Supreme Court, Special Bench

Hon’ble Justice Anup Raj Sharma

Ms. Meera Dhungana, for her own behalf and by authorization for and on Writ Peti-
behalf of Women, Law and Development Forum located at Ward No. 11 tioner
of Kathmandu Metropolis, Kathmandu District

Vs.

Office of the Prime Minister and Council of Ministers, Singhadurbar..........1

Case: Let an order be issued for making or causing to be made

Anup Raj Sharma J: The summary of facts and issues of the above mentioned writ
petition filed before this Court under Article 88 (1)(2) of the Constitution of the Kingdom of
Nepal, 2047 BS (1990 AD) are as follows: -

The writ petitioner states in her writ petition that the sub-sections (1) and (3) of section 4 of
Social Events Reforms Act, 2033 brought into force prior to the promulgation of the
Constitution of the Kingdom of Nepal, 2047 is still in force as usual. Section 4 under the
heading “The bride side not permitted to receive” provide in sub-section (1) that the bride
side while their daughter is to be married are not permitted to receive or give in exchange
any cash or property from/to the groom’s side and in sub-section (3) it is provided that any
person violating the provision of sub-section (1) shall be punished with a fine from Rs. 12
thousand to Rs. 25 thousand or an imprisonment of one year or with both, including the
forfeiture of the monetary value of such dowry. Similarly, section 3 of the said Act under
the heading “Control on dowry” in its sub-section (1) provides that no one should accept to
give or receive dowry and in its sub-section (2) it provides that any person violating the
provision of sub-section (1) shall be punished with a fine from Rs. 12 thousand to Rs. 25
thousand or an imprisonment for a period of up to thirty days or with both including the
forfeiture of the monetary value of such dowry. While observing the arrangements made in

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these two sections it is found that if the bride side demands for dowry the punishment is
high and if the groom side demands for dowry the punishment is softer one which gives a
clear glimpse of dominance of the patriarchal value and thinking. Since the said provision
made in sub-sections (1) and (3) of section 4 is in contradistinction to the Article 11 of the
Constitution of the Kingdom of Nepal, 2047, Universal Declaration of Human Rights, Articles
1, 2, 3, 5 and 26 of International Covenants on Civil and Political Rights, 1966, Articles 1, 2,
3 and 5 of the International Protocol of Economic, Social and Cultural Rights, 1966, Articles
2, 3 and 4 of the Convention on Elimination of All types of Discrimination Against Women,
1979, therefore, let the said provision be declared void and ultra vires under Article 88(1)
of the Constitution of the Kingdom of Nepal, 2047 and let the appropriate order be issued
directing to make the legal arrangement based on the principle of equality.

This Court had passed an order asking the opponent party to show cause as to what was
the matter. The order further had directed to present the case file before the Bench, giving
priority in the docket sheet, with the affidavits submitted by the opposite parties in case the
affidavits are submitted within the prescribed time limit or after the expiry of the time limit
prescribed for submission of the affidavits.

The writ petitioner had filed a supplementary petition before this Court under rule 29 of the
Supreme Court Rules, 2049 as corrigenda to the main petition. In the supplementary petition
the writ petitioner has stated that in the main text in Nepali version, it was inadvertently
written in the fourth line of the paragraph No. 1 in page 2, as “ let the said provision be
declared void and ultra vires” instead of correctly to be written as “ let the appropriate
order be issued directing to make the legal arrangement for punishment based on the
principle of equality”. In the same way, in the 16th line of the paragraph No. 11 in page 6,
also it was inadvertently written as “ let the said provision be declared void and ultra vires”
instead of correctly to be written as “let the appropriate order be issued directing to make
the legal arrangement for punishment based on the principle of equality”. Likewise, in the
6th line of the paragraph No. 14 in page 7, also it was inadvertently written as “let the said
provision be declared void and ultra vires” instead of correctly to be written as “let the
appropriate order be issued directing to make the legal arrangement for punishment based
on the principle of equality”. Similarly, in the 4th line of the paragraph No. 15 in page 8, also
it was inadvertently written as “let the said provision be declared void and ultra vires by
issuing the order of certiorari inclusive of the order of mandamus” instead of correctly to
be written as “let the appropriate order be issued directing to make the legal arrangement
based on the principle of equality”.

