04/01/2006, 00.00
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Infertility is no ground for divorce, rules Nepalese Supreme Court

by Prakash Dubey
A year after the case is brought before Nepal's highest court, the old law is declared unconstitutional.

Kathmandu (AsiaNews) – Yesterday, in a "historic and revolutionary judgement", Nepal's Supreme Court ruled a year after the case was brought before the high court that the provision in the country's 1963 Civil Code that gave men the right to divorce their wife on grounds of infertility was unconstitutional.

"This judgment will certainly help fight the silent atrocities perpetrated against women in our obnoxiously patriarchal society," said Norbert Rai, a Christian lawyer. "The provision was discriminatory," he explained, "because a man could divorce his wife on grounds of infertility but a woman could not divorce him if he was impotent."

The marriage section in the 1963 Code gave in fact men the right to divorce if a government-recognised medical facility certified that a woman was infertile after ten years of marriage.

A special committee of the Nepalese Supreme Court that included Justices Kedar Prasad Giri, Khil Raj Regmi and Sharada Shrestha found however that this section violated Article 11 of Nepal's 1990 constitution which guarantees that "No discrimination shall be made against any citizen in the application of general laws on grounds of [. . .], sex (li_ga)".

In addition, the court ruled that the government is under the obligation to adopt legislation that guarantees equality between husbands and wives.

Sarita Giri, a woman's rights activist, told AsiaNews that the unconstitutional provision was also incompatible with the 1948 Universal Declaration of Human Rights, the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women and several other conventions on women's rights.

"Now the government will have to review this anomaly," she said, adding that she knew that some "government members want to see an end to this injustice but were powerless against those who defended the traditionally patriarchal Hindu culture arguing that any tampering would run afoul of Hindu traditions".

Giri, who is Hindu, is convinced that Hinduism does not countenance such discrimination. "If it did," she noted, "it would be better we say goodbye to such a religion and become human."

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