Supreme Court Issues Notice on Petition Challenging Discrepancy in Legal Age for Adulthood and Marriage

Kathmandu. Nepal's constitution guarantees citizens who reach the age of 18 the right to elect the country's Prime Minister and representatives, considering them 'adults' (balig). However, curiously, if these same 18-year-old 'adults' choose their life partner and marry, the state brands them as 'criminals'.

To resolve this serious constitutional contradiction and the ambiguity in the definition of adult age, a writ petition was filed in the Supreme Court's Constitutional Bench by lawyers including Senior Advocate Dr. Chandrakant Gyawali. The Constitutional Bench, comprising Chief Justice Prakashman Singh Raut and Justices Kumar Regmi, Hari Prasad Phuyal, Manojkumar Sharma, and Nahkul Subedi, issued a show-cause order in the name of the government on Wednesday and granted the writ priority hearing.

'We filed the writ in the Supreme Court demanding that the provisions for marriage at 20 years in the Muluki Civil Code and Criminal Code, which contradict Article 1 of the Constitution, be declared null and void,' said Senior Advocate Gyawali. 'We filed the writ in the Constitutional Bench of the Supreme Court because the 20-year marriage provision in the Muluki Civil Code 2074 and the Muluki Criminal Code 2074 has added challenges. We filed the writ seeking a directive order in the name of the government to maintain uniformity in the age for citizenship, adulthood, and marriage rights, making 18 years the common standard.'

Senior Advocate Gyawali stated that they approached the Supreme Court with the writ to bring uniformity to the age dispute after this provision in the constitution began causing problems for the general public. During the arguments in the Supreme Court's Constitutional Bench on Wednesday, Gyawali questioned the three different standards present in the constitution. He also discussed international practices regarding age. He argued that since an individual can exercise the right to vote at 18, the age of 18 should be granted the right to marry, not just political rights. His argument was that the constitutional provision making someone an adult at 18 but a minor until 20 is contradictory.

Currently, Nepal has three different standards in practice regarding the age for using 'adult' or 'citizenship rights'.

First, there is a provision to grant citizenship at the age of 16 (right to identity). Second, upon reaching 18, citizens are considered adults and granted political rights like voting. Third, the age for the right to marry under personal and civil rights is set at 20 years.

If someone marries before turning 20, a case is registered under child marriage in such circumstances. Primarily, Senior Advocate Dr. Chandrakant Gyawali, Advocate Dr. Dev Bahadur Bohara, and others filed the writ in the Constitutional Bench challenging the 20-year marriage provision in the Muluki Civil Code, 2074, and the Muluki Criminal Code, 2074. The petitioners claim that the rule requiring one to wait until 20 to marry, while Articles 84(5), 176(5), and 222(5) of the Constitution grant voting rights to citizens who have completed 18 years, directly contradicts the Constitution.

'Adult' at 18 but 'Minor' for Marriage?

Section 173 of the Muluki Criminal Code stipulates imprisonment up to 3 years and a fine up to NPR 30,000 for those who marry before turning 20. The writ petition stated, 'It is not just to treat a citizen who can change the country's governance system at 18 as a 'minor' in the matter of marriage and send them to jail.'

The petitioners also based their argument on the Children's Act, 2075, which only considers those under 18 as children. It is asserted that since a person is no longer legally a child after turning 18, calling the marriage they enter into 'child marriage' and penalizing them is constitutionally flawed.

International Practice and Nepal's Obligation

The petition presented examples from various countries around the world to show Nepal's legal system as 'impractical'. Countries like the United States, the United Kingdom, France, and Bhutan consider 18 as the legal age for marriage. While India and Bangladesh set the age at 21 for males and 18 for females, it is argued that setting the age at 20 for both in Nepal and jailing youths aged 18-19 constitutes a violation of human rights.

The 'Convention on the Rights of the Child, 1989', ratified by Nepal, also only considers those under 18 as children. The writ states, 'Since Nepal has accepted international treaties without reservation, domestic laws must be in line with their spirit.'

Question Raised on Citizenship Age Too

The writ also demands that the provision in Section 8(2) of the Citizenship Act, 2063, allowing citizenship at 16, be harmonized with the constitutional age of adulthood (18 years). The petitioners conclude that this 'legal complexity'—obtaining citizenship at 16, not being considered an adult until 18, and being unable to marry until 20—hinders the individual freedom of citizens.

How Will the Supreme Court Interpret This?

This case is not just about the age of marriage; it is connected to the overall 'philosophy' and 'uniformity' of Nepali law. The petitioners claim a contradiction in the system where an 18-year-old youth can join the army or police, vote to form a government, but must wait until 20 to marry and face jail time for marrying at 18.

If the Supreme Court rules in favor of the petitioners, the legal age for marriage in Nepal will be set at 18. Thousands of youths currently imprisoned or facing legal hurdles for 'child marriage' will receive relief, and this will connect Nepal's laws with international standards and the spirit of the Constitution.

How the Supreme Court's Constitutional Bench will interpret this legal contradiction remains to be seen. However, this writ has opened a new and powerful constitutional debate regarding the age of marriage and the definition of adulthood, which has been debated in Nepali society for a long time.