This blog has been written by Saugat Subedi. Saugat Subedi is an Undergraduate Final year Law Student at Tribhuvan University, Faculty of Law, Prithvi Narayan Campus, Nepal with a keen interest in International Humanitarian Law and Conflict Studies. He can be reached at saugatsubedi04@gmail.com.
Introduction
In Nepal, marital status plays a crucial role in shaping how sexual violence cases are addressed. Women who are married, divorced, or widowed face unique challenges when seeking justice for sexual assault. These challenges stem from societal norms, legal barriers, and the way the judicial system treats these cases. The impact of marital status on the prosecution of sexual violence and the response of the legal system often leaves survivors with limited access to justice.
How marital status act as an intersectional factor of sexual violence in Nepal
In patriarchal societies such as Nepal, male family members generally have a tremendous impact on women's lives. Husbands' attempts to monitor their wives' actions and behaviour reveal an imbalance of power relations in the marital structure. Violence against married women remains a major concern in Nepal. The Nepal Demographic Health Survey 2016 found that 26% of ever-married women (aged 15-49) have faced physical, sexual, or emotional violence from their husbands. Physical violence is most common (23%), followed by emotional (12%) and sexual violence (7%). Additionally, 27% of survivors reported experiencing such violence from their current or most recent husbands/intimate partners.
Especially young married women in Nepal have limited decision-making authority about sexuality, contraception, and family size. The binding by ‘dharma’ (or a well-rooted notion from the time being created by patriarchy) to obey and abide by the husband is a resistive factor for women to speak against intimate sexual violence. Apart from the religious and male dominance, societal influence also seems to overpower committing sexual violence based on marital status because the rudimentary hierarchy and protecting family prestige stop a victim from raising her voice against injustice.
Legal response to the Marital rape in Nepal
Foregoing to the writ petition filed by Advocate Meera Kumari Dhungana [ Writ No. 55 of the year 2058 (2002)], marital rape was criminalised in Nepal. In 2006, An Act to Amend Some Nepal Acts for Maintaining Gender Equality, 2063 (2006) made marital rape a crime, punishable by 3-6 months in prison. Later, the 2015 Act to Amend Laws to End Gender Violence and Ensure Gender Equality increased the minimum jail term for marital rape to three years, with a maximum punishment upto five years.
In the National Penal Code 2017, under section 219(4) of Chapter-18 related to sexual offences, the crime of marital rape has been included. The maximum bar for punishment is set for five years while there is an absence of minimum punishment. This raises a serious question of judicial discretion in the cases of marital rape. Currently, there is a lack of any provision related to any pecuniary compensation to the victim except the amount to be collected under the victim rehabilitation fund. The lack of absolute monetary compensation in case of marital rape is a concerning area; meanwhile, the huge discrepancy in punishment for rape committed outside of marital status and within marital status visualises that the presence of marital status strengthens the mitigation of punishment for the offender which is against Article 1 of the CEDAW and Right to Equality under Constitution of Nepal.
Difficulties in prosecuting the perpetrators
In Nepal, sexual violence by intimate partners, including marital rape, may occur but is largely unreported due to the social stigma of discussing one's sex life as well as the implied belief that forced sexual relations by a husband without the consent of the wife does not constitute violence/rape. The lack of consent in a marital relationship is a hurdle to prove for the prosecutor due to preconceived bias that there cannot be forced sexual relations between husband and wife. Further, the lack of legal literacy and social stigma also act as a preventive barrier because the victims are threatened to resist raising their voices against their partners.
Section 224 of the National Penal Code defines sexual harassment which includes acts such as touching private parts, attempting to remove undergarments, using vulgar language, showing pornography, or teasing with a sexual motive…without consent. However, the phrase that the actions are sexual harassment if committed against "a person who is not his wife or her husband" creates a significant legal loophole. This exclusion makes it difficult to prosecute marital rape and sexual violence within marriages. The very acts of harassment that could lead to a charge of sexual violence are decriminalised when committed within a marital relationship, leaving survivors of marital rape without legal protection.
