Supreme Court
Special Bench
Hon'ble Justice Mr. Laxman Prasad Aryal
Hon'ble Justice Mr. Kedarnath Upadhyaya
Hon'ble Justice Mr. Krishna Kumar Barma
Order
Writ No. 55 of the year 2058 BS (2001-2002)
Subject: Law inconsistent to the Constitution be declared invalid and ultra vires
pursuant to Article 88(1) of the Constitution of the Kingdom of Nepal, 2047 (1990).
On behalf of the Forum for Women, Law and Development, Thapathali, ward No. 11 of
Kathmandu Municipal Corporation and on her own, Advocate Meera Dhungana, 33, a
resident of the same …… ………………………………………………...Writ Petitioner.
Versus
His Majesty's Government, Ministry of Law, Justice and Parliamentary Affairs,
Singhdurbar ……………………………….. 1
His Majesty's Government, Cabinet Secretariat, Singhdurbar………1
The House of Representatives, Singhdarbar, Kathmandu………….1
The National Assembly…………………………………………….1
………………………………………………………...Respondents
Facts in brief of and the order made in the writ petition filed at this court pursuant to
Article 88(1) of the Constitution of the Kingdom of Nepal, 1990 are as follows:
Whereas, a writ petition has been filed challenging the Constitutional validity of No. 1 of
Chapter on Rape in the Country Code stating that Part 3, Article 11 of the Constitution of
the Kingdom of Nepal, 2047 has guaranteed the right to equality and aforesaid equal
protection of law to all the citizens of Nepal. The preamble to the Constitution has
expressed the commitment for the protection of the human rights and rule of law. Right to
equality is one of the basic premises of any democratic country and backbone of rule of
law. If any legal provision creates advantage to one and disadvantage to other between
the same sex on the basis of social status or any other reason and if such legal provision
creates inferiority feelings then such legal provision is noting but unequal. Not only the
Constitution of the Kingdom of Nepal, but also the international instruments like the
Universal Declaration of Human Rights, 1948; the International Covenant on Civil and
Political Rights, 1966; the International Covenant on Economic, Social and Cultural Rights, 1966; the UN Convention on the Elimination of All Forms of Discrimination
against Women, 1979 provide that all human beings are equal and every one possesses
the inherent right to equal protection, that no person shall be unreasonably discriminated
that the legal provisions depriving, discriminating, excluding and restricting economic,
social, cultural, civil rights and human rights and fundamental freedoms of women to be
eliminated through the medium of Constitutional and legal measures and that no laws
shall be enacted causing or intending the cause discrimination, and Nepal has ratified or
acceded to those international treaties and conventions without any reservation and has
accepted the responsibilities arising out of those basic instruments of human rights.
Section 9(1) of the Nepal Treaty Act, 1991 has categorically provided that in case a
provision of a treaty to which Nepal is a party is inconsistent with any provision of a law
in force, the provision of the law in force shall, to the extent of such inconsistency, be
invalid for the purpose of the treaty and the provision of such treaty shall prevail as a
municipal law of Nepal;
Whereas, the petitioner also states that the Constitution of the Kingdom of Nepal, 1990 is
the fundamental law of the land. No other laws may be enacted or enforced in
contravention to principles, values and spirit of the fundamental law. In addition to this,
Nepal has become a party to the aforementioned instruments;
Whereas, the petitioner further states that despite of these above mentioned provisions,
No. 1 of the Chapter on Rape in the Country Code 1963 has defined rape as the act of
having sexual intercourse with a girl, widow or other's wife not attaining the age of
sixteen years with or without her consent in whatsoever manner or attaining the age of
sixteen years without her consent in whatsoever manner either exerting threat, pressure or
coercion or with undue influence. However, the act of having sexual intercourse with
one's own wife by the husband without her consent has not been included in the
definition of rape;
Whereas, the petitioner further states that Article 11 of the Constitution of Kingdom of
Nepal, 1990 has guaranteed all citizens, equal protection of law and equality before law
and Article 12(1) has guaranteed right to individual liberty. Similarly, Article 1 of the
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) has defined the term 'discrimination'. The definition not only included direct
discrimination but also included the law or practice that has the purpose or effect of
