Jit Kumari Pangeni and Others v. Government of Nepal (2006)

In 2007, Jit Kumari, a victim of marital rape, together with a women’s rights organization, the Forum for Women Law and Development (FWLD), filed a writ petition challenging Nepal’s penal provision on marital rape as being inadequate and discriminatory. The petition claimed that Number 3(6) of the Chapter on Rape of the Muluki Ain (the Country Code), which provides for lesser punishment for marital rape than for rape outside of marriage, contradicted and was inconsistent with the recognized principles of criminal justice and equality. Under the Muluki Ain, marital rape was punishable with a sentence from three to six months imprisonment, whereas rape outside marriage was punishable with five to fifteen years imprisonment. Under Nepali law, a person sentenced to less than three years imprisonment following a criminal conviction is eligible for release on bail or guarantee. Thus, even though Jit Kumari’s husband was convicted of rape, the lesser punishment for marital rape meant that he could be freed at any time after paying his bail amount of Nepali Rs. 4500 (approximately 45 USD). The petitioner feared that she may be subjected to further violence upon release of her husband.

The petition claimed that the lesser punishment for marital rape violated a range of domestic and international legal protections, including Articles 13 and 20 of the Interim Constitution of Nepal, 2007, which guarantee equal protection of the law and prohibit discrimination on the basis of (inter alia) sex, except with regard to provisions for the protection, empowerment and advancement of women, as well as women’s rights to reproductive health, reproduction, and freedom from physical and other forms of violence. The petition further alleged that the provision violated the Convention on the Elimination of All Forms of Discrimination against Women, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, among others. The writ petition sought an order of Mandamus to the government to take appropriate action for the formulation of a law with equal provisions for punishing marital and non-marital rape.

The case was heard by the bench of three Judges. One of Judges dissented, suggesting that marital rape presented particular evidentiary challenges, except in the cases where spouses were separated and living apart. Therefore, consenting on the opinion of the majority in other matters, the plea for increasing the quantum of punishment for marital rape, he issued a directive order in the name of government to provide a legal definition with regard to sexual intercourse occurs pursuant to a valid marriage and sexual intercourse between a couple who, though they are not divorced, are living apart or judicially separated; and increase the quantum of punishment for marital rape in cases where sexual intercourse occurs without the consent of spouse living apart/judicially separated.

In 2002, the Supreme Court of Nepal, through its landmark decision in Meera Dhungana v. Ministry of Law, Justice and Parliamentary Affairs, recognized marital rape as an offence. Endorsing the Court’s decision, legal provisions with specific penal provision on marital rape were introduced. However, different penal standards between marital rape and non-marital rape were enacted affording very minimal punishment in cases of marital rape. In this case, the minimal punishment for marital rape was challenged as one of the major barriers for its implementation. As a result, the Court questioned the rationality behind lesser punishment for marital rape, and in 2016 the penal provision on marital rape was revised with a sentence from three to five years imprisonment to the perpetrator.