Domestic Violence against Women in Nepal:

Concept, History and Existing Laws

Prof. (Dr.) Rajit Bhakta Pradhananga•

Advocate Purna Shrestha••

1. General Background

For individuals all over the world, home is a safe haven, yet it is at home that many people,
all over the world, are subjected to heinous crimes of terror and violence and even death at
the hands of family members who are suppose to love and protect them. They are
victimized physically, sexually and psychologically. However, when the abuse is inside the
home, it is condoned by a large part of the society, State and law enforcement machinery.

Though domestic violence is a form of violence that occurs inside the home, in context with
Nepal, like in almost all the South Asian countries domestic violence is one of the many
forms of gender based violence. Gender based violence is present in every country, though
there are variations to the patterns of violence. It cuts across boundaries of countries, class,
caste, age, education, income, ethnicity and culture. Even though most countries have
criminalized violence against women, domestic violence against women is still prevalent and
sanctioned under the disguise of cultural practices or through the misinterpretation of
religious texts. It not only needs to be eliminated because it is detrimental to the physical
and mental health of women, but it also violates the basic fundamental human rights of
women. Other reasons for eliminating domestic violence are the cost to society: directly
through use of social services, police investigation and medical care; and also indirect cost
because of decreased productivity level (economically) and decreased participation level
(socially). It is also insidious because of its inter-generational effect, reducing enjoyment of
life for the future generation and transmitting violence to the next generation.

The prevalence of domestic violence against women in the country is an open secret,
however, Nepal does not have separate law addressing domestic violence against women.
Therefore this research paper, after clarifying the domestic violence as a gender-based
violence and looking into the historical development of law on domestic violence against
women, had make an attempt to look briefly into the situation of domestic violence against
women and the existing legal system in Nepal. This research paper has also looked at legal
mechanism addressing domestic violence against women in some of the major Asian
Countries. It has also attempted to identify the problems in the existing system and had
made recommendation on the required intervention to protect women from domestic
violence and to provide appropriate remedy to the victim.
•
LL.M. (with Honours), Ph.D (Criminal Law), Professor, Nepal Law Campus, Kathmandu.
••
M.A (Women's Studies), LL.B., Advocate, Supreme Court of Nepal, Kathmandu.

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2. Conceptual Framework and Classification of Domestic Violence

Domestic Violence as a Crime

Before entering into the subject matter, it is necessary to understand that violence of any
kinds against anyone is a crime. While purely looking it from the perspective of criminal law,
crime is that act resulting from human conduct which is punishable by the state through its
laws. Violence is the act, today the whole world is concerned about. Many efforts, nationally
as well as internationally, are going on to combat the violence. Violence against someone
carries the elements of crime, i.e. harm, brought about by human conduct, which state
desires to prevent through different modes and fixes certain procedures to address it.

Violence does not only include beatings, rape or sexual abuse, it is anything which
infringes on the rights of the person to be treated as human being. Those violence
which occurs within the periphery of household is domestic violence.

In the recent development of criminal law around the world, domestic violence is being
included in the definition of violence and various efforts are going on to control this crime
by fixing certain legal proceedings. Nepal has also attempted to address this kind of violence,
though it is yet to be materialized, I choose the subject matter “Domestic Violence against
Women and Relevancy of Law in Nepali Context” as my internship topic because I
believe that introduction of law to address any problem of the society need intensive
research. This is important to enact the effective law which can be implemented in practice
after its enactment. As the issue of domestic violence against women is new for our country
and has not gain much attention of the researchers, I believe my small efforts will provide a
baseline to introduce a law to control domestic violence.

2.1 Domestic Violence: A Universal Phenomenon

Likewise other forms of crime, domestic violence is not a problem of Nepal only, it is spread
beyond the South Asian regions and is prevalent in all the part of the world. Also it is not a
very new phenomenon, it was as old as the origin of the family, though its nature was
changed according to place and period of time. As in the market, similarly in family the
resourceful person dominate to the resourceless ones, which ultimately results into the
violation of the rights of the weaker one and therefore a violence. However, due to the lack
of reporting of these kinds of matters in the public and also it being considered from the
very beginning as something that is “private” and “non-interferable matter” was not defined
as crime and therefore was not address by the procedures of the law. Now a days with the
increasing trend of reporting against the violence that occurs within the domain of domestic
sphere it is clearly reflected that like other acts of crime, domestic violence is an universal
phenomenon prevailing everywhere from the past till to date, may it be a developed
countries or the developing one.

2.2 Domestic Violence: A Gender Based Violence

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 Gender-based violence is “any act of commission or omission by individuals or the
state, in private or public life, which brings harm, suffering or threat to girls and
women, and reflects systematic discrimination – including harmful traditional
practices and denial of human rights because of gender.1

Gender based violence is an obstacle to the achievement of the objectives of equality,

development and peace. It violates and impairs or nullifies the enjoyment by women of their
human rights and fundamental freedom. Failure to protect and to promote women’s rights
and freedom are a matter of great concern to all nations, and should be addressed effectively.
In all societies, to a greater or lesser degree, women and girls are subjected to physical, sexual
and psychological abuse that cuts across lines of income, class and culture. Violence against
women has been an effective tool in the hands of men through which they can exploit
women and establish their supremacy.

Gender based violence is still a pervasive and prevalent problem, affecting the life cycle and
all aspects of a woman’s life from the home to the workplace and to the street. “The
discovery of gender based violence and its establishment as an important component of the
women’s agenda took different paths in different parts of the world. In general it emerged
as in the context of activism and research on issues related to the social status of women and
their right to participation.”2 Furthermore the convergence of issues pertaining to
development and human rights and the momentum of the feminist movement fueled the call
for priority action to combat gender violence. Strategies included among others, the need to
establish interventionist support systems, structural changes including legal reform, legal
literacy and public education programs.

At the intergovernmental level, one significant event was the United Nations meeting on
violence in the family held in Vienna in 1986. The UN Publication, Violence against Women
in the Family (United Nations, 1986) notes that approval by the UN General Assembly of
Resolution 40/36 of 29 November 1985, recognizing the importance of violence in the
home, was a milestone. The resolution advocated “concerted and multidisciplinary action”
both within and outside the United Nations system, to deal with the problem. It also urged
governments to adopt specific criminal legislation to obtain an equitable and human
response from judicial systems regarding the victimization of women. The resolution marked
the recognition by intergovernmental bodies that violence against women is an issue
affecting all countries and all cultures and should be a priority for national and international
action.3

In Asia, the recognition of gender based violence as a manifestation of patriarchy,

subordination and women’s low social status and value was articulated at different stages of
the women’s movement in each country. The United Nations Decade for Women (1975-
1 Ruth Finney Hayward, Breaking the Earthenware Jar quoted from A Reference Kit on Violence Against Women and
Girls in South Asia, UNICEF, Kathmandu, Nepal, 2001, p. 10.
2 Schuler, M., Freedom From Violence: Women’s Strategies From Around the World, Women , Law and
Development , OEF international, 1992.
3 Ibid.

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1985), the World Conference on Women in Nairobi, through the International Conference
on Human Rights (Vienna) to the Fourth World Conference on Women (Beijing) reaffirmed
the principle that woman’s subordination in the home and society cannot be combated
through development programs that do not recognize and subvert the underpinnings of
female subordination, including cultural, religious, legal economic and political structures.
The expansion and inclusion of a human rights framework further brought home feminist
insights that gender based violence is a human rights violation. Women’s rights cannot be
viewed in isolation and can only be promoted when the surrounding social, economic and
political conditions are made conducive to their advancement.

Domestic violence derives from cultural, social and religious patterns, which enforce and
justify lower status of women in the family and society at large. Domestic violence is
aggravated by social pressures (i.e. shame in exposing certain abuses); women's lack of access
to legal information; lack of effective laws, inadequate efforts by public authorities to
promote awareness of and enforce existing laws; and absence of educational and other
means to address the causes and consequences of violence. Images in the media of violence
against women, in particular those that depict women as sex objects are all factors that
contribute to the continued prevalence of such violence.

The Declaration on the Elimination of Violence against Women is the first international
human rights instrument to exclusively and explicitly address the issue of violence against
women. It affirms that the phenomenon violates, impairs or nullifies women's human rights
and their exercise of fundamental freedoms. The Declaration provides a definition of
gender-based abuse, calling it "any act of gender-based violence that results in, or is likely to
result in, physical, sexual or psychological harm or suffering to women, including threats of
such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in
private life".4

This has been also reflected in the International Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW Convention). CEDAW Convention
provides a working forum for the process of eradicating gender-based violence and
promoting gender equity in the international community and at every level of national life.