causing discrimination or depriving from equal treatment. This Convention has not only
hold the state responsible for violence or violation of women's right by public institution
or in public sphere, but also in case of such acts committed in private spheres. In the
course of the Beijing Plus Five Review Process held to review the progress made after
the Beijing Conference (on women), marital rape has been taken as one of the forms of
violence against women and a commitment has been made to ban it;
Whereas, the petitioner continues in the petition that rape is a physical relationship
against the will. Consent is fundamental basis for sexual intercourse or contact, however,
provision contained in No. 1 of the Chapter on Rape has violated the women's right to
equality and right to take decision which have been secured under various international instruments like International Covenant on Civil and Political Rights, 1966 and the
Convention on Elimination of All Forms of Discrimination against Women. Whereas, the
petitioner has also stated that the reason that criminal law should not be attracted on
family relations and that it ruins a married life are baseless ones. It is simply because in a
married life when violence is present in sexual relationship, then there is no meaning and
value of such relations. Thus, the petitioner has requested that as No. 1 of the Chapter on
Rape is inconsistent with the right to equality guaranteed under the Constitution of the
Kingdom of Nepal, 1990 and also with the Convention on the Elimination of All Forms
of Discrimination against Women and other international human rights instruments, the
impugned provision is void pursuant to Article 1(1) of the Constitution of the Kingdom
of Nepal, 1990, therefore, the impugned provision be declared ultra vires under Article
88(1) of the Constitution;
Whereas, an order was issued by a single Bench of this court on 2058-4-17 (Aug 1, 2001)
requiring the respondents to submit written as to why not and order to be issued as
requested by the petitioner;
Whereas, separate written replies with the same content of response have been received
from the House of Representatives and the National Assembly that the petitioner could
not have shown and established as to why the House of Representatives and the National
Assembly have been made respondents and the relevancy of making them respondents,
thus, the petition is liable to be quashed as the subject-matter would be cleared from the
written replies of other respondents;
Whereas, the Ministry of Law, Justice and Parliamentary Affairs stated, in its written
reply, that the said provision of the current law has been enacted because it is not in
conformity with the Hindu religion, traditions and values that a husband rapes his own
wife exercising threats, fear, pressures and duress, unlike what has been contended by the
writ-petitioner. With the change of time, state parties to various international instruments
have been expressed positive commitment with regard to equal rights to women and in
course of changing laws in accordance with provisions of international instruments, new
laws have been enacted or being enacted in Nepal. Thus, the process of timely change of
laws is in progress. As the said provision is, from the viewpoint of equality, equally
effective even in the present context, there is no need of repeal or amendment. On the
basis of the above, No. 1 of the Chapter on Rape, the Country Code, is not inconsistent
with the Constitution of the Kingdom of Nepal, 1990, the Convention on the Elimination
of All Forms of Discrimination against Women and other international instruments
relating to women's human rights, therefore, the writ petition is liable to be quashed;
Whereas, the Cabinet Secretariat has, in its written reply, contended that No. 1 of the
Chapter on Rape, the Country Code, has criminalized the act of having sexual intercourse
with force with any women and has afforded protection to women by punishing any third
person who commits the offence of rape as defined or deemed by law with any woman
other than his wife. Since it is against the Hindu religion, traditions and values that a
husband rapes his wife by exercising threat, fear, pressure and force, unlike what has
been contended by the petitioner, the current law contains that provision. Moreover, the petitioner has not been able to establish what action or proceeding of the Secretariat has
violated the right of the petitioner, and the Secretariat has been made respondent without
any basis, the writ petition is liable to be quashed;
Whereas, in respect with the rule the writ petition has been referred to this bench.
