Civil and Criminal Law and Justice · Chapter 1
Study notes aligned to the official NEB syllabus.
Civil law is one branch of law. It deals with the private rights and duties of people. It covers how people deal with one another in daily life. Civil law is not about punishing an offender for the state. Its job is to settle a dispute between two private parties. It tries to put the injured party back in the position they should have been in.
Civil law covers many everyday matters. These include property, contract, family and marriage. They also include partition (अंशबण्डा), which means dividing family property among the heirs. They include succession and inheritance (अपुताली), which means who gets the property of a person who has died. They also include adoption and compensation for private wrongs. A "private wrong" is harm done by one person to another, not a crime against society.
When someone's private right is broken, civil law gives a remedy. A "remedy" is the help the court gives to fix the problem. The usual remedies are compensation (paying money for the loss) and restitution (giving back what was taken). Other remedies are specific performance (an order to do what was promised), partition of property, or a declaration of right (the court stating who the right belongs to). Civil law does not send the person to prison.
Here is a simple example. Suppose Sita lends Rs. 2,00,000 to Hari. They sign a written agreement. Hari does not repay on the agreed date. Hari has not committed a crime against society. He has only broken a private promise he made to Sita. Civil law lets Sita file a suit to get her money back. A "suit" is a case filed in court. The court's aim is to make Sita whole again. It does not try to send Hari to prison. This aim of fixing the loss is the main feature of civil law.
In Nepal, most private civil law is now written in one code. That code is the Muluki Civil Code 2074 (2017). It replaced the old Muluki Ain. It brought property, contract, family and obligation law together into a single modern code. Civil justice is the process used to enforce these private rights. First, the person whose right is broken files a suit in the proper court. Then the court hears both sides and looks at the evidence. Finally, the court gives a civil remedy. The main aim of civil justice is to correct the problem. It puts right what has gone wrong between the parties. It does not try to punish anyone for the state.
Both civil justice and criminal justice work through the courts. But they are different in three main ways. They differ in purpose, in parties and in proof. Civil justice deals with a wrong done to one private person. Its aim is to compensate or restore that person. The case is brought by the person who was harmed. That person is called the plaintiff (वादी). The case is brought against the wrongdoer, who is called the defendant (प्रतिवादी). The remedy is damages, restitution or a declaration of right. Criminal justice deals with a wrong seen as an offence against society and the state. The case is run in the name of the state. The result is punishment, such as prison or a fine.
The standard of proof is also very different. "Standard of proof" means how strongly a side must prove its case. In a civil case, the matter is decided on the balance of probability. This means the court asks which side's story is more likely to be true. In a criminal case, guilt must be proved beyond reasonable doubt. This is a much stricter standard. It is stricter because the freedom of the accused is at stake.
One set of facts can lead to both kinds of case. Suppose a driver speeds and injures a person walking on the road. The state may prosecute the driver for rash driving. That is a criminal case. Its aim is punishment, and it must be proved beyond reasonable doubt. The injured person may also sue the driver for compensation. That is a separate civil case. It is decided on the balance of probability. So the same incident runs on two tracks. There are two standards of proof and two kinds of outcome. This is exactly why we must separate the two. The procedure, the parties, the burden of proof and the results are all different.
Every civil suit has two sides. The plaintiff (वादी) is the person who brings the case. The plaintiff claims that one of their rights has been broken. The plaintiff asks the court for a remedy. The defendant (प्रतिवादी) is the person the claim is made against. The defendant is called upon to answer the claim. The plaintiff writes down the facts and the relief they want in a document called the plaint. The defendant then replies with their own written statement and defence.
Here is an example. Suppose Gita says that her brother has kept all of their father's land. He has refused to give her an equal share. Gita is the plaintiff. She files the partition (अंशबण्डा) suit. Her brother is the defendant. He must answer the suit. The plaintiff is the one who makes the claim. So the general rule in civil justice is that the burden of proof lies on the plaintiff. "Burden of proof" means the duty to prove the claim. The plaintiff must prove the claim on the balance of probability. Suppose Gita cannot show that the land is ancestral. Suppose she also cannot show that she is a coparcener (a family member with a right to share the property). Then her suit fails. So these roles are not just names. They decide who must prove what.
The Muluki Civil Code 2074 rests on a few settled principles. These principles make civil law predictable and fair. The first principle is good faith (सद्भाव). This means deals and relations must be carried out honestly. For example, the parties to a sale must deal honestly. A seller must not hide a known defect in the property. The second principle protects a person's lawful acquired or vested rights. These are rights a person has already gained in a lawful way. They are protected and cannot be taken away with backdated effect. For example, suppose a person has lawfully registered a plot of land. A later change in the law cannot be applied backwards to cancel that title. The third principle is that no one is above the law. Every person is equal before the civil law, however powerful they may be.
The Code also says that for every wrong there should be a remedy. Where there is a right, there is a remedy. So a person whose right is broken can ask the court for help. For example, suppose a buyer pays for goods that are never delivered. The law must give a way to get the money or the goods back. The Code also enforces limitation (हदम्याद). This means a suit must be filed within the time fixed by law. If the person waits too long, the right to sue is lost. For example, suppose a person sits on a claim for many years, past the time the Code allows. The court will then refuse the claim. This rule stops old disputes from being reopened long after the evidence has faded. Finally, the burden of proving a claim lies on the person who makes it. And the parties are treated with equality before the court. Each side gets a fair chance to be heard. Together these principles protect private rights. They also keep the civil process orderly and just.