Why Nepal’s Supreme Court new judgement is disturbing for the women community in country?

Nepal’s Supreme Court recently passed a judgement that disturbed all the women in country. In a landmark verdict Supreme Court ruled that sexual intercourse with a minor girl cannot constitute rape if a boy and a girl wed and have sexual intercourse considering it as a biological need between husband and wife. Decision was announced after a petition was filed by Santosh Kumar Yadav, resident of Saptari district on November 14. The court released full text recently that briefly explained, if a boy marries a girl below the age of 20, the boy and girl live as a husband and wife, then the relationship should not constitute rape but the case should only be of a child marriage. Division bench of justices Anil Kumar Sinha and Kumar Chudal passed the sentence.
The disturbing part is how indisputably court nullified the concept of statutory rape that could not only disqualifies any rape case filed by the minor victim in future but also encourages child marriages. According to the available information, 38 percent women under the age group of 20-49 were married before the age of 18 in the country, which is a serious issue. However, Nepal recognizes statutory rape as a crime in section 219(2) of its criminal code, 2017.
Swati Dhingra is a volunteer at girl child and women shelter and had worked in India, some parts of Nepal and Bangladesh. She has attended several workshops regarding women welfare and security. According to her, the judgement will affect country’s women community largely. She said, ‘This decision has put all the work activists are working in the country and across the world against such issues, into waste. Every little step we put forward in this, consider welfare and security of the whole community. But when legal bodies like Supreme Court pass such judgements, the reliability and trust disappear.’ The top court overturned a high court verdict that had imposed an 11-year jail term on the man. Instead, the supreme court reduced his prison term to six months with a fine of 10,000 Nepali rupees ($75), reported Al Jazeera.
Continuing her statement, Swati mentioned what consequences this can lead to. ‘There is possibility of multiple situations. No one has an idea whether the particular marriage or sexual intercourse act was carried out with or without consent. Sometimes women need motivational and legal support to come out and speak. It will be hard for people like us who are advocating for women and help them to come out. Since we are witnessing the crimes against women and how the numbers are escalating year by year, administration and legal bodies should make the laws protecting the community instead of leaving them off guard’, she said. Child marriage is banned in the country and is a punishable offense since 1963.
Swati told EAT news, child marriages will be picked up by lot of families in Nepal, now. She said, ‘This will encourage child marriages because Supreme court has already erased the difference between a minor and an adult by validating the sexual intercourse between husband and a wife, even if she is a minor with no proper understanding of her body and consent. Usually, poor families or the ones below average, practices child marriage for specific reasons.’ As per available date presented by UNICEF, ‘In 2019, 17.4 percent of Nepalis are multidimensionally poor- just under five million persons, and the MPI is 0.074. Across indicators, the highest number of people are deprived in housing materials, clean cooking fuel, years of schooling, assets and nutrition.’
Dikshya Adhikari, Program coordinator at the conflict victims’ Women National Network, Nepal shared her opinion through Al Jazeera’s opinion column. According to her, ‘There is a reason why children are not allowed to vote, sign contracts, work, enlist in the military, use alcohol or tobacco or indeed get married – a lack of mental maturity and authority over their lives to take such decisions with the full awareness of the consequences and the readiness to face them.’
Meanwhile Nepal’s administration has included number of international tools to eradicate Child marriage practice among the Nepalese society. ‘Convention on the Rights of the Child (CRC) and its two optional protocols, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which prohibit early marriages and make the state responsible for acting against the practice’, quoted Dikshya. In addition, the country’s National Strategy to End Child Marriage, 2015, aims to eliminate child marriage by the year 2030. The National Child Policy, 2012 has long term goal of creating an environment in which children of all classes and communities can fully enjoy their rights.
The critical judgement concerned a case where a mother filed FIR against petitioner Santosh Kumar Yadav, that stated he enticed her 15-year-old daughter, kidnapped and raped her. Later, Court proved that the boy and girl were happily living as a husband and wife.