In its General Recommendation No. 19, the CEDAW Committee notes;

Tradition attitudes by which women are regarded as subordinate to men or as having stereotyped roles
perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced
marriage, dowry deaths, acid attacks, and female circumcision. Such prejudices and practices may justify
gender-based violence as a form of protection or control of women. The effect of such violence on the physical
and mental integrity of women is to deprive them of equal enjoyment, exercise and knowledge of human rights
and fundamental freedoms.

4 Article 2 of the Declaration on the Elimination of Violence against Women, 1993.

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Hence states should take every legal measure necessary to protect women from all forms of
abuse including domestic violence that inhibits women’s ability to enjoy rights and freedoms
on a basis of equality with men.

Furthermore, it holds states responsible for redressing private acts of domestic violence and
asks states to acknowledge this is reviewing their laws and policies. It urges states to take
appropriate and effective measures to overcome all forms of gender-based violence whether
private or public, including adopting legislation embodying criminal and civil remedies that
would remove the defense of honor in the assault or murder of a female family member.
States are also urged to report on the extent of domestic violence in their country and on the
preventive and remedial measures in place to deal with such violence.

a. Domestic Violence against Women

To define domestic violence is also as difficult as to define the crime, it does not always
involve physical contact it may take the form of emotional as well as physical and sexual
abuse, as such it includes; punching, hitting, slapping, throwing object, pulling hair, twisting
limbs, choking and other forms of physical assault, using weapons, threatening to injure or
otherwise harm the victim or the children, damaging property for example, furniture or pets
to frighten the partner, sexual abuse or assault and depriving a partner of basic needs –
food, money, outside contact with friends or relatives, putting her down in public,
humiliating her and making her feel worthless.5

In conclusion, it may be defined as an action or an absence of legitimate action, committed

against member(s) of the family by the member(s) of the same family, which gives rise to
torture, pain, stress, suffering and discrimination. As it is the form of violence which occurs
within the family, it may also be called as family violence.

b. Nature of Domestic Violence against Women

Domestic violence has distinct character as opposed to other types of violent crime. It can
be characterized by at least five features:

• It is perpetuated by someone close to the victim, usually her partner or ex-

partner;

• It happens in intimate settings which are presumed by society to be sites of

support and care;

• It is a recurring form of abuse generally characterized by a cycle of violence:

the abuse is followed by a period of respite after which tensions build up
again and eventually explode into another violent episode;

5 Department of Family Service and Aboriginal & Affairs, 1990, p.1.

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 • The abuser uses domestic violence to control and coerce the victim;

• The abuse has profound emotional and psychological effects on the victim,
who often believes (and is often told by the abuser) that she is to blame for
the violence.

Another distinctive aspect of domestic violence is that women who seek outside help to end
the domestic violence usually do not come at the first instance of abuse. Often they have
endured sustained abuse of years, and have reached a point where the violence has escalated
or become intolerable. It must therefore be recognized that the attempt to obtain external
assistance may place the victim in grave danger of extremely violence repercussions. As
abuser may become even more irate at any independent action by the victim, and many
women have been savagely beaten upon attempting to leave the abusive situation.

For these reasons, the point of contact with outside authorities is an absolutely critical
period. Government bears a heavy responsibility to respond to the needs of the domestic
violence victim quickly and effectively. This responsibility is heightened by the fact that the
woman may have come forward for assistance based on the reasonable expectation that she
is entitled to legal protection.

2.3 Types of Domestic Violence against Women

In simple words, domestic violence against women can be defined as any kinds of gender
based violence that occurs within the domain of house. As mentioned below, it may be of
categorised into five types:6

1. Physical abuse: Abuse committed with an objective of giving physical pain is

known as physical abuse. This includes slapping, beating, arm-twisting,
stabbing, strangling, burning, choking, kicking, threats with a weapon, murder,
traditional harmful practices like female genital mutilation and widowhood
abuse.

1 Sexual abuse: Those abuse which occurs due to women’s incompetency (may
be due to unwillingness or any other reasons) in fulfilling the sexual desires of
men. This includes coerced sex through threats, intimidation or physical force,
forced prostitution, or any unwanted sexual act.

2 Psychological abuse: Psychological abuse includes all intimidating and

threatening behaviour, persecution, abandonment or threats of abandonment,
confinement, surveillance, verbal abuse and mental torture.

3 Emotional abuse: Emotional abuse includes causing fear, shame, public

embarrassment, continued threats and taunts, isolation and humiliation.

6 A Reference Kit on Violence Against Women and Girls in South Asia, UNICEF, Kathmandu, Nepal, 2001, p.
11.

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 4 Economic abuse: Economic abuse includes acts such as denial of funds,
exploitation, controlling access to healthcare, food, basic necessities and denial
of rightful income.

2.4 Forms of Domestic Violence against Women

Domestic violence is undoubtedly the most prevalent form of violence against women and
girls. If domestic violence is seen broadly as any act of violence within the house – it
includes differential treatment of girls, wife beating and abuse, torture of daughters-in-law
and neglect and torment of widowed women in the family. The various forms of domestic
violence against women can be categorized as below:

• Son preference leading to female foeticide

Son preference is universal and not unique to Nepal only. It is transcultural

phenomenon historically rooted in the patriarchal system. Son preference is playing a
major role in the low valuation and neglect of female children. A son is considered to
be a family pillar, who ensures continuity and protection of the workforce and will
bring an extra pairs of hands, once he will get married. Sons are the source of family
income and have to provide for parents in their old age. They are also the interpreters
and the performers of rituals, especially on the death of the parents. Therefore the
birth of the son is welcomed with celebration as an asset to the family, whereas girls
are seen as liability. Consequently, the sex bias or son preference places the female
child in the disadvantageous position not from the birth but from the foetus itself.
Abortion, even though was illegal in Nepal and has been legalized few months back
only, there are many parents who have conducted abortion in the private clinics only
because it is the female fetus. In this manner the female fetuses are killed brutally.
Further, abortion performed by unskilled birth attendants, under poor sanitary
conditions led to increased maternal mortality.

• Battering of mother during pregnancy

Pregnancy is generally perceived as a very normal situation as of a sick person and

mostly no proper care was provided to women during the pregnancy period, which
directly affect their health in the old age. Rather, after the delivery many other kinds
of violence takes place against women justifying it through traditional practices like
cheupadi, which is still prevalent in the society. Son preference also plays a crucial role
for violence against women during the period of pregnancy. The continuous pressure
from the family and the society to be a mother of a male child keeps reminds a
woman of a torture if she will give birth to a girl child. Further, if the girl child born,
the trend of continuous violence through defamation and sometimes through
physical handling get added to other kinds of mental torture.

• Neglect and marginal treatment to girls

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In our society girls are generally discriminated with regard to food, nutrition,
education, health care services and other necessary belongings, which is utmost
important for their normal upbringings and growth. Women and girls are supposed
to eat less and usually after the man and boys of the family had eaten. With regard to
education and health care facilities, priority always goes for boy child. This has a
direct impact on the poor health status and career of girls and women, in the future.

• Child sexual abuse

The sexual vulnerability of the girl child in and around her home is increasing day by
day. In most of the cases, sexual abuses are subjected by their own near and dear
ones, they may be neighbour, brother, uncle or even father. Though many of the
cases of sexual abuse i.e. paedophilia, rape and molestation, incest of children, go
unreported the number of those that are reported is enough to unnerve our society.
Not unexpectedly, family rarely talk about the rape of their young daughter; when the
rapist is father or a brother, the chances of reporting is even lower. A mother would
often suppress and wash away the event, not only because of a sense of shame and
outrage, but also out of fear of reprisals from her husband, son or other relatives.
And if a mother mustered enough courage to approach a police to lodge complaint
against rapist of her daughter, if it is her own father no one will be ready to believe
that a father could sexually assault his own daughter, it will further increase a threat to
the life of mother and the daughter.

• Confinement within household

As entire family works towards transmitting its cultural and social capital, which
underline the subordination of women to its younger members. Family as an
institution plays an important role in oppression and exploitation of women.
Hierarchic gender relations confine girls and women to definite roles and obligations
i.e. stereotype works, confining girls within the household chores in the name of
physical chastisement etc. This lead to the devaluation and discrimination against
women.

