After the conclusion of marriage, the man and the woman shall be considered to be husband and wife having mutual love and good faith. They are considered agents of each other in household affairs. But things are not always the same as we imagine. The husband or wife or both may want to terminate the relationship. The cessation or the legal termination of the marriage is called divorce (‘parpachuke’ or ‘sambandha bichchhed’). If they both desire to end the relationship between husband and wife, they may divorce at any time as per section 93. But if there is not the consent of either of the parties, there are certain grounds to sue for divorce in Nepal.
According to section 94, the husband may file suit in any of the following conditions even without the consent of the wife:
• If the wife has been living separately for 3 years or more consecutive years without the consent of the husband (except where the husband and wife are living separately by taking their partition share or separating mana chamal in accordance with the law),
• If the wife deprives the husband of maintenance costs or expels the husband from the house.
• If the wife commits an act or conspiracy that causes to grievous hurt or severe physical or mental pain to the husband,
• If it is proved that the wife has made sexual relations with another person.
Similarly, section 95 lays down some grounds where the wife may file a divorce suit without the consent of the husband viz.:
• If the husband has been living separately for 3 or more consecutive years without the consent of the wife,
• If the husband commits an act or conspires to cause grievous hurt or severe physical or mental pain to the wife,
• If the husband concludes another marriage,
• If the husband is proved to have made sexual intercourse with another woman,
• If the husband is proved to have raped the wife.
Process of Divorce in Nepal
IF The spouse desirous to make a divorce in Nepal has to file a petition in the court. And after such a petition is filed for divorce, the court shall, to the extent possible, remind and convince both the parties and conciliate them by mediation, and if deems appropriate to get the relationship divorced rather than to continue, the court shall effect divorce between them. According to section 99, if divorce is to be affected because of the husband, if the wife demands, the court makes the partition between the husband and wife before effecting divorce.
Section 100 says that if the wife wanting a divorce in Nepal, desires to obtain lump sum amount or annual or monthly alimony or expense instead of the partition share, the court may order to provide so on the basis of his property or income and if the wife has not obtained the partition share just because the husband has no property, the wife may demand the maintenance cost from the income of the husband by the order of the court.
Section 103 says that if a divorcee woman dies, her son, daughter, if any, shall be entitled to her property, and if she has no son or daughter, the previous husband shall obtain the property received by her from the previous husband and the successors on her mother’s side shall obtain the other property.
Custody of the Child after Divorce in Nepal
The question of child custody arises when the issue of divorce in Nepal is invoked in the court of law between the spouse. Besides this, child custody is also an issue in the void and a voidable marriage. Child custody and guardianship are legal terms that are used to describe the legal and practical relationship between a parent and his or her child, such as the right of a parent to make decisions for the child, and the parent’s duty to care for the child.
The custody of the child depends on the age and interest of children as well as the economic and mental condition of parents who are legally separated or divorced. In such a case, the judge will decide custody based on the best interest protection of the children.
Section 115 says that if the matrimonial relationship between a husband and wife is terminated in accordance with the law, the child born from them shall remain in the custody of the mother or father as provided below:-
a. The child who has not attained 5 years of age remains under the custody of the mother as per her desire, irrespective of whether or not she has concluded another marriage,
b. The child who is above 5 years of age remains under the custody of the mother if the mother desires except the mother have concluded another marriage,
c. In the circumstances other than (a) and (b), the child remains under the custody of the father.
Section 116 says that the parent under whose custody the child is, has the obligation to take care of and maintain and if the income of the parent who has not taken the custody is higher than the parent under whose custody the child, such a parent has obligation to provide expenses for maintenance, education, and treatment of the child. Section 117 has provided the right to the child to visit the father if the child is living with the mother and to visit to the mother if he or she is living with the father and etc.
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