Advocates Sapana Pradhan Malla and Raju Chapagain pleaded on behalf of the writ
petitioner stating that No. 1 of the Chapter on Rape has not criminalized rape of a wife
committed by her husband using force, threat, fear and duress provided immunity to the
offenders. Various international human rights instruments have recognized that marital
rape is not only a form of violence against women but it is also a serious violation of
women's human rights. Being a party to those international instruments, Nepal is under a
duty to abide by the obligations arising through those instruments. The classification of
the law that an act committed against an unmarried girl to become an offence and the
same act committed against a married woman not to become an offence is not a
reasonable classification. The said provision in the Chapter on Rape is against the right to
equality guaranteed under Article 11 and the right to privacy guaranteed under Article 22
of the Constitution of the Kingdom of Nepal, 1990 and in contravention to the right to
equality guaranteed under various international treaties and conventions. Therefore, the
impugned provision of No. 1 Chapter on Rape is inconsistent with Article 1 of the
Constitution; it should be declared invalid and ultra vires pursuant to Article 88 of the
Constitution;
Whereas, on behalf of the respondent His Majesty's Government, The learned Deputy
Attorney General Narendra Kumar Shrestha and the learned Joint Attorney General
Narendra Prasad Pathak pleaded that the Constitution has guaranteed right to equality
only amongst equals, however, married and unmarried women cannot be treated alike.
The social position and family responsibilities of married women are far more different
and separate than the unmarried ones. The said legal provision has been made with the
recognition that marriage is a permanent consent expressed for having sexual relations.
Thus, the provision of the said No. 1 of the Chapter on Rape cannot be applicable equally
with respect to the women having nuptial relationship and the women having no such
relationship. Writ jurisdiction may not be entertained on the basis of a hunch or
hypothesis as no victim has filed case. In case any man causes pain or suffering to his
wife against her will, such action may be the basis for divorce and a separate provision of
remedy-the offence of battery and punishment-has been included under the Chapter on
Battery. It is a matter to be determined by legislative that what sorts of acts committed by
person or a group of persons in a society have to be criminalized and what sorts of
punishment has to be imposed. It is not in conformity with Hindu religion and traditions
to say that consent is required to have sexual relations with one's own wife. While
changing a legal provision prevailing since time immemorial, the repercussions it causes
on the society and its execution have to be taken into consideration. The legislature
enacts and reviews laws as per the need of the time and societal opinions. But a court
does not make law in the same manner as legislature does. Unlike what has been claimed
by the petitioner, No. 1 of the Chapter on Rape does not contain gender discriminatory
provision, rather it merely defines the offences of rape. Thus, as the said provision is not
inconsistent with the Constitution, the writ petition is liable to be quashed; Whereas, upon the study of the documents collected in the case-files and having listened
to the points raised during the pleadings by the legal practitioners appearing on both
sides, the main contention of the petitioner is that as No. 1 of the Chapter on Rape, of the
Country Code, contains "others wife having her husband alive", the provision has
excluded and immuned the rape of one's own wife from the definition of rape. The said
provision is in contravention of the right to equality guaranteed under Article 11 of the
Constitution of the Kingdom of Nepal, 1990 and various international human rights
instruments to which Nepal is a party. So No. 1 of the Chapter on Rape be declared
invalid and ultra vires pursuant to Articles 1 and 88(1) of the Constitution of the
Kingdom of Nepal, 1990. The respondents have, in their written replies, contended that
provision of No. 1 of Chapter on Rape has been enacted as it is against Hindu traditions
and values to presume that a husband commits rape of his own wife, so the said provision
is not contrary to the right to equality guaranteed under the Constitution and the
international instruments relating to women's human rights to which Nepal is a party.
Upon evaluating and analyzing the points raised in the writ petition and written replies,
decisions have to be rendered with respect to the following questions:-
(a) Whether or not the petitioner has locus standi to file the writ petition?
(b) Whether the issues raised by the petitioner needs a concrete case filed by aggrieved
wife or a question whether or not marital rape constitutes the offence of rape may be
decided under public interest litigation?
