In 2005, a male lawyer filed a writ petition challenging number 28 B (1) of the Chapter on Homicide of the Muluki Ain (the Country Code) that allows women to seek legal and safe abortion up to 12 weeks of pregnancy solely on their voluntary consent. The petition claimed that the lack of requirement for spousal consent in the law on abortion ignores men’s rights; is against principles of gender justice; and is in contradiction with Article 16(1)(e) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW Convention), which guarantees equal rights of men and women in matters relating to family relations and number and spacing of their children, and thus should be declared null and void.
The Court rejected the petitioner’s arguments and dismissed the writ, ruling that the challenged provision of the Country Code is not inconsistent with the CEDAW Convention. The Court stated that the provisions related to abortion in the Country Code and the article 16(1)(e) of the CEDAW Convention cannot not be seen in isolation. It also reiterated that the CEDAW Convention is a women’s rights instrument that aims to promote and protect women’s rights by ensuring equality with men, and for this reason, the interpretation of Article 16(1)(e) of the CEDAW Convention cannot be construed in absolute terms.
The Court explained that while number 28B(1) of the Chapter on Homicide though provides for abortion up to 12 weeks of pregnancy with the consent of concerned woman, this did not prevent both members of a couple from mutually determining whether or not to have an abortion. The Court considered that, as a matter of general principle, it is expected that any decision made within the conjugal relationship is based on mutual trust and mutual understanding. A few exceptions to this practice could not serve as the grounds to invalidate the current law.
The Court emphasized that there are certain reasons and legislative intent behind affording pregnant women the right to seek an abortion without their husband’s consent. It explained that there is no substantial change in the male dominated family structure and the society is yet to transform in a way that women can enjoy their rights independently and without impediments, as men can. In this social and familial context, it is necessary to provide rights to women whose physical and health status is vulnerable. Women should have equal rights to decide about the number of their children. If the man is given the sole right to decide such matters, and the woman does not have any right, we cannot say that there is equality between men and women. Moreover, reproductive health is an integral component of women’s right to life and no one should have the right to forcefully violate a woman’s right to health. If any conditions are imposed whereby the woman is required to obtain the consent of her family, especially her husband, women’s empowerment and social progress would not be possible.
In the process of decriminalization of abortion in Nepal in 2002, the provision of “spousal consent requirement” was debated amongst the Nepal’s women rights group and was then rejected. However, the petition attempted to overturn the country’s abortion law, which allows women to seek safe and legal abortion up to 12 weeks on their voluntary consent. By dismissing the case, Nepal’s Supreme Court reaffirmed abortion as women’s reproductive choice and overturned the barriers that a provision on spousal consent requirement could create in Nepali women’s access to safe and legal abortion services.