• Child marriage

In Nepal, marriage continues to be universally regarded as essential for a girl,

irrespective of class, caste, religion and ethnicity. Control of her sexuality and its safe
transference into the hands of the husband is of primary importance for the parents.
Due to the sexual vulnerabilities of girls and increasing rate of dowry demands by the
time is an important cause of early marriage. Child marriage robs a girl of her
childhood, time necessary to develop physically, emotionally and psychologically. In
fact, early marriages inflicts great emotional stress as the young woman is removed
from her parent’s home to that of her husband and in-laws. Her husband who will
invariably by many years her senior, will have little in common with a young teenager.
It is with this strange man she has to develop an intimate emotional and physical

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relationship. Health complication that results from early marriages include the risk of
operative delivery, low weight and malnutrition resulting from frequent pregnancies.

• Dowry related abuses and deaths

Dowry demand and dowry related crimes i.e. abuses and even deaths, are increasing
day by day in our society, especially in the terai region of the country. Our social
stigmas have taught women to bear up with every humiliation, beating, molestation
and even be burnt but not speak out because the honour of the family will be put in
jeopardy. And thus the women becomes very vulnerable to violence within the four
walls of their homes and if she dare to leave that home and returns to her parent’s
house she would ‘endanger’ the chance of her younger sister’s suitable marriage
(presumably because other eligible boy’s parents would then fear that the girl would
not fulfill their dowry demands). So the parents of the woman, who suffers from the
physical and mental torture seldom stand by her or save her from this prosecution;
consideration of social prestige deter them from interfering in the exercise of rights
conferred by the ideal of pativartya.

• Wife beating

Wife beating or in more extremes cases wife battering is the most common form of
abuse worldwide irrespective of class, caste, religion and community. The odd slap or
blow was regarded as routine husband like behaviour, it was only if the beatings were
very severe did women perceive of themselves is being abused. Wife sexual
infidelities, her neglect to household duties and her disobedience of her husband’s
dictates are all considered legitimate cause for wife beating.

• Marital rape

Rape by anyone is a heinous form of violence against women, however rape within
the relationship of marriage; by one’s own husband, is one of the most traumatic
violence against women. Husband is the one from whom, also due to social,
traditional and cultural values, a wife expects love, care, affection and the most
security, however marital rape does exists in many marital relationship. And to the
fear of social ostracization and stigma women rarely comes out with reporting of such
crimes against their body.

• Control on the reproductive roles of women

Women do not have right on their own body and reproduction. She has to be mother
especially of a boy child. Woman is targeted for various types of family planning
measures including abortions without her wishes.

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 2.6 Factors Contributing to Domestic Violence against Women

Violence against women in the family stems from the concept of male superiority and
power. In most countries, the male has been historically and traditionally considered
the provider and more powerful figure, and that is the basis for the exercise of
control over the female.7 The failure to perform prescribed duties (male frustration at
his inability to provide for his family or the inability of a woman to run the household
efficiently) by both men and women is a common cause of domestic violence.

The prevalence of violence against women is the consequence of women's

subordinate position in their family and society, and is indicative of their devalued
status as a social group. It is critical that the subordinated status of women is seen as
a common thread that runs through the lives of all women, and that it is not the
experience of some women due to their unfortunate individual circumstances.
Therefore, the factors that contributes to domestic violence against women is
interrelated and interlinked to each other, however attempt has been made to clarify
each issue for the sake of clarity.

• Patriarchal society

Nepal is a patriarchal society which always privilege male and legitimizes gender
hierarchy within the family and the use of violence against women. The process of
socialization further reinforces the norms and values of patriarchy. Even when there
seems to be a close correlation between the abuse of alcohol and violence against
women, it is useful to relate it to the social environment which grants such privilege
to men that they can waste resources on alcohol.

• Discriminatory laws

Another mechanism which institutionalizes male privilege over females is the law.
Not only are laws inadequate to protect women from male violence, but there are
also many discriminatory provisions in the law which reflects society's values and
intentions regarding the position of women and men. The study conducted by Forum
for Women, Law and Development has revealed that there are 118 legal provisions,
67 schedules, spread in different laws and the Constitution that is discriminatory
against women.8 A recent report of the high level committee formed by HMG/Nepal
to review discriminatory laws against women pointed out 138 discriminatory
provisions in various laws.

• Social practices

7 A Life Free of Violence, UNIFEM, 1998 quoted from A Reference Kit on Violence Against Women and Girls in
South Asia, UNICEF, Kathmandu, Nepal, 2001, p.12.
8 Discriminatory Laws against Women and Their Impact: A Review of the Current Situation and Proposals for
Change, Forum for Women, Law and Development (FWLD), Kathmandu, 2000.

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There are also many other factors to be considered such as the social practices of
early marriage and frequent pregnancy which inhibit the development of women and
reduce options for education and skill development as well as the inherent health
risks that these practices entails. Furthermore, cultural norms hold women
responsible for keeping the family together. A traditional role expectation of wife is
that she has to assume a subordinate position in the marital relationship. Husband
wants to continue with his position of dominance, which is one of the most
important causes of women’s abused marital status.

• Culture, religion and tradition

Without exception, religion and culture have a great impact on the lives of women in
this region. Although there are many positive aspects of religion and culture, many
laws, policies and cultural practices are still influenced by patriarchal values that
consider women as inferior to men; or which accord separate and discriminatory roles
to men and women based on inflexible concepts of gender.

In the life cycle of a woman there still remain many cultural practices that accentuate
and reaffirm the subordinate position of the girl child and the woman. Cultural values
and norms that privilege the male child and men are still prevalent in many cultural
and religious teachings and traditions, and become the base of societal conditioning.

Whether it is Buddhism, Islam, Christianity or Hinduism, the teachings and male

interpretations are limiting and inhibiting to women. Increasingly there is a challenge
to these so-called divine interpretations and cultural practices that sanction the
pattern of gender power relations.

• Portrayal of women by media

The role of media in portraying women as either victims, or submissive objects at

homes is also one of the major contributing factors that contribute to domestic
violence against them. The tremendous impact of print media has both negative and
positive sides. The problem is that these media publish all the information about the
victim, including her picture. As a result of this, she is being identified in the locality
and faces social problems. So she becomes victimized by the society for the second
time. The media do not publish much about the perpetrator; therefore, he can live in
his hideout without any fear for as long as he wants. Yet another contentious and
remaining problem is the portrayal of women in film, drama and advertisements.

• Economic dependency

Women are economically dependent on men. This dependency causes them to

tolerate the violence. Due to the dependency of women for economic support on
men or their families, both natal as well as husband’s house they have no other option

11
but to meekly follow men. Poverty entails a lack of option to women and that lack of
option forced them to accept their inferior position in the family.

• Lack of awareness

Women due to illiteracy, lack of education and mobility is unaware of their rights and
therefore do not voice against their sufferings rather they take it as their misfortune.
Silence of women encourages men to maintain the dominance in every sphere.

• Lack of skills

Most of the women lack skills that could bring them with economic benefits and are
not able to get a formal income generating opportunities. Because of the economic
dependency of women on men, the life of women is controlled by men. It is men
who control the apparatus of the society. Women are thus denied access to different
opportunities that men are entitled to get. Thus they end up in life without any job
getting skills or awareness as to their rights.

• Traditional up-bringing

Women are brought up in such a situation that they have belied that they are inferior
to men. Women have a tendency to perceive the violence as a natural behaviours that
happens every where. They have seen their mothers and sisters suffering from
violence.

• Vicious cycle of poverty

The basic thing that was affected by poverty is a child’s education. This is due to a
combination of poverty and the girl’s role in a household. On one hand, she has to
look after her young brothers and sisters; on the other hand, her parents cannot
afford to send her to school. Since she does not go to school, she is married off at a
very young age. She would not be very mature and educated, and so is unable to
adjust in her in-laws’ family. Her in-laws would dominate her, which most of the time
takes the forms of both physical and emotional violence. She has no chance of
breaking free of this cycle of torture and oppression.

The fundamental factors for domestic violence against women is the prevalent
patriarchal norms, values, traditions and customs that legitimize and maintain unequal
power relations between men and women in all social structures.

