Proposes not to criminalise marriage between couples aged 18 to 20, to decriminalise abortion
KATHMANDU, JUNE 24
The Ministry of Law, Justice and Parliamentary Affairs (MoLJP) has prepared a draft bill to amend the National Penal Code, 2017, proposing some of the major changes in the criminal law. One of the major changes that the draft bill has proposed is about child marriage.
The MoLJP has sought public feedback on the draft bill.
Although the amendment proposal continues to keep the marriage age at 20, it makes an exception for minors below 20 years of age and above 18 years of age whose marriage occurs with mutual consent. The amendment proposal states: No person shall marry or cause marriage before the age of twenty years. A person who marries or arranges such a marriage in violation of Sub-section (1) shall be punished as follows:
(a) If a person below 18 years is married or arranged to be married: up to 3 years imprisonment and up to Rs 30,000 fine.
(b) If a person above 18 but below 20 years is married or arranged to be married: fine from Rs 25,000 to 50,000.
If punishment is imposed under clause (a), the marriage shall automatically be void. The bill states that for persons aged 18–20, if marriage occurs with mutual consent, and they agree to live separately until the age 20 and request the investigating officer, the public prosecutor may decide not to prosecute based on the report. However, if they continue the marital relationship against such request, prosecution shall not be barred.
Executive Director of Forum for Women, Law and Development Advocate Sabin Shrestha told THT that the bill has proposed to impose a fine up to Rs. 50,000 for marriage between individuals aged 18-20 and no prosecution based on the mutual application to concerned police personnel which has raised concerned of civil society members and other stakeholders as this provision indirectly decriminalized the child marriage.
Stating that under the current provision, a child marriage is automatically void, Shrestha said that the new provision however proposed to declare the child marriage as automatically void only when such action is penalized.
Shrestha said adding that the bill should have made provisions for educational, health and other facilities for minor girls below 18 years of age whose marriage could be automatically annulled. The bill also defines rape as a crime of moral turpitude.
The draft bill also takes care of the concerns expressed by same sex couples by proposing to replace the phrase 'married man' with 'any married person' recognizing the fact that same sex marriage is legal. The bill states: "No one should knowingly marry a person who is already married."
At present, Section 175 (1) states: A married man should not enter into another marriage while his marital relationship is still in effect. Similarly, Section 175 (2) states: No woman should knowingly marry a man who is already married.
Another important amendment the draft bill has proposed is regarding decrminalisation of abortion. The bill states that an offence would not be deemed to have been committed "If, in the opinion of a licensed medical practitioner, not performing an abortion could endanger the life of the pregnant woman, or could harm her physical or mental health, or could result in the birth of a disabled child, and the abortion is carried out with the consent of the woman at any stage of pregnancy. The bill also states that in cases where a pregnancy resulting from rape, incest, or an underage marriage does not appear to pose a threat to the pregnant woman's life, and the abortion is performed at any time with her consent, it would not constitute an offence. The bill further states that when an abortion is performed at any stage of pregnancy with the consent of a woman who is infected with the Human Immunodeficiency Virus (HIV) or other similar incurable infectious diseases that weaken the immune system, then it would not constitute an offence. These provisions aimed at decriminalizing abortion, a longstanding demand of rights activists.
FWLD Executive Director Shrestha said even if the National Penal Code's new provision that were aimed at decriminalising abortion were enacted into law, the full amendment could be made only when similar amendments would be made in the Right to Safe Motherhood and Reproductive Health Rights Act, 2018 which allows abortion up to only 28 weeks of pregnancy. Shrestha said that the amendment in the National Penal Code which is a general law, would, however, pave the way for amendment to Right to Safe Motherhood and Reproductive Health Rights Act which is a special law which prevails over a general law.
