PROPERTY RIGHTS OF DAUGHTERS IN NEPAL (Comparative analysis between Muluki Ain 1910 B.S and Muluki Ain 2020 B.S)

Introduction

The codification of common law was practised only when King Surendra Bir Bikram Shah reined Nepal. Before that the entire ruling system was based upon the decisions given by the King commonly known as Sanads and Lalmohars. The codification of such type of law was a pioneer application to maintain a rule of law in Nepal and it was practised as the major law until the second Muluki Ain was formulated in 2020 B.S. when King Mahendra ruled Nepal. The essence of the second type of country code was that the previous country code was completely based on the religious scripts and the punishments were determined proportionally on the basis of castes. The women were not ensured with equal rights and were not eligible for property rights. But the Muluki Ain 2020 was quite successful to maintain equal access to law for each and every Nepalese people. And during the course of time, it has come across 12 amendments where there have been many provisions added and deducted as per the change in time and societal norms and values. The 12^th amendment of the country code can be taken as one of the best model of country code as it has very less discrimination between sexes, religions, castes etc. The male and female citizens of Nepal have now equal access in the property rights.

 

General background about the Property rights of Women

Christian Society

The position of women in Christian Society especially in Babylonia and Egypt was appreciable.[1] There was the considerable freedom for women in the aspect of finance. The property that has been given by the husband to his wife belonged to herself during the 18^th century. Besides that if a woman doesn’t want to stay with her husband, she could take all of her property given as dowry back to her father’s house.

  But in ancient and medieval period, the status of women in Europe and America was not satisfactory. All the possessed property of the women belonged to the husband and the women were not allowed to sign the contracts after marriage.

Hindu Society

The Hindu Society is found to be greatly influenced by the religious scripts Like Manusmirities, Yagyabalkya, Naradsmiriti and so on till date. The status of women in ancient Hindu society  (before 2500 B.C.) was worse as they could be easily be bought and sold and even gambled as other property. In this regard, there was no point of property rights to the women those days.

Regarding the property rights of women in Hindu Society, before 4^th century B.C, there was the provision that the daughters could get the parental property (patrimony) in inheritance only if she had no any brothers. Some Sanskrit literatures have mentioned that the unmarried daughters could get the inherited property of their mothers.[2]

But there was the concept of Stridhana (the private property of the women) was prevalent. The ornaments, jewellery, apparel etc. were regarded as the women’s private property. The gifts given by the father, mother, brother, husband and other persons at the time of marriage could be regarded as the women’s’ individual property.[3]

Buddhist Society:

The early Buddhist society regarded women as the result of bad works. They were not allowed to get involved in politics of the state. However, they were free of liability for paying taxes for the things they carried to the seaport which is still prevalent. The dowry system is legalized where the larger dowries are encouraged that ultimately becomes the absolute property of the women. Daughters are equally eligible for the property of their parents as their brothers till they get married. The wife also could claim on the equal property of her husband after getting divorce.[4]

      Some features of Muluki Ain 1853

The Muluki Ain 1910 was drafted when King Surendra Bir Bikram Shah was the King of Nepal. But it must be noted that Nepal at that time was completely under the Rana Regime and the king used to be regarded as the figurehead only. They used to rule over Nepal by the name of King.[5]Junga Bahadur Rana, the first and the most powerful Rana Prime Minister of Nepal after visiting Great Britain experienced the essence of a common type of law to prevail all over Nepal and the effort of the codification of The Muluki Ain was started. The Muluki Ain 1910 was the first ever codified common law so far found in the history of Nepal. It has been influenced by Indian Sub-Continent’s basic norms developed from two schools namely Mitakshara which is relatively conservative in gender issue[6] and also regards women as the materials that can be sold and used in the way men like.  It was implemented from Poush 7, 1910 B.S. That Muluki Ain was strict outcome of the Hindu Dharmasasthras such as Manu Smiriti, YagyaBalkya, Smirities, Bhrihaspati, Vedas etc. It has 163 sections and was made in four parts. Later it was widely amended by Bir Shamsher in 1942 and was overall amended 12 times.

