KATHMANDU, Oct 9: The Supreme Court (SC) has ruled that a married couple who have not lived together for 12 years cannot divorce if the wife does not consent. This decision came after a woman, living at her parental home due to family disputes, refused to agree to a divorce. The ruling, issued in January 2024 by Justices Nahakul Subedi and Tek Prasad Dhungana, has recently been made public.
The SC clarified that divorce cannot be granted solely because the woman has been living at her parental home for three years. It stated that for a divorce to be justified, there must be circumstances proving an inability to live together, or situations where the safety of either party is at risk.
The court also noted that even if the marital relationship has deteriorated, there is hope for reconciliation. Typically, divorce cases are resolved in the District Court, but some cases reach the SC. The current case, which began at the district level, was re-evaluated by the SC.
The ruling emphasized that for a divorce to be granted, there must be acts leading to potential death, bodily harm, or severe suffering. The SC explained, "If family members prevent the wife from living in her marital home or if there is discord, conflict, or other issues making it impossible for her to stay, she may be compelled to live elsewhere, such as with her parents."
The court also stated that divorce cannot be granted merely based on the fact that the couple has been separated for over three years. Such a mechanical interpretation of the law would be unjust.
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The SC further highlighted that it would be incorrect to assume the wife left her husband voluntarily due to any issues caused by her in-laws or husband. The law does not recognize the absence of harmony between husband and wife as the sole basis for divorce.
The court stressed that to interpret the phrase "the wife leaves the husband and lives separately," a detailed examination of the circumstances is necessary. If the wife left due to an inability to live in the marital home, it cannot be assumed that she left willingly.
The case dates back to June 2009, when Munish Acharya of Kathmandu and Jyoti from Dhanusha had an arranged marriage. After the relationship deteriorated, Jyoti claimed that she could not stay in her marital home due to opposition from her in-laws, leading her to live with her parents. In October 2012, Acharya filed a petition with the Kathmandu Metropolitan City, stating that it was impossible for him to continue the marriage.
Despite attempts by the municipality to reconcile the couple, the efforts failed, and the case was forwarded to the Kathmandu District Court in January 2014. In June 2015, the district court ruled that the divorce could not be granted, citing insufficient evidence under the provisions of the Muluki Ain (National Code of Nepal) regarding husband-wife relationships.
Acharya then appealed to the Patan High Court, which upheld the district court’s decision.
Acharya claimed in court that he had endured physical and mental distress due to his wife’s actions. However, the SC found no substantial evidence to support this claim, particularly as the wife had been living separately with her parents.
The SC acknowledged that misunderstandings and discord between spouses can cause mental stress. However, the law does not consider ordinary disagreements or conflicts as grounds for divorce based on mental suffering.
The court concluded that for physical or mental suffering to justify divorce, it must be shown that one spouse intentionally inflicted harm or distress upon the other repeatedly. Occasional disputes or disagreements over trivial matters cannot be classified as significant suffering under the law.
The SC affirmed the Patan High Court's ruling from March 3, 2016, which upheld the Kathmandu District Court's earlier decision, concluding that the grounds for divorce had not been established.
The court emphasized that for divorce to be granted, there must be clear evidence that the wife’s actions posed a serious threat of death, mutilation, or severe physical harm to the husband. The term "serious physical harm" used in the law refers to injuries as severe as death or mutilation.
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