Gender and Inclusive Justice Case: Meera Dhungana vs. Ministry of Law, Justice and Parliamentary Affairs & Others, NKP (2057), No. 6, P. 462, DN: 6013
Case: Relating to void of Unconstitutional law
Plaintiff: Meera Dhungana et.al
Defendant: Ministry of Law, Justice and Parliamentary Affairs & Others
Decision Number: 6013
The case is relating to equal property rights of sons and daughters and discrimination against daughters in parental property under the Muluki Ain, 2020.
Facts:
Meera Kumari Dhungana and Meera Khanal challenged Section 16 of the Partition Chapter of the Muluki Ain, 2020, which governed the property rights of daughters.
Under the provision, an unmarried daughter could receive a share of her parental property only after reaching the age of 35 years and subject to conditions relating to her marital status. The law also contained provisions concerning the return of property if the daughter subsequently married.
The position of a son was different. A son could generally claim a share in his father’s property without having to wait until a particular age or satisfy the same conditions imposed on a daughter.
The petitioners also challenged the use of the word “son” in other provisions of the Partition Chapter. These provisions gave sons a direct position in the inheritance system while daughters were required to satisfy additional conditions before obtaining parental property.
At the time, these provisions operated as part of a wider family-property and inheritance system in which property rights were connected with marriage, family relationships and the traditional structure of the household.
The petitioners challenged these provisions under the constitutional guarantee of equality in Article 11 of the Constitution of the Kingdom of Nepal, 1990. They also relied on CEDAW, which recognises equality between men and women in property and civil matters.
Plaintiff’s Claims:
The petitioners claimed that the law discriminated against daughters because a son could obtain a share in parental property without an age restriction, while an unmarried daughter had to wait until 35 and satisfy additional conditions. They argued that the discriminatory provisions should be declared invalid and that daughters should have property rights equal to those of sons.
Defendants’ Arguments:
The Government argued that the law did not completely deny daughters property rights. An unmarried daughter could receive property after meeting the legal conditions, while a married daughter could obtain property through her husband’s family.
The Government also argued that giving a married daughter the same immediate right as a son could allow her to receive property from both her parental and husband’s families and create another form of inequality. It further argued that the property system was interconnected and should not be changed by removing one provision without considering the wider legal and social system.
Legal Questions:
- Whether Section 16 of the Partition Chapter violated the constitutional right to equality?
- Whether requiring an unmarried daughter to reach 35 before receiving parental property was discriminatory?
- Whether the provisions giving sons a different position in inheritance were unconstitutional?
- Whether the Court could direct the Government to reform the wider property and inheritance system?
Different Court Decisions:
Supreme Court:
The Special Bench did not declare Section 16 invalid. The Court held that the provision did not completely deprive daughters of property rights but regulated those rights differently according to their marital status within the existing family-property system.
The Court considered that a married daughter could obtain property through her husband’s family, while an unmarried daughter could claim property from her father after satisfying the conditions prescribed by law. It also considered the Government’s concern that giving a married daughter an immediate right to parental property in the same manner as a son could allow her to claim property from both families.
However, the Court recognised the need for a broader examination of the property and inheritance laws. Rather than striking down one provision in isolation, it directed the Government to study the issue more comprehensively.
The Government was directed to consult women’s organisations, sociologists, social organisations and lawyers, examine relevant laws of other countries, and prepare a suitable bill for broader legal reform within one year.
The petition to invalidate Section 16 was therefore not granted, but a directive for wider legal reform was issued.
Principles Established:
- Equality does not always require identical treatment in every situation.
- Property and inheritance laws should be examined as a connected legal system.
- Removing one provision without considering related laws may create further legal inequality.
- Laws affecting property rights should be reviewed when they create unequal treatment between men and women.
- Constitutional equality should guide the reform of discriminatory laws.
- Courts may direct the Government to undertake broader legislative reform.
- Traditional family structures cannot by themselves provide a permanent justification for unequal legal rights.
