Research On Customary Practices And Penal Code Reforms In Nepal
Legal Background
Nepal has a long history of customary practices being part of daily life and governance. The Muluki Ain (1854, revised 1963) incorporated many customs into formal law. However, modern Penal Code 2074 (2018) reformed criminal law to align with human rights standards, explicitly addressing harmful customs like child marriage, chhaupadi, kamlari, caste discrimination, and prohibited marriages. Courts have played a major role in interpreting these laws when customary practices conflict with statutory provisions.
Case 1: Pun Devi Maharjan v. Government of Nepal (2008) — Kumari Tradition
Facts:
The petitioner challenged the traditional practice of selecting young girls as “living goddesses” (Kumaris), claiming it restricted education, mobility, and personal rights.
Legal Issues:
Does the tradition violate constitutional rights of children?
Can cultural/religious practices override rights-based laws?
Judgment:
The Supreme Court held that the practice was a cultural tradition and did not inherently violate the law since girls were not deprived of education or forced into labor. However, it directed the government to ensure educational access and social welfare for Kumaris.
Significance:
Recognized cultural importance while emphasizing protection of child rights.
Showed courts balancing customary practice with statutory protections.
Case 2: Child Marriage Cases — Kabita Pandey v. Government of Nepal (2019)
Facts:
A 15-year-old girl was married off by her family in a rural community, following local customary practices. The issue arose when she later sought annulment and protection.
Legal Issues:
Is customary early marriage permissible under modern Penal Code?
How should courts interpret child marriage laws when local tradition condones it?
Judgment:
The court held that child marriage is illegal under Penal Code §173, regardless of tradition. Parents and the groom were liable to imprisonment and fines, and the marriage was annulled.
Significance:
Penal Code reforms directly criminalize harmful customs.
Courts affirmed that protecting child rights overrides cultural practices.
Case 3: Chhaupadi Abolition Enforcement (2018)
Facts:
Women in far-western Nepal were forced to live in separate huts during menstruation (Chhaupadi), exposing them to health and safety risks.
Legal Issues:
Does the harmful custom justify societal compliance?
Can penal sanctions be applied to those enforcing the practice?
Judgment/Outcome:
The government amended the Penal Code to criminalize enforcement of Chhaupadi, imposing imprisonment up to 3 months and fines.
Significance:
Penal law reform directly targeted harmful customary practices.
Demonstrated shift from social enforcement to legal enforcement.
Case 4: Som Prasad Paneru & Others v. Government of Nepal (2006) — Kamlari System
Facts:
The case challenged the practice of sending young girls from poor families into domestic servitude (kamlari), a traditional practice in certain districts.
Legal Issues:
Can customary child labor practices be challenged under the constitution and penal code?
Judgment:
The Supreme Court declared the kamlari system illegal and directed legislative reform. Subsequent laws criminalized the practice and provided compensation and rehabilitation for affected children.
Significance:
Highlighted courts’ proactive role in addressing harmful traditions.
Penal Code reforms followed court directives to enforce child protection.
Case 5: Prohibited Degrees of Marriage — Endogamy Practices
Facts:
Certain communities permitted marriage within prohibited degrees of lineage (e.g., intra-clan marriage) as a custom.
Legal Issues:
Does customary approval justify what is otherwise criminal under Penal Code §220(D) (incest/prohibited marriages)?
Judgment:
Courts ruled such marriages illegal if they violate statutory provisions, even if socially sanctioned. Offenders could face imprisonment and fines.
Significance:
Penal law reform superseded customary approval.
Strengthened rule of law over traditional practices that pose legal/ethical harm.
Case 6: Caste-Based Discrimination and Penal Code Reforms
Facts:
Members of lower castes faced exclusion and harassment under long-standing caste-based customs. Traditional authorities often sanctioned discrimination.
Legal Issues:
How do customary caste hierarchies interact with Penal Code §167 (torture), §174 (discrimination), and other protective provisions?
Judgment:
Courts held that customary sanctioning of caste discrimination was illegal. Offenders could be prosecuted under the modern penal code for torture, harassment, or obstruction of rights.
Significance:
Showed that penal code reform addressed entrenched social customs.
Reinforced equality principles overriding customary authority.
Case 7: Forced Religious/Customary Practices — Child Rituals
Facts:
In certain communities, children were forced to participate in religious rituals causing health or education risks.
Legal Issues:
Whether traditional religious practices could override the Penal Code’s protection of children.
Judgment:
The court ruled such practices illegal if they harmed children or deprived them of fundamental rights. Penalties were imposed on guardians enforcing harmful rituals.
Significance:
Demonstrated the growing alignment of penal law with child protection standards.
Reinforced that human rights take precedence over cultural tradition.
Key Takeaways
Customary practices are increasingly scrutinized under the modern Penal Code.
Child protection, gender equality, and human rights guide courts in evaluating customs.
Penal Code reforms (2074) explicitly criminalize practices like child marriage, Chhaupadi, and kamlari.
Courts balance tradition and rights, sometimes permitting cultural practices with safeguards.
Enforcement gaps remain despite codified reforms; implementation is ongoing.
RELATED Blog
comments