Case: Let an order be issued for making or causing to be made the legal provision based on the principle of equality

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1 Supreme Court, Special Bench Hon ble Justice Anup Raj Sharma Hon ble Justice Ram Prasad Shrestha Hon ble Justice Pawan Kumar Ojha Order Writ No. 131 of the year 2063 BS (2006 AD) Ms. Meera Dhungana, for her own behalf and by authorization for and on behalf of Women, Law and Development Forum located at Ward No. 11 of Kathmandu Metropolis, Kathmandu District Writ Petitioner Office of the Prime Minister and Council of Ministers, Singhadurbar...1 Ministry of Law, Justice and Parliamentary Affairs, Singhadurbar... 1 Ministry of Women, Children and Social Welfare, Singhadurbar...1Opposite House of Representatives...1Parties National Assembly Law Reforms Commission, Singhadurbar....1 Vs. Case: Let an order be issued for making or causing to be made the legal provision based on the principle of equality Anup Raj Sharma J: The summary of facts and issues of the above mentioned writ petition filed before this Court under Article 88 (1)(2) of the Constitution of the Kingdom of Nepal, 2047 BS (1990 AD) are as follows: - 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 20

2 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. This Court had passed an order asking the opponent party to show cause as to what was the matter. The order further had directed to present the case file before the Bench, giving priority in the docket sheet, with the affidavits submitted by the opposite parties in case the affidavits are submitted within the prescribed time limit or after the expiry of the time limit prescribed for submission of the affidavits. The writ petitioner had filed a supplementary petition before this Court under rule 29 of the Supreme Court Rules, 2049 as corrigenda to the main petition. In the supplementary petition the writ petitioner has stated that in the main text in Nepali version, it was inadvertently written in the fourth line of the paragraph No. 1 in page 2, as let the said provision be declared void and ultra vires instead of correctly to be written as let the appropriate order be issued directing to make the legal arrangement for punishment based on the principle of equality. In the same way, in the 16 th line of the paragraph No. 11 in page 6, also it was inadvertently written as let the said provision be declared void and ultra vires instead of correctly to be written as let the appropriate order be issued directing to make the legal arrangement for punishment based on the principle of equality. Likewise, in the 6 th line of the paragraph No. 14 in page 7, also it was inadvertently written as let the said provision be declared void and ultra vires instead of correctly to be written as let the appropriate order be issued directing to make the legal arrangement for punishment based on the principle of equality. Similarly, in the 4 th line of the paragraph No. 15 in page 8, also it was inadvertently written as let the said provision be declared void and ultra vires by issuing the order of certiorari inclusive of the order of mandamus instead of correctly to be written as let the appropriate order be issued directing to make the legal arrangement based on the principle of equality. The Office of the Prime Minister and Council of Ministers in its affidavit submitted before this Court states that it is the sole business of legislature to decide as to what type of legislation is to be made, therefore, the writ petition is liable to be dismissed on the ground that there does not exist any reason to make this office as the opposite party in the matter concerned with the law made by the legislature. 21

3 The Parliament Secretariat on behalf of the House of Representatives and the National Assembly in its affidavit submitted before this Court states that the Legislature is always aware and cautious to make timely reforms in the Nepal laws by incorporating the cultural values and norms of Nepalese society and the spirits and principles contained in the Constitution of the Kingdom of Nepal, 2047 BS (1990 AD) and international human rights instruments to which Nepal is a party. Therefore, the writ petition filed without considering the time and is liable to be dismissed on the ground that the writ petitioner has made the House of Representatives and National Assembly the unconcerned institutions as the opposite parties. The Law Commission in its affidavit submitted before this Court states that the writ petitioner is unable to mention in the writ petition as to what the reasons were behind for making the Law Commission as an opposite party in the present case and therefore the writ petition is liable to be dismissed. The Ministry of Defense in its affidavit submitted before this Court states that the Royal Nepalese Army Recruitment, Promotion and other Miscellaneous Arrangement (Eighteenth Amendment) Rules, 2031 are still in existence and the Ministry is bound to do as per the law prevailing for the time being, and therefore, the writ petition is liable to be dismissed. The Ministry of Law, Justice and Parliamentary Affairs in its affidavit submitted before this Court states that the provision made by section 4(3) of the Social Events Reforms Act, 2033 is seen to be concerned with the punishment for accepting a dowry in form of cash or kind by the bride side for getting its daughter or like person married. Any type of punishment is being used to be imposed on the basis of gravity and nature of crime, social view on such crime and social values, tradition and recognition regarding such crime. The question of making legal arrangement that the writ petitioner has raised has also been made on the same basis. Thus the legal provision made for imposing punishment to be awarded to the law violators cannot be linked with the fundamental right conferred by the constitution and gender discrimination. However it should not be construed that every provision of law relating to the punishment should be taken as valid even though it is inconsistent with the constitution. The punishment as mentioned in section 4(3) of the Act, is made for both parties the dowry giver and receiver and on such circumstances, the said legal provision has not infringed anyone s fundamental right or gender discrimination, rather it has tried to harmonize and regulate the practice on social events. Therefore, the legal provision in question is not inconsistent with the provisions made by the Constitution and international Treaties and agreements. Therefore, the pleas taken in the writ petition are illogical and unreasonable and hence the writ petition is liable to be dismissed. The Ministry of Women, Children and Social Welfare in its affidavit submitted before this Court states that the making or amending the law is the business of the legislature and this Ministry was not involved in making or amending the law questioned by the writ petitioner and the said act does not fall under the jurisdiction of this Ministry. The writ petitioner is unable to indicate with evidential fact as to what type of work done by this Ministry infringed the petitioner s constitutional and legal right. Since the writ petition is based on hypothetical 22

