accident. It becomes a crime only when the mental element required by law is present. Thus the principle helps distinguish crime from accident and from civil wrong.

5. Recognition in law: The principle is recognised in Nepal and in other legal systems. Section 2(d) of the National Penal Code, 2074 defines a crime as an act or omission punishable by law, and the Code generally requires intention, knowledge or negligence for most offences. Similarly, in English law the maxim Actus non facit reum nisi sit mens rea was applied in R v. Faulkner and R v. Tolson, where the accused was acquitted because the required guilty mind was absent.

Suitable example:

Suppose A is driving his car carefully on the correct side of the road. Suddenly a child runs in front of the car, and despite A applying the brakes immediately, the child is hit and dies. Here A has caused the death of a child, which is the actus reus of homicide. But A had no intention to kill, no knowledge that his act would cause death, and no negligence, because he was driving carefully. Therefore mens rea is absent. Under the maxim Actus non facit reum nisi sit mens rea, A cannot be held guilty of murder or any other crime, because the act alone does not make him guilty without a guilty mind.

Conclusion:

The maxim Actus non facit reum nisi sit mens rea is a cornerstone of criminal law. It ensures that criminal liability is imposed only when a wrongful act is accompanied by a guilty mind. It safeguards the innocent, upholds the principle of justice, and forms the basis for determining guilt in criminal cases. Hence, the statement is fully justified.

Yes, the courts of Nepal can exercise jurisdiction over "A".

1. Governing law. Jurisdiction over offences is governed by the extra-territorial provisions of the Muluki Criminal Code, 2074 (Chapter on jurisdiction/application of the Code), read with the Human Trafficking and Transportation (Control) Act, 2064 and the Constitution's guarantee against trafficking (Art. 29, right against exploitation).

2. Application to the facts.

• Nationality principle. "A" is a citizen of Nepal. The Code applies to a Nepali citizen who commits an offence punishable under Nepali law outside Nepal, so his residence in India does not take him outside Nepali jurisdiction.
• Territorial principle. The victims are taken from Nepal. Recruitment, enticement and the start of transportation take place on Nepali soil, and the Trafficking Act treats taking a person out of the country for sale or exploitation as an offence. A part of the offence is therefore committed in Nepal.
• Agent "B". B acts inside Nepal on A's instructions. B is liable as a principal or accomplice (abetment, conspiracy) and can be tried in Nepal. A is liable for B's acts as the person who procured and directed them.
• Protective principle. The victims are Nepali and the offence harms Nepal's interest in protecting its people; the Trafficking Act also makes the offence punishable when the victim is a Nepali taken abroad.

3. Practical issues.

• Presence of the accused. Since A is in India, Nepal can try him only if he is brought before the court. This is done through the Extradition Act, 2070 and the Nepal-India extradition arrangements, or through mutual legal assistance (Mutual Legal Assistance Act, 2070).
• Trial and limitation. Prosecution is by the government as plaintiff in the District Court. Trafficking cases must be filed within the limitation period fixed by the Act (traditionally counted from the date the victim is rescued or the offence becomes known).
• International commitments. Nepal is party to the UN Palermo Protocol on trafficking and the SAARC Convention on trafficking in women and children, which support cooperation.

Conclusion. Because A is a Nepali citizen and part of the offence was carried out in Nepal through B, the Nepali courts have jurisdiction. Actual trial depends on securing A's presence through extradition or legal assistance.

Answer

1. The general rule: actus reus as a constituent element of crime

Under the general principles of criminal law, a crime consists of two elements:

• Actus reus — the physical element: a voluntary act, omission or state of affairs prohibited by law.
• Mens rea — the mental element: the guilty mind or blameworthy mental state (intention, knowledge, recklessness or negligence).

The maxim "actus non facit reum nisi mens sit rea" (an act does not make a person guilty unless the mind is also guilty) expresses the orthodox position. The statement "no actus reus, no crime" therefore means that unless there is a prohibited physical act (or omission), no criminal liability can arise. A mere thought, intention or desire is not punishable. Thus actus reus is a constituent element of crime in the general sense.

2. The concept of strict liability

Strict liability offences are those in which the prosecution need not prove mens rea — the guilty mind — in respect of one or more elements of the actus reus. Liability arises merely on proof that the accused did the prohibited act. Such offences are generally created by statute, particularly in the fields of:

• Public welfare and social legislation (food adulteration, drugs, weights and measures, environment, motor traffic, revenue, excise, arms, explosives);
• Regulatory and licensing laws;
• Laws protecting public health, safety and morality.

3. Correlation between "no actus reus, no crime" and strict liability

The statement "no actus reus, no crime" is fully consistent with and even more strongly applicable to strict liability offences. The correlation may be explained as follows:

(a) Actus reus remains indispensable. Even in strict liability, the accused cannot be convicted unless the prohibited act or omission is proved. What strict liability dispenses with is mens rea, not actus reus. Thus the physical element is still the very foundation of liability — "no actus reus, no crime" holds true with greater force.

(b) Mens rea is irrelevant, actus reus is decisive. In strict liability, the prosecution need only prove:

• the act was done by the accused, and
• the act fell within the prohibition of the statute.

For example, under food adulteration law, selling adulterated food is punishable even if the seller did not know it was adulterated. The sale (actus reus) alone suffices.

(c) The "act" itself constitutes the offence. In strict liability, the actus reus is not merely evidence of a guilty mind; it is the offence. The prohibited act, standing alone, completes the crime. Hence the absence of actus reus means the absence of the crime itself.

(d) No actus reus, no liability even without mens rea. Conversely, if the accused did not do the prohibited act at all — for instance, did not sell, possess or discharge the substance — there is no crime, however blameworthy the intention. Thus actus reus operates as the sine qua non of strict liability.

