CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE National Legal Framework- Nepal

Full doc Ending Impunity for Child marriage(final)_25Nov16

UNFPA Nepal | Ending Impunity for Child Marriage in Nepal

The purpose of “Ending Impunity for Child Marriage in Nepal: A Review of Normative and Implementation Gaps” is to identify and inform policymakers, law enforcement officials, and human rights defenders, of the key legal gaps and inconsistencies that have undermined efforts to address child marriage in Nepal, particularly in light of the constitutional guarantees, national laws, and international human rights standards. This assessment highlights multiple challenges faced in the implementation of the existing affirmative laws and makes linkages to other causes of systemic discrimination in law and practice that contribute to impunity. It puts forward a set of concrete recommendations for addressing the gaps and challenges in order to promote access to justice for the victims of child marriage.

The policy brief was jointly produced by UNFPA, Justice and Rights Institute and Centre for Reproductive Rights.

 

Ending Impunity for
Child Marriage in Nepal

http://nepal.unfpa.org/sites/default/files/pub-pdf/Ending%20Impunity%20for%20Child%20marriage%28final%29_25Nov16.pdf

 

CURRENT LEGAL FRAMEWORK ON
CHILD MARRIAGE

National Legal Framework

The Constitution of Nepal, 2015 (the Constitution), for the first time, explicitly
prohibits child marriage31 as a punishable offense and establishes victims’ right to
compensation for violations from perpetrators.32 The Constitution also specifically
recognizes women’s right to be free from all forms of violence33 and guarantees
reproductive health rights as fundamental rights.34 Other guarantees against child
marriage, which is also a form of gender-based discrimination and violence, include
the right to equality and nondiscrimination,35 the right to live with dignity,36 and the
right to protection from exploitation.37 The Constitution also protects children from
child marriage by guaranteeing their right to identity and birth registration; right to
education and health care; right to protection from hazardous work; and protection
from neglect, immoral use, or any form of physical, mental, or sexual abuse or
exploitation in the name of religious or cultural practices.38 The Constitution provides
judicial and non-judicial remedies through prerogative writs and public interest
litigation to obtain redress for violations of these fundamental rights.39

The 2002 Eleventh Amendment to the Muluki Ain sets the legal age of marriage as
20 years for both men and women.40 The law specifically penalizes marriages below
the legal age with imprisonment and fines for adults who marry children.41 Agreeing to
perform a child marriage, regardless of solemnization (performance of the ceremony),
is a criminal offense.42 Priests, matchmakers, and other abettors who knowingly
facilitate such marriages are also liable to punishment including imprisonment and
fines.43 The offense of child marriage is included in the State Cases Act,44 which
lists it as an offense against the state, thus obligating the government to initiate
investigation and prosecution. As per the State Cases Act, instances of child marriage
can be reported either in writing or verbally by any person knowing that a crime has
been, is being, or is going to be committed.45 The statute of limitation for filing a
complaint, by any person, is three months from the date that the person learns of the
child marriage.46 However, either party to the marriage can seek legal recourse to
officially have the marriage declared void within three months of turning 20 years of
age, if the couple does not have any children.47

The Children’s Act, 1992,48 defines a “child” as a minor under 16 years of age,49
and establishes the rights to determination of the date of birth50 and to necessary
protection without discrimination from parents51 and state authorities.52 The
Children’s Rules, 1995, specifically entrusts the CCWB with the duty to identify
measures to eliminate child marriage and encourage and support the appropriate
government agencies and non-governmental organizations to implement those
measures.53 Accordingly, the CCWB’s 2015 Report on the State of Children in Nepal
documents progress in relation to measures taken by the government to address child
marriage.54 Raising awareness on child rights issues, including on child marriage, is
also one of the priority interventions of the CCWB.55

The Local Self Governance Act, 1999, obligates local-level governance bodies to
adopt necessary programs for the protection of women and children.56 Accordingly,
the Ministry of Local Development’s guidelines on granting support to local
governments requires that they allocate at least 10% of their budgets for programs
and projects that directly benefit women and children.57 These funds may be used by
local bodies in formulating specific programs to end child marriage.

The government of Nepal has also adopted the National Strategy to End Child Marriage in Nepal,
2016, that provides an overarching policy framework to combat child marriage and promote legal
accountability. It envisions Nepal free from child marriage and aims to end child marriage by 2030.58
Taking a multi-sectoral approach to end child marriage, the Strategy incorporates six pillars, namely:
empowerment of girls and adolescents; quality education for girls and adolescents; engaging boys,
adolescents, and men; mobilizing families and communities; access to services; and strengthening
and implementing laws and policies.59 Effective implementation and reform of existing legal provisions
on child marriage is one of the objectives of the Strategy.60 The Strategy calls for reviewing laws and
policies related to child marriage in line with constitutional and international human rights standards,
and harmonizing them with other areas of law including property rights, gender-based violence, as well
as provisions relating to divorce, annulment, marital rape, dowry, birth registration, and citizenship.61

 

31 The Constitution of Nepal, 2072 (2015), art. 39(5) (Nepal).
32 Id., art. 39(10).
33 Id., art. 38(3).
34 Id., art. 38(2).
35 Id., art. 18.
36 Id., art. 16(1).
37 Id., art. 29(1-3).
38 Id., art. 39(1-9).
39 Id., art. 133, 144, 249, 252.
40 Muluki Ain (Nepal), supra note 1, ch. 17, no. 2.
41 Id., part 4, ch. 17, no. 2(1-4).
42 Id., part 4, ch. 17, no. 2(7).
43 Id., part 4, ch. 17, no. 2(6).
44 The State Cases Act, 2049 (1992) at Annex I (Nepal).
45 Id., sec. 3(1) (Nepal).
46 Muluki Ain (Nepal), supra note 1, part 4, ch. 17, no. 11.
47 Id., ch. 17, no. 2(9); read together with no. 11.
48 The Children’s Act, 2048 (1991), Preamble (Nepal).
49 Id., sec. 2(a) (Nepal).
50 Id., sec. 3(2) (Nepal).
51 Id., sec. 5 (Nepal).
52 Id., sec. 21, 22, 30 (Nepal).
53 The Children’s Rules, 2051 (1995), sec. 3(i) (Nepal).
54 Government of Nepal, Ministry of Women, Children and Social
Welfare, Central Child Welfare Board, The Report on State of
Children in Nepal 2072 24 (2015).

55 Government of Nepal, Ministry of Women, Children and
Social Welfare, Central Child Welfare Board, Program:
Priority Intervention, available at http://www.ccwb.gov.np/
informations/view/136/Program.
56 Local Self-Governance Act, 2055 (1999), secs. 28(1)(k)(8),
189(1)(f), and 234 (Nepal).
57 Government of Nepal, Ministry of Local Development and
Federal Affairs, Local Bodies Resource Mobilization and
Management Guidelines, 2069 15 (2014).
58 Government of Nepal, Ministry of Women, Children and Social
Welfare, National Strategy to End Child Marriage in Nepal
2072 8 (2016).
59 Id., at 9-14.
60 Id., at 13-14.
61 Id., at 13 (2016)

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