Shraddha Pokharel, Nepal
APMA 2019

More than half of its population has been failed by Nepal. The country’s new constitution, successfully promulgated in 2015 by a constituent assembly which had 30% female representation, was the result of a decade-long civil war and the democratic movement of 2006. Despite the fact that these political movements were backed by thousands of women, fighting side by side with men in war or rallying together to bring democracy, women have been “other-ed” and reduced to second-class citizens in a country they fought to build.

The constitution claims in its preamble to provide all citizens with right to equality on the grounds of religion, caste or gender and yet has legitimized discrimination of women via its citizenship clauses. However, while the citizenship question has been widely discussed in the public sphere, other legal and bureaucratic issues around women’s access to state documentation and identity are rarely in the limelight.

One such example is the process of marriage registration, where the unequal treatment of women by the state and its bureaucratic mechanism is amply demonstrated. In Nepal, marriage as a civil contract is regulated by a nearly 50-year-old law, the Marriage Registration Act of 1971, which states that marriage or marital relation concluded in any custom, tradition and religion can be registered in the concerned marriage registration office. While this law predates Nepal’s federal system, today, this office would effectively be municipal bodies called ‘ward offices’, the smallest unit of local government in Nepal.

As per the letter of the law, a man or a woman, irrespective of their permanent residence, have the right to get their marriage registered in the ward office in the place of their residence. However, contrary to the law, it is a standard bureaucratic practice to mandate the registration certificates to be issued only from the ward office in the husband’s address. Although nowhere mentioned in the law, a woman cannot use the office of her local representative for the purpose.

This is problematic for two distinct reasons. First are a group of problems that can broadly be called constitutional and ethical. Denying women the right to use their local governments to process the marriage certificate directly contradicts the Constitution’s clause on gender equality. Even if the Constitution has flaws on the matter of citizenship, this direct violation of gender parity demonstrates how the state still has a number of regulatory practices — as well as several laws — which treat women as second-class citizens.

This persistent failure of the agents of the state, mostly high-caste men, to recognize women as equal, responsible and independent citizens demonstrates a deeply patriarchal tendency entrenched in the country’s state bodies.  By choosing to ignore and interpret laws according to their narrow understanding of social structures —  where women as a rule have permanent domicile in the husband address is unfair as it treats them as subservient to men — local officials are not only acting against the constitution; it also takes away women’s fundamental rights of equality, a state recognized ratification of the fundamental human rights in the Universal Declaration of Human Rights. Indeed, it leaves open the possibility that if the equality provision can be ignored based on ‘traditional’ social functions, many more legal protections for women can be ignored under similar pretext.

The second set of problems due to unequal marriage registration processes are more practical ones. Undermining women’s access to a crucial form of documentation not only attacks their identity, it also creates difficulties in exercising various state-recognized rights associated with legal recognition of marriage. Chief among them is the right to acquire and sell property. Women in Nepal have fought various political battles to ensure their share to their husband’s property as equal partners in marriage. Similarly, they also have the right of alimony or maintenance after divorce in cases they don’t get their rightful share to family property after divorce. In the absence of a document proving the marriage, however, such rights are difficult to exercise. The same is true if the couple wants to have joint bank accounts or make investments together as a couple.

While it might appear that the problem can be temporarily solved by following the standard practice of just going to the husband’s ward office, this ignores the scale of the problem. The registration of marriages is still not common in Nepal, where access to state documentation is not perfect. But instead of making it easier for couples to register their union, the state continues to make a relatively simple process cumbersome by imposing unrealistic requirements in a country with vigorous internal and external migration. This is particularly worrying in contemporary Nepal where many men leave the country as migrant workers, often without registering their marriage, leaving the wife in a legally precarious situation.

Photo from Nepali Sansar.

*The contents of this opinion piece are solely those of the author’s and do not necessarily reflect the view of the either Global Campus of Human Rights Asia Pacific, the universities under it, or the APMA program.

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