(e) Exceptions confirm the rule. Even in strict liability, defences such as act of God, mistake of fact, necessity or statutory exception may be available. These defences either negate the actus reus or are expressly provided by the statute, again showing that the physical element is central.

4. Conclusion

The statement "no actus reus, no crime" is a fundamental principle of criminal law. In strict liability offences, mens rea is dispensed with, but actus reus is not. On the contrary, the actus reus alone is sufficient to establish guilt. Hence the statement is not contradicted by strict liability; rather, strict liability reinforces the principle that the physical act is the indispensable constituent element of every crime.

Forgery as a crime related to documents — opinion

I agree with the statement. Forgery is essentially an offence against documents, because it can be committed only by making a false document or a false electronic record, or by using a genuine document in a false way. The essence of the offence is not the taking of property but the injury to the authenticity and credibility of a document, on which the whole legal and commercial life of society depends. Chapter 16 of the Muluki Criminal Code, 2074 (Sections 244–253) deals with offences relating to documents, and forgery is the principal offence in that chapter. Section 244 defines forgery as making a false document or false electronic record, wholly or partly, with intent to cause loss or harm to any person or to obtain any benefit for oneself or another. Section 245 punishes it with imprisonment of up to five years and a fine of up to Rs 50,000. Related offences in the same chapter — using a forged document (Section 246), forging a government seal or seal of a public office (Section 247), forging currency notes or coins (Section 248), and forging a passport, visa or public document (Section 249) — all confirm that the protected interest is the truthfulness of documents. Hence forgery is rightly classified as a crime relating to documents.

Difference between forgery and fraud

Conclusion

Forgery and fraud are distinct but often overlapping offences. Forgery attacks the truth of a document, while fraud attacks the property of a person through deceit. Where a false document is made and then used to cheat someone, both offences are committed and the offender may be punished for both.

Yes, I agree with the statement that murder is also known as Jyanmaru (ज्यानमारु) in Nepal. In Nepali legal language, Jyanmaru literally means "killing of a life" or "homicide," and it is the term used in Nepali statutes and legal practice to denote the offence of murder/unlawful killing. The statement is correct in substance, though a small clarification is needed: Jyanmaru is the broader Nepali term for homicide (unlawful killing of a human being), of which "murder" is the most serious form. The following description explains this.

1. Meaning of the term Jyanmaru

• Jyan (ज्यान) = life; Maru (मारु) = killing/killer. Thus Jyanmaru literally means "life-killing" i.e. homicide.
• In Nepali legal usage, Jyanmaru is used for the offence of causing the death of a human being, and the person who commits it is called Jyanmaru (the killer).
• In English legal terminology, the corresponding offence is "homicide," and its aggravated form is "murder."

2. Legal basis in Nepal

• Before the Muluki Ain (Muluki Criminal Code) was revised, homicide offences were dealt with under the Muluki Ain (Chapter on Jyanmaru), where the heading itself used the word Jyanmaru.
• After the Muluki Criminal Code, 2074 (2017), the offence is placed under Chapter 9 – Offences against Life (Jyan Sambandhi Kasar), and the relevant provisions are Sections 176 to 178:
  • Section 176 – Jyanmaru (murder/homicide): intentionally causing the death of another person.
  • Section 177 – Jyanmaru committed with cruelty/torture or in a gruesome manner (aggravated murder).
  • Section 178 – Jyanmaru committed with premeditation/planning (premeditated murder).
• The Code also deals with related offences such as attempt to murder, abetment of suicide, causing death by negligence, etc.

3. Elements of Jyanmaru (murder)

1. Death of a human being – the victim must be a living human being.
2. Unlawful killing – the killing must not be justified by law (e.g., execution of a lawful death sentence, private defence within limits).
3. Intention or knowledge – the accused must have intended to cause death, or known that death was likely to result.
4. Causation – the act of the accused must be the cause of the death.
5. Mens rea (guilty mind) – the mental element distinguishes murder from lesser offences like culpable homicide or death by negligence.

4. Distinction between Jyanmaru and other killings

• Jyanmaru (murder) = intentional unlawful killing with malice.
• Culpable homicide not amounting to murder = killing without the required intention, e.g., sudden provocation, exceeding private defence.
• Death by negligence = unintentional killing due to carelessness.
• In Nepali law, the punishment differs according to the gravity: ordinary Jyanmaru carries imprisonment, while premeditated or cruel Jyanmaru attracts the severest punishment, including life imprisonment.

5. Punishment under the Muluki Criminal Code, 2074

• Section 176: imprisonment up to life imprisonment (depending on the circumstances).
• Section 177 (cruel/brutal murder): life imprisonment.
• Section 178 (premeditated murder): life imprisonment.
• The court may also order compensation to the victim's family.

6. Why the statement is correct

• In Nepali legal practice, lawyers, judges, and textbooks commonly use Jyanmaru for the offence of murder/homicide.
• The term appears in the Muluki Criminal Code itself, in the chapter heading and in the section titles.
• Therefore, saying "murder is also known as Jyanmaru in Nepal" is accurate, provided we understand Jyanmaru as the Nepali equivalent of homicide/murder.

Conclusion The statement is correct. Jyanmaru is the Nepali term for unlawful killing of a human being, and "murder" is its most serious form. In Nepal, the offence is governed by Chapter 9 of the Muluki Criminal Code, 2074 (Sections 176–178), which prescribes severe punishments, including life imprisonment, for Jyanmaru, especially when committed with cruelty or premeditation.

Definition of attempt. An attempt is an act done with the intention of committing an offence which goes beyond mere preparation and comes close to completion, but which fails to produce the intended offence because of some cause other than the offender's own voluntary desistance. The National Penal (Criminal) Code, 2074 punishes attempt as an offence in its own right (Section 10 and the provisions that follow on punishment for attempt), generally with a lesser penalty than the completed offence.

