Research On Child Rights And Penal Law In Nepal
Child Rights and Penal Law in Nepal
Nepal has a robust legal framework protecting children, including:
The Constitution of Nepal, 2015 – guarantees fundamental rights of children.
Children Act, 2075 (2018) – defines a child (below 18 years) and provides procedural protections for children in conflict with law and child victims.
Muluki Criminal Code, 2074 (2017) – defines crimes, including those against children.
Convention on the Rights of the Child (CRC) – ratified by Nepal in 1990.
The justice system recognizes children both as victims and as persons in conflict with the law, giving them special procedural protections such as diversion, minimum detention, and separate juvenile courts.
Case 1: Phulmaya v. District Court of Siraha
Facts:
Phulmaya, a minor, was charged alongside adults for abduction and related offences. The district court conducted the trial without a juvenile bench.
Legal Issues:
Was it legal to hear the case in a regular court instead of a juvenile bench?
Were Phulmaya’s rights as a child offender respected under the Children Act and juvenile justice principles?
Court Decision:
The court recognized that minors must be tried in juvenile benches and that detention should be the shortest necessary period. Phulmaya’s detention was ordered to a child correction home until trial under proper procedure.
Significance:
This case highlights procedural safeguards for children in conflict with the law, ensuring separation from adult offenders and adherence to child-friendly procedures.
Case 2: Supreme Court Mandamus on Juvenile Case Timelines (2022)
Facts:
A 17-year-old boy was held in a juvenile correction home for an extended period before trial. Delays were reported in adjudicating his case.
Legal Issues:
Whether prolonged detention of a child offender violates the Children Act and constitutional guarantees.
Whether courts are bound to conclude juvenile cases promptly.
Court Decision:
The Supreme Court directed that all juvenile cases must be resolved within 120 days of registration, unless valid reasons exist for extension.
Significance:
This judgment ensures timely justice for minors and emphasizes minimum deprivation of liberty. It is a benchmark for enforcing child-friendly procedures.
Case 3: Santosh Kumar Yadav Case (Child Marriage & Sexual Offences)
Facts:
A 15-year-old girl eloped with Santosh Kumar Yadav. Her father filed cases of abduction, hostage-taking, and rape. The district court acquitted him, the High Court convicted him, and the Supreme Court reviewed the case.
Legal Issues:
Whether the sexual activity with a minor constituted statutory rape or child marriage.
Whether cultural practices like child marriage could affect legal interpretation.
Court Decision:
The Supreme Court concluded that the act was a child marriage, sentenced him to six months imprisonment and a fine. Convictions for kidnapping or statutory rape were overturned.
Significance:
This case demonstrates tension between child protection laws and social/cultural norms, and highlights the need for strict enforcement of minimum age for marriage.
Case 4: Ram Bahadur Bamjon Case (Child Sexual Abuse)
Facts:
Bamjon, a well-known public figure, was charged with sexual abuse of a minor.
Legal Issues:
Whether serious offences against children are prosecuted effectively, even when the accused is socially prominent.
Application of Muluki Criminal Code provisions on sexual abuse of minors.
Court Decision:
Bamjon was convicted and faced imprisonment. The court emphasized the rights of the child victim and the need to deliver justice irrespective of the perpetrator’s social status.
Significance:
This case reinforces the principle that Nepalese courts take crimes against children seriously and apply severe penalties when warranted.
Case 5: Sapana Pradhan Malla & Others v. Office of Prime Minister (Child Marriage & Gender Rights)
Facts:
The case challenged laws allowing different legal marriage ages for males and females, which facilitated child marriages.
Legal Issues:
Whether differential marriage ages violate the rights of children and gender equality.
Whether child marriage should be considered a criminal offence in all cases.
Court Decision:
The Supreme Court invalidated the law that allowed different ages, emphasizing protection of child rights and gender equality.
Significance:
This case expanded child rights jurisprudence and reinforced that all children, irrespective of gender, are entitled to protection from early marriage.
Case 6: Sarita Adhikari v. Nandaram Jaisi (Child Marriage & Property Rights)
Facts:
A 13-year-old girl was married off. She challenged the marriage and sought protection of her property and inheritance rights.
Legal Issues:
Validity of child marriage under the Children Act.
Protection of the child’s property rights in such circumstances.
Court Decision:
The court declared the marriage void and ensured her property rights were safeguarded.
Significance:
This case illustrates the interaction between child marriage laws and property rights, emphasizing holistic protection of minors.
Case 7: Children Victim Justice System Study
Facts:
A study of 79 reported sexual offence cases showed 66 involved child victims. Delays, lack of counsel, and adult-oriented court procedures created challenges.
Legal Issues:
Whether child victims are adequately protected in the justice system.
Implementation of Children Act provisions for victim protection.
Findings / Court Practice:
Courts often fail to provide child-friendly procedures, legal aid, and psychological support. Delays exacerbate victim trauma.
Significance:
This highlights the need for systemic reforms to protect child victims, not just child offenders.
Key Takeaways
Nepal has a strong legal framework for protecting child rights under the Constitution, Children Act, and CRC.
Courts are enforcing child-friendly procedures, minimum detention, and timely adjudication.
Challenges remain in child marriage, victim protection, and cultural conflicts with child rights laws.
High-profile cases show both successes and gaps in implementation of child protection and penal provisions.
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