Understanding Divorce Law in line with the new Civil Code 2074: An interview with Senior Advocate Sashi Adhikari
In countries like Nepal where culture comes before comfort, the concept of “Divorce” still remains a taboo and might as well come as a shock in many communities. In most Nepalese society, it is expected of married couples to maintain their marital status at all times. According to Section 68 of Muluki Dewani Samhita Ain (Civil Code) 2074, marriage is a pure social and legal tie between a man and a woman founded on the ground of mutual agreement between the both. This means without the existence of mutual understanding, consensus and respect, it is worthless to hold on to it. Nepalese law rightfully recognizes and legalizes the concept of divorce which is specifically provisioned in Chapter 3 under Family law of Civil Code 2074.
Therefore, to understand the legality of divorce and it’s practice in the Nepalese context better, we interviewed Women Rights Activist and Senior Advocate Sashi Adhikari, who has experience of more than 25 years in legal practice in Nepal.
We initiated by asking about the general situation of divorce cases in context of Nepal, to which Dr. Adhikari responded, “The cases in recent times has certainly gone higher”. According to her, women have predominantly been the applicant in divorce cases in the past. In contrary, after the implementation of Civil Code, there have been remarkable raise in male applicants registering for divorce. Prior to this, they could bring a divorce case in the court solely via local body which greatly prolonged the process. However, the new law allows men to register the case directly in the district court. The factor of convenience, easiness and promptness in court procedure has encouraged more men to bring in the claim. Although the provision has ensured equality in procedure, Dr. Adhikari adds, “There are higher chances that some may take this flexibility as an opportunity to get rid of the marriage as well as responsibility without much hustle”.
Under the new civil code, Dr. Adhikari mentions, “It is not obligatory for men to divide property with his wife, if it is by the reason of wife that the divorce is sought”. The grounds under which a man can initiate divorce claims are; physical and psychological torture by wife, conspiracy to kill or injure, forceful removal from house or lives separately for 3 consecutive years without consent. In the contrary, earlier, a husband was required to share his property with the female counterparts in all form of divorce claims without conditions. Dr. Sashi Adhikari worries that such new changes might instigate wrong practice because a husband who wants get rid of a marriage without any fault of his wife may initiate a case with intention to avoid property dissemination. She further mentions this is one of the reasons why the rate of men applying for divorce has risen in recent times. This might bring negative consequences as majority of women in Nepal are still financially dependent on their husbands.
Furthermore, the civil code also provisions that if a woman is financially independent and the husband is not, her property is divided with the husband after divorce. Referring to the aforementioned changes, she opines that the new Civil Code is inclined towards protecting men’s right than women.
Dr. Adhikari recalls her experience while responding to the question on the factors cited for separation by the applicants. She tells us that there are numbers of factor leading a wedded couple to seek divorce. The reasoning could vary as per the person who is initiating a claim. In a man dominated society like Nepal, women have mostly been bringing cases such as domestic violence, psychological and physical torture for dowry, forceful removal from home, adultery, denial of basic survival materials, etc. Interestingly, some hidden causes of divorce have also been sexual factors such as marital rape, dissatisfaction in sexual relationship, imbalance in sexual performance, etc. On the other hand, in case of men, adultery by wife, dissatisfaction in division of work, pressure by family members, desire to enter into another marriage are some of the major causes of divorce.
Most recently, the causes of foreign employment and migration have created numerous social imbalances. Hike in amount of divorce is one of such examples. Economic migration forces Nepali men to leave their wives and children in Nepal while they earn a living abroad. Unable to maintain a long distance relationship, wives back home indulge in extra marital affairs. Thus, in case of lower skilled men who are unable to migrate abroad with their wives, mostly fall victim of adultery and financial mistransaction by their female counterparts, who eventually end up in the court with a divorce application.
According to the data collected from various district courts, the number of women appealing for separation is relatively higher in number than men. One of many factors behind it is; the newly built confidence in approaching the court in the part of Nepali women. Education, proper awareness and guidance about the legal system, financial independency, are some of the primary factors that has considerable role to play in it. In the past, most women were compelled to stay in violent and misogynistic relationship without the absence of better alternatives. However, this landscape has drastically changed over the decade. Dr. Adhikari shares with us that in her practice, she has often witnessed that a woman who is dependent on her own income is capable of fighting and voicing against the torture, discrimination or inequality in their marriage. They are more likely to come out of a toxic relationship and demand legal remedies.
In my quest to know, if money has been one of the motivations for Nepalese women to file a case, Dr. Adhikari replied, “in few cases only”. She elaborates, “In fact, the Nepalese Laws rightfully allows a wife seeking divorce to claim division of husband’s property”. However, in most cases the property has not yet been the primary driving factor for divorce. In majority of cases, the women mostly from middle and lower class have claimed for the division of property with divorce in order to be able to sustain them self and their children. In case of women belonging from upper middle class and higher class, most of them solely request a legal separation without division of property.
Dr. Sashi Adhikari, a proactive women activist herself highlights few feedbacks and recommendations on the new Civil Code, 2074 as she expresses dissatisfaction with few changes made in the law. She tells us some new provisions may prove to be problematic for Nepalese community moving forward. Highlighting on few specific provisions, she suggests that it is too early for us as a country, to limit women of husband property in the cases of divorce because majority of women are still financial dependent on their husband. The possibility of the misuse of this provision may further raise economic concerns in the part of uneducated and unskilled divorced women. Recognizing the recent misuse of laws by some women as well, she adds, there are some cases where women files a divorce case only a month after getting married, only for the sake of property. Dr. Adhikari suggests, “to address such misuse, a conditional compensation of the wedding expenses by groom to the bride family can be incorporated as opposed to division of entire property to ensure fairness”. She lastly adds, incorporation of some progressive laws in the Muluki Dewani Samhita (Civil Code) 2074 is applause worthy but some requires timely attention and amendments.
Published Date: Thursday, August 15th, 2019 | 03:19 PM