Stages of crime. Intention, then preparation, then attempt, then completion. Intention and preparation are ordinarily not punishable. Attempt is, because the offender has begun to execute the plan and endangered the protected interest.

Elements of attempt.

1. Intention (mens rea) to commit a particular offence.
2. An overt act towards commission that goes beyond preparation.
3. Proximity. The act must be sufficiently near to the offence (proximity test). Buying a weapon is preparation; aiming and firing it at the victim is attempt.
4. Non-completion by reasons outside the offender's control, such as interruption, resistance or bad aim. If the offender voluntarily abandons the plan before the last act, it is not an attempt.

Reference to Mahendra Raj Bam v. Government of Nepal. This Supreme Court decision is cited in Nepali criminal law for the distinction between preparation and attempt. The Court's approach is that liability for attempt arises only when the accused has intended the offence and has gone beyond preparation by an act proximate to its commission. Candidates should state the facts of the case only as they are certain of them, and apply the principle to the facts in the question.

Conclusion. Attempt is punishable because the offender has shown a dangerous intention by acting on it. The line between preparation and attempt is decided on the facts of each case by asking whether the act was proximate to the offence.

a) Comment on ignorance of law is no excuse.

The maxim Ignorantia juris non excusat (ignorance of the law is no excuse) is a fundamental principle of criminal law. This principle dictates that a person cannot escape legal liability by claiming they were unaware of the law they allegedly violated. The rationale behind this rule is twofold: first, the law must be certain and publicly known so that citizens can be expected to know it; and second, if ignorance were a valid defense, it would lead to chaos, as every individual could claim ignorance of every statute. While the law generally holds that one must know the law, courts often distinguish between ignorance of the law and ignorance of the facts. A person may not be criminally liable if they were genuinely unaware of the specific facts constituting the crime (e.g., if they did not know the property belonged to someone else), but they cannot use a lack of knowledge regarding the legal prohibition itself as a defense.

b) Differentiate between theft and robbery.

The key difference between theft and robbery lies in the manner in which the property is taken, specifically whether force or threat is used.

In essence, robbery is an aggravated form of theft because it involves the element of violence or intimidation against a person.

c) Discuss the grounds of voidable marriage.

A voidable marriage is one that is valid until a competent court declares it voidable. This means the marriage is legally recognized but can be annulled (declared void) by the aggrieved party on specific grounds, usually due to defects in consent or capacity. Under relevant personal laws, common grounds for a marriage to be voidable include:

1. Consent obtained by Coercion or Undue Influence: If one party was forced or manipulated into consenting to the marriage, the marriage can be annulled.
2. Non-Consummation (in some jurisdictions): If the marriage was entered into but never consummated due to incapacity or refusal, it may be voidable.
3. Impotence or Incapacity: If one party is physically or mentally incapable of fulfilling the marital obligations, and this was a ground for the marriage, it can be voidable.
4. Fraud or Misrepresentation: If one party was misled about a fundamental aspect of the marriage (e.g., age, existing marital status) through deliberate deceit.

The distinction is crucial: a void marriage is invalid from the beginning (ab initio), whereas a voidable marriage is valid until a legal decree voids it.

d) Classify the inchoate offenses.

Inchoate offenses (or preparatory offenses) are criminal acts that are incomplete; they are steps taken toward committing a full crime but do not constitute the final crime itself. The law recognizes these preparatory acts because they demonstrate criminal intent and can be prevented before the full offense is committed. The primary classifications of inchoate offenses include:

1. Attempt (प्रयास): This is the most common form. It occurs when the accused takes a substantial step towards committing the target offense, and the act is interrupted before completion. The attempt must be more than mere preparation; it must be an overt act in furtherance of the crime.
2. Conspiracy (साजिश): This involves an agreement between two or more persons to commit an unlawful act. The crime is complete upon the agreement itself, even if the target crime is never executed.
3. Abetment (उत्तेजना/सहयोग): This involves instigating, encouraging, or aiding another person to commit a crime. Abetment can be done by instigation (provoking), conspiracy, or intentional aid.

e) Innocent agent

An innocent agent is a person who acts on behalf of a principal (the person who authorizes the action) but who does so without any knowledge of the illegal or wrongful nature of the principal's instructions or the ultimate purpose of the transaction.

Key characteristics of an innocent agent:

1. Lack of Mens Rea (Guilty Mind): The agent does not possess the requisite criminal intent. They genuinely believe they are carrying out a lawful instruction.
2. Reliance on Principal: The agent relies in good faith on the authority granted by the principal.
3. Legal Defense: In many legal systems, the innocent agent can successfully claim the defense of "acting under orders" or "lack of knowledge." If the principal is found guilty, the agent may be absolved of criminal liability because their participation was unwitting.

This concept protects individuals who are merely conduits for criminal activity, provided they were not complicit in the criminal design.

Contributions of the Malla Kings to the Development of Nepalese Criminal Law

The Malla period (roughly 1200–1768 AD) is regarded as the most creative and systematised era in the history of Nepalese criminal law. Before the Mallas, justice was largely customary, personal and based on the whims of the ruler. The Mallas transformed this into a written, structured and relatively humane system. Their main contributions are:

1. Codification of law in written form. The Mallas were the first to reduce law to writing in an organised manner. Jayasthiti Malla (late 14th century) issued the Nyaya Vikasini (also called Manab Nyaya Shastra), which is regarded as the first systematic legal code of Nepal. It dealt with both civil and criminal matters and laid down punishment according to caste, status and the nature of the offence.

2. Classification of offences and punishments. Offences were classified into categories such as offences against the person (murder, assault, hurt), offences against property (theft, robbery, dacoity), offences against the state (treason, rebellion) and offences against morality (adultery, sexual offences). Punishments ranged from fines, confiscation of property, mutilation and banishment to death, graded according to the gravity of the offence and the caste of the offender and victim.