3. Historical Development of Law on Domestic Violence against Women in

Nepal
While looked from the social perspective, one cannot deny the existence of domestic
violence against women in our society, however it is a very new concept in the
horizon of criminal law. Rather, till now it is still not perceived and considered as a

12
 matter which requires the attention of law. Domestic violence is considered as a
matter within the family relationship where state cannot interfere as it will be the
violation of individual’s right to privacy. Therefore, to look back towards the history
of development of law on domestic violence against women in Nepal is a very
challenging task. However, attempt has been made to trace out the glimpses where
this issue has been tried to dealt in the past.

Nepal has gone through various phase that is divided by historians into Ancient
Nepal (Kirata and Lichhavi period), Medieval Nepal and Modern Nepal. Nepal
emerged as an unified modern state in the later third quarter half of the eighteenth
century.

In Kirata and Lichhavi period of ancient Nepal the history reflects that the rulers
used to rule with the help of customary law, based on traditions, socio-cultural values
and beliefs. In Kirata period, maintenance of peace and security was considered the
primary function of the state. Violence was considered sin and as such those who
created violence in the society were given harsh punishment. At that period the
principle of “an eye for an eye, a tooth for a tooth, a life for a life” used to followed.
The culprits responsible for causing death of another person or homicide were given
death sentence.9 However, it is difficult to say whether the same principal does
applied in the domestic relationship as well.

In the Medieval period, the rulers of almost all kingdoms and principalities were Arya
– Hindu. They governed their kingdoms on the basis of Hindu Dharmasastra. The
people and rulers were much religious minded. They believe in the concept of hell
and heaven as described by the Holy Hindu Sastra. So Hindu religion played a
predominant role in the life of rulers and the people, both of whom believed that if
any sin was committed they would suffer the agonies of hell. Crime and sin was
jumbled up at that period and Strihatya (killing of woman) is considered as heinous as
Brahmahatya (killing of Brahmin), Balhatya (infanticide), Gohatya (cow-slaughter),
Guruhatya (killing of teacher) and Gotra hatya (killing of kin relative).10 This reflect that
in the Medieval period women would had enjoy higher status and therefore would
not have suffer much violence due to the fear of God. It seems that both rulers and
people were more scared of sins than that of legal punishment as even if woman
committed the crime liable to capital punishment, she was exempted from it and they
were, according to Hindu Dharmasastra, shaven and banished from the country.11

The history of Nepal entered into a new phase during the second half of the
eighteenth century when almost all petty principalities and kingdoms were unified
into a single Nepal. As before the unification Nepal was ruled by various rulers and
there was various communities who came from different parts and had been ruled by
9 Dr. Rajit Bhakta Pradhananga, Homicide Law in Nepal; Concept, History and Judicial Practice, Ratna Pustak
Bhandar, Kathmandu, 2001.
10 Ibid.
11 Ibid.

13
 their own culture, tradition and social system, after the unification the need of
common law through out the kingdom has been realized. However, the unification of
the legal and administrative systems had not achieved overnight. The creation,
development and implementation of a uniformed code of law and centralized
administrative system took many years to be completed. Earlier, the governments
under the Shah dynasty and latter the Rana family oligarchy focused on the extension
of the political control and development of revenue through the co-option of
regional political elite, the manipulation of the land tenure systems, the institution of
novel tax system, institution of social order on the caste system and concept of
inheritance and acquisition or ownership based on kinship system..

As a result efforts to enact the common code to be applicable in whole kingdom has
been began. And, an unified code of law, known as the Code of Country (Muluki Ain)
was adopted during the reign of Rana Prime Minister Jung Bahadur in 1853. The
Muluki Ain introduced a unified system of law despite the population being divided
into more than a dozen ethnic and tribal communities.

Over the centuries, Nepal was ruled with a body of predominately Hindu customary
rules. Such rules had widely divergent application in practice because of varying
interpretations dependent on localized meaning of the custom. In many subjects,
there were no adequately precise customary rules to provide guidance to the practice
of people, and, in such a situation, the only option open was to resort to religious
rules to be unfolded from ancient Hindu scriptures. However, since such scriptures
were also vulnerable to contradictory interpretations dependent on the given facts,
situation and the status of persons involved, the lack of uniformity in regulation of
the citizens' conducts became a serious problem for the Government.12

Promulgation of Muluki Ain: The Muluki Ain (Code of the Country) was
promulgated in 1853. It was a compilation of customary rules prevailing in Nepal
over the centuries. The Nepalese society being predominantly governed by Hinduism,
the provisions of the Muluki Ain largely comprised the Hindu religious dogmas. The
Nepalese legal system is, therefore, generally defined as an offshoot of the Hindu
Legal system that prevailed in Indian sub-continent. The Hindu Legal system, in
course of evolution, developed into two different schools, namely the Mitakshara and
Dayabhaga. The later was evolved in Bengal Province of India, and claimed having
represented the new thoughts of Hindu legal system evolved out of progressive
changes in the society.

The Mitkashara School prevailed mostly in northern and southern India. It was sub
divided in to various schools. Of them, the Banaras School was dominant in Uttar
Pradesh and Bihar provinces of India and Nepal. Being the oldest pedigree of Hindu
law, Mitakshara School is considered relatively conservative to gender issues.
According to original Mitakshara thought, women and children are considered as
12 Preamble of Muliki Ain, 1853.

14
 property of the father, and as such, the women and children have no rights or claim
to the property owned by the father. The Dayavaga School refused to accept that idea,
and urged that heirs--the wife or wives and sons--had independent personality in
matters of property, and as such had been entitled to have share in the property of
family.13 Yet, the Dayavaga School failed to recognize the equal status of daughter, and
obviously denied defining daughters as heirs or co-parceners to the property of natal
family.

The Muluki Ain followed the Mitakshara School, but the thought that the women and
children deserved no claim to the family property was largely avoided. The wife or
wives and sons had been defined as heirs to and co-parceners of the father. The
Clause 1 of the Chapter on Partition of Property between Father and Sons of the
Muluki Ain stated that the father is not obliged to affect partition of the property
among his sons and himself during his lifetime. However, if he has more sons born
out of more than one wives, and if he fails in his responsibility of providing equal
treatment in matter of proper maintenance, he is obliged to make equal division of
the property and give respective shares to all sons.14 Similarly, Clause 1 of the Chapter
on Husband and Wife obliges the husband to execute the partition of the property
and handover the share of wife or wives, provided that he commits physical assaults
against them, or fails to provide proper maintenance to them.

Having incorporated the dogmas of Hinduism, the Muliki Ain, apparently made
attempts to define legal relations of individuals in terms of Kul (Kin group), Santan
(family lineage), Jat (caste) and Linga (sex). Thus, it made attempts to institutionalize
the gender and caste systems as societal base. Status of individual was, therefore,
defined in terms of his/her gender and caste.

Promulgation of New Muluki Ain: In 1949, a popular movement overthrew the

Rana regime. Subsequently, the people vehemently opposed the customs that
prevailed for centuries. In the new perspective, the Muluki Ain was replaced by a
revised code--New Muluki Ain-- in 1963. The new code introduced a secular system,
yet it continued to perpetuate the gender segregation and is discriminatory against
women.

The New Muluki Ain still prevails as a general law in Nepal. The Section 4 of the
Chapter on Preliminary Arrangement provides that the New Muluki Ain should
prevail as a law if no special statute exists to govern the matter. Since no special
statute is so far enacted by the Parliament in respect domestic violence against
women thereof, the New Muluki Ain is enforced as a sole law in the matter of family
and marital relationship. Since, the New Muluki Ain has not done away with the

13 Priya Nath Sen. General Principles of Hindu Jurisprudence (Concept of Patria Potestas in Chapter in Parental
Relationship). Allahabad Law Agency, 1984. Page 122-266.
14 For detail also see Clause No. 2 & 2 of the Chapter on the Partition of the Property between Father and Sons,
Main Text Muluki Ain, 1853; HMG/Ministry of Law and Justice, 1966 Edition.

15
 concept of gender segregation as a societal base, the discrimination against women
continues in many matters.

As mentioned above till now, there is no specific legislation in our country addressing
domestic violence against women. However, due to the various efforts and pressure
of women rights activists and civil societies the government has drafted Domestic
Violence (Control) Bill, 2057. This Bill was later improved and reformed by the
Domestic Violence (Crime and Punishment) Bill, 2058 which was registered in the
Parliament in February 22, 2002. This Bill was presented in the Lower House of the
Parliament on March 26, 2002. After general discussion, the Lower House of the
Parliament passed the Bill on April 12, 2002. The Bill was under the consideration of
Upper House when the Parliament was dissolved on May 21, 2002. Due to the
dissolution of Parliament the Bill was lapsed and it needed to be introduced once
again in the next session.

