Divorce is the legal ending of a marriage between a husband and wife after due process. Divorce has been legal in Nepal for a long time. The National Act of 1910 B. S. also made provision for it. The aforementioned provision was also incorporated into the new National Act 2020.
Until 2074 BS, only women could file for divorce in court. Even husbands could file for divorce after the Civil Code was implemented in 2074 BS.
The court will request extensive firm evidence when the husband files for divorce. The court may refuse to grant divorce if there is no evidence.
When the husband files for divorce in court, the court requests plenty of strong evidence. In a lack of evidence, the court may refuse to grant the divorce.
According to Article 94 of the Civil Code of 2074, the husband may file for divorce under the following circumstances
Divorce resulting from a legal property division
In case wife files a property lawsuit and court rules to provide her share of property. And that she receives her share of the property as per the decision of the court , and lives separately under Nepal’s Civil Code 2074. Following the completion of the process, the husband may file for divorce.
After taking the share of her property and lives separately but still maintains her obligations toward the family. The husband cannot file for divorce in these circumstances.
Many of these cases have gone before Nepalese courts.
Few instances
Puran Shamsher Ja.Ba. Ra vs. Kiran Rana is one such case under Ne. Ka. Pa. 2075 Decision No. 9999. In the aforementioned case, spouse Kiran Rana took her lawful share of property to provide support for her children and mother-in-law.
On the contrary, she maintained her family identity while performing all of her duties and obligations. As a result, the divorce of the husband was denied.
She did, however, remain in her paternal home for 22 years, as she desired. However, she refused to divorce in order to preserve her family identity.
The husband is granted divorce by the court in such cases. The court distinctly stated that claiming that the wife had fulfilled her obligations to her husband’s family was incorrect.
Separation without consent
In nearly every country in the globe, if one of the spouses stays separated for three years or more, the partnership is effectively terminated.
The Marriage Act of 1955 in India provides plainly that if one of the couples lives separately for no legitimate reason, without the agreement of the other spouse, and against the wishes of the other spouse, the other spouse would be given divorce..”
And the husband’s legal grounds for filing for divorce are his unjust absence from home and failure to make a good faith effort to return home.
The husband may file for divorce under Nepal’s Civil Code 2074 if the wife has been living apart for three years or more without the husband’s consent.
The majority of Nepalis travel abroad for work in search of better opportunities. In such a case, it cannot be claimed that she stayed outside or lived separately without her spouse’s consent.
Take the case of Kiran Rana and Puran Shamsher Ja Ba Ra. Puran Shamsher, the husband in this case, has left the home and is now living separately.
Kiran Rana’s wife was looking after her father-in-law’s family. As a result, in this case, it cannot be said that the wife lived separately against her husband’s consent and will.
If the husband flees the house, giving up all responsibilities to his family, he is free to file for divorce without the consent of his wife.
The husband’s obligation to support his wife is both an Imperative duty and a solemn obligation.
In a patriarchal society, the husband is responsible for his wife. If the husband is unable to work or care for the family as a result of illness or disability, and the wife is the sole the primary earner.
And if the wife abandons her husband while he is in distress, destitution, or starvation, or if she has committed adultery.
In Nepal, physical or mental suffering, including torture, has been used as the primary grounds for divorce.
The Civil Code 2074 makes neither distinction between the different types and severity of physical and mental suffering, injuries, and torture that can be used to file for divorce.
Mental Distress Example
- Mental distress was clearly defined in All ER 464 and the Supreme Court of India’s Distane vs Distane AIR 1975 SC 1534 and V Bhagat Vs D Bhagat AIR 1994 SC 710. These examples were used to assess the level of severity and mental distress.
- Consider the sufferer’s social status, educational level, and family environment, as well as the source of the sufferer, when making such an assessment.
Basis of Court’s Decision
- The judgment is issued when the court is convinced beyond a reasonable doubt that the source of the suffering is guilty.
- There must be a circumstance in which both the husband and wife are unable to live together owing to psychological issues while making a decision.
- Even if the individual causing the mental discomfort requests that they live together as husband and wife again, their request is denied.
- Before making a divorce decision, the court has to assess their socioeconomic status and living situation. And the mental anguish should be the impetus for the divorce.
Elements for divorce
- It doesn’t matter how many times one of the spouses gets hurt in the other’s hand. Suffering repeatedly serves to justify divorce. Regardless of whether or not the husband is present.
- In the past, adultery was considered a crime. If the wife has sexual and physical relations with men other than her husband, the husband has a legal basis to file for divorce in Nepal and many other countries around the world.
- The wife must have had voluntary physical contact with another person in order for a divorce to be granted.
- The husband should be able to present both direct and circumstantial evidence against the wife in court.
If the husband can show that his wife had illicit relationships with other men, he has every right to divorce her.
Conclusion
The husband’s legal options for obtaining a divorce in Nepal are limited.
Under the circumstances described above, he should be able to produce appropriate proof in court.
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