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DO YOU KNOW YOUR RIGHTS?

By Kritagya Rai
Legal Officer, FWLD

What are Women’s Rights?

Rights guaranteed by the law for legal and social equality of women are known as women’s rights. Rights of women are among the fundamental rights guaranteed by the Constitution. Fundamental rights are the rights guaranteed by the constitution to all citizens of a country. One can seek constitutional remedies in case of encroachment of such fundamental rights.
Article 38 of The Constitution of Nepal has guaranteed Rights of Women as fundamental rights. As guaranteed in the Constitution, the rights of women are:

  1. Equal lineage right without gender based discrimination.
  2. Right to safe motherhood and reproductive health.
  3. No woman shall be subjected to physical, mental, sexual, psychological or other forms of violence or exploitation on grounds of religion, social, cultural tradition, practice or on any other grounds. Such acts shall be punishable by law, and the victim shall have the right to obtain compensation in accordance with the law.
  4. Right to participate in all bodies of the State on the basis of the principle of proportional inclusion.
  5. Right to obtain special opportunity in education, health, employment and social security, on the basis of positive discrimination.
  6. The spouse shall have equal right to property and family affairs.

Besides these fundamental guarantees in the Constitution, other laws that deal with issues of women are:

RAPE

The chapter on rape of Muluki Ain 2020 (Country Code) prohibits having sexual intercourse without ones consent. Such an act shall be deemed to be an offence of rape. Also, if a girl is under 16 years of age, any sexual act with or without her consent, also accounts to offence of rape. The law has clearly stated that consent taken under fear, coercion, undue influence, misrepresentation, abduction, or when she is not conscious will not be considered as valid consent and the act will amount to rape.

What You Can Do: Complain:
• First Information Report (FIR): To be filed in police office.
• Limitation: The time limitation of filing an FIR is within six months of the incident.

Punishments:

Additional punishment:
Anyone who commits gang rape or rapes a pregnant woman or a disabled woman shall be liable to imprisonment of additional 5 years.
The inciter or the perpetrator who incites others to rape a woman shall be liable to half of the punishment imposed on the main perpetrator.
A person who grabs or helps in committing the rape shall be liable to 3 years of punishment. And if the victim is under 16 years of age, the punishment shall be double.
If a person commits rape knowing that he has HIV AIDS is liable for an additional one year of imprisonment.
The act also allows a victim to exercise right to self-defense. The victim cannot be held criminally liable for death of offender resulting from such acts of self defense.

Compensation:

Decision of an appropriate compensation shall be made by the court keeping in mind the physical or mental loss the victim has suffered.
If the victim is dead, the gravity of offense and pain suffered by the dependant minors must also be taken into consideration for compensation.

SEXUAL HARASSMENT

Constituted by the ‘The Sexual Harassment at Workplace Prevention Act, 2015’. Pursuant to Section 4 of the Sexual Harassment Prevention Act, any of the following unsolicited acts committed by or caused to be committed by any person in abuse of his/her position, power or by imposition of any type of coercion, undue influence, or enticement would constitute sexual harassment:

  1. Physical contact and advances
  2. Showing or displaying of pornographic material
  3. Expressing sexual motives by way of written, verbal or non-verbal means
  4. Demand or proposal for sexual favors and
  5. Flirting or harassing with sexual motive.

The said Section clarifies that in the event any of the above acts are done for educational purpose or in the course of treatment or providing protection to employees, then such acts should not be regarded as sexual harassment. Therefore, as an example, if any pictures are displayed in the course of raising awareness of reproductive health, the mere display of such pictures should not constitute sexual harassment for the purpose of the Act.

What You Can Do: Complain:

The Sexual Harassment Act envisions two types of complaint mechanisms:

  1. Internal Complaint Mechanism
  2. External Complaint Mechanism

Internal Complaint Mechanism is the mechanism where you can complain to the authority having the power to decide, e.g Manager.
External Complaint Mechanism is the mechanism where you can go to the related CDO for complaint.

Punishment:

Fine up to Rs 50,000 and imprisonment up to six months.
If the act is repeated by the same person, double the punishment mentioned in the Act.
If the authority fails to comply with the duties and responsibilities, fine up to Rs 25,000.
If any person is caught alleging false claims, the person may be fined up to Rs 10,000.

SURROGACY

Right or Violence? In Nepal, There is no proper law that deals explicitly with surrogacy. It is under debate whether to consider surrogacy as a right or violence. Many couples are incapable of having their own child due to some medical condition in their body. In surrogacy, these type of couples pay a certain amount to a woman who will carry their child in her womb. The couple gets the child and the surrogate mother gets the money. But in some cases it has been found that suurogates do not get paid as promised. This is a huge violation of rights. Some also claim this as a grave violation of someone else’s body being used for personal benefit. The poor, illiterate women of rural backgrounds are often persuaded into such deals by their spouse or middlemen to earn easy money. These women have no rights on the decision regarding their own body and life.

CHHAUPADI

Chhaupadi is an ill practice of our society in which women during menstruation are forced to stay outside of the house in a temporary shed or sheds made for animals during menstruation. In a recent case reported from Achham, a girl was bitten by a snake which resulted in her death while performing chhaupadi.
The recent Criminal Code which has been passed by the Parliament and is due to be implemented from 2018 has criminalised Chhaupadi with punishment of three months imprisonment and Rs 3,000 fine.

ABORTION

An act in which the fetus or embryo is removed before it can survive the outside world is known as abortion. Generally, abortion is considered illegal after 12 weeks of the development of fetus as it violates the right to life of the fetus. However, the chapter on homicide of Muluki Ain has prescribed certain conditions when abortion can be legal:

  • Abortion within 12 weeks with the consent of the mother
  • In the cases of incest and rape, abortion is legal up to 18 weeks of development of the fetus according to the suggestion of the health expert.
  • In cases where the health of the mother is in question, abortion can be performed at any time with the suggestion of the health expert.

Punishment

The above punishment is the same for someone who coerces, threats, lures a pregnant woman to undergo abortion.
If anyone performs abortion at any time after identification of the gender, the punishment shall be six months to two years of imprisonment.

DOMESTIC VIOLENCE

This is governed by the Act, Domestic Violence (Offense and Punishment) Act, 2006. As defined in Section 2(A) of the Act, domestic violence is any form of physical, mental, sexual and economic harm perpetrated by person to a person with whom s/he has a family relationship and this word also includes any acts of reprimand or emotional harm.

What You Can Do: File a complaint:
Article 4 of the Act has the provision of filing a complaint. An oral or written complaint can be filed in the Police Office, National Women Commission or Local Body by anyone who has the knowledge of an Act of domestic violence or the violence is being committed or likely to be committed.

Limitation of complaint:
The limitation for the complaint is within 90 days of the incident.

Punishment:

  • If anyone commits domestic violence, s/he will be fined Rs 5,000 to 25,000 or up to six months of imprisonment or both.
  • Abettor will be punished half of the main punishment given to the perpetrator.
  • If anyone repeats the crime, double punishment will be given to the recidivist if being punished for the second time for the same crime.
  • Any public official who commits this crime is subjected to additional 10% of the prescribed punishment.
  • If anyone acts against the decision of the court stated in Section 6 of the Act, that person will be fined from Rs 2,000 to 15,000 fine or up to four monthsof imprisonment or both.

Compensation:
Section 10: The Court may, depending on the nature of the act of domestic violence and degree and the pain suffered by the victim, and also taking into account the economic and social status of the perpetrator and victim, order the perpetrator to pay appropriate compensation to the victim.

All court proceedings will have in camera hearing which means no one else is allowed to enter the proceedings except the people related to the case.