The Office of the Prime Minister and Council of Ministers in its affidavit submitted before
this Court states that it is the sole business of legislature to decide as to what type of
legislation is to be made, therefore, the writ petition is liable to be dismissed on the ground
that there does not exist any reason to make this office as the opposite party in the matter
concerned with the law made by the legislature.

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The Parliament Secretariat on behalf of the House of Representatives and the National
Assembly in its affidavit submitted before this Court states that the Legislature is always
aware and cautious to make timely reforms in the Nepal laws by incorporating the cultural
values and norms of Nepalese society and the spirits and principles contained in the
Constitution of the Kingdom of Nepal, 2047 BS (1990 AD) and international human rights
instruments to which Nepal is a party. Therefore, the writ petition filed without considering
the time and is liable to be dismissed on the ground that the writ petitioner has made the
House of Representatives and National Assembly the unconcerned institutions as the opposite
parties.

The Law Commission in its affidavit submitted before this Court states that the writ petitioner
is unable to mention in the writ petition as to what the reasons were behind for making the
Law Commission as an opposite party in the present case and therefore the writ petition is
liable to be dismissed.

The Ministry of Defense in its affidavit submitted before this Court states that the Royal
Nepalese Army Recruitment, Promotion and other Miscellaneous Arrangement (Eighteenth
Amendment) Rules, 2031 are still in existence and the Ministry is bound to do as per the
law prevailing for the time being, and therefore, the writ petition is liable to be dismissed.
The Ministry of Law, Justice and Parliamentary Affairs in its affidavit submitted before this
Court states that the provision made by section 4(3) of the Social Events Reforms Act,
2033 is seen to be concerned with the punishment for accepting a dowry in form of cash or
kind by the bride side for getting its daughter or like person married. Any type of punishment
is being used to be imposed on the basis of gravity and nature of crime, social view on such
crime and social values, tradition and recognition regarding such crime. The question of
making legal arrangement that the writ petitioner has raised has also been made on the
same basis. Thus the legal provision made for imposing punishment to be awarded to the
law violators cannot be linked with the fundamental right conferred by the constitution and
gender discrimination. However it should not be construed that every provision of law
relating to the punishment should be taken as valid even though it is inconsistent with the
constitution. The punishment as mentioned in section 4(3) of the Act, is made for both
parties the dowry giver and receiver and on such circumstances, the said legal provision
has not infringed anyone’s fundamental right or gender discrimination, rather it has tried to
harmonize and regulate the practice on social events. Therefore, the legal provision in
question is not inconsistent with the provisions made by the Constitution and international
Treaties and agreements. Therefore, the pleas taken in the writ petition are illogical and
unreasonable and hence the writ petition is liable to be dismissed.

The Ministry of Women, Children and Social Welfare in its affidavit submitted before this
Court states that the making or amending the law is the business of the legislature and this
Ministry was not involved in making or amending the law questioned by the writ petitioner
and the said act does not fall under the jurisdiction of this Ministry. The writ petitioner is
unable to indicate with evidential fact as to what type of work done by this Ministry infringed
the petitioner’s constitutional and legal right. Since the writ petition is based on hypothetical
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logic and has made this Ministry an unconcerned institution in the matter raised in the
petition, therefore the writ petition is liable to be dismissed, let it be dismissed.

In the present case docketed before this Bench as per rules, the writ petitioner the advocate
Ms. Meera Dhungana submitted that the legal arrangements made in section 4(3) of the
Social Events Reforms Act, 2033 has discriminated in the punishment between the bride
side and the groom side while they commit the same offense. It is found that if the bride
side demands for dowry the punishment is high and if the groom side demands for dowry
the punishment is softer one and upon perusal it gives a clear glimpse of dominance of the
patriarchal value and thinking. Since the said provision made in sub-section (3) of section 4
is inconsistent with the Article 11 of the Constitution of the Kingdom of Nepal, 2047, therefore,
let the appropriate order be issued directing the opponents to amend the said legal arrangement
based on the principle of equality. Learned Deputy Government Attorney Mr. Brajesh
Pyakurel representing the opponents including the Office of the Prime Minister and Council
of Ministers of the Government of Nepal submitted before the Bench that the act of receiving
dowry and giving dowry are of quite different nature and cannot be construed as the same
act, therefore there is no reason for issuance of writ as sought by the writ petitioner.