4. Existing Legal System on Domestic Violence against Women in Nepal

4.1 Laws, Policies and Initiatives to Address Domestic Violence against
Women in Nepal

Nepal does not have separate legislation on domestic violence nor is domestic
violence a separate crime under the general law. There are provisions spread in the
Country Code, 1963 (the Civil and Criminal Code of Nepal) and various laws that
deal with violence against women. These areas as below:

a. Assault

Physical violence is dealt under the Country Code,1963; which incorporates physical
assault as a crime. The Country Code includes both ordinary to serious physical injury
as assault and institutes a fine up to Rs. 10,000 and imprisonment up to 10 years, as
the punishment, depending on the nature of the assault, its effect and weapons used.
The victims can also claim compensation.15 However, this Chapter on Assault does
not have any provision regarding mental torture and verbal abuse.

b. Verbal abuse

Verbal abuse can be dealt under the Defamation Law.16 The State does not initiate
the case; hence a victim has to go to the court by herself and follow the lengthy
procedures. The role of police in these cases is limited only to the preparation of Case
Report and the victim does not get any support from other government machinery
15 Chapter on Assault, the Country Code, 1963.
16 Section 3, Defamation and Libel Act, 1959, reads as "anyone with the intention of causing damage to the
reputation of another person or knowing that his actions are likely to cause damage to the reputation or with
reasons for believing such actions, accuses the person by writing, word of mouth or signs or symbols by
communicating a meaning or publishing such matters, he is considered to have defamed person.

16
 while initiating the case.17 Hence, very few cases of family violence are initiated under
this law.

c. Incest

Incest has been defined as a crime involving sexual intercourse between persons who
are relatives within seven generations. Incest is strictly prohibited in Nepal. Marriage
within the incest relation except under the customary practice is void. The
punishment varies according to the distance of relation between the people involved
in incest.18 Incest within the following relation is punished as follows:

- Having sexual intercourse with mother is punishable with life imprisonment.

- The crime of having sexual intercourse with sister of the same parents or with
daughter is punishable with 10 years imprisonment.
- The crime of having sexual intercourse with women in the relation of father's
ancestral lineage is punishable with six years imprisonment.
- The crime of sexual intercourse with other women of relation within seven
generations of father or mother's ancestral lineage, other than those
mentioned above is punishable with an imprisonment of two years.
Incest law can be invoked only when there is intercourse between two people,
however mostly, in this kind of offences it is women who get victimized by the law
and society.

When a girl filed a case of incest against her uncle, the Supreme Court defined that
the Country Code,1963 had repeatedly made a mistake of not including an uncle’s
daughter's daughter under the definition of incest. In this situation they could not
define the law which had been mistakenly enacted. The law, which was enacted 20
years before and has been amended from time to time, is the basis of the rule of law.
Hence, any person outside such criteria is not justifiably considered as an offender.19

d. Child marriage

Child marriage is prohibited under the Nepali law. According to the Chapter on
Marriage of the Country Code both sexes have be 20 years old to marry without
parental consent. Men and women can marry at age 18 with the consent of their
parents.20 If the marriage is contracted contrary to this provision, the principal

17 No. 20, Chapter on Assault, the Country Code, 1963.

18 Section 1-3, Chapter on Incest, the Country Code, 1963.
19 Ram Prasad Rai vs. Bahadur Rai, NLB, 2052 B.S., p. 269.
20 "No.2, Chapter on Marriage of the Country Code, 1963 reads as “No marriage shall be contracted or got
contracted if the man and woman are not of 18 years of age where the consent of guardian is available and not
of 20 years of age where such consent is not available.”

17
 offenders having attained majority, out of those committing the offense, shall be
liable to the following punishment21:-

(i) Where the marriage of a girl below 10 years of age is contracted/procured,

punishment of imprisonment for a term from six months to three years and a
fine of one thousand to ten thousand rupees.
(ii) Where the marriage of a girl over 10 years and below fourteen years of age is
contracted/procured, punishment of imprisonment for a term from three
months to one year and a fine of up to five thousand rupees
(iii) Where the marriage of a woman over fourteen years and below eighteen years
of age is contracted/procured, punishment of imprisonment for a term not
exceeding six months or a fine of up to ten thousand rupees or both
(iv) Where the marriage of a woman or man below twenty years of age is
contracted/procured, punishment of imprisonment for a term not exceeding
six months or a fine of up to ten thousand rupees or both
(v) Out of the priest, matchmaker and other abettors who knowingly performs
the acts of marriage prohibited under the above-mentioned provisions, one
having attained majority shall be punished with imprisonment for a term of up
to one month and a fine of up to one thousand rupees
(vi) In case where marriage has not yet been contracted but it has already been set
after performing the rites and rituals, the principal who has arranged it shall be
punished with a fine of up to five hundred rupees and the marriage set shall be
invalidated.
However, the person who contracts or arranges marriage without knowledge that
marriage is arranged or contracted lying that it is within the limitation of law is not
liable to punishment.

In case the marriage has been contracted before the man or woman has attained the
age of eighteen years and no offspring is born to them, the man or woman who has
so got married before his or her age of eighteen years may, if he or she does not
accept the marriage after he or she has attained the age of eighteen years, such
marriage will be void.22

e. Bigamy

Bigamy is punishable by law in Nepal, however law itself in certain circumstances

allow men to commit bigamy.23 The recent amendment to the Country Code has
21 No.2 (1-7), Chapter on Marriage of the Country Code, 1963.
22 No. 2 (9), Chapter on Marriage of the Country Code, 1963
23 No. 9, Chapter on Marriage of the Country Code, 1963 reads as “No male shall, except in the following
circumstances, marry another female or keep a woman as an additional wife during the life time of his wife or
where the conjugal relation with his first wife has not been dissolved under the law.
If his wife has any contagious venereal disease and it has become incurable……………………..…1

18
 increases the provisions of punishment for committing bigamy law. It has made
provisions of imprisonment for a term from one year to three years and a fine of five
thousand rupees to twenty-five thousand rupees, as well.24

f. Assault and bigamy; grounds for wife to seek divorce

Domestic violence against women has been given as a ground for women to seek
divorce from her husband. If the husband marries another woman, or if the husband
throws his wife out of their house, or if the husband assaults his wife causing
grievous bodily harm women can ask for divorce.25 Further, if woman is not capable
of earning her livelihood, she can claim alimony for the period of five years or until
she remarries.26

g. Laws relating to sexual abuse against women

Chapter on Indecent Assault of the Country Code, 1963 incorporate certain aspects
of physical sexual abuse against women within and outside the domestic sphere. It
prohibits touching any organ from head to foot of a woman above the age of 11 years
except one's own wife with the intention to have sexual intercourse and prescribes a
punishment with a fine up to five hundred rupees or imprisonment of up to one
year.27 However, this law is not pragmatic as not a single case has yet been filed
using the same provision.

h. Measures to control dowry related crime

In the context of increasing rate of crime relating to dowry, the Social Practice
(Reform) Act, 1986 has attempted to prohibit dowry related crime by limiting the

If his wife has become incurably insane…………………………………………………………........1

If it is proved by the medical board recognized by His Majesty's Government that no offspring has been born
because of the wife………………………………………………………………..……………1
If his wife has become lame and unable to walk…………………………………………………….1
If his wife has become blind of both eyes……………………………………………………………1
If his wife has lived separately after obtaining her partition share under No. 10 of the Chapter on
Partition……..1
24 No. 10, Chapter on Marriage of the Country Code, 1963.
25 No.1 (1), Chapter on Husband and Wife of the Country Code, 1963 read as “A woman can seek divorce from
her husband in the following grounds25:
• If the husband marries another woman
• If the husband throws his wife out of their house
• If the husband and wife live separately continuously for more than the period of three years
• If husband becomes impotent
• If the husband assaults his wife causing grievous bodily harm.”
26 No.4 A, Chapter on Husband and Wife of the Country Code, 1963 reads as “women having divorced according
to paragraph 2 of No.1 of this Chapter may claim alimony from the divorced husband if she is not capable to
earn her livelihood, the husband shall have to provide alimony for the maintenance of the divorced wife as
decided by the court considering the living standard of such husband. Such alimony is to be provided for a
period of five years from the date of divorce or until she is married to next husband or whichever is earlier.”
27 No. 1, Chapter on Intention to Sexual Intercourse of Country Code, 1963.