    Some features of Muluki Ain 1963

The Muluki Ain 1910 was experienced with many discriminating acts. By the establishment of democracy in Nepal in 2007 B.S. the people were much concerned about the concept of equality among all irrespective of the sex, caste, religions etc. The Constitution of Nepal 2004 B.S was practised and also the Interim Constitution of Nepal 2007 had been implemented in Nepal. So at that situation, the Ranas were abolished to reign over Nepal. And also, the Muluki Ain of 1910 couldn’t address the social and religious changes, couldn’t behold the necessity of rule of law, and couldn’t forecast the future favorability. So King Mahendra in 2020 B.S. announced to formulate new country code so as to maintain a sound justice giving process throughout the country. It consists of 4 sections and 19 clauses. It has been amended for 12 times till date so as to cope with the changing society in the aspect of crimes, gender based equality, property matters while the eleventh amendment of 2058 has considerably tried to avoid the discrimination between male and female in their property rights.

 

  Provision of property rights of daughter in Muluki Ain 1910 B.S. in Nepal :

Daughter’s right on partition of parental property:

As already mentioned that the Muluki Ain1910 had a discriminatory provision in each and every aspect, there’s no question of property rights of daughters in their parental property. However in Clause, it is written that daughters who is below the age 35 and unmarried would get the wedding expenses[7] during the partition of her parental property. And in clause 15 on the chapter of partition, it is also mentioned that if an unmarried daughter stays in father’s house for more than 35 years of age, could get an equal share of her parental property as her brothers. But if the women had illicit relation(Poila Janu) after getting the property, had no right to claim on that and the ownership goes to her brothers.

Daughter’s right of inheritance:

The daughter’s right of inheritance is ensured by Junga Bahadur Rana by issuing ordinances with an effect to provide deceased person’s property to his/her daughters if she had been given bequest.[8] And also in regard of the married daughters mentioned in clause 2 of the Chapter 26 of Inheritance, she is eligible to get the inherited property of her parents only if all the coparceners and brothers are absent. However, the clause 3 of the same section explains that in the case of unmarried daughters are present, the wedding expenses of each daughters should be deducted and the remaining property should be distributed equally among all the sisters. The daughters are not compelled to take the inherited property but if they take, were obliged to pay the debt of their parents and also perform the funeral rituals.[9]

Provision of property rights of daughter in Muluki Ain 2020 B.S in Nepal :

Daughter’s right on partition of parental property:

Talking about the property rights of daughters in this country code, since it was formulated, there was no such provision. The father, mother, husband, wife and their sons were only eligible for their parental property. However, due to the increasing voice against the gender quality in property distribution, now the provision under the Chapter 13 of Partition, daughters are provided with equal eligibility in parental property on the basis of the number of alive bodies.[10] However, the sub-clause of the same clause has mentioned that the daughters who are already married during the formulation of such act, cannot claim for their parental property.

And also in the case of property rights of adopted daughter, she is equally liable for the property of the parents who adopt her. [11] But before the Eleventh Amendment of Muluki Ain 2058, it was written that the adopted daughters would get the rights equivalent to the daughters from her parents. However, the property rights were not given but was given only the marriage.

In the 10 no. of same section explains that the couple who leave their children helpless with the consent of both are identified, their entire property goes to the person who adopt the child. And in the case only one of the couple had consent on that, his/her property along with the property of the child goes to the person who adopt the child.

Daughter’s right of inheritance:

The Muluki Ain 2020 B.S. has also defined the daughters’ rights on inherited property. However, the amendment on 2063 has played considerable role maintaining the gender equality. On the Section 13 of Inheritance, No 2. has the provision of the equal right for unmarried daughters to claim on the inherited property of their parents. And there is also provision on the same number that in the case if the deceased person doesn’t have husband, wife, sons, unmarried daughters, daughter-in-law, even his/her married daughters as well as her unmarried daughters can claim on the deceased person’s property.[12] In the case of clause 3 of the same section, it states that even the married daughters of the parents who are not cared by their sons, unmarried daughters and other coparceners if take care of them, could the inherited property.