4 logic and has made this Ministry an unconcerned institution in the matter raised in the petition, therefore the writ petition is liable to be dismissed, let it be dismissed. In the present case docketed before this Bench as per rules, the writ petitioner the advocate Ms. Meera Dhungana submitted that the legal arrangements made in section 4(3) of the Social Events Reforms Act, 2033 has discriminated in the punishment between the bride side and the groom side while they commit the same offense. 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 and upon perusal it gives a clear glimpse of dominance of the patriarchal value and thinking. Since the said provision made in sub-section (3) of section 4 is inconsistent with the Article 11 of the Constitution of the Kingdom of Nepal, 2047, therefore, let the appropriate order be issued directing the opponents to amend the said legal arrangement based on the principle of equality. Learned Deputy Government Attorney Mr. Brajesh Pyakurel representing the opponents including the Office of the Prime Minister and Council of Ministers of the Government of Nepal submitted before the Bench that the act of receiving dowry and giving dowry are of quite different nature and cannot be construed as the same act, therefore there is no reason for issuance of writ as sought by the writ petitioner. 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 vires pursuant to Art 88(1) of the Constitution of the Kingdom of Nepal. So far the first question is concerned, upon perusal of the section 4 of the Social Events Reforms Act, 2033 it under the heading The bride side not permitted to receive provides in sub-section (1) that the bride side while their daughter or like person is to be married is not permitted to receive or give in exchange any cash or property from/to the groom s side and in sub-section (2) it provides that the bride side should not give pressure to the groom side putting demand specifying the quantity of ornaments, clothes, cash or kind or real estate. Similarly, in the sub-section (3) of the said section it is seen as 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. The person giving the dowry shall be punished with half of the said punishment. The provision contained in sub-articles (1), (2) and (3) of Article 11 of the then prevailing Constitution of the Kingdom of Nepal, 2047 BS (1990 AD) under the heading right to equality has provided as the following:- (1) All citizens shall be equal before the law. No person shall be denied the equal protection of the laws 23

5 (2) No discrimination shall be made against any citizen in the application of general laws on grounds of religion, color, sex, caste, tribe, origin, language or ideological conviction or any of these. (3) The State shall not discriminate against citizens among citizens on grounds of religion, race, caste, tribe, sex, origin, language or ideological conviction or any of these. Provided that nothing shall be deemed to prevent the making of special arrangements by law for the protection, empowerment or advancement of women, children, aged and the disabled, those who are physically or mentally incapacitated or the people who are economically, socially or culturally backward. 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, 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 [for example, Writ petitioner Meera Dhungana and Others vs. Ministry of Law, Justice and Parliamentary Affairs et al, Writ No of the year 2050 BS (1993/ 94 AD), Nepal Law Reporter, 2052 (1995/96 AD) page 462); Writ petitioner Dr. Chanda Bajracharya vs. Ministry of Law, Justice and Parliamentary Affairs and Others, Writ No of the year 2051 BS (1994/95 AD), Nepal Law Reporter, 2053 (1996/97 AD) page 537); Writ petitioner Sapana Pradhan Malla vs. Ministry of Law, Justice and Parliamentary Affairs and Others, Writ No. 2736, Nepal Law Reporter, 2053 (1996/97 AD) page 105) 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 24

6 based on the principle of equality. Let the copy of the Order be given to the Office of the Attorney General and the case file be delivered as per rule. S/d Anup Raj Sharma Justice We concur with the above opinion. s/d Pawan Kumar Justice s/d Ojha Ram Prasad Shrestha Justice Date:- Thursday, the 28 th day of the month of Mangshir of the year 2063 BS (corresponding to 2006/12/14 AD) 25