19
 cash and jewelry to be given to women in their marriage. It also prohibits the
unnecessary expenses on marriage.28

i. Women can ask for her share if ill-treated

A wife shall be entitled to get her share of property from the share obtained by the
husband if she is abandoned without providing any maintenance by the husband
alone or together with his parents, or if she is treated cruelly or if the husband has
brought or kept a second wife. She should be given maintenance if she has been
abandoned only by the parents of her husband.29

j. Marital rape interpreted as crime

Recently in Meera Dhungana for FWLD vs. HMG/Nepal30, the Supreme Court has
interpreted marital rape as rape. This interpretation by the Court has recognized the
right of wife to deny sexual intercourse to her husband.

Excerpt from Verdict of Supreme Court

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 well-cultured society, rape is taken as a
heinous criminal offence without exception; …………..

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

28 Section 5 (2), Social Practice (Reform) Act, 1976.

29 No. 4, Chapter on Husband and Wife of the Country Code, 1963.
30 Supreme Court Bulletin, 2059 B.S. Vol. 19, p.1.

20
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;

k. Government Policy to Deal with Violence against Women

In Nepal, government policy and its commitment to the Beijing Platform for Action
(BPFA) have placed a focus on eradicating discrimination between men and women
and to provide with the equal rights. Among strategies adopted is the involvement of
NGOs, GOs and local bodies in the process of preventing all forms of violence
against women so that the protection of women’s human rights could be possible.
The Ministry of Women, Children and Social Welfare has also prepared a National
Plan of Action for five years to deal with the gender-based violence, including the
review of all discriminatory laws and the enactment of domestic violence legislation.
As a result Domestic Violence (Crime and Punishment) Bill was drafted and
introduced in the Parliament.

l. Domestic Violence (Crime and Punishment) Bill

The ‘Domestic Violence (Control) Bill, 2057’ has been drafted with the establishment
of the Ministry of Women and Social Welfare of Nepal. This Bill was later improved
and reformed by the Domestic Violence (Crime and Punishment) Bill, 2058 which
has incorporated various positive concepts to protect domestic violence against
women, which are as below:

• Definition of domestic violence includes physical and psychological

violence: The bill has comprehensively defined domestic violence. It had
incorporated physical and psychological violence within the definition of
domestic violence.

• Provision relating to reporting: The Bill is liberal with regard to reporting of

the crime. It accepts both verbal and in writing reporting of the crime. If the
case does not get resolved through quasi-judicial bodies or mutual
understanding, victim can file a case direct to the Court. Furthermore, third
party also can make a report on behalf of women victim.

• Interim relief: The Bill has also made provisions for the interim relief to the
victim of the domestic violence. The court can issue the order of interim
protective measure for the period of case proceedings.

21
• Compensation: The Bill has made provision for compensation for the victim.
The amount of compensation shall depend on the nature and extent of act of
violence.

• Rehabilitation: The Bill has made the provisions which obligate HMG to
establish rehabilitation home for the victims of domestic violence.

• In camera court: The concept of in camera court has been introduced by this
Bill. Court can hear the case in camera in request of victim.

• Priority to domestic violence case: For a speedy trial the Bill has include
special provisions of giving priority to hearing of the domestic violence cases.

5. Conclusion and Suggestions

6.1 Conclusion

Violence against women, like all other historical phenomenon of violence, has to be
seen in the socio-economic and political context of power relations. It is produced
within class, caste and patriarchal social relations in which male power dominates. A
narrow view of domestic violence does not go beyond an act of illegal, criminal use of
physical force. But "violence" includes exploitation, discrimination, upholding of
unequal economic and social structures, the creation of an atmosphere of terror,
threat or reprisal and all forms of religio-cultural and political violence. While
violence against women is part of general violence inherent in all social structures of
class, caste, religion, ethnicity etc. and in the way the State control people, the
specificity of violence against women underlies aspects of structural violence and
forms of control and coercion exercised through a hierarchical and patriarchal gender
relationship in the family and society.

Women specific violence has the function of keeping women where they are i.e.
within the house in powerless position. Consequently, women become instruments
through which the social system reproduces itself and through which systemic
inequality is maintained. This is achieved through women's resourcelessness and
economic and emotional dependence. Women are considered men's property, their
sexuality, fertility and labour are systematically controlled. Violence against women
and the consequent submission and subordination of women are further
strengthened and maintained over time by the socialization process. Familial
structures embody hierarchic gender relations that women have little or no
independent social existence. These tend to establish the possessional rights over
women which men have as husbands or fathers or older male relations. Such
possessional rights appear as the exchange of promise of protection (whether actually
fulfilled or not) in return for submission and exclusive use.

22
In the process of economic development, family violence has not been taken as a
serious matter, hence provisions do not exist for prosecuting perpetrators of
domestic violence such as wife batterers. This lends to the notion that domestic
violence is invisible, and only occurs in the ‘private sphere’. The majority of cases of
domestic violence and especially rape go unreported because of the women's
reluctance to compromise family relationships by going to the police.

However, now the situation is being changed. To achieve the gender equality,
demand is raising to stop domestic violence against women as well. Being the party to
various International Human Rights Instruments including UDHR, ICCPR, ICESCR
and CEDAW, Nepal has also made the commitments in the international
communities to protect rights of women in every sphere, either public or private. To
combat this kind of crime, there should be an effective mechanism which can punish
the perpetrator as well as can provide effective remedy to the victim. Besides the
introduction of specific law to deal with these forms of violence state mechanism
should also be make responsible to tackle these kinds of crime seriously. Due to the
nature of violence which occurs within the intimate relations like husband and wife,
father and daughter etc., it needed to be resolve very tactfully and should not be
prosecuted as the case of homicide or theft.

Lack of separate law to address domestic violence against women is one of the major
challenges for effective prevention and remedy to the victim. Therefore, in context of
Nepal, enactment of the separate law with following provisions is one of the crucial
interventions required at this moment:

• Reconciliation
• Victim protection
• Rehabilitation
• Compensation to the victim and reasonable imprisonment to the culprit
• Maintenance for the livelihood of the victim
• Burden of proof to be shifted on accused
• Provision of voluntary and compulsory counseling
• Priority to women for child custody
• Establishment of separate mechanism to execute the decision
Realizing the problem, the HMG has initiated the process of enacting separate laws
by introducing the separate Domestic Violence (Control) Bill, 2057 B.S. on the
domestic violence. The Bill was again introduced in 2058 B.S. incorporating many
positive aspects for example definition of domestic violence includes physical and
psychological violence, provide interim relief, victim friendly provisions such as
compensation and in-camera hearing, special priority in the procedures including

23
reporting from anyone. However, the Bill was unable to cover various aspects and
there were various lapses in the Bill which is as below:

• Economic and sexual abuse not included in the definition of domestic

violence: Though the Bill has attempted to incorporate both physical and
mental abuse in the definition of domestic violence, the definition is still narrow
as it does not have incorporate the economic abuse which includes acts as
denial of funds, exploitation, controlling access to health care, food, basic
necessities and denial of rightful income etc is not included in the definition of
domestic violence. Also sexual abuses and harassment that many women faced
within the private sphere by their own relatives was excluded by the definition
of domestic violence.

• Lack of preventive interim relief: It is possible and practical that victim can
get the previous knowledge of violence that could take place against her.
However, the Bill has though made provisions of interim protective measure
for the period of case proceedings by the order of the court, it lacks the
provisions like protective interim relief to the victim.

• No preventive or long-term relief to victims: The Bill has made provision

for interim relief and compensation for the victim from the respondents.
However, the Bill lacks the provisions regarding the long-term relief, after the
completion of legal procedures, to the victims of domestic violence.

• No minimum limitation of punishment: The Bill has fixed the maximum

amount of compensation and imprisonment to the respondents of the domestic
violence, however by not fixing the minimum amount of punishment it has
given a lot of discretionary power in the hands of judges.

• Lack of effective mechanism to implement the court decision: Though the

Bill has made the provision of separate legal procedures in case of domestic
violence, it does not have demand for separate machinery to implement the
court decision in reality.