Conclusion

Muluki Ain 1910 was based on religion and no constitution was drafted during that time. But the Muluki Ain 2020 has also been found the same, the discriminatory provisions were continued though four written constitutions were already been drafted and they often argued about the equality. The constitution of 2004 had ensured equal voting rights, the Factory Act 1959 has ensured equal remuneration, and the Constitution of 2047 has also ensured the equal rights for both male and female, yet the daughters were deprived from getting partitioned property as well as the inherited property. This stands contrary to the constitution. And also those type of provisions have violated womens’ sexual rights as in order to get the property, the daughters must wait for 35 years[13]. But that system can be viewed positively too because giving parental property to women causes double share to women, from her husband side as well as from parent side. And also the size of the land would become fragmented. And the poor families mayn’t get bridegrooms.

The Muluki Ain 2020 was formulated by canceling the Muluki Ain 1910 which contained the self-discriminatory acts. The present Muluki Ain also contained many of such provisions, but due to the increasing awareness and protests in favor of gender based equality, press freedom, actions of NGOs and INGOs,upto its 12^th amendment has brought about many reforms and is quite successful in ensuring equal rights for male and female in all aspects. The amendments on Muluki Ain on 2058 B.S. and 2063 B.S has brought about revolutionary changes regarding the property rights for daughters and women. Today, daughters become the heir of their parental property by their birth according to the number of living bodies. Similarly women can easily sell and use their property as their will. Nepal has also signed without any reservations the United Nation Convention of Elimination of all forms of Discriminations Against Women (CEDAW, also known as Beijing Decision 1995 ) which advocates the equal social-economic rights for women. This is a really good sign. But formulating laws solely isn’t fruitful; rather its implementation should be emphasized. The sudden changes in the social and traditional practices may create problems. So awareness raising program should be conducted where extensive discussion and deliberation should be taken into account. And also the proper remedial rights of victims regarding those matters should be ensured. The women should be encouraged giving trainings and education to uplift their socio-economic status. Only then the gender based discrimination can be reduced. 

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[1] Dr. Devi Prasad Kandel, Property rights of women in Nepal, Ratna Pustak Bhandar, p 2

[2] Dr. Devi Prasad Kandel, Property rights of women in Nepal, Ratna Pustak Bhandar, p 14

[3] The six varieties of StriDhana were coded in the Manusmiriti, Supranote 1, p 12

[4] The Civil Code of Japan 1947 ensured such rights to the women and also ensured that women could easily transfer their property without the consent of her husband. Before this law was enacted, women were taken as private property of women in Japan.

[5] The Ranas used to decide in the state affairs in the name of Panjapatra(the sign of authority granted by the king) which they had obtained after the Kot Parba 1903 B.S.

[6] The Mitakshara and Dayabhaga are the two schools in the Indian Subcontinent which thinks that daughters and children have no right to claim on the property of father. However, the latter school is not so strict in these matters.

[7] The wedding expenses is the 10% of the total parental property and it was a must to be separated for each sons and daughters for their marriage.

[8] The clause no 1 on the chapter 23 of  Inheritance. However there must be absence of her brothers and the coparceners within three generations. But if the coparceners other than sons exist, even thought the bequest was in favor of daughter 50% of the property must be given to the coparceners.

[9] The clause 4 of the chapter 23 of Partition

[10] The Eleventh Amendment of Muluki Ain 2058 has made such provision under clause 1.

[11] d'n'sL P]g, dxn !% wd{k"q wd{k"qLsf], bˆmf (=u df o:tf] Joj:yf ul/Psf] 5. P3f/f} ;+zf]wg @)%* 2f/f ;+zfl]wt

[12] In the No. 3 of the same section, it is stated that in the case if any person is not cared by his/her unmarried daughter and is staying with his/her married daughter and is cared by them, the inherited property goes to the person who cares, not the unmarried daughters.

[13] The provision existed in the Section 13 of Partition in Clause 16. However, this provision was cancelled in 2063.