PROPERTY RIGHT OR CASE OF PARENTAL PROPERTY
DATE : 2050 B.S
COURT : SUPREME COURT OF NEPAL
CATEGORY : CIVIL CASE
This was public interest litigation filed by two female lawyers in Supreme
Court of Nepal. The issue of constitutionality of clause 16 of the Aungsabanda of Muluki Ain this provisions were challenged for two reasons:
Firstly, to claimed a parental property she should remain unmarred
Secondly, she should attain an age of 35 year even getting share of property if she gets marriage then she should return that property.
The petitioners claimed that these clauses were clear contraventions of Article 11 and 17 of the constitutions of kingdom of Nepal. This expressly prohibits discrimination on the ground of sex. The major issue of the case was whether clause 16 of the chapter on Aungsabanda or partition of property was constitutional or not? Petitioners request that many laws, especially those that are discriminatory to women’s rights including Number 16 of the Chapter on Partition of Property of Muluki Ain should be declared null and void. The petitioner seek the nullification of Number 16 of the Chapter on Partition of the Muluki Ain by raising arguments that, the provision is against-
Article 1 of the 1990 Constitution- all laws inconsistent with the Constitution will ipso facto be void in tune of Article 131 of the Constitution;
Article 131 of the 1990 constitution- all laws which are inconsistent with the Constitution shall stop to operate after one year of the commencement of this Constitution.
Article 11 (2) of the 1990 Constitution guarantees no discriminatory treatment against any citizen in application of general laws on grounds, inter alia of sex;
Article 15 of the UN Convention on the Elimination of All forms of Discrimination against Women provides that women have all property rights on an equal footing with men.
Clause 16 of Chapter : ” the daughter who has reached the age of 35 and remained unmarried is entitled to get share in property as equal to the son.If she gets married or elopes after receiving the share property, then she has to return the remaining property to the person who is entitled to it”
The judgment did not come out as per the petitioner's expectation. The main text of the judgment reads as follows;
Taking into consideration of the social conditions of men and women, the Nepalese law has adopted only some different process of getting partition share. Instead of depriving a daughter of the right to get a share or making discrimination against her, the right of a daughter to get a partition share has been managed in slightly different manner from that of son, taking into account of the social status of women. For instance, according to clause 16 of the chapter of AUNGSABANDA , an unmarried daughter should attain the age of 35 years in order to get partition share, while even a married daughter should attain the age of least 35 years or complete 15 years of marriage to get partition share. In regard to the process of partition share, a son gets the same, which cannot be disregarded. Before declaring clause 16 of chapter of AUNGSABANDA unconstitutional and making provision as to the same entitlement of a daughter to partition share as that of a son, the negative sides thereof or its implication on the society should also be taken into account. This will result in a great impact on the structure of the patriarchal society like ours, handed down from ancient times; a daughter may not be compelled to get married and go to her husband;s house after marriage, and while on the other hand declaring Clause 16 unconstitutional and making provision entitling a daughter to get partition share as of a son, a married daughter will be entitled to get partition share from the properties of both her father and husband, and son will be entitled to get partition share only from the property of his father. This will create the right of a daughter to obtain more partition share than a son;s right to obtain partition share, thus it will create conditions discriminatory against son. This will affect the laws of the country made in regard to the property right.
The judgment flash the discussion of whether there should equal share of children on property nationwide and the whole country acted as big parliament. This has helped extremely in generating gender equality consciousness in the country.
After this judgment, the 11 th Amendment in the Muluki Ain has brought some positive changes on property rights of women. According to the new amendment, unmarried daughter are also entitled over the parental property rights. Till the 10 th amendment, daughters were entitled to obtain parental property after reaching the age of 35. The present amendment has included daughter as coparcener without such limitation of age. However, the marital status of daughter is still a determining factor. After marriage daughter are not entitled to parental property right.