(c) Whether or not marital rape to be committed to a wife is an offence of the nature of
getting immunity under No. 1 of the Chapter on Rape of the Country Code?
(d) Whether or not other appropriate order needs to be issued?
With regard to the first question whether or not the petitioner has locus standi to file the
petition, the writ petitioner has contended that as No. 1 of the Chapter on Rape, the
Country Code contains, "others wife having her husband alive", and these words have
allowed a husband to commit rape to his wife, the said provision is inconsistent to right to
equality guaranteed under Article 11 of the Constitution of the Kingdom of Nepal, 1990.
The writ petition has been filed under Article 88(1) of the Constitution and under Article
88 of the Constitution, two types of issues public interest or concern may be filed at this
court through the writ jurisdiction- issue of any law being inconsistent with the
Constitution or an undue restriction has been made on fundamental rights under Article
88(1) and issue of interpretation or settling of any legal question of public interest or
concern under Article 88(2) of the Constitution.
Review of Article 88(1) of the Constitution clearly shows that under Article 88(1) of the
Constitution, any Nepali citizen may file a petition at the Supreme Court requesting the
court to nullify the law or a part thereof be declared invalid, which is inconsistent with
the Constitution. In this connection, this court has, in Bharatmani Jangam vs Parliament
Secretariat (writ No. 4195 of 2056, Date of order 2057-7-16 corresponding to ….)
interpreted that even though Article 88(1) is related to the subject of public interest, it is not aimed against an executive act, rather it is aimed to the test of Constitutionality of a
legislative act. In the observance of Constitutional duty, any Nepali citizen is entitled to
file a petition at the Supreme Court invoking Article 88(1), thus, unlike Article 88(2),
there needs no meaningful relation of the petitioner to file a petition for the issue of
public interest. Similarly, Article 88(2) has provided extraordinary jurisdiction to this
court to issue necessary and appropriate order for settling disputes arising out of any
Constitutional or legal question. This provision is related to the right to seek
Constitutional remedy on the issues of public interest or concern against decisions and
proceeding carried out by the executive. A principle has been laid down in Radheshyam
Adhikari V. Cabinet Secretariat (NKP 2048 p. 810) that in getting such a remedy, there
shall be meaningful relation and substantial interest of the petitioner with the concerned
subject matter of public interest. Similarly, this principle under Article 88(2) has been
followed later in so many cases, and the extent of public interest has been further
widened and extended. It has been held in Chudanath Bhattarai v. Pubic Service
Commission (NKP 2054, p. 360) that the person seeking remedy under Article 88(2)
must have the issue related to the interest or concern of a community or people in general
rather than his/her personal interest or concern. A similar type of order has been issued by
a full bench of this court in Bharatmani Gautam v. Ministry of Finance and others
(Ri.Pu.E.No.138, dated 2057-12-21 corresponding to ……). These legal principles have
been laid down by the Supreme Court in such cases, which are related to public interest,
or concern in whatsoever manner.
Whereas, the origin of the concept of public interest or concern is found to be developed
as liberalization of the rigid concept of locus standi. If the traditional concept and judicial
practice that only the person who is entitled to can file a case is applied even on the
matters of public interest or concern, the petition easily gets quashed and consequently it
becomes easy in converting public property into private property and ultimately it will
encourage those who are in the advantage of abusing judicial process. Therefore, in the
matters of public interest or concern, the principle that only the person who is entitled to
can file a case can not be applied as in the matters of private affairs. Thus, primarily, it
has to be examined that whether or not the issue raised by the petitioner is a matter of
public interest or concern? Or whether the petitioner has filed this writ petition merely for
the purpose of attainment of personal interest in the name of public interest or concern?