Upon perusal of the case file and hearing the arguments of the learned counsels representing
both the sides of the case, the Bench has to resolve the following two questions before
pronouncing its verdict:-
1. Whether or not the legal provision made by section 4(3) of the Social Events Reforms
Act, 2033 is against the constitutional right of equality of women.
2. Whether or not the court should issue an order declaring the said provision ultra vires
pursuant to Art 88(1) of the Constitution of the Kingdom of Nepal.

So far the first question is concerned, upon perusal of the section 4 of the Social Events
Reforms Act, 2033 it under the heading “The bride side not permitted to receive” provides
in sub-section (1) that the bride side while their daughter or like person is to be married is
not permitted to receive or give in exchange any cash or property from/to the groom’s side
and in sub-section (2) it provides that the bride side should not give pressure to the groom
side putting demand specifying the quantity of ornaments, clothes, cash or kind or real
estate. Similarly, in the sub-section (3) of the said section it is seen as provided that any
person violating the provision of sub-section (1) shall be punished with a fine from Rs. 12
thousand to Rs. 25 thousand or an imprisonment of one year or with both including the
forfeiture of the monetary value of such dowry. The person giving the dowry shall be
punished with half of the said punishment.

The provision contained in sub-articles (1), (2) and (3) of Article 11 of the then prevailing
Constitution of the Kingdom of Nepal, 2047 BS (1990 AD) under the heading right to
equality has provided as the following:-
(1) All citizens shall be equal before the law. No person shall be denied the equal
protection of the laws

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 (2) No discrimination shall be made against any citizen in the application of general
laws on grounds of religion, color, sex, caste, tribe, origin, language or ideological
conviction or any of these.
(3) The State shall not discriminate against citizens among citizens on grounds of
religion, race, caste, tribe, sex, origin, language or ideological conviction or any of
these.

Provided that nothing shall be deemed to prevent the making of special arrangements by
law for the protection, empowerment or advancement of women, children, aged and the
disabled, those who are physically or mentally incapacitated or the people who are
economically, socially or culturally backward.

Upon perusal of aforesaid constitutional provisions it is found that there does not exist any
provision permitting the State to make a law providing more facilities to the groom side and
less favoring the bride side. Upon examination of the provision of section 4(3) of the Social
Events Reforms Act, 2033, it is found that in case the bride side demands dowry, the
punishment for the dowry giver or the groom side shall be half of the punishment imposed
for the dowry receiver or the bride side. Unless two parties agree to take and give dowry,
the commission of the said offense is not possible. The learned government attorney could
not clarify as to how giving and taking of dowry was materially different specifying reasons
therefor. There does not exist any reasonable ground to discriminate the bride and the
groom side simply on that reason, and impose higher punishment to the bride side. Apparently
the said legal provision in question is found to be inconsistent with the Rights to equality as
enshrined in Article 11 of the Constitution of the Kingdom of Nepal, 2047.

Since the aforesaid legal provision in question is found as inconsistent with the right to
equality it will not be proper to continue with the said legal provision in the existing condition.
This Court has on several occasions passed the orders directing to amend such discriminating
laws in many cases [for example, Writ petitioner Meera Dhungana and Others vs. Ministry
of Law, Justice and Parliamentary Affairs et al, Writ No. 3392 of the year 2050 BS (1993/
94 AD), Nepal Law Reporter, 2052 (1995/96 AD) page 462); Writ petitioner Dr. Chanda
Bajracharya vs. Ministry of Law, Justice and Parliamentary Affairs and Others, Writ No.
2816 of the year 2051 BS (1994/95 AD), Nepal Law Reporter, 2053 (1996/97 AD) page
537); Writ petitioner Sapana Pradhan Malla vs. Ministry of Law, Justice and Parliamentary
Affairs and Others, Writ No. 2736, Nepal Law Reporter, 2053 (1996/97 AD) page 105)
and since the writ petitioner has sought the issuance of order for making or causing to
make necessary legal provision based on the principle of equality, this order is hereby
issued in the name of the Office of the Prime Minister and Council of Ministers of
the Government of Nepal directing it to make the appropriate legal arrangement

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based on the principle of equality. Let the copy of the Order be given to the Office of
the Attorney General and the case file be delivered as per rule.

S/d
Anup Raj Sharma
Justice

We concur with the above opinion.

s/d s/d
Pawan Kumar Ojha Ram Prasad Shrestha
Justice Justice

Date:- Thursday, the 28th day of the month of Mangshir of the year 2063 BS (corresponding
to 2006/12/14 AD)

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