• No provision on mandatory counseling: Many times the dispute of domestic

violence of minor level can be resolved through counseling, however, the Bill
does not have made any kind of provisions which influence the victim and the
respondent to seek counseling.

• Provision for immediate action and government shelter are lacking: The
Bill does not provide for action to provide immediate relief like medical
treatment, shelters etc.

24
 The proposed bill focuses mainly on maintaining peace in the family rather than
providing justice to the aggrieved victim in cases of domestic violence. It also focuses
on civil liability rather than criminal liability and excessively focuses on conciliation,
negotiation, mediation, treating domestic violence as just any general matter.

Besides the lack of separate law to address the problem, other problems and
challenges for the combating and controlling domestic violence against women are as
below:

a. Lack of research and studies on the issue

Due to the absence of scientific research on the situation, extent, nature and impact
of domestic violence against women, there is no reliable data to argue for the need
and kind of law that is required to address the problem in the Nepali context.

b. Discriminatory laws against women

Discriminatory laws against women are the major challenges that impede women’s
empowerment to voice against the violence. As mentioned earlier as well, the study
conducted by Forum for Women, Law and Development has revealed that there are
118 legal provisions, 67 schedules, spread in different laws and the Constitution that
is discriminatory against women.31 A recent report of the high level committee
formed by HMG/Nepal to review discriminatory laws against women pointed out
138 discriminatory provisions in various laws. Most of these laws directly or indirectly
make women more prone to bear with domestic violence. For example; guardianship
laws discriminate in favour of men, making it impossible for women to break away
from their relationship with men. Domicile laws relating to nationality and
immigration also create women's dependency on men for economic resources and
citizenship. Though the recent amendment to the Country Code has attempted to
address various issues with regard to equality between men and women, it is not
comprehensive in protecting all rights of women in equal footing.

c. Poor reporting of the cases

Due to the social, cultural norms and values domestic violence against women is
considered as a family matter. Women themselves also do not perceive violence
against them as a violent act and considered it as a result of their bad fate. Also, there
are plenty of cases where women who make effort to raise their voice against the
violence that occurs within the private domain, are not supported by their family and
society and they were given the connotation of “deviant women”. All these factors
affect the reporting of the acts of domestic violence, which ultimately give the wrong
interpretation of the crime not being prevalent in our society and therefore a
challenge for the enactment of appropriate law to address the problem.

Discriminatory Laws against Women and Their Impact: A Review of the Current Situation and Proposals for
Change, Forum for Women, Law and Development (FWLD), Kathmandu, 2000.

25
d. Lack of shelters for victim of domestic violence

There is a women's temporary shelter established by the Government under the

Ministry of Women, Children and Social Welfare who are economically backward and
women who have become the victims of trafficking. However there is no shelter for
the victims of domestic violence. There is only one specific shelter for the victims of
domestic violence run by SAATHI. A counseling centre for victims of family
violence was also established by SAATHI. Besides these, there are other short-term
shelters managed by NGOs i.e. Stri Shakti, WOREC, Maiti/Nepal and ABC Nepal
for women victims, not specifically related only to family violence. However, the
capacities of these shelters are not sufficient to cover the need and are not well
equipped. Due to the lack of accessible shelters to accommodate victim of domestic
violence women remain with no other options than to be in the same place where
they face violence.

e. Political apathy

To break political apathy towards women’s issue is another challenge to combat and
control domestic violence against women. In the practice of multi-party political
system during the last ten years, the national political parties have exhibited political
apathy of highest order in translating their commitments for gender issues, made
during the election, in reality. During election campaigns all political parties talk big
and loud about gender equality and their total commitments to its realization but after
then they overlook women’s legitimate demands.

f. Gender stereotypes roles

The government seems to lack the necessary expertise to develop and implement
strategies relating to domestic violence. Furthermore, government actors, especially
criminal justice system, continue to hold on to outdated myths about the role of
women in family and society. On the other hand, the gender stereotypes roles of men
and women in family and society further reinforces the inferior position of women
and hold women inside the domain of household chores. This influence women’s
capacity to raise their voice against their exploitation.

6.2 Recommendations

Even at the beginning of the twenty first century, women of Nepal are suffering from
various forms of violence, which directly impede their enjoyment of human rights
and fundamental freedoms. Nepal is a party to the CEDAW Convention, without
any reservations; hence it has no loopholes to exploit to escape its obligations under
this treaty. Nepal cannot use ‘culture’ as a justification to keep violating women’s
human rights and the definition provided by the CEDAW Convention cannot be
ignored. Section 9 of the Nepal Treaty Act, 1991 states that the international treaties
to which Nepal is a party, which are inconsistent with national laws, will supersede

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national law when inconsistencies exist. The Constitution of Nepal promise equality
and even special measures for the advancement of women. However, in reality we did
not have any specific mechanism to address the domestic violence against women
and to fulfill the international obligations for the advancement of society free from
inequality. Women’s right continues to be violated inside the home physically,
emotionally and sexually, despite its resultant consequences to women's mental and
physical health, and the economic cost to society and its intergeneration effect.
Following are the recommendations that need to be taken up to address domestic
violence against women:

a. Need for separate legislation to address domestic violence

The criminal laws do not take into account the intimate nature of a husband and wife
relationship, and the web of dependency seen in such relationship. The psychology of
a battered woman is such that it is not easy for her to leave the man or to file a civil
or criminal case against him. To place the battered wife on the same footing as
victims of common crimes would be to unduly disregard the obvious difference of
circumstances between the two.

The prescriptive period provided for by the laws also may be detrimental to the cause
of the victim. The ‘learned helplessness’ situation that has developed in victims of
domestic violence has led women to suffer in isolation. Seldom would they seek help.
Thus, when the victim finally gathers up the courage to report the incident and seek
redress from the court, sometimes taking years, it may already be too late.

Furthermore, the publicity brought about by a criminal action also discourages the
battered women from reporting the incident. Battered wives want to protect the
reputation of their husbands or are afraid of the consequences of a criminal
conviction, such as unemployment for the husband and financial instability for the
family. Loyalty to the family would always take precedence over the woman's own
safety. This overview refers not only to the inadequacy of the law in the protection of
women from male violence. It also reflects social values and attitudes regarding the
relative position of man and woman.

These ideology-based laws prohibit women's mobility in public places and social
interaction. Women are denied access to public office and positions of power in
public institutions such as the judiciary, the legislature, religious bodies and various
other institutions of government. This sets the scene for male domination in the
public sphere and in turn influences the nature of gender hierarchy in the private
sphere. Hence, legal strategies have to be adopted to reform the law that pertains to
family violence and to look at the underlying values.

The scattered laws do not provide adequate protection that a victim of domestic
violence needs immediately after an incident, such as: (i) protection order; (ii)
restraining order; (iii) broader definition of the law; (iv) immediate facilities for a

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medical check-up; (v) environment for easy access for complaints; and (vi) legal
counseling and legal aid, etc.

The United Nations Special Rapporteur on violence against women has argued that
Domestic Violence Legislation which specifically prohibits violence against women is
by far the most effective legal mechanism to address the issue of domestic violence.
Remedies under this type of legislation include: protection from violence and threats
of violence; safety and security of the woman, her dependents and property; and
assistance in continuing her life without further disruption. Hence, specific legislation
on domestic violence is needed to address the problem.

b. The lapsed Bill to be reviewed and introduce again in the Parliament

The Domestic Violence (Crime and Punishment) Bill, 2058 which was lapsed, as it
needed to be reintroduced once again, it should be reviewed in the following aspects
and reintroduced in the Parliament for its enactment:

• Broaden the definition of family members: Though the Bill has attempted to
define family comprehensively, it doesn’t have included step father, step mother,
step son and step daughter within the arena of that definition. However, these
relationships are more prone to the domestic violence therefore it needed to be
included within the definition of domestic violence.

• Inclusion of economic and sexual abuses as domestic violence: The Bill has
incorporated both physical and mental abuse in the definition of domestic
violence, however the definition is still narrow as economic abuse, which includes
acts as denial of funds, exploitation, controlling access to health care, food, basic
necessities and denial of rightful income etc. and sexual abuse by the own family
members are not covered by this definition.

• Burden of proof to be shifted on accused: Due to the nature of violence it is

very difficult for the victim to prove the occurrence of violence against victim in
court. Therefore to facilitate the victim of domestic violence from being further
victimized, the general burden of proof should be shifted to the accused. The
accused have to prove that he/she doesn’t have committed the crime.

