There are cases where men are the real victims but yet they have to provide property if they want divorce. Women are always given the benefit of doubt.
In a country like Nepal where culture comes before comfort, divorce used to be a terrifying taboo and it often ended in ostracization of divorcees from communities. Marriage is considered as an inevitable relationship in many communities. But in recent times, people are embracing the concept of separation and as a result number of divorcees has increased.
The legal provisions regulating divorce seem women-friendly due to their socio-economic status in Nepal. Before the enactment of National Civil Code (2017), men (unlike women) did not have direct access to court for divorce. This inequality has been turned over by the new Code, and now both men and women have equal access to court for filing divorce.
Section 99 of the Code provides legal provision for property in divorce which allows a woman to claim half of her husband’s property. However, husband is not compelled to provide partition share or alimony to the wife if the wife deprives the husband of maintenance costs or expels him from the house, if the wife commits an act or conspiracy likely to cause the grievous hurt or other severe physical or mental pain to the husband or if the wife is proved to have had sexual relation with another person.
But in practice, second and third exception clauses are difficult to prove in the court and, it seems, due to access to property of husband to wife after divorce, the cases of divorce are rising. In recent years, economic independence of women coupled with their increased educational qualification has also led to women seeking divorce.
AvinashYadav (name changed), resident of Kathmandu, had a divorce within a year of marriage. “First few months of marriage were going well. Then we had differences. I did not even get to celebrate my first marriage anniversary and the notice of divorce was on my door by my ex-wife,” Yadav said.
“She claimed half of my property. Then she demanded three million rupees. Immediately after divorce, I found that she got married to her ex-boyfriend and went to Australia.” “I had a suspicion that she was in some kind of relationship with other man. But it was way more difficult for me to prove it in the court. So I decided to end the issue by giving her money,” he said. “When she married another man right after divorce, my suspicion was vindicated.”
Yadav’s ex-wife was educated and had a well-paying job. “But during the divorce-process, judges advocated that I had to give her a share of my property as provided for in the law,” he said.
Cases like this put men in disadvantage. Divorce might also be used as a tool to claim property. Some might get married even with sole intention of obtaining partition share or alimony.
Human rights activist and advocate Homa Kanta Chaulagai argues that divorce cases are increasing as people are more aware about their rights. “The divorce law in Nepal is based on principle of equality,” he said. Before National Civil Code (2017) was enacted, women would get property after divorce but the new law states that if property is registered in the name of both husband and wife or either of them, then such property shall be partitioned between both of them. This is meant for maintaining gender balance, he said.
“There are some cases where some have the intention of obtaining share of partition or alimony from husband’s property right from the beginning of marriage. Thus women cannot and should not always be generalized as victims,” he said.
This indicates a rising trend of misusing the divorce law for property in Nepal.
National Civil Code forbids a man to get married before getting divorce but second marriage is not forbidden for a woman. However, a woman does not get property from her husband if she gets involved into second marriage. If the woman gets partition share of property from ex-husband and get involved into second marriage then she has to return the partition share. But, most of the cases of divorce are settled with lump sum at once. She can marry again and yet she does not have to return the money and property.
Existing laws do not address issues like these. There are cases where men are the real victims but yet, in accordance with law, they have to provide property if they want divorce. Women are always given the benefit of doubt.
Laws are made to create equal and unbiased society but when laws contain loopholes, as in the case of divorce law, they promote gender imbalance, even injustice. If justice is the foremost priority of any legal provision, don’t we have to remove such loopholes?
Women need to be empowered but any positive discrimination should not stain the spirit of law.
The author is a student of law at National Law College.