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Challenging Nepal's Inheritance Law

[Source: WPRN Newsletter, July - October 1997]


Women in Nepal face not only social and cultural bias; they are discriminated by law as well, exemplified by their legal discrimination in the matter of inheritance rights. Section 16 of the Chapter on Partition of the existing National Code of 1963 provides that a daughter is entitled to inherit parental property if she is unmarried and is 35 years old. Once she gets married, she has to return the property to the family less the marriage expenses. A son, on the other hand, is heir of the ancestral property upon birth.

The Government of Nepal, as State Party to the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), is committed to undertake specific actions, including repeal of discriminatory laws, to eliminate discrimination against women in any form. It is also bound under the Constitution to ensure that no one is discriminated on the basis of sex and to enact laws for the advancement of women and children. Despite these commitments and guarantees, however, discriminatory laws against women continue to exist.

Previously, efforts were made to raise the issue of discriminatory inheritance law with policymakers. When those efforts failed, advocate decided to challenge the law in question in court. Providing them legal anchor was Article 131 of the new Constitution of the Kingdom of Nepal which states that laws inconsistent with the Constitution, ipso facto, cease to operate one year after its commencement. Seventy (70) lawyers pleaded the case in the Supreme Court, with the Forum for Women, Law and Development (FWLD) taking responsibility for coordinating the court case.

The Decision

The Court, pressured to decide on the case, came out with a directive order for the Government to introduce an appropriate bill in Parliament, taking into account the constitutional provision on equality and other legal provisions on the matter in other countries. In addition, it held that the bill should be made by holding extensive discussions and deliberations with women's organizations, sociologists, concerned social organizations, and lawyers.

According to the Court, the Nepalese law does not deprive a daughter of the right to get her partition share, nor does it discriminate her. The law only provides for a different process, taking into consideration the traditional social conditions of men and women. Thus, the Court stressed that before declaing No. 16 of the Chapter on Partition unconstitutional, the implications of providing for the same entitlement to partition to both daughter and son should be considered. It was cautious against making sudden changes in traditional social practices and norms long followed by society as it may render society "unable to adopt several matters." If this happens, the Court added, "a different situation beyond perception would emerge."

Pushing for a new law

After the decision of the Supreme Court, the Government did not exert any serious efforts to start the formulation of the appropriate legislation. Several NGOs then decided to take the initiative. A meeting was arranged by Didi Bahini, a women's organization, with the Minister of Law and Justice and the lawyers involved in the case, to pressure the Government to execute the court decision. Workshops were held to discuss what the law should be. At this time, the issue had started to catch media attention.

After the discussions, the Legal Aid and Consultancy Center (LACC) led in drafting the private bill which had the following concept: A daughter would inherit parental property as a son right after birth. Spouses shall have the right to half of each other's property and spousal consent will be required to dispose of more than half of the other's property. One fourth of the extra property could be kept for the future security of the parents during partition. Meanwhile, a task force formed by the Ministry of Women also drafted a bill on inheritance rights which was similar to the private bill, except in the following: The spouses will have full right to each other's property. No one shall have a right to dispose of the property without the consent of the other. In case of divorce, women will be one shareholder of the property.

Other initiatives of NGOs included a study of foreign laws on inheritance rights and on gaps in the existing system in Nepal and mobilization of the different districts in the country to rally for support and to get feedback on the issue of equal inheritance rights. Results from these consultations, particularly proposed mechanisms to check the potential negative impact of the new law, were incorporated into the private bill. The bill and the comparative study were submitted to the lawmaking agency concerned. Tactically, the groups and individuals behind the private bill decided to support the bill prepared by the Ministry of Women and Social Welfare. The said ministry finalized and submitted the bill to the Ministry of Law. Several organizations thereafter started advocacy on the bill. Activities that were conducted by these groups included a training workshop on legislative advocacy, media advocacy, and a rally and public meeting during the International Women's Day which focused on equal inheritance rights.

The Outcome

The bill, as re-registered in the 11th session of the Parliament, has not incorporated the concept proposed by the Ministry of Women nor that of the NGOs. Although the bill has accepted the concept of the daughter as heir of the family - "Any partition taking place after the implementation of this number has to include the father, the mother, and the children." - the proposed clause no. 16 states that when a daughter gets married after the partition, whatever remains of her share in the property of her father will revert to the successors of her maternal home. Thus, under the proposed new law, a woman's right to inheritance is essentially based on marriage. Before marriage, a daughter has a right to the parental property, and after marriage, to that of the husband.

With this development, the FWLD filed a case on contempt of court, seeking clarification on two issues: The first centered on the obligation of the Government and the Parliament in enacting the law considering Nepal's obligation under the Women's Convention and the equality clause of the Constitution. The second issue sought clarification on the meaning and intent of the court's decision. This case is pending in court. Follow-up activities continued to be undertaken by the NGOs, after their assessment of the weaknesses in the advocacy program that they implemented.

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