Research On Child Protection Laws And Penal Enforcement In Nepal
1. Legal Framework for Child Protection in Nepal
Nepal has several laws and constitutional provisions to protect children (defined as persons under 18 years):
Constitution of Nepal, 2015
Article 39 guarantees the rights of children, including the right to protection from exploitation, abuse, and trafficking, and the right to education and care.
Act Relating to Children, 2075 (2018)
Defines children and outlines child protection mechanisms.
Provides for juvenile justice, child welfare officers, and the establishment of child protection committees at the local level.
Criminalizes child marriage, child labor, trafficking, sexual exploitation, and abuse.
Muluki Criminal Code, 2074 (2017)
Criminalizes sexual abuse, trafficking, abduction, and child marriage.
Provides specific provisions for offences involving children, emphasizing imprisonment and fines.
Institutional mechanisms
Local governments must establish Child Rights Committees and Child Welfare Officers.
Alternative care institutions and schools are legally obligated to enforce child protection standards.
Challenges: Despite strong laws, enforcement is inconsistent. Many local governments have not appointed child welfare officers, and child protection standards in schools and institutions are often poorly implemented.
2. Detailed Case Analyses
Here are six detailed cases illustrating the enforcement of child protection laws in Nepal:
Case 1: Phulmaya v. District Court of Siraha (Habeas Corpus, 2078 BS)
Facts:
A minor, Phulmaya, was accused of an offence under the Muluki Criminal Code and the Children Act.
She was detained along with adult defendants at the District Court, which violated juvenile justice procedures.
Judgment:
The Supreme Court emphasized that minors must be tried separately in juvenile courts.
Detention must be in a child correctional facility, not with adults.
Significance:
Highlights procedural safeguards for juveniles.
Ensures minors are protected from exposure to adult prisoners and improper court procedures.
Case 2: Government of Nepal v. Santosh Kumar Yadav (2022)
Facts:
Santosh Kumar Yadav married a 15-year-old girl.
He was accused of kidnapping and statutory rape.
District Court acquitted him; High Court convicted him for rape; Supreme Court reversed it to a child marriage violation.
Judgment:
Supreme Court ruled the act constituted child marriage, not statutory rape, sentencing six months imprisonment + fine.
Significance:
Demonstrates the tension between child marriage laws and statutory rape protection.
Raises concerns about whether child protection is diluted when minors are married.
Case 3: Sarita Adhikari v. Rajaram Adhikari (Dailekh District Court, 2020)
Facts:
A girl married at 13 and divorced at 17.
Legal question: validity of marriage and her rights to inheritance and welfare.
Judgment:
Court declared the marriage void as it was underage.
Affirmed her inheritance rights and required her parents to ensure her care.
Significance:
Shows a child-centered approach, prioritizing welfare and rights over punitive measures.
Case 4: Bimal Shrestha v. Government of Nepal (2023)
Facts:
A minor girl was forced into child marriage.
She suffered abuse and eventually committed suicide.
Defendant charged for child marriage and abetment of suicide.
Judgment:
District Court: six months + fine for child marriage.
High Court: convicted for abetment to suicide, sentencing two years + fine + compensation.
Significance:
Shows enforcement addressing broader harm to children, not just the act of marriage.
Illustrates that child protection laws can extend to consequences like abuse and suicide.
Case 5: Child Trafficking – Institutional Neglect Case (Kathmandu, 2021)
Facts:
Children sent to monasteries under the pretext of education were trafficked or exploited.
Local authorities failed to inspect these institutions despite legal mandates.
Judgment/Outcome:
Courts emphasized that institutional negligence violates child protection laws.
Authorities were instructed to monitor institutions and prosecute traffickers.
Significance:
Demonstrates the importance of preventive measures and institutional accountability in child protection.
Case 6: Institutional Non-Compliance with Child Protection Standards (Nepal, 2020)
Facts:
Schools and private organizations were legally required to implement child protection standards.
Many institutions did not implement these standards, leaving children vulnerable.
Outcome:
Courts and human rights commissions highlighted non-compliance.
Legal directives were issued to ensure enforcement of child protection measures.
Significance:
Highlights systemic weaknesses in enforcing child protection laws.
Shows that legal safeguards alone are insufficient without proper institutional enforcement.
3. Observations from Cases
Juvenile Justice: Minors must be tried in separate courts with special detention facilities.
Child Marriage: Courts have varied interpretations; some cases emphasize punitive action, others focus on marital legality.
Child Welfare: Courts sometimes prioritize rehabilitation, inheritance, and welfare over mere punishment.
Institutional Failures: Monitoring of schools, alternative care centers, and institutions is often weak.
Broader Harm: Enforcement extends beyond immediate offences to outcomes like abuse, trafficking, and suicide.
Conclusion
Nepal has a strong legal framework for child protection. However, enforcement faces challenges such as:
Inconsistent judicial interpretations (child marriage vs statutory rape).
Institutional gaps in monitoring and compliance.
Weak local-level enforcement (Child Rights Committees and welfare officers).
Need for preventive measures to complement penal enforcement.
The cases above illustrate that judicial interventions in Nepal are evolving, increasingly taking a child-centered approach while balancing punishment, rehabilitation, and institutional accountability.
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