Civil and Criminal Law and Justice · Chapter 3
Study notes aligned to the official NEB syllabus.
Marriage (विवाह) is one of the oldest social institutions in the world. In Nepalese law it is both a social bond and a legal relationship. The Muluki Civil Code 2074 (2017) explains what a marriage is. It is the union in which a man and a woman accept each other as husband and wife. This is done through an accepted ceremony or process. Once it is done, it creates a lasting relationship. The law recognises this relationship and protects it.
The moment the law treats two people as married, many legal results follow. The husband and wife get a duty to support and maintain each other. They get rights over the family property. Each gets a claim to a share when the property is divided (अंशबण्डा). They also get rights of succession and inheritance (अपुताली) when one spouse dies. The children born from the marriage are treated as legitimate. So much depends on marriage. For this reason the law does not leave it to private choice alone. Instead the law fixes the conditions that a valid marriage must meet.
The Civil Code sets several essential conditions. Read each one slowly.
First, both parties must have completed the legal marriageable age. The Code fixes this age at 20 years. It is the same 20 years for the man and for the woman. So a marriage of a person below 20 years is not a lawful marriage. It can even bring punishment. Suppose a family arranges the wedding of a daughter who is 17 years old. The ceremony may be done with full ritual. Even so, the law does not accept it as a valid marriage. The people who arrange or perform it may be punished for child marriage (बालविवाह).
Second, there must be the free consent of both parties. Free consent means both the man and the woman agree because they truly want to. Think of a case where the bride is threatened. Or she is lied to about who the groom is. Or she is married while she is unconscious. This is not a union of two free wills. The law will not treat such forced consent as real consent.
Third, the law requires monogamy. Monogamy means a person may have only one husband or one wife at a time. So a person who already has a living husband or wife cannot marry again while the first marriage still exists. Suppose a man whose first wife is alive and not divorced goes through a second marriage. That second marriage is void. It has no legal effect. The man also commits the punishable offence of bigamy (बहुविवाह).
Fourth, the parties must not fall within the prohibited degrees of relationship (निषेधित नातासम्बन्ध). This means they must not be close relatives. They must not be related by blood or by marriage within the degrees the Code forbids. For example, close relatives cannot marry each other.
Fifth, both must be of sound mind. Sound mind means a person can understand what marriage is. They must be able to understand the relationship they are entering.
Only when all of these conditions are met does the law treat the marriage as fully valid. A valid marriage then carries all the rights and duties that flow from it.
The Muluki Civil Code 2074 says that a marriage should be registered (दर्ता). Registration means recording the marriage with the authority set up for this purpose. This is usually the local registrar at the ward or local-level office. When the marriage is registered, the couple get a marriage certificate (विवाह दर्ता प्रमाणपत्र). This certificate is official written proof of the marriage. It is useful in many practical matters. For example, it helps in getting citizenship for a spouse or children. It helps in claiming property or maintenance. It helps in opening joint accounts, getting a passport, and travelling or settling abroad.
It is important to understand what registration does and does not do. Registration gives proof of the marriage. It makes the marriage easy to prove. But registration does not, by itself, create the marriage. A marriage made according to the custom or accepted process of the couple is already valid. It is valid even if it has not yet been registered. This is because the ceremony creates the bond. Registration only records that bond.
Think about a couple who married years ago. They married in a traditional village ceremony before many witnesses. But they never registered the marriage. Later a dispute arises. Suppose the husband dies and the widow has to prove her marriage to claim her share of his property. She can still prove the marriage. She can do this through witnesses and evidence of the ceremony. But her task is much harder and much slower. A couple who hold a registration certificate can prove their marriage at once.
So registration is strongly encouraged and is legally required. A registered marriage is far easier to protect in court. But the absence of registration does not automatically make a real marriage void. A genuine marriage that was properly performed stays valid. The sensible path the law wants is simple. Every marriage should be registered promptly. Then the spouses can easily secure the rights that come from the marriage.
Divorce (पारपाचुके, also called सम्बन्ध विच्छेद) is the legal ending of a valid marriage. The Muluki Civil Code 2074 allows a marriage to be ended in two ways. The first way is by the mutual consent (दुवैको सहमति) of the husband and wife. This means both of them agree to end it. The second way lets either spouse ask for divorce alone on certain grounds. A ground is a legal reason allowed by the Code. The Code lists these grounds instead of leaving divorce to free choice. This is done so that marriage is not broken easily over a small quarrel.
The recognised grounds include the following. One ground is the spouses living separately for the period the Code sets. Another is desertion (परित्याग). Desertion means one spouse leaves the other without a good reason. Another ground is the failure to provide maintenance. Maintenance means basic support such as food and clothing. Another ground is cruelty. Cruelty means causing physical or mental harm that makes living together unsafe. Another ground is impotency. This means a spouse is unable to continue the marital relationship. The Code also treats a spouse taking another husband or wife during the marriage as a ground. This is because the law requires monogamy.
Here is an example. Suppose a wife shows that her husband has left the household. He has stopped providing any food or clothing. He has also taken a second wife. Each of these is a recognised ground. On proof, the wife may get a decree of divorce. Along with it she may get her property share and maintenance.
Note one more point. The Code sets some grounds that only the wife may use. It sets some other grounds that only the husband may use. This reflects the different situations the two may face. For example, a wife may seek divorce where the husband fails in his duty of maintenance. She may also seek it where he takes another wife. When a ground is proved, or where both spouses agree, the court or the competent authority ends the marriage. The authority then settles the related matters. These are the division of property (अंशबण्डा), maintenance (अंशबापत/खर्च) and the custody of children.
The Code also sorts marriages by their validity. A void (स्वतः बदर) marriage is no marriage in the eyes of law from the very start. This happens, for example, where a party is already married. It also happens where the parties are within prohibited degrees. A voidable (बदर गर्न सकिने) marriage is different. It stands as valid until a party has it annulled. This happens, for example, where consent was obtained by fraud or force. A punishable (दण्डनीय) marriage is one whose making is a crime. Child marriage and bigamy are examples. The wrongdoer faces criminal penalty. Here is one comparison. A marriage forced on a woman by deceit is voidable. It stays in force until she goes to the competent authority and has it set aside. A bigamous marriage is different. It is void from the very start.