Judicial praxis and status of marital status as an aid to sexual violence in Nepal
The role of the Nepalese Judiciary in gender equality, women’s rights and the fight against sexual violence has been praiseworthy before and after the promulgation of the Gender Equality Act 2063 B.S. From the criminalisation of marital rape to increasing the punishment, the judicial trend in essence of marital rape is found to be positive and pragmatic.
The Supreme Court in Samaykumari (Changed Name) vs Narayan Paudel Khatri (alias: Rabin) has clearly stated that
“In a legal system that has already recognized that rape can occur between a husband and wife, concluding that the accused should be exempt from criminal liability for rape merely because they married the victim after the incident cannot be legally justified.”
The judgement clearly stresses that no perpetrator is immune to punishment just because there exists or is believed to exist a marital status between the victim and perpetrator.
In a recent national survey by the Ministry of Health in 2017, it was found that “26% of married women experienced physical, sexual, or emotional violence perpetrated by their husbands, 14% reported at least one-or-more forms of spousal violence in the past 12 months, and around 23% of all women experienced physical violence, 12% experienced emotional violence, and 7% experienced sexual violence”.
While in cases of sexual violence, marital status has not been mentioned much as a reason for the violence under judicial decisions except in the cases of domestic violence and marital rape but the social practice and status reveal that marital status is the prime factor for sexual violence.
Way Forward
Addressing the intersection of marital status and sexual violence in Nepal requires legal, social, and institutional changes. First, the law should remove the existing disparity in punishments between marital and non-marital rape. It will ensure equal justice for all survivors. Legal provisions should be clear, including mandatory minimum sentencing and financial compensation for victims. Secondly, raising awareness is crucial. Many victims do not report marital rape due to societal norms and lack of legal literacy. Public campaigns and legal aid programs should be organised to educate people on consent, gender equality, and legal rights. The judicial system must ensure survivor-friendly procedures. Specialised training for law enforcement, prosecutors, and judges can help reduce biases in handling cases of marital sexual violence
Finally, collaboration between government agencies, civil society, and international organisations is necessary. Strengthening support systems, such as shelters, counselling, and economic empowerment programs, can help survivors regain independence and dignity. A combined effort from all sectors is essential to eliminate legal loopholes and ensure that marital status is not a barrier to justice and an excuse to commit sexual violence.
References
Forum for Women, Law, and Development. (2002). The Forum for Women, Law and Development v. His Majesty's Government (Writ No. 55 of 2058). Global Health Rights. https://www.globalhealthrights.org/wp-content/uploads/2013/10/The-Forum-for-Women-Law-and-Development-Nepal-2002.pdf
Government of Nepal. (2017). National Penal Code 2017 (Criminal Code of Nepal). https://www.globalanimallaw.org/downloads/database/criminal-code-nepal.pdf
Government of Nepal. (2015). Constitution of Nepal 2072 (2015). Office of the Attorney General. https://ag.gov.np/files/Constitution-of-Nepal_2072_Eng_www.moljpa.gov_.npDate-72_11_16.pdf
SamayKumari (Changed Name) vs Narayan Paudel Khatri (alias: Rabin). Nepal Kanoon Patrika. https://nkp.gov.np/full_detail/132
OHCHR. (1979). Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). United Nations. https://www.ohchr.org/sites/default/files/cedaw.pdf
Pradhan, B. (2010). Violence against women in Nepal: A review of national policies and laws. Nepal Journal of Obstetrics and Gynaecology, 5(1), 24–28. https://www.nepjol.info/index.php/NJOG/article/view/2396
Republica. (2021, October 12). Marriage is no license to rape. My Republica. https://myrepublica.nagariknetwork.com/news/marriage-is-no-license-to-rape
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