Nepali Times Asian Paints
Nation
Splitting up


SHIVA GAUNLE


After a courtship that lasted years, Amrita and Ganesh Bhakta finally got married. But within a few months, the couple had filed for divorce. The judge hearing their case tried to convince them that a divorce was not the only solution. It was an effort wasted since both were bent on separation. So the necessary papers were prepared and that was the end of a marriage both partners had looked forward to so eagerly.

Amrita and Ganesh Bhakta's divorce was one of over 200 cases registered in Kathmandu last fiscal year. That represents around 9 percent of all cases filed in the court, and is the highest in number after traditional disputes relating to land, money lending and inheritance.

There is definite evidence that divorce is on the rise in Nepal. Social scientist Ram Bahadur Chhetri of the Tribhuvan University found plenty of evidence while helping students gather data on the issue of divorce among Bahun, Chhetri and Newar communities of Pokhara and Kathmandu. As part of the study they also collected information from the district courts of Jhapa, Sunsari, Parsa, Rupandehi, Palpa and Banke, and the results were the same.

The findings from these eight districts provide an indication of the changing social scenario in the country. And given that these areas are all semi-urbanised, it also reflects the attitude towards divorce among people who are educated and financially stable, and who have the confidence to approach the courts. People from all castes and ethnic groups are opting for divorce. But it is more common among Bahuns, Chhetris and Newars, which could have something to do with higher levels of education in these communities.

Among the reasons cited for divorce by women are physical and mental torture, non-maintenance and lack of companionship. In Parsa (perhaps due to its proximity to India) the issue of insufficient dowry is also cited. However, social scientists believe there could be many more reasons and that lawyers mention only those reasons that are likely to speed up the divorce process.

Two major reasons not often explicitly stated are lack of sexual satisfaction, and cheating. Babita from Kathmandu was granted a divorce in 1997 and the reason stated was lack of interest. The main reason according to her, again not presented to the court, was that she had shared no physical relationship with her husband for the five years she was married. The last straw was a letter from her husband that said, ".didn't have a physical relationship with you because I thought that it would destroy your life. I have chosen another person as my life partner. Please forgive me."

Cases from Kaski and Sunsari show a predominance of cases where the wife gets into a sexual relationship with another while her husband is away working and vice versa. Since people are not comfortable talking about sex in Nepal, gathering reliable data on this aspect is rather difficult. However, there is reason to believe that such instances could be much more widespread than reported during divorce cases. The laws of this country are biased against women and many of them, like Babita, quietly endure everything rather than take action. (see box).

Chhetri believes that reasons being presented in court nowadays are not new. Earlier, women did not raise these issues because of lack of education, weak financial status and general oppression by husbands, family and society. The rise in divorce is also a sign that women are now more self-assured and making their own decisions.

Upbringing too is playing a major role in divorce cases of today. In cities and towns, girls are less discriminated against, get a proper education and are more outgoing in their outlook and behaviour. However, after marriage, society in general, and their in-laws in particular, tend to slot them into the role of the traditional wife or daughter-in-law. Career-minded women are not prepared to accept this. This sometimes leads to problems and when the husband sides with his parents the woman finds it easier to file for separation and concentrate on her career. But that is not so in all cases. There are still plenty of instances where totally incompatible couples continue to live together. Concepts and thoughts cannot change so
easily.

(Adapted from Himal Khabarpatrika.)
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Lesser citizens

Nepal ratified CEDAW (the UN convention on elimination of all forms of discrimination against women), which recognises marriage and family rights as important and inalienable rights of women, in 1991. Article 11 of the Constitution of Nepal also guarantees legal equality between men and women. But when it comes to actual practice these assurances are not worth the paper they are printed on.

"The chapter on Husband and Wife and the chapter on Marriage in the Civil Code are highly discriminatory against women. It puts women at a disadvantage while they are married and when they demand a divorce," says Dr Shanta Thapaliya, advocate and women rights activist. She is mainly critical about the legal provisions that demand a woman's loyalty to her husband, even after the husband's death or a divorce. In case a woman has a sexual relationship with another man or re-marries, her share of property received from the former husband will revert back to him or to his natal family. On the other hand, a simple verbal accusation by a husband that his wife has been unfaithful is recognised as valid grounds for divorce and the wife is even disqualified from receiving alimony.
As a state party to CEDAW, Nepal is obliged to ensure similar responsibilities and rights for men and women in marriage and divorce and the maintenance of children, irrespective of their marital status after divorce. The clauses concerning these rights in the Civil Code are both contradictory and inconsistent with the CEDAW charter. Women rights activists are critical about both the executive and legislative branches of the nation for failing to bring about amendments to the four decade-old Civil Code which they say is guided by "outdated and orthodox" social values. For example, the Civil Code allows a man to re-marry without divorcing his first wife if she fails to bear a child after ten years of marriage. The provision assumes that women are solely to blame for infertility. "Social discrimination (against women) triggered by illiteracy and an orthodox culture is furthered by a discriminatory legal system. Nepali laws related to marriage and family rights, in many cases, reinforce women's subordination to men," says Sapana Malla-Pradhan, an advocate with the Forum for Women, Law and Development.

Nepali laws are also discriminatory on the issue of granting child custody to women. Divorced women cannot get custody of their children. And if they do by mutual consent, the Civil Code's chapter on Paupers denies them the right to look after their children if they re-marry. This also applies to widows re-marrying after the death of their husband. However, fathers retain the right irrespective of their marital status after the death of the wife or a divorce.

The same discriminatory provisions exist with regard to adoption. A woman whose husband is not dead or who has sons either herself or from a co-wife cannot adopt a child. A woman is not also allowed to adopt a daughter without her husband's consent, whereas a man can do so without consulting his wife.

Grounds for divorce

In case of forced marriage between minors, a divorce can be obtained through mutual understanding between the two parties when they come of age. The procedure to obtain a divorce for women is easier than for men, but alimony or any other form of maintenance expenditure will be paid to the divorced wife only if the cause of the divorce is established to be the husband. The husband will then provide maintenance to the wife only for five years or until the wife remarries, whichever comes first. However, the provision of maintenance is at the court's discretion and is awarded only in cases where the wife does not have a source of income.

For men

. if wife lives separately from husband for more than three years;
. if wife attempts to take the life of or causes disability or any serious physical
damage to husband;
. if wife has sexual relationship outside marriage or admits having sex outside
marriage in a court;
. if wife elopes;
. if wife does not produce a child in 10 years after marriage husband can
remarry without divorcing the first wife
. if wife is infected with an incurable, transmittable sexual disease or if she
becomes insane, crippled or blind, husband can remarry without divorcing the
first wife; and
. if a married woman or a widow enters a forged marriage by stating her marital
status otherwise, she is penalised and the marriage is automatically terminated.

For women

. if husband remarries;
. if wife is thrown out of the family house;
. if husband lives separately from wife for more than three years;
. if husband attempts to take life, causes disability or serious physical damage;
and
. if husband is impotent.

-Hemlata Rai



LATEST ISSUE
638
(11 JAN 2013 - 17 JAN 2013)


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