3. Introduction of the principle of proportionality. The Mallas tried to link the punishment to the degree of guilt. For the first time, distinctions were drawn between intentional and unintentional acts, between principal offenders and abettors, and between completed and attempted offences.

4. Recognition of the concept of Nyaya (justice) and Dharma. The Malla codes blended Hindu Dharma Shastra with local customs (Desaachar), royal decrees (Rajagya) and precedents. Justice was seen as the duty of the king, who was regarded as the protector of Dharma.

5. Establishment of judicial institutions and procedure. The Mallas set up courts such as the Kot (court of justice), Bharadari (council of ministers) and Dharma Sabha. They prescribed procedures for complaint, evidence, witnesses, oath-taking and appeal. The king was the final court of appeal.

6. Humanisation of punishment. Compared with the earlier Kirat and Licchavi periods, the Malla codes reduced the arbitrary and excessive use of capital and corporal punishment. Fines and compensation to the victim became more common.

7. Influence on later codes. The Malla legal tradition directly influenced the Muluki Ain of 1854 (Jung Bahadur Rana), which retained many Malla concepts such as caste-based punishment and the Panchakhat (five great offences).

The King who enforced Nyayabikashini (Manab Nyayarahastra)

Jayasthiti Malla (reigned c. 1382–1395 AD) of Kathmandu is the Malla king who enforced the Nyaya Vikasini, also known as Manab Nyaya Shastra. He is credited with the first comprehensive codification of Nepalese law, prepared with the help of learned Brahmins and based on the Manusmriti, Yajnavalkya Smriti and other Dharma Shastras.

Important provisions of Manab Nyayarahastra

1. Caste-based punishment. The punishment for the same offence varied according to the caste of the offender and the victim. A higher caste offender generally received a lighter punishment, while a lower caste offender received a heavier one.

2. Gradation of homicide. Murder was distinguished from unintentional killing. Intentional murder was punishable with death or severe mutilation, while unintentional killing attracted fines and expiation (Prayaschitta).

3. Theft and robbery. Theft was graded by the value of the stolen property. Petty theft was punished by fine; grave theft by mutilation of the hand or banishment; robbery and dacoity by death or severe corporal punishment.

4. Sexual offences. Adultery and rape were punishable offences. Punishment depended on the caste and marital status of the parties. A man of lower caste committing adultery with a woman of higher caste received the heaviest punishment.

5. Offences against the state. Treason, rebellion and conspiracy against the king were treated as the gravest offences, punishable by death and confiscation of property.

6. Compensation to the victim. In many offences against person and property, the offender was required to compensate the victim in addition to undergoing punishment.

7. Evidence and procedure. The code prescribed Sakshi (witnesses), Lekhya (documents), Bhoga (possession) and Shapath (oath) as means of proof. Ordeals (Divya) such as fire, water and poison were also recognised in doubtful cases.

8. Exemption from punishment. Children below a certain age, the aged, the insane, pregnant women and Brahmins in certain cases were exempted from capital punishment.

9. Duty of the king. The king was bound to dispense justice without favour or fear. Negligence in this duty was itself regarded as a sin.

10. Caste and occupational offences. Violation of caste rules, such as eating with a lower caste or marrying outside one's caste, was punishable under the code.

Definition. Extradition is the formal process by which one state (the requested state) hands over a person who is accused or convicted of a crime to another state (the requesting state) that has jurisdiction, so that he may be tried or punished there. It is the return of a fugitive criminal to the state where the offence was committed.

Basis in Nepal. The Extradition Act, 2070 (2014), together with extradition treaties (for example with India) or an assurance of reciprocity. The Act applies where the offence is extraditable, meaning it is punishable under the laws of both states (dual criminality) by a prescribed minimum term of imprisonment, generally one year or more.

Process of extradition under the Act.

1. Request. The requesting state sends a written request through diplomatic channels to the Government of Nepal (Ministry of Foreign Affairs), with the arrest warrant or conviction, a statement of facts, the text of the applicable law and punishment, and particulars identifying the person.
2. Scrutiny by the Government. The request is examined by the concerned ministries to see whether it meets the treaty or reciprocity requirement and the conditions of the Act.
3. Arrest. On the Government's direction, the person is arrested and produced before the court. In urgent cases provisional arrest may be made before the formal request arrives; the formal request must then follow within the prescribed time, otherwise he is released.
4. Judicial inquiry. The court hears the person and examines whether the offence is extraditable, whether he is the person sought, and whether any ground for refusal exists. It sends its opinion to the Government.
5. Decision. The Government of Nepal takes the final decision to extradite or refuse, and informs the requesting state.
6. Surrender. If granted, the person is handed over to the representatives of the requesting state at the fixed place and time.
7. Appeal. The person may seek judicial review of the decision before the Supreme Court.

Grounds for refusal (generally). Political offences, military offences, an offence for which he has already been tried (double jeopardy), time-barred offences, a request made to punish him on account of race, religion, nationality or political opinion, and risk of torture or inhuman treatment.

Rule of specialty. The person may be tried only for the offence for which extradition was granted and may not be passed on to a third state without Nepal's consent.

Conclusion. Extradition in Nepal is a mixed process: it starts with a diplomatic request, passes through judicial inquiry, and ends in an executive decision, balancing international cooperation against the rights of the person.

Secondary liability is also known as derivative liability because it does not arise on its own; it is derived from the liability of the principal offender.

Why it is called derivative liability:

1. Dependence on the principal offence — A secondary offender (abettor, conspirator, or accessory) can be held liable only if the principal offender has actually committed the offence. If the principal offence fails or is not committed, the secondary offender's liability generally falls away. Thus his liability is derived from another's act.

