VIOLATION OF PRINCIPLE OF EQUALITY
DATE : 2063BS
COURT : SUPREME COURT OF NEPAL
CATEGORY : CIVIL CASES
BACKGROUND
The writ petitioner states in her writ petition that the sub-sections (1) and (3) of section 4 of
Social Events Reforms Act, 2033 brought into force prior to the promulgation of the
Constitution of the Kingdom of Nepal, 2047 is still in force as usual. Section 4 under the
heading “The bride side not permitted to receive” provide in sub-section (1) that the bride
side while their daughter is to be married are not permitted to receive or give in exchange
any cash or property from/to the groom’s side and in sub-section (3) it is provided that any
person violating the provision of sub-section (1) shall be punished with a fine from Rs. 12
thousand to Rs. 25 thousand or an imprisonment of one year or with both, including the
forfeiture of the monetary value of such dowry. Similarly, section 3 of the said Act under
the heading “Control on dowry” in its sub-section (1) provides that no one should accept to
give or receive dowry and in its sub-section (2) it provides that any person violating the
provision of sub-section (1) shall be punished with a fine from Rs. 12 thousand to Rs. 25
thousand or an imprisonment for a period of up to thirty days or with both including the
forfeiture of the monetary value of such dowry. While observing the arrangements made in these two sections it is found that if the bride side demands for dowry the punishment is
high and if the groom side demands for dowry the punishment is softer one which gives a
clear glimpse of dominance of the patriarchal value and thinking. Since the said provision
made in sub-sections (1) and (3) of section 4 is in contradistinction to the Article 11 of the
Constitution of the Kingdom of Nepal, 2047, Universal Declaration of Human Rights, Articles
1, 2, 3, 5 and 26 of International Covenants on Civil and Political Rights, 1966, Articles 1, 2,
3 and 5 of the International Protocol of Economic, Social and Cultural Rights, 1966, Articles
2, 3 and 4 of the Convention on Elimination of All types of Discrimination Against Women,
1979, therefore, let the said provision be declared void and ultra vires under Article 88(1)
of the Constitution of the Kingdom of Nepal, 2047 and let the appropriate order be issued
directing to make the legal arrangement based on the principle of equality.
DETAILS
In this case, Meera Dhunga point out two issues,i.e the violation of Principle of Equality and the Contradiction of Act, where she mention, Social Reform Act 2033 Section 4 under the heading “The bride side not permitted to receive” provide in sub-section (1) that the bride side while their daughter is to be married are not permitted to receive or give in exchange any cash or property from/to the groom’s side and in sub-section (3) it is provided that any person violating the provision of sub-section (1) shall be punished with a fine from Rs. 12 thousand to Rs. 25 thousand or an imprisonment of one year or with both, including the forfeiture of the monetary value of such dowry. Similarly, section 3 of the Constitution of the Kingdom of Nepal, 2047 Act under the heading “Control on dowry” in its sub-section (1) provides that no one should accept to give or receive dowry and in its sub-section (2) it provides that any person violating the provision of sub-section (1) shall be punished with a fine from Rs. 12 thousand to Rs. 25 thousand or an imprisonment for a period of up to thirty days or with both including the forfeiture of the monetary value of such dowry.
VERDICT
Upon perusal of the case file and hearing the arguments of the learned counsels representing both the sides of the case, the Bench has to resolve the following two questions before pronouncing its verdict:-
1. Whether or not the legal provision made by section 4(3) of the Social Events Reforms
Act, 2033 is against the constitutional right of equality of women.
2. Whether or not the court should issue an order declaring the said provision ultra virespursuant to Art 88(1) of the Constitution of the Kingdom of Nepal.
Upon perusal of aforesaid constitutional provisions it is found that there does not exist any
provision permitting the State to make a law providing more facilities to the groom side and
less favoring the bride side. Upon examination of the provision of section 4(3) of the Social
Events Reforms Act, 2033, it is found that in case the bride side demands dowry, the
punishment for the dowry giver or the groom side shall be half of the punishment imposed
for the dowry receiver or the bride side. Unless two parties agree to take and give dowry,
the commission of the said offense is not possible. The learned government attorney could not clarify as to how giving and taking of dowry was materially different specifying reasons therefor. There does not exist any reasonable ground to discriminate the bride and the groom side simply on that reason, and impose higher punishment to the bride side. Apparently the said legal provision in question is found to be inconsistent with the Rights to equality as enshrined in Article 11 of the Constitution of the Kingdom of Nepal, 2047.
Since the aforesaid legal provision in question is found as inconsistent with the right to equality it will not be proper to continue with the said legal provision in the existing condition.This Court has on several occasions passed the orders directing to amend such discriminating laws in many cases and since the writ petitioner has sought the issuance of order for making or causing to make necessary legal provision based on the principle of equality, this order is hereby Issued in the name of the Office of the Prime Minister and Council of Ministers of the Government of Nepal directing it to make the appropriate legal arrangement based on the principle of equality