Advocate Achyut Prasad Kharel v. Government of Nepal

The petition challenged clause (1) of  No. 28B of the Chapter on Life in the National Code which provided that “a health worker attaining the qualification as prescribed, may, with the consent of the concerned pregnant women, remove her fetus within 12 weeks of conception” (the Clause). The Petitioner contended that this was contrary to the principle of gender equality, because the provision ignored the rights of the husband.

The Petitioner argued that the Clause violated Article 16(1)(e) of the Convention on the Elimination of all forms of Discrimination Against Women, 1979 (CEDAW), which had the same status as domestic law in Nepal by virtue of the Treaty Act, 2047 (1991 A.D.) (the Act). The Act stated that in case of divergence, the relevant provision in the treaty prevailed over national law to the extent of inconsistency. The Petitioner thus sought to make spousal consent a compulsory prerequisite to obtaining an abortion. The Respondent Government countered that the insertion of the Clause was to advance the provisions of CEDAW. It argued that making spousal consent necessary for an abortion would adversely affect a woman’s right to self-determination and right to equality

The Court rejected the Petitioner’s arguments and dismissed the case. It emphasized that the clause in most cases did not prevent both members of a couple from determining whether or not to have children by mutual consent, and that CEDAW’s aim was to empower women from a position of disadvantage relative to men.

The Court stated that the Clause did not prevent a couple from deciding whether or not to obtain an abortion by “evolving consensus following mutual consultation.” It considered that the conjugal relationship presumed a certain level of mutual trust and understanding, as Article 23 of the International Covenant on Civil and Political Rights, 1966 (ICCR) and Article 10(1) of the International Covenant on Economic Social and Cultural Rights, 1966 (ICESCR) conceptualized marriage only as marriages entered into freely. In practice, a decision made between spouses on restricting the number of children would therefore be through mutual consultation and consent. The few exceptions to this practice could not be enough to invalidate the Clause.

The Court also emphasized that there were reasons to grant a woman a right to terminate a pregnancy without the consent of her husband. It noted that the average Nepali woman was confined to a traditional male dominated structure, where she had more limited autonomy than men. Vesting women with rights to refuse to bear more children was necessary given their vulnerable physical and health status. Further, the right to health and reproductive health was part of a woman’s right to life, and could not be forcefully deprived. Granting a husband or family the ability to decide whether or not a woman would have children through spousal or family consent provisions would impede women’s empowerment and social progress.

“….in case any law provides either of the spouses an absolute right during conjugal life, it is expected that the exercise of such right shall be made with mutual consent and understanding.” [Writ No. 3352 of the year 2061 BS (2004 AD) , Para 13]

“Moreover, reproductive health is an important right of women, a component of her right to life. No one has the right to forcefully deprive woman of the right to health. If any conditions are imposed whereby the woman is required to take the consent of her family especially her husband, women’s empowerment and social progress would not be possible.” [Writ No. 3352 of the year 2061 BS (2004 AD), Para 15]