2. No independent actus reus — The secondary offender does not himself commit the actus reus of the offence. He only instigates, conspires, or aids. The physical act belongs to the principal, so the liability is borrowed or derivative.

3. Same punishment as the principal — Under section 120 of the National Penal Code, 2074 (2017), an abettor is liable to the punishment provided for the principal offence. This shows that his liability is measured by and dependent upon the principal's offence, not on a separate offence of his own.

4. Liability arises only on completion of the offence — Mere abetment without the commission of the offence may attract separate punishment for abetment, but full secondary liability as a participant in the offence arises only when the offence is committed. Hence it is consequential and derivative.

Example of a secondary offender:

A hires B to kill C and pays him Rs 50,000. B kills C. Here B is the principal offender (he commits the murder), while A is the secondary offender, because he instigated (abetted) the commission of the murder. A's liability is derivative — it depends entirely on the murder committed by B, and A is liable to the same punishment as B for murder.

Definition. Theft is the dishonest taking of another's movable property out of the possession of that person, without his consent, with the intention of permanently depriving him of it. Under the Muluki Criminal Code, 2074, a person who, without the owner's consent, takes or causes to be taken movable property in another's possession is guilty of theft.

Constituent elements.

1. Movable property. Land and things attached to the earth are not subjects of theft until severed.
2. Property in the possession of another (the property of someone else).
3. Taking or moving it out of that possession.
4. Without the consent of the person in possession.
5. Dishonest or wrongful intention (mens rea) to take it, permanently or for so long as to deprive the owner of its value.

Types of theft under the Code. The Code treats theft as a basic offence and then grades the punishment by the value of the property taken and by the circumstances, for example:

• Simple theft, with punishment graded by the value of the property (fine and/or imprisonment increasing with value).
• Theft from a house or building after breaking in, or at night.
• Theft committed with preparation to cause hurt or with weapons, or in a gang.
• Theft by a servant, employee or person in a position of trust.
• Theft of government, public, religious, historical or cultural property, which attracts heavier punishment.
• Pickpocketing and similar theft from the person, which the Code treats as a distinct form.

Candidates should cite the section numbers of the Code for each form from the text of the Code.

King Ram Shah of Gorkha (1606-1636) is remembered in Nepali legal history as a pioneer of justice who gave criminal law a settled, written and fairer form. His main contributions were:

1. Codification. He framed rules of law, traditionally called the law of Ram Shah, applied uniformly in Gorkha, replacing arbitrary custom.
2. Equality before the law. Royals, nobles and commoners were subject to the same law. His reputation was such that Gorkha became known as a place where justice could be had ("Nyaya napaye Gorkha aaunu").
3. Proportionate punishment. Punishment was fixed according to the gravity of the offence, in place of vengeance and excessive penalties.
4. Classification of offences. Offences against the person, property, and the state and religion were distinguished, with different procedures and penalties.
5. Judicial procedure. Rules on complaint, examination of witnesses, weighing evidence and judgment, with proof by evidence preferred over trial by ordeal.
6. Action against official misconduct. Bribery, favouritism and oppression by officials were treated as offences.
7. Influence on later law. His system shaped the Gorkha legal tradition and thus the Muluki Ain of 1910 BS (1854), and through it modern Nepali criminal law. He is called "Nyayapremi Raja" (the justice-loving king).

Why "Ignorance of Law Is Not Excused, but Ignorance of Fact Is Excused"

1. Statement of the maxims

The two related legal maxims are:

• Ignorantia juris non excusat (ignorance of law is no excuse) — every person is presumed to know the law of the land, and a plea that one did not know the law is no defence to liability.
• Ignorantia facti excusat (ignorance of fact is excused) — a mistake or ignorance concerning a fact may excuse a person from liability, because he could not have known the true state of affairs even with reasonable care.

2. Why ignorance of law is not excused

1. Presumption that everyone knows the law. Law is public, promulgated and accessible. Once a statute is duly enacted and published in the Gazette, it binds all persons within the territory. The law cannot function if each person were allowed to plead that he personally did not know it.

2. Practical necessity — otherwise law would be unenforceable. If ignorance of law were a defence, every accused would escape by merely saying "I did not know." The administration of justice would collapse. Hence the rule is one of public policy and expediency, not of literal truth.

3. Equality before the law. Article 18 of the Constitution of Nepal guarantees equality before the law. If knowledge of law excused some and not others, the ignorant would enjoy a privilege denied to the informed — an absurd result.

4. Ignorance of law is itself a culpable negligence. A citizen has a duty to acquaint himself with the law under which he lives. Failure to do so is his own default, and the law does not excuse a person for his own negligence.

5. Distinction between mistake of law and mistake of fact. A mistake of law is generally a mistake concerning the legal effect of known facts (e.g., believing that a particular act is not theft), whereas a mistake of fact concerns the existence or non-existence of the facts themselves. The former is within one's means to ascertain; the latter often is not.

3. Why ignorance of fact is excused

1. Impossibility of knowing all facts. No human being can know every fact of the world. A person acts on the facts as they reasonably appear to him. If he is genuinely mistaken about a fact, his intention (mens rea) is absent, and criminal liability generally requires a guilty mind.

2. Absence of mens rea. In criminal law, actus non facit reum nisi mens sit rea — the act alone does not make one guilty unless the mind is guilty. A mistake of fact negates the guilty intention. For example, if A takes B's umbrella believing it to be his own, there is no intention to steal, hence no theft.

3. Basis in equity and good conscience. It would be unjust to punish a person who acted honestly and reasonably on a mistaken belief of facts. The law therefore excuses such a person.

