For some families affected by the Bhotekoshi floods, the waiting has already changed into mourning.
In Rasuwa and the neighbouring districts, families have spent weeks looking for relatives who disappeared when the river swept through settlements, roads, hydropower projects and homes. Search teams have been working through tunnels, mud and collapsed structures. Bodies are still being recovered. On September 18, for example, six bodies were recovered from a tunnel at the Upper Trishuli-1 hydropower project, nearly three weeks after the August 26 floods. At the same time, thousands of people remained unaccounted for.
For some families, however, there is little hope left that their relatives will return alive. Several have already performed funeral rites without a body. Families have used kusha grass to create symbolic bodies and carried out the final rituals that would ordinarily follow the recovery of a person's remains. The problem is not limited to families waiting at home. Even foreign tourists who disappeared during the disaster have been formally reported as missing with the Tourist Police in Kathmandu. In one such record, which I have reviewed for this article, two individuals, referred to here as P-1 and P-2, were separately registered as missing persons on September 1, with their identification details recorded by the Tourist Police.
Then comes another problem. The family has to deal with the State.
A person may be dead in every practical sense, yet still be legally recorded as missing. That difference matters. Without proof of death, families can face difficulties with insurance, compensation, property, bank accounts and other legal matters. Local authorities in the flood-affected areas have already raised concerns about the difficulty of registering the deaths of people whose bodies have not been recovered or identified.
This is where Nepal's law needs to be looked at again.
Twelve years is not the whole story
Much of the discussion surrounding missing people after the floods has focused on the twelve-year period under Nepal's National Civil (Code) Act, 2017. Section 40(1) provides that a person who has disappeared without information for twelve consecutive years, or about whom people who would naturally be expected to receive information have heard nothing for twelve years, is presumed dead unless there is evidence that the person is alive. There are also specific shorter periods in certain circumstances, including five years for a person over 80, four years for a soldier deployed in a battlefield after the war ends, and three years for a person travelling in an aircraft, ship or other vehicle involved in an accident.
But saying that flood victims have to wait twelve years would not be an accurate reading of the law.
Section 40(4) provides another route. Where a person has disappeared without information or is believed to have died in a disaster or accident, a concerned person can approach the court and seek a judicial declaration of death. The application has to set out the relevant circumstances, including the date, place, cause and basis for the claim, and the court can examine the evidence before making an order. Rule 60 of the Civil Procedure Rules, 2018 provides the procedure for such an application.
So, the problem is not simply that Nepal has a twelve-year rule.
The bigger problem is that the alternative route is built around an individual going to court and proving the circumstances of a disappearance. That may work when one person goes missing. It becomes much harder when a single disaster leaves hundreds or thousands of people unaccounted for.
The State already knows that the flood happened. It knows which areas were affected. It has records of people rescued, people reported missing and bodies recovered. Police, local governments, the Nepal Tourism Board, hospitals and other agencies are collecting information at the same time. Asking every family to start from the beginning and establish the same disaster all over again does not make much sense.
The body and the death are not the same thing
There is a natural reason why authorities want a body before registering a death. Identification matters. Families deserve to know who has died, and forensic evidence can be important for both relatives and investigators.
But a body cannot always be recovered.
The recent floods have shown this quite clearly. Search teams have been working through mud, tunnels, damaged hydropower projects and riverbanks. In some places, the remains of victims may be buried deep under debris or carried far downstream. The recovery of bodies has continued weeks after the disaster, and many of the bodies that have been recovered have still needed identification.
The absence of a body should therefore not automatically mean the absence of evidence.
A person may have been staying at a particular hotel. They may have travelled with a registered agency. Their name may appear on an immigration record. A guide may have seen them shortly before the flood. Other members of their group may have been rescued and may be able to confirm that they were together when the disaster struck. Police and rescue teams may have records showing that the person was never found among the survivors.
None of these facts, by themselves, should automatically result in a death certificate. Taken together, however, they can form a serious evidentiary basis for a legal determination.
That is the kind of evidence the existing judicial declaration mechanism should be able to consider.
Travel agencies already have part of the answer
There is a practical solution that Nepal has already begun using.
After the Bhotekoshi floods, the Nepal Tourism Board brought together government agencies and tourism organisations and decided to establish an information desk for missing tourists. The Board also asked travel and tour companies to provide verified details of missing tourists through designated focal persons and to coordinate with the relevant embassies.
This should not stop at the search-and-rescue stage.
There is already evidence of why such a system would be useful. The Tourist Police records I reviewed show that missing foreign nationals can be formally registered with their identity and passport details. In the records relating to P-1 and P-2, the Tourist Police recorded each as a missing person and retained their identification information. The question, then, is not whether this information can be collected. It already is. The question is what happens to that information after a person has remained missing despite search efforts.
