By Neha Basnet
Getting divorce when you are in your twenties or late twenties is an odd experience. While all your friends are getting serious with significant others and planning their dream weddings, you are getting serious with a divorce attorney over pre-nups and spousal support. The number of divorces in Nepal has doubled in the last six or seven years to 1,824 in 2013, most of them filed by women (Kathmandu District Court). One in the ten family-related cases filed in the courts are divorces, taking over cases relating to land, money-lending, inheritance, and loss of interests or attraction to other sexes. The phenomenon of couples choosing to live separately has been observed more in the capital, Kathmandu.
December 2014 figures from the Kathmandu District Court also indicate a rise in the number of divorces. Eighty percent of the cases were filed by women, predominately form the urban middle-class. This precipitous increase is unsurprising. Critics have denounced the legal code on “husband and wife” on various grounds, and it is challenging for women activists and advocates to reconsider an already established legal framework on divorce options and boundaries between men and women, especially it to be added in the new constitution. Women rights activists are doing their best to include these provisions in the new constitution.
The first written legal code permitted a man to leave his wife by a method of sinko-kati chuttinu in which the husband breaks a small stick indicating divorce. Chapter 12 of the legal code – “On Husband and Wife” – permits divorce in Nepal on the following grounds: if the couple has resided in different locations for the past three years; if either partner engages in any conspiracy against the other; if one commits a crime of serious assault against his or her partner; if the wife is found to have engaged in extra-marital affairs or has eloped; or if the wife has confessed to an extra-marital affair. The rules of the court allow women to directly file a case of divorce, whereas men have to appeal through their Village Development Committee or municipality. In September 2010, the Supreme Court issued a directive order to the legislature to rectify divorce laws that discriminate against men (Nepali Times, 2015).
While intending to make the legal provisions in relation to marriage between persons more flexible and justifiable, the Nepali Family Law on divorce reflected above does little to address the problems associated with divorce cases as they pertain to men and women.
It is important to note that in most cases, the opportunity for psychological consultation or assistance is not available to either the husband or the wife before they consider a divorce. Most often, their families step in and take charge of the decisions on behalf of the husband or the wife. Women activists and legal workers fighting for women’s rights often point to instances that show how Nepali laws governing husband-wife affairs have had a negligible impact on improving relationships and decreasing divorces.
Studies suggest that the reasons behind the increasing number of young divorces in the capital are changes in social values, sex roles, and behaviors brought about by feminism, while in other parts of Nepal, divorces are on the rise due to use of alcohol, financial insecurities, sexual dissatisfaction, preference for the male child, dowry, violence by in-laws/the husband.
Like Tolstoy’s unhappy families, the state’s legal granting of a divorce for men and women has its own blowbacks. In 2005, a few changes were made in the Nepali Family Law, which gave women more rights over inherited property and eased regulations for them to get passports. However, activists and women from advocacy forums maintained that “The divorce law discriminates against women in terms of legal proceedings and permits men to divorce their wives.” For example, under section 95 of Civil Code, which talks about conditions under which a wife can get a divorce, women who suffer domestic violence from her husband and in-laws is absent. Similarly, Section 99 (1) of the proposed Code, says that a division is only necessary if the ‘wife requests for it’.
In 2006, the discriminatory law was scrapped. With increased awareness of legal rights and reduced association with social stigma, more women started filing for divorce in Nepal (especially in the urban areas). Despite this shift in the law and women’s awareness, a feature published in 2013 by World Bank found that “Seventy-seven percent of the episodes of violence against women are reported as being from within the family” (World Bank, 2013) and establishing “Gender Empowerment and Coordination Unit (GECU) were viewed as particularly important, and have raised profile of government’s activism surrounding its GBV policies” (Asia Foundation, 2012). This, along with the equal distribution of assets to both partners, brought about through amendments to Nepal’s Family Law of 2006, has allowed and empowered women who were earlier forced to remain stuck in abusive marriages without the legal option and means to leave their spouse.
These are all positive steps reflecting systemic and legal improvements in women’s rights in the country. Even more heartening is the fact that along with the growing acceptance of “love marriages”, the social stigma attached to getting divorced is slowly loosening. All of these changes reflect the evolving awareness of the equality between men and women, something that is critically absent from many societies with low divorce rates. But societal change also means changing relationships, and many men and women who are not able to get a divorce due to various circumstances look outside their marriages for fulfillment.
Yet another factor contributing to the increase in divorces in the capital is the phenomenon of extra-marital affairs. With both male and female partners migrating from their hometown/s in search of work because of the high rate of unemployment at home (Global Press Journal, 2012), instances of infidelity seem to be on the rise. So far, there are no concrete studies to show the percentage of Nepal’s population having extra-marital affairs. However, it has been seen that the maximum numbers of cases filed at the Kathmandu District Court are because of infidelity.
All things considered, the rise in divorces should not necessarily be viewed as a breakdown of social fabric and weak legal provisions; it might in fact be an indication of a dramatic transformation of realizing rights. The rate of divorce is likely to continue its rise in conjunction with increasing equality between the sexes. The resulting impact on the rest of the family unit, especially the children of divorced couples, is something that cannot be ignored when considering changes in legal provisions surrounding the union of marriage.
 Data collected from the Kathmandu District Court Office.
 “Not So Happily Ever After: The number of Nepali Women filing for divorce is rising by Bhrikuti Rai”, Nepali Times, 2015 (Issue 715).
 World Bank report , 2013.
 Asia Foundation report on women citizenship and empowerment, 2012.
Neha Basnet is a graduate from the International Institute of Social Studies at Erasmus University, The Netherlands. She writes about development, child rights, and youth.
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