4. Statutory recognition. Section 17 of the National Penal Code, 2074 (2017) provides that nothing is an offence which is done by a person who, by reason of mistake of fact and not of law, believes himself to be justified by law in doing it. Similar provisions exist in the old Muluki Ain and in the general principles of tort and contract.

4. Limitations and exceptions to the rule of ignorance of law

The rule that ignorance of law is no excuse is not absolute. Exceptions exist:

1. Mistake of foreign law is treated as a mistake of fact, because a Nepali court cannot presume knowledge of foreign law.
2. Mistake of private right — where a person bona fide believes he has a private right over property, the mistake may be treated as one of fact.
3. Ignorance of law in cases of mens rea — where a statute requires a specific knowledge or intention, ignorance of the law may be relevant.
4. Reasonable opportunity to know the law — if a law is not duly published or is impossible to know, the presumption may be rebutted.

5. Conclusion

The distinction rests on the difference between what a person can reasonably be expected to know and what he cannot. Law is a matter of public record and every citizen is presumed to know it; facts are particular and often unknowable. Hence ignorance of law is no excuse, while ignorance of fact is excused — a rule founded on necessity, equality, and justice.

(a) Insanity as an excusable defence. A person who, because of unsoundness of mind at the time of the act, was unable to understand its nature or that it was wrong, lacks the mens rea needed for crime and is excused from criminal liability. The Muluki Criminal Code, 2074 recognises unsoundness of mind as a ground of exemption. The test is the legal, not medical, insanity at the time of the act (the M'Naghten rules: defect of reason from disease of the mind). The burden of proving it lies on the accused, on the balance of probabilities. Such a person is not punished but may be sent for treatment or kept under care. Temporary intoxication and mere moral depravity are not insanity.

(b) Classification of unlawful homicide. Killing a human being is unlawful unless justified (for example, lawful self-defence). Unlawful homicide is classified as:

• Murder: killing with intention to cause death, or with knowledge that death is the likely result. It carries the heaviest punishment (life imprisonment, or longer terms for aggravated cases under the Code).
• Culpable homicide not amounting to murder / manslaughter: killing without full intention, for example on grave provocation or sudden quarrel.
• Causing death by negligence: death by a rash or negligent act, for example reckless driving, with lighter punishment.

The Code grades punishment by intention, planning, relationship and the manner of killing.

(c) Pickpocketing in Nepal. Pickpocketing is theft of property from a person's pocket, bag or body by stealth, without force or threat. It is treated as a form of theft under the Muluki Criminal Code, 2074. It differs from robbery, which involves force or fear. It is common in crowded places such as Kathmandu's buses, bazaars and festival gatherings. Punishment depends on the value of the property taken and on repetition. Prevention lies in public awareness, police patrolling and CCTV in crowded areas.

Meaning of justice

Justice is the principle of fairness: giving each person what is due, treating like cases alike and removing arbitrariness from the exercise of power. Its main forms are:

• Distributive justice - fair sharing of resources and opportunities.
• Corrective (retributive) justice - fair remedy and punishment for wrongs.
• Procedural justice - fair process, hearing and impartial decision.
• Social justice - removing structural disadvantage so that all can enjoy rights. Art. 42 of the Constitution of Nepal (2072) makes social justice a fundamental right of excluded groups.

Gender justice

Gender justice means fair treatment of women, men and sexual and gender minorities, ending discrimination based on gender, and correcting the disadvantages that gender roles have created.

Nature of gender justice

1. Substantive, not merely formal equality - identical treatment can perpetuate disadvantage, so special measures such as reservation and protective provisions are used (Art. 18(3), Art. 38).
2. Structural - it looks at the systems of family, property, labour and politics, and not only at individual acts.
3. Rights-based - rooted in dignity, bodily autonomy and freedom from violence.
4. Dynamic - changes with time; discrimination once accepted (such as denial of daughters' share in property) is now seen as unjust.
5. Intersectional - Dalit, indigenous, disabled and rural women face multiple layers of exclusion.

Scope of gender justice

1. Family and property law - equal rights of sons and daughters in ancestral property, marriage, divorce, maintenance and guardianship under the Muluki Civil Code, 2074 (earlier reforms came with the 11th amendment to the Muluki Ain in 2002).
2. Protection from violence - domestic violence, rape, trafficking, sexual harassment, child marriage, dowry, witchcraft accusations and chhaupadi, dealt with under the Domestic Violence (Offence and Punishment) Act, 2066, the Muluki Criminal Code, 2074 and related laws; Art. 38(3) prohibits violence against women.
3. Political participation - the Constitution requires that at least one third of the members elected from each party to federal and provincial legislatures be women, and gives special provisions for women in local bodies.
4. Economic rights - equal pay for equal work, maternity benefits, safe working places and access to property (Art. 38 includes the right to property and family affairs on an equal basis).
5. Education and health - equal access to schooling, safe motherhood and reproductive health rights (Art. 38(2)).
6. Workplace - Sexual Harassment at Workplace (Prohibition) Act, 2071.
7. Sexual and gender minorities - recognition of the third gender in citizenship documents, as ordered in Sunil Babu Pant v. Nepal Government (2007), and constitutional protection from discrimination.
8. International standards - CEDAW (ratified by Nepal in 1991), the Beijing Platform for Action and SDG 5.

Conclusion. Justice is the aim of law, and gender justice tests whether law fulfils that aim for all. Nepal has a strong constitutional and statutory framework, but gaps in enforcement, social attitudes and unequal control of property continue to limit its realisation.

CEDAW (Convention on the Elimination of All Forms of Discrimination against Women), adopted by the UN General Assembly on 18 December 1979 and in force since 3 September 1981, is often described as the "international bill of rights for women." Its basic features are:

1. Definition of discrimination against women (Article 1) It defines discrimination as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, on a basis of equality with men, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. The definition covers both direct and indirect (effect-based) discrimination.