• Provision of emergency monetary relief and preventive relief: Being the

victim of domestic violence, many times women remain with nothing in their
hands, therefore emergency monetary relief should be provided to them for the
time being. Also many times victim can get the previous knowledge of violence
that could take place against her, therefore provisions for interim protective
measure for the period of case proceedings should be added in the Bill.

• Provision of voluntary and compulsory counseling: Counseling is one of the

very important tools, which can address the problem and also facilitates in

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 reintegration of the family members. Therefore provisions for voluntary and
compulsory counseling should be incorporated in the Bill according to the nature
and extent of the crime.

• Establishment of separate mechanism to execute the decision: The law

plays an important role in the positive transformation of the society, as it defines
vital social measures. It plays a critical role in sustaining and changing the attitudes
and practices related to domestic violence and the dual role of reflecting
fundamental social values and of defining them. Unless the implementation
mechanism of the law is effective, however, legislation alone cannot address
domestic violence. Therefore, for the effective execution of the decision of the
cases with regard to domestic violence, a separate mechanism needs to be
established that will deal with the implementation of the court orders.

• Right to reside in home: Many times women victim of domestic violence have
no place to stay as they were thrown away from their matrimonial houses,
therefore in those cases, provisions should be enacted through which a victim can
reside in the same house after taking the interim order from the court.

• Priority to women for child custody: In cases of domestic violence against

women, the priority should be given to women with regard to custody of their
children.

• Provide shelters: Unless the victims of domestic violence are not provided
better facilities and protection, the true goal can not be achieved. Government
should be made liable to provide enough resources for the long term, including
shelters and strategies for assistance through education and training.

c. Fulfillment of international commitments

Nepal is a party to 16 International Human Rights Instrument including the

Convention on the Elimination of All forms of Discrimination against Women
(CEDAW). Law-makers, policy-makers and law interpreters need to enact and
interpret national legislation in consistency with the standards embodied in this
Convention. Policy makers and lawmakers should always use the ratified international
treaties as a guideline for making new policies or enacting laws.

d. Repeal discriminatory laws against women

There are various laws which affect the decision of women. To ensure equal status of
women at home and outside existing discriminatory laws against women should be
repealed as early as possible. Further, special measures should be taken in the legal
provisions, in line with the CEDAW Convention, to provide enabling environment
to women to sustain themselves.

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e. Establish Family Courts

To enable women to report the cases of domestic violence and to deal these kinds of
cases with better understanding and for the speedy settlement of the family disputes,
Family courts should be established in every district of the country.

f. Gender sensitization trainings to law enforcers and interpreters

Training in gender sensitization for the legislative, judicial administration and law
enforcing agencies to make them aware of the gravity of the problem must be
encouraged. Judges and court staff should be given training or orientation sessions on
gender-based violence. Courts should maintain a record of registered and decided
cases related to violence against women.

g. Rehabilitation/shelters

Battered women are generally emotionally and financially dependent, and lack a sense
of freedom and self confidence in their situation. Powerlessness is a common
characteristic of battered women. Both physical and psychological injuries may
require immediate care, counseling facilities and legal protection for the victim.
Therefore, rehabilitation shelters/centers should be established to provide support to
victims of domestic violence.

Moreover, counseling centres are needed, with trained counselors to provide

psychological support to victims of family violence.

h. Monitoring mechanism

A monitoring team has to be formed comprising medical doctors, lawyers,

counselors, and human rights advocates. Such a team should have the power to visit
shelters and prisons, and to provide the necessary suggestions and support. This team
should also monitor how the victims are treated by the police, lawyers, the Public
Attorney’s Office and the court.

i. Preventive approaches

There should be more focus on preventive approaches to protect the women before
they become the casualties of domestic violence. Campaigns for raising awareness of
the different issues are needed, with support from the media. Advocacy is necessary
to inform the public (men and women), as well as the judiciary, executive and
legislative agencies of the gravity of the problem.

However, domestic violence being socio-legal problem cannot be tackled by law

alone as law is complex and is vested with state power and the authority to
pronounce with family upon an issue. The process of defining in law is not limited to
its black letter exterior to statutes and judicial pronouncements. It is much more

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complex and includes within its scope the judgments participants in the legal process,
such as the police, the lawyers, and the judges. It therefore encompasses the
preliminary police complaints, the medico-legal reports, the investigation, the
evidence (or lack of it), the arguments presented in the courts, all of which contribute
to the construction of social-problem. Hence, a fundamental changes need to be
made the social system and in the attitudes of people towards women to address the
problem. Besides incorporating the specific law on domestic violence, a holistic
approach is required to eradicate this heinous crime. Without considering the social
context, no measures can be developed to curb domestic violence. Gender disparities
exist in every walk of life. Unless efforts are made to address the fundamental gender
disparities between men and women, nothing can be done to improve the situation
regarding family violence. Therefore, besides the legal interventions following other
measures are required to combat the domestic violence against women:

a. Increase economic opportunities for women

Women are very vulnerable to violent actions, because of their economic dependence
on men. Stopping wife battering requires, among other things, improving women's
economic situation. When their freedom is restricted and they have no options for
escape, women are more likely to be abused by their husbands or male authorities.
These victims are dependent on male relatives and often isolated from the society.
Hence, improving a women's economic status is vital to combat domestic violence. If
women remain financially powerless and economically dependent, it will be difficult
for them to protect themselves from being victim of domestic violence. Hence,
education and training opportunities in income generating activities should be
increased and provided to women.

b. Establish community service systems

In cases of domestic violence, the legal system is generally utilized as a last resort,
when other mechanisms have been exhausted or proved ineffective. Domestic
violence is a problem beyond the criminal justice system; the problem relates to the
health, legal, economic, social and educational conditions of women and their human
rights. Victims seek assistance from family, friends, doctors, social workers,
counselors or women's organizations. Community support services, therefore, play a
vital role in improving the domestic violence situation.

c. Interventions for changing social values

Family violence is a problem that results from the unequal power balance between
men and women. Because of the patriarchal structure of most societies, the men
wield much more power than women. Obviously the relationship between men and
women has been governed by the values and mores of the given society. The reality
of unequal power has given rise to many traditions imposing on women a tolerance
of discrimination and exploitation. Strategic actions should emphasize the need for

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education about power-balance relationships and related cultural intervention,
because gender violence is rooted in a patriarchal ideology. The chief instrument of
women's oppression is the family; to large extent women internalize their own
inferiority through a process of socialization, division of labour, customs, religious
laws and rituals. Strategies for combating domestic violence need to inform by an
understanding of the complexities of the underlying causes. The continuous efforts
are necessary to change the value systems and cultural barriers that reinforce women’s
inferiority in comparison to men.

d. Education through media

Mass education through the media should be used to educate the public. Media
outlets including videos, radio and television broadcasts on the issue, as well as street
theater and newspapers, can raise awareness of domestic violence. Media should
educate the public by defining domestic violence and the procedures for initiating
action against the offender.

Within the patterns where family violence is found, a major thrust of the strategies
must be towards changing the power structures. The media, therefore, must play a
critical role in the campaign to eradicate family violence. There should be a
monitoring body to check the effective implementation of the media directive and
media campaign.

e. Coordination amongst various agencies

It is also necessary to forge linkages among police, NGOs and governmental bodies
providing assistance to victims. Cooperation among the various players will improve
the support system for assistance to victims and prevention of family violence cases.
The need is of a strategic effort to begin the process of smooth coordination.

f. Political Commitment

Domestic violence must be given high priority on the national agenda. Strong
political commitment at the highest level is necessary to address the problem of
domestic violence. Most of the political parties include a manifesto in their platforms,
declaring eradication of violence against women. Hence women should be able to use
the political manifesto to challenge existing laws and attitudes.

g. Need for research

A national level study on the incidence of family violence must be undertaken to

identify accurately the dimension and the magnitude of the problem. A study on the
impact of the government and NGOs’ initiatives to address the family violence
problem should also be conducted. Most of the studies at the national level are
currently focused on violence against women, and identified domestic violence as one

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of the components. These studies may ignore the nature of violence and threats
inside the house. There is a need to see the effectiveness of related legislation and
mechanisms for implementation of policies and plans of action proposed by the
government.

In conclusion, the need is to internalize domestic violence as gross human rights

violation of women, which requires momentum from every sphere of the society
including, legislative, judiciary, executives, civil societies and from the general
people to take initiatives from their own level.

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