In a departure from past practice, the Supreme Court last Thursday ruled that women who seek divorce will not be entitled to a share in their husbands’ property. Women have been granted a share in the property, even though they filed for divorce for whatever reasons. The court verdict leaves it unclear whether it applies to all cases. Certainly, there is a difference between those women who apply for divorce because they do not want to live with their husbands just because they find them no longer handsome or for some such reasons and those who are compelled to seek divorce because their husbands have tortured them to such an extent and with such a frequency that no women, ordinarily, can be expected to want to live with such men. Perhaps, circumstances should dictate whether women are entitled to their husbands’ property.

The apex court’s ruling has sought to make the laws conform to the Constitution in letter and spirit. The equality provision of the Constitution says that all citizens are equal before the law and no person shall be denied equal legal protection. The Supreme Court has also ruled that the legal provision on divorce should be made compatible with the social context. The court verdict came in response to a writ petition filed by advocate Shyam Krishna Maskey challenging the existing legal provisions on divorce on the grounds that they violated the spirit of constitutional equality and further that if these provisions continued to exist women might make divorce-seeking a business with the objective of amassing wealth. The advocate said he had separated from his wife legally after she had sought divorce.

The 11th amendment to the Civil Code provides for women’s entitlement to husbands’ property even if wives apply for divorce. Those who disagree with the apex court’s verdict argue that while the fact is that the law has not granted daughters equal rights to parental property, the ruling has deprived women of even the right to their husbands’ property and that this is unfair. In Nepal’s social context, not many cases are likely to be filed in the near future because wives want to amass property. While the concept of equality before the law needs to be enforced, some allowance needs to be made for the social context in which individuals and family operate. So it would be better if the law was applied by taking into account whether women have filed divorce cases on genuine grounds, in the eye of the law and the court, or on weak grounds. Even the interpretation of genuineness would have to be made in view of the Nepali social context. Therefore, the confusion that many seem to have felt following the landmark verdict may better be clarified while making the law compatible with the Constitution.