Contradictory provisions in laws related to annulment of marriage
Kathmandu, June 23
Provisions related to annulment of marriage in the newly enacted Muluki Civil Code Act and Muluki Criminal Code Act are contradictory.
Section 173 of the Muluki Criminal Code Act stipulates that a man and woman can marry only when they reach 20 years of age and if marriage is solemnised in violation of this provision, such a marriage will be automatically annulled. Section 173 (3) of the act also says persons responsible for solemnising such a marriage will face jail term not exceeding three years and fine not exceeding Rs 30,000.
Section 73 (1) (b) the Muluki Civil Code Act stipulates that a marriage solemnised between man and woman who have not reached the age of 20 years can be annulled if they so desire.
Advocate Indu Tuladhar said since both acts were general laws, it was not clear which provision — the provisions of the Civil Code or Penal Code — would apply with regard to marriageable age. “It was a mistake on the part of the lawmakers to incorporate such conflicting provisions in two different laws that they enacted simultaneously,” she argued.
Tuladhar said the new law contained some new provisions to discourage fraud in marriage, yet they were not enough.
“This new law gives broad power to judges to interpret what are serious incurable diseases on the grounds of which an aggrieved party can seek annulment of marriage. The law should have clearly prohibited marriage between couples if they suffered from physical and mental disabilities,” Tuladhar added.
Giving broad discretionary powers to judges serves the purpose of law because in Nepal, particularly in rural areas, marriages are mainly fixed by parents, who may not reveal the disabilities and diseases their sons and daughters suffer from, she argued.
Section 71 of the Muluki Civil Code Act prohibits marriage between men and women if any of the party suffers from HIV, Hepatatis B and other such serious incurable diseases or if they are devoid of sexual organs or if they are infertile, deaf or dumb or blind or if they suffer from leprosy or if they are senile or if they are already married or pregnant or if they have been convicted of crime involving moral turpitude.
Section 73 (3) (b) of the act stipulates that an aggrieved party will have the right to seek annulment of such marriages if they so desire, and they will also be entitled to compensation from the offender.
This means such marriages will not be automatically annulled but will be subject to annulment if the aggrieved party so desires.
Advocate Nirmala Bhandari said giving discretionary powers to the judges to define serious incurable diseases was justified because an incurable disease could be curable tomorrow and new incurable diseases could emerge in future.