2. Comprehensive scope — all fields of life Unlike earlier instruments limited to public life, CEDAW covers political, economic, social, cultural and civil rights, and also extends to private life, including the family.

3. Obligation of States parties — three-fold duty Article 2 requires states to:

• embody the principle of equality of men and women in national constitutions and legislation;
• adopt legislative and other measures, including sanctions, prohibiting discrimination;
• establish legal protection of women's rights through tribunals and institutions;
• refrain from discriminatory acts and ensure public authorities comply;
• eliminate discrimination by persons, organisations and enterprises; and
• repeal or amend discriminatory laws, regulations, customs and practices.

4. Temporary special measures (Article 4) Affirmative action or special measures aimed at accelerating de facto equality are not considered discrimination. Such measures are temporary and must be discontinued once equality of opportunity and treatment is achieved. Special measures for maternity protection are, however, permanent.

5. Substantive (de facto) equality, not merely formal equality The Convention aims at equality of results, requiring states to address not only legal barriers but also social, cultural and structural causes of women's subordination.

6. Modification of social and cultural patterns (Article 5) States must eliminate stereotyped roles and prejudices based on the inferiority or superiority of either sex, and ensure that family education recognises the common responsibility of men and women in raising children.

7. Prohibition of trafficking and exploitation of prostitution (Article 6) States must suppress all forms of traffic in women and exploitation of prostitution.

8. Detailed rights guaranteed

• Political and public life: right to vote, hold office, participate in NGOs and represent the state internationally (Article 7); equal opportunity in public service (Article 8).
• Nationality: equal rights to acquire, change or retain nationality and that of children (Article 9).
• Education: equal access, same curricula, elimination of stereotypes, equal scholarships and sports facilities (Article 10).
• Employment: equal opportunity, equal remuneration, free choice of profession, maternity leave with pay, protection from dismissal on grounds of pregnancy (Article 11).
• Health: equal access to health care, including family planning and services during pregnancy and post-natal period (Article 12).
• Economic and social life: equal rights to family benefits, bank loans, mortgages and credit (Article 13).
• Rural women: right to participate in development planning, access to credit, technology, education and health facilities (Article 14).

9. Equality before the law and in marriage (Articles 15–16) Equal legal capacity, equal rights in marriage, free choice of spouse, equal rights during marriage and at its dissolution, equal parental rights, and equal rights to property. Child marriage and betrothal are declared void.

10. Prohibition of discrimination in all its forms Article 2 obliges states to pursue a policy of eliminating discrimination in all its forms, and Article 3 requires action in all fields to guarantee full development and advancement of women.

11. Monitoring mechanism — the CEDAW Committee (Articles 17–22) A Committee on the Elimination of Discrimination against Women of 23 independent experts monitors implementation. States submit periodic reports (initially within one year, then every four years). The Committee may make general recommendations and, under the Optional Protocol (1999), receive individual communications and conduct inquiries.

12. Optional Protocol (1999) Provides two procedures: individual communications and inquiry into grave or systematic violations. It entered into force on 22 December 2000.

13. No reservation to the core obligation Article 28 permits reservations, but reservations incompatible with the object and purpose of the Convention are not permitted. Many states have entered reservations, particularly to Articles 2, 16 and 29.

14. Legally binding treaty CEDAW is a binding multilateral treaty; states parties are obliged to incorporate its provisions into domestic law and practice. Nepal is a party (acceded 22 April 1991) and has made significant legislative reforms, such as the 11th Amendment to the Muluki Ain (2002) and the Constitution of Nepal (2015), to give effect to CEDAW.

In short, CEDAW's basic features are its broad definition of discrimination, its comprehensive coverage of civil, political, economic, social and cultural rights including the private sphere, its emphasis on substantive equality through temporary special measures and cultural transformation, and its institutional monitoring mechanism.

Meaning

The family is the basic unit of society, and Nepali law, mainly the Muluki Civil Code, 2074, the Constitution of Nepal (2072) and related Acts, defines the rights and duties of its members in relation to each other.

Rights of family members

1. Right to maintenance - a spouse, minor children and dependent parents are entitled to be maintained by the person liable under law.
2. Right to equality in the family - husband and wife have equal rights in family matters, and sons and daughters have equal rights in ancestral property (Art. 38(4) and Art. 18 of the Constitution; Civil Code).
3. Right to property and inheritance - rights in ancestral property from birth and right of inheritance by order prescribed by law; a woman's own property (stridhan) is her own.
4. Right to marry with free consent and to live together; marriage under the legal minimum age (20 years for both) is not allowed.
5. Right to divorce - on grounds laid down in the Civil Code, such as desertion, cruelty, incapacity or mutual consent.
6. Rights of children - to name, identity, care, education, health and protection from abuse (Art. 39; Child Rights Act, 2075).
7. Right to guardianship and custody of children on divorce on the basis of the child's welfare.
8. Right to adoption under the conditions of the Civil Code.
9. Right to partition of family property where a member wishes to separate.
10. Right to protection from domestic violence under the Domestic Violence (Offence and Punishment) Act, 2066, and the Muluki Criminal Code, 2074.
11. Rights of senior citizens - to care, support and respect (Art. 41; Senior Citizens Act, 2063).

Duties of family members

1. To maintain dependants - the husband and wife each other, parents their minor children, and adult children their aged parents.
2. To care for and educate children and protect their welfare.
3. To respect and support parents and elders, and to look after them in old age.
4. To manage family property honestly and for the benefit of all, and to account for it.
5. To refrain from violence, abuse and cruelty towards any family member.
6. To seek free consent for marriage and not to force a child into marriage.
7. To maintain mutual fidelity and cooperation between spouses.