Whereas, this writ petition has been filed under Article 88(1) raising human rights,
interests and concern of entire women who are under the category of wives. There is no
doubt that the petitioner is Nepali citizen. It can not be said that the petitioner has no
locus standi to file this writ petition as there is Constitutional provision in Article 88(1)
and interpretations thereon that any Nepali citizen may file a writ petition to settle any
legal and Constitutional question;
Whereas, while considering on the next question whether the issues raised herein needs to
be raised only in a concrete case or it can be settled through this petition under the
subject-matter or public interest or concern, some analyses need to be made on the nature
and characteristics of an issues of public interest. An issue of public interest or concern is
not of adversary nature and interest or concern of one person is not adverse to the interest or concern of another person as it necessarily happens in the matters of private interest or
concern, rather issue of public interest or concern involves such interest or concern
protection or promotion, which is a common duty of both - the petitioner and the
respondent. Even judges needs to be committed more on protecting and promoting public
interest than to be fully impartial in the cases involving private parties. Upholding public
interest or concern by judges is delivering appropriate justice in the cases of such nature.
In a case involving public interest or concern, the petitioner, respondent and judges all
have the same objective to meet and serve and the spirit of mutual cooperation than that
of adversary nature and of mutual co-action than that of competition between parties. In
such cases, no party is winner or loser, as all win. Whether the writ is issued or quashed,
in both situations, pubic interest is protected. It is the basic characteristic of a dispute
involving public interest or concern. Absence of other procedural complications and
speedy setting of disputes are other characteristics of such a dispute;
Whereas, public interest for which remedy are available under Article 88(1) and (2) of
the Constitution is different from the public interest that may be established under legal
remedy of ordinary nature as referred to in No. 10 of the Chapter on Court Proceedings of
the Country Code. The former is related to the extraordinary jurisdiction for the test of
Constitutional validity of a law or any part thereof. It is not appropriate to think that such
issue can be settle only through ordinary remedy as District Court and Appellate Court do
not have jurisdiction under Article 88 of the Constitution. Thus, it can not be said that the
case for the remedy sought by the petitioner has to be brought in ordinary course of
treatment, and the issue raised by the petitioner is the one that can be settled under the
extraordinary jurisdiction of the Supreme Court as referred to in Article 88(1) of the
Constitution;
Whereas, while going through the main issue of the petition that whether or not No. 1 of
the Chapter on Rape allows a husband to rape his wife, it is relevant to discuss in brief on
the definition and nature of rape before settling the questions;
Whereas, rape is one of the major offences amongst the criminal offences of grave nature.
Rape is an inhuman act to be committed violating women's human rights and the act
directly causing serious impact on individual liberty and right to self-determination of
victim woman. Not only it causes adverse impact on physical, mental, family and
spiritual life of victim women, it also adversely affects on self-respect and existence of
women. This offence is not only against victim women, but also against the society as a
whole. Murder destroys physical being of a person but the offence of rape destroys
physical, mental and spiritual position of victim women. Thus, it is a heinous crime. Law
of every country has treated rape as one of the grave criminal offences and has provided
for punishment accordingly. In Nepal as well, the Country Code, 2020 (1963) has treated
rape as one of the grave criminal offences. Rape is most serious offence. It is evident
from the provision made in No. 8 of the Chapter on Rape, which provides right to selfdefense of chastity that there would be no offence committed if the culprit of rape is
killed within one hour from the time of commission of the rape. It is one of the heinous
forms of all offences. It violates all rights of a woman, which are related to living with dignity. Rape also adversely affects on self-respect and personality of the victimized
women;
Whereas, the main element of rape is use of force, threat and duress. It is called rape
because force is used while it is committed. Forcible sexual intercourse by exercising
force is inhuman, uncivilized and animal-like act. From the conceptual viewpoint of rape,
it is the worst forms of criminal offence under the category of domestic violence against
women. For the commission of a criminal offence, there needs guilty mind (mens rea)
and such actions (actus reus), which may actually commit the offence. In rape, the act is
forcibly and intentionally committed at the will of one person but against the will of other
person irrespective of unwillingness or denial of other person. Unlike consensual sexual
intercourse in which both persons have willingness for the intercourse, rape involves use
of force, threat duress, fear by the rapist. Therefore, in each of civilized, human and wellcultured society, rape is taken as a heinous criminal offence without exception;
