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 Supreme Court held that rape is a grave offence, and it is not justifiable to have discriminatory provisions for punishment between marital and non-marital rape that afford lesser punishments on the basis of the relationship in cases of marital rape. The Court further recognized that there is a lack of harmonization in the penal provision given the principal sentence for committing marital rape is lesser than additional sentence for rape outside marriage. Thus, the Court issued a directive order in the name of the Ministry of Law, Justice and Parliamentary Affairs to take necessary and justifiable actions to harmonize between penal provisions for martial and non-marital rape pursuant to the principle of equality and ensure that the principal sentence shall not be less than the additional sentence.
The Court referred to its decision in Meera Dhungana v. Ministry of Law, Justice and Parliamentary Affairs, in which the Court had recognized that the provisions of rape in the Muluki Ain did not allow impunity for marital rape. As a result of the court’s decision in this case, the penal provision for marital rape was specifically introduced in the Muluki Ain. Similarly, the Court also referred to its another decision in Sapana Pradhan Malla v. Ministry of Law, Justice and Parliamentary Affairs, in which the discriminatory penal provision for rape on the grounds of character and profession of the victim was declared null and void by the Court. The Court explained that the quantum of punishment in criminal cases has been prescribed pursuant to the gravity of the offence and age of the victims. Rape has been recognized as a grave criminal offence and the result of such offence is the same, hence there is no rationality in differentiating punishments for marital and non-marital rape. Thus, the Court deemed the reduced punishment in criminal cases based on the relationship with the victim to be discriminatory between women. Also, based on the nature of the offence, health of the victim, and the age, the quantum of punishment in any offence may be increased and added to the principal sentences; however, in relation to the penal provision for marital rape, the principal sentence is less than the additional sentence for rape outside marriage, which can’t be deemed to be just.
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.