Remedies

A family member may go to the District Court, family court or local judicial committee, may seek protection orders and maintenance, and may use the criminal law for violence or neglect.

Conclusion. The law balances rights and duties among family members. Equal rights in property, protection from violence and duties of support promote a just and caring family, but social awareness and enforcement remain necessary.

Various Forms of Domestic Violence

Introduction

Domestic violence refers to any act of physical, sexual, psychological, or economic abuse committed by one family member against another within the home or domestic relationship. In Nepal, the Domestic Violence (Crime and Punishment) Act, 2064 (2008) is the principal law that defines and criminalizes domestic violence. Section 2(a) of the Act defines domestic violence as any act committed by a person against another person with whom he/she has a family relationship, which causes physical, mental, sexual or economic harm or suffering.

Forms of Domestic Violence

1. Physical Violence

This is the most visible form of domestic violence. It includes:

• Beating, slapping, punching, kicking or strangling
• Burning, use of weapons or harmful substances
• Pushing, pulling hair, or any act causing bodily injury
• Depriving food, sleep or medical care

2. Sexual Violence

Sexual violence within domestic relationships includes:

• Forced sexual intercourse (marital rape)
• Sexual harassment or unwanted sexual advances
• Forcing unnatural sexual acts
• Forcing a woman to bear a child against her will
• Forcing abortion or sterilization

3. Psychological or Mental Violence

This form is often invisible but equally damaging:

• Verbal abuse, threats, intimidation and humiliation
• Insulting, name-calling, or ridiculing in public or private
• Isolation from family, friends and society
• Threatening to harm the victim or her children
• Emotional blackmail and constant criticism
• Stalking and controlling behaviour

4. Economic Violence

Economic abuse is used to control and subordinate the victim:

• Depriving the victim of financial resources
• Preventing her from working or earning
• Forcing her to hand over her earnings
• Denying money for basic needs of the victim and children
• Destroying or disposing of the victim's property
• Not providing maintenance despite legal obligation

5. Social Violence

This includes:

• Preventing the victim from meeting relatives and friends
• Restricting participation in social and cultural activities
• Forcing the victim to follow customs against her will
• Dowry-related harassment and pressure

6. Dowry-Related Violence

Though a separate offence under the Dowry Prohibition Act, 2033, dowry-related violence is also a form of domestic violence. It includes:

• Demanding dowry before, during or after marriage
• Torturing or harassing a woman for failing to bring dowry
• Causing death by burning or other means for dowry

7. Violence Against Children and Elderly

Domestic violence also affects vulnerable members:

• Physical punishment and abuse of children
• Child labour within the home
• Neglect of elderly parents
• Emotional and economic abuse of the elderly

Legal Framework in Nepal

The Domestic Violence (Crime and Punishment) Act, 2064 provides:

• Section 2(a): Defines domestic violence broadly to include physical, mental, sexual and economic harm.
• Section 3: Prohibits domestic violence.
• Section 4: Provides for filing complaints.
• Section 5: Empowers the local authority (now Rural Municipality/Municipality) to conduct reconciliation.
• Section 6: Provides for compensation to the victim.
• Section 7: Prescribes punishment — fine up to Rs 25,000 or imprisonment up to 6 months, or both; and for repeated offence, double punishment.
• Section 13: Provides for protection orders.

Conclusion

Domestic violence manifests in multiple forms — physical, sexual, psychological, economic and social. It violates fundamental human rights, dignity and equality guaranteed by the Constitution of Nepal, 2072 (Articles 16, 17, 18, 24 and 38). The Domestic Violence Act, 2064 has adopted a broad definition covering all these forms, making it a comprehensive legal tool. However, effective implementation, awareness and victim support are essential to eliminate domestic violence from Nepali society.

(a) Meaning of inclusive justice

Inclusive justice means a justice system and social order in which every person, especially women, Dalits, indigenous peoples, Madhesis, Muslims, persons with disabilities, sexual minorities, the poor and those from remote areas, can access, participate in and benefit from justice, without discrimination. It goes beyond formal equality to remove barriers such as cost, language, distance, social bias and lack of information. In Nepal it rests on Art. 18 (equality and special measures), Art. 42 (right to social justice and proportional inclusion in state bodies) and Art. 43 (right to social security). Tools include legal aid, representation of excluded groups in courts and public service, interpreters, and special laws and commissions for women, Dalits and indigenous peoples.

(b) Rights of Dalits

Dalits are communities historically treated as "untouchable" and excluded. Their rights are:

• Art. 24: no one shall be subjected to untouchability or discrimination on grounds of caste, and such practice is a punishable offence.
• Art. 40: the Dalit rights, which include proportional participation in all state bodies, special provisions of education, health, housing and employment, free higher education for Dalit students under a scheme, and a right to use traditional skills, with the State to make arrangements for them.
• Art. 18(3): special provisions for Dalits' protection and advancement.
• The Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2068, which punishes discrimination in public places, services and employment, and provides compensation for victims.
• The National Dalit Commission works to protect their rights. Enforcement problems and social prejudice still persist.

(c) Sexual harassment

Sexual harassment is unwelcome sexual conduct, such as sexual remarks, gestures, touching, demands for sexual favours or display of obscene material, which offends dignity. In Nepal:

• Art. 38(3) forbids violence against women, and Art. 38 and Art. 18 protect dignity and equality.
• The Sexual Harassment at Workplace (Prohibition) Act, 2071 requires employers to set up a complaint mechanism and provides penalties; a complaint is made to the designated committee/ authority within the prescribed time.
• The Muluki Criminal Code, 2074 punishes sexual offences, and the Domestic Violence Act, 2066 covers sexual violence within the family.
• The Supreme Court has also stressed the right to dignified life and workplace safety. Remedies are complaint to the employer's committee, the police or court, and compensation, with a wider need for awareness and prevention.