Whereas, rape being a heinous criminal offence and since it has not been categorically
immune by law, interpretation of No. 1 of the Chapter on Rape has to be made in context
of international law including international treaties, instruments, and principles of law;
Whereas, women are also human beings. As long as women remain as human being, they
are also entitled to all rights that a human being is entitled for being a human. Article 1 of
the Universal Declaration of Human Rights, 1948 has declared the right of every human
person to live with self-respect. Similarly, all members of human family are entitled to be
equal before law and equal protection of law without discrimination. Article 4 provides
that no selfdom or servitude shall be accepted. The International Covenant on Civil and
Political Rights, 1966, under its Article 1, provides that all people shall have right to selfdetermination and Article 8(1) has provided that no one shall be subjected to slavery and
serfdom. These rights of self respect, self-determination and independent existence are
inseparably and inalienably available to a human person, thus, women are also entitled to
these rights. There seems no distinction in exercise of such rights before and after the
marriage of women;
Whereas, a marriage does not mean women to turn in to slaves. Thus, women do not lose
human rights because of marriage. So long as a person lives as a human being he/she is
entitled to exercise those in-born and natural human rights. To say that the husband can
rape his wife after the marriage is to deny independent existence, right to live with selfrespect and right to self-determination. Any act which results in non-existence of women,
adversely affects on self-respect of women, infringes upon right of women to
independent decision making or which makes women slaves or an object or property is
not compatible in the context of modern world, rather it is a stone-age thought;
Whereas, to forcibly compel women to use an organ of her body against her will is
serious violation of her right to live with dignity, right to self-determination and it is an
abuse of her human rights. The Constitution has guaranteed the right to privacy.
Therefore, in the light of those international instruments on human rights, it cannot be
said that marital rape is permissible. Article 1 of the Convention on Elimination of All Forms of Discrimination against Women (CEDAW), defines the term 'discrimination
against women' as "any distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their martial status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic, social,
culture, civil or any other field." Similarly, Article 6 of CEDAW has provided the right
against trafficking of women and exploitation of the prostitution of women. Article 2 of
the United Nations Declaration on Elimination of Violence against Women, 1993
(General Assembly Resolution No. 48/104) has inter alia, included marital rape as a form
of violence against women. Similarly, the Fourth World Women Conference held in
Beijing in 1995 has also included marital rape as a form of violence against women and
stated that marital rape is violation of women's human rights. Section 103C of the Beijing
Platform for Action has included marital rape under domestic violence against women
and has urged to make necessary laws on it;
Whereas, section 9 of the Nepal Treaty Act, 1991 has categorically provided for that the
aforesaid treaties and international instruments to which Nepal is a party have to be
accepted as law of Nepal. In case provisions of such treaties and instruments to which
Nepal is a party are inconsistent with provisions of Law of Nepal, the former provisions
prevails. Thus, the position of such treaties and instruments are higher. Such treaties and
instruments relating to human rights are important documents of modern age. National
laws have to be framed according to those instruments and such laws have to be
interpreted accordingly. In this background, while defining the offence of rape, the
Constitutional norms and provisions of international instruments have to be taken into
account;
Whereas, in this context, it is relevant to cite some of the judgments. In Regina v. R.
(1992), the House of Lords in England has held that marriage is not an implied consent
for rape, and has convicted the husband. In Peoples v. Liberta (1984), the court of Appeal
of New York has held that there is no justification of the distinction between rape and
marital rape and that marriage is not a license to rape wife by husband and the court has
declared a New York law unconstitutional that exempted marital rape from being an
offence. Interpretations given in those cases are related to and significant in the context of
the present case;
Whereas, a discussion on the history of our family law and criminal law and reforms
brought from time to time is relevant in this context. Preamble of the Country Code,
1963, which has been enacted to settle family disputes and convicting and punishing
criminal offences, provides that as peoples behaviors could not be regulated only by
religions, literatures, the code has been enacted to punish all, either belonging to higher
or lower classes, on an equal basis. This shows that the aim of the law is to punish all
culprits instead of traditional practice of discrimination. Religious beliefs and traditions
did not restrict polygamy, but now the law has made it punishable. There has been a seaschange in the classical thought that a marriage once entered into continues for ever and
law has provided that the relationship may be divorced subject to the provisions of law.