Travel agencies often have information that can help the government put together a clearer picture of a missing person's movements. They may have booking records, names, passport details, itineraries, hotel information and details of the people travelling together. In the case of a foreign tourist who disappeared during the floods, an agency's records could help establish that the person was actually in the affected area when the disaster occurred.
The government could therefore formalise this process. When a major disaster occurs, registered travel and trekking agencies operating in the affected area should be required to submit verified information about clients who remain unaccounted for. The information could then be checked against immigration records, police reports, hotel records and information collected by rescue teams.
There is an important limit here. Travel agencies should not be allowed to declare someone dead. That decision must remain with the State and, where required, the courts. The agency's role should simply be to provide evidence that can help establish who the person was, where they were and when they disappeared.
Passport numbers could be particularly useful for identifying foreign nationals, but they should not be published in newspapers or on public lists. They should be shared securely with the relevant authorities and diplomatic missions. The public needs a list of names and basic identifying information; government agencies need the more detailed records.
Foreign nationals need a separate channel
The problem is even more complicated when the missing person is a foreign national.
Following the Bhotekoshi flood, Nepal's Ministry of Foreign Affairs established an Emergency Control Room to coordinate information, search and rescue, and consular assistance concerning foreign nationals affected by the disaster. The Ministry specifically asked diplomatic missions and families of missing persons to use the emergency channel for information and assistance.
That system should remain involved after the search phase.
The need for such coordination is not theoretical. The Tourist Police records for P-1 and P-2, for example, show how foreign nationals can enter the system as formally registered missing persons, with their identification details recorded by the authorities. What is less clear is what happens when a person remains missing for an extended period and the family needs more than a missing-person report. That is where the system needs to connect the search process with the legal process for declaring death.
A family in India, China, Australia or the United States may have no practical understanding of how to approach a Nepali court. They may not even know which local authority has the relevant records. The embassy should therefore be able to act as a bridge between the family and the Nepali authorities.
If the government has verified that a foreign national was in the affected area, the relevant embassy could help establish the person's identity and communicate with the family. The embassy could also receive the eventual judicial or administrative documentation and help the family use it in the person's home country.
This is not an unusual problem for a country that receives large numbers of foreign visitors. Nepal's system for dealing with tourists cannot end once a rescue operation ends. It also has to deal with what happens when someone cannot be found.
What should happen now?
The immediate solution does not necessarily require throwing out Section 40 and starting again.
The existing law already provides a judicial route for disaster-related deaths. What is missing is a mechanism that makes that route practical after a mass disaster.
The government could begin by setting up special assistance desks in the affected districts. Officials could help families prepare applications, collect records and obtain recommendations from the relevant local authorities. Courts could also be asked to prioritise such cases because of the exceptional circumstances in which they have arisen.
There should also be a common evidentiary framework. If a person was confirmed to be in the disaster area, has not been found among survivors, has had no contact with anyone since the disaster and remains unaccounted for after a reasonable search, those facts should be considered together. The standard should not be that a family must produce a body before it can even ask for a declaration.
For future disasters, Nepal should go further and create a specific procedure for mass-casualty events. Once the government officially recognises a disaster of a certain scale, a dedicated mechanism could be activated to maintain the missing-person register, collect evidence and process applications for judicial declarations. This would prevent the same confusion from being repeated the next time a flood, landslide or earthquake leaves large numbers of people missing.
There should also be safeguards. A declaration should be based on evidence, not simply on a person's name appearing on a missing list. If new evidence later shows that the person is alive or establishes a different date of death, the legal record should be capable of being corrected. The existing rules already recognise the possibility of amending or cancelling a judicial declaration in such circumstances.
The law should not make families wait for certainty that may never come
There is no perfect answer to the problem of people who disappear in a disaster. Declaring someone dead too quickly can have serious consequences, but leaving families in legal uncertainty for years can be equally damaging. The answer should be a process that takes the evidence seriously without treating the recovery of a body as the only proof that a person has died.
Nepal already has the legal foundation for this. Section 40(4) of the National Civil (Code) Act recognises deaths arising from disasters and accidents, and the courts have a procedure through which such deaths can be declared. What is missing is a system capable of using that law quickly when a single disaster leaves hundreds of people missing. Travel agencies, local authorities, police, rescue teams, the Tourism Board and diplomatic missions are already collecting pieces of the information needed. The State now needs to bring those pieces together.
The search for the missing should continue for as long as there is a reasonable possibility of finding them. But the search should not force their families to remain in legal limbo. For those who disappeared in the Bhotekoshi floods, some bodies may eventually be recovered and identified. Others may never be found. Nepal's law must be prepared for both realities.
For a family that has already performed the last rites of a loved one without being able to recover the body, asking them to wait years before the State recognises what the available evidence may already establish is more than a bureaucratic delay. It prolongs an uncertainty that the disaster itself has already imposed on them. Nepal cannot bring every missing person home, but it can ensure that their families are not left waiting for the law to catch up with the loss.
Gyawali is aThird-year student at NALSAR University of Law, Hyderabad