Law has provided for seeking alimony from the husband to live separate from him. The law has eliminated practices of untouchables and other forms of social discrimination and
exclusion. Law has regulated marriage - child marriage is prohibited and no marriage is
recognized without consent. The law has not allowed more than one wife to a man and
eliminated provision for partition of partial property. In matters of crimes as well, the
Constitution has envisaged right to equality and other laws including the Country Code
have been amended accordingly. Many discriminatory provisions contained in the
Chapter on Rape have been amended. The age of women referred to in No. 1 of the said
Chapter has been changed from time to time. However, the terms "other's wife whose
husband is living" stated in No. 1 of the said Chapter inserted by an amendment of 1992
BS (1935 AD) have been still continuing. There has been a sea-change in social,
economical and cultural background during the Rana regime of the said time. It is quite
natural to bring about timely changes in laws with the changes in social, economical and
cultural background;
Whereas, bringing timely changes in laws is to proceed towards globalization with the
concept of universal values and traditions. The main basis of globalization is reciprocal
international relations and the values and traditions determined by treaties and
conventions. It is in this context that laws are being made in the national level according
to the provisions of international treaties and instruments to which Nepal is a party. A
Bill has been introduced in order to bring changes in the Prevention of Trafficking in
Human Beings Act, 1986 in harmony with recently adopted SAARC Convention on
Prevention of Trafficking in women and Girls. The Country Code (Eleventh Amendment)
Bill has been passed to enforce the principle of substantive equality under the CEDAW
and the Bill against domestic violence has also been adopted. In this way, the terms
"other's wife whose husband is living" referred to in No. 1 of the Chapter on Rape have to
be interpreted in the context of recognition of the said principles in national and
international level;
Whereas, murder or attempt to murder, battery, defamation or verbal abuse of one's own
wife are criminal offences made punishable, it cannot be said or taken that though No. 1
of the Chapter on Rape that criminalize rape as a heinous criminal offence, has immune
any person committing such an offence from punishment. If an act is an offence by its
very nature, it is unreasonable to say that it is not the offence merely because of
difference in person committing the act. It will yield discriminatory result, if we interpret
that an act committed to any other woman is an offence and is not an offence, if the same
act is committed to one's own wife. There is no justification in differentiating between the
women who are wives and other women. Such discriminatory practice is against the
provisions of the Convention on the Elimination of All Forms of Discrimination against
Women and letters and spirit of Articles 11(1), (2) and (3) of the Constitution of the
Kingdom of Nepal. No law can be interpreted against provisions of the Constitution and
treaties and international instruments to which Nepal is a party. Therefore, to exempt an
offence of rape committed to one's wife by the husband is against recognized principles
of justice. An offence is deemed to be committed because it is committed and not because
there is difference in the status or position of the person committing that offence. There
may be difference in the degree of punishment but there would be no immunity from
punishment. The law itself has regarded consent as a basis of marital relationship and marriage cannot be solemnized in absence of the consent. In similar ways, mutual
consent is compulsorily required to have sexual intercourse between husband and wife
after the marriage. Sexual intercourse with use of force and without consent is regarded
as the offence of rape;
Whereas, it has been contended in the written replies that it is beyond imagination that a
husband commits rape to his wife, and it is sure that so long as there is love and good
faith between husband and wife, there is no situation of rape. It is normal state of affairs,
however, sometimes reality of life becomes different and strange than the normal state.
Where a wife is treated as an object or property or a means of entertainment and
exploitation, her personal health and her needs are ignored in an irrational and inhuman
manner and in that situation, an unnatural and brutal act of rape of wife is committed.
Such situation may be rarest of rare. Therefore, it is imperative in a married life to
discourage the brutal act of rape. If marital rape is punishable, a pure, healthy and clean
atmosphere will be created in society in places of disorder and imbalance. In our country,
law has prohibited child marriage very long ago but this social evil is still in practice. If
marital rape is made punishable, it would help eliminate this social evil as well;
Whereas, the learned government advocate appearing on behalf of the respondents
pleaded that it is not in conformity with Hindu religion and tradition to say that consent is
required to have sexual intercourse with one's own wife. Hindu religion and its literature
stress on purity, cleanliness and behavior of good faith in conjugal life, it can not be said
that Hindu religion and traditions exempts the heinous act of rape to wife. Sexual
intercourse in conjugal life is a normal course of behavior, which must be based on
consent. No religion may ever take it as lawful because the aim of a good religion is not
to hate or cause loss to any one. Thus, the pleading of the learned government attorney
appearing on behalf of the respondent can not be accepted;
Whereas, from the viewpoint of literal interpretation theory of legal interpretation as well,
No. 1 of the Chapter on Rape, the Country Code, does not categorically excluded marital
rape from the definition of rape. A proviso clause of a law must be clear, categorical and
doubtless. A law cannot be said to have proviso from a definition based on presumption
against the basic tenet and elements of rape. If an odd sense comes out from an
interpretation of a law, its meaning should be found from constructive interpretation.
Even the literal interpretation of the words "other's wife whose husband is living" which
is appearing in No. 1 of the Chapter on Rape does not mean that no rape shall be
committed to one's own wife. In those words, the word "others" come before "no man
whose husband is living". The word has not been used as an exception but as an adjective
to the words woman whose husband is living and the word gives a symbolic meaning.
Such use of word can not be taken as a proviso. Having analyzed the content of No. 1 of
the Chapter on Rape, it seems to have criminalized rape and it does not seem to have
classified having excluded one's wife by way of a proviso. Therefore, the structure of the
said law and the causes explained above there seems no justification and reasonable
cause for treating marital rape as an exception; In the light of the discussions made in the foregoing pages and spirit of the right to
equality guaranteed in the Constitution, various international human rights instruments
ratified by Nepal and changing norms and values in criminal law with the pace of time, it
is appropriate reasonable and contextual to define marital rape too as a criminal offence.
It can not be said that any man who commits heinous and inhuman crime of rape to a
woman may be immune from criminal law simply because he is her husband. Such
husband has to be liable to the punishment for the offence he has committed;
Now, therefore, as marital rape found to have been immune by No. 1 of the Chapter on
Rape, it can not be regarded, as contended by the writ petitioner, that the impugned
definition of rape is inconsistent to the Constitution. Thus, the writ petition is hereby
quashed. It is also hereby decided that as a punishable offence, there is a difference in the
consequences of the rape committed by a third person and by a husband and No. 8 of the
Chapter on Rape has kept in mind only the consequences of rape committed by a third
person, there is a situation of gap of legal provisions following the rape of one's own wife
- such as providing immediate relief by allowing to live separate from or to divorce the
relationship with the rapist husband; prescribing the degree of offence in rape committed
in the circumstance of child marriage; therefore, a directive order has been issued in the
name of one of the respondents, the Ministry of Law, Justice and Parliamentary Affairs,
to introduce a Bill for bringing necessary amendments with regard to the said gaps and
for making complete legal provisions for justifiable and appropriate solution in an
integrated manner with regard to marital rape taking into account the special situation of
marital relationship and position of the husband. Do pass the information of this order to
the respondents through the Attorney General and handover the case-file as per Rules.
Sd
Justice
We concur with the above opinion.
Sd. Sd.
Justice Justice
Done on this Thursday, the 19th of Baisakh of the year 2059.
