In Nepal, child custody after divorce is governed by the National Civil Code, 2017, particularly Part 3 Chapter-4, Provisions Relating to Relationship of Parents and Children. The legal system traditionally assumed that mothers are the primary caretakers of young children, especially after divorce. However, this presumption is not absolute and has evolved with changing societal dynamics, judicial interpretations, and the increasing emphasis on the “best interest of the child” standard.
When a marriage ends and a couple decides to separate, it is often the child who bears the greatest emotional and psychological impact. A child has the inherent right to grow up in a nurturing and supportive environment that fosters their holistic development. In cases of separation, this right can be threatened. Although both parents the mother and the father legally hold equal standing in seeking custody, the final decision rests with the court, which prioritizes the child’s best interests above all else. Unfortunately, custody battles can become contentious, with disputes not only over physical custody but also over issues such as financial support and decision-making authority. This makes it essential to clearly establish who will be responsible for the child’s upbringing, including who will provide for them financially and who will make crucial life decisions on their behalf. This entire process of assigning responsibilities and rights is referred to as the ‘determination of child custody.’ Even amidst parental conflict, it is vital that a child’s rights and well-being remain protected and uncompromised.
Legal Framework Governing Child Custody in Nepal:
In Nepal, child custody matters are addressed through a well-defined legal framework designed to protect the best interests of the child and ensure responsible parenting. The key legislations governing this area include:
- National Civil Code, 2074 (2017) – This serves as the core legal document outlining the rights and duties of parents, guardianship rules, and the general principles surrounding child custody and care.
- National Civil Procedure Rules, 2075 (2018) – These rules provide the procedural roadmap for handling custody cases in court, ensuring that legal proceedings are conducted fairly and systematically.
- Act Relating to Children, 2075 (2018) – This child-focused legislation emphasizes the protection of children’s rights, welfare, and development, reinforcing that custody decisions must prioritize the child’s physical, emotional, and psychological needs.
These legal instruments collectively ensure that child custody in Nepal is addressed in a way that respects both the law and the child’s well-being.
Understanding Child Custody in Nepal – A Closer Look at the Types and Criteria
When parents part ways, the most delicate and critical question arises: Who will take care of the child? In Nepal, the law answers this question by considering what will truly serve the child’s best interests—not the parents’ desires, but the child’s needs. The court carefully weighs factors such as the child’s age, emotional bond with each parent, financial stability, and ability to provide a nurturing environment.
Child custody in Nepal generally falls into two main categories:
- Single-Parent Custody: Legal Control and Obligations
If matrimonial relationship between a husband and wife is extinguished in accordance with law, a minor born from them shall remain in the custody of the
mother or the father as provided herein below:
(a) In the case of a minor who has not attained five years of age, under the custody of the mother, if she so desires irrespective of whether or not she has
concluded another marriage,
(b) In the case of a minor above five years of age, except where the mother has concluded another marriage, under the custody of the mother, if she so
desires,
(c) In the circumstance other than that referred to (a) or (b), under the custody of the father.
(d) The husband and wife have entered a separate agreement on the custody of a minor at the time of divorce or judicial separation, the agreement shall apply to the custody of the minor.
(e)While deciding as to which of the father and the mother has the
custody of a minor above ten years of age, the opinion of the concerned minor may also be obtained.
If the husband and wife, who get separated in accordance with law, have a minor, the maintenance, education and heath care of such a minor shall be according to the agreement concluded, if any, between the husband and wife in that respect, and in the absence of such an agreement, it shall be as follows:
(a) In the case of a minor below five years of age, the minor shall be under the mother’s custody,
(b) In the case of a minor who is of five years of age or above five but below ten years of age, the minor shall be under the father’s custody,
(c) In case of a minor having attained ten years of age, the minor shall be under the mother’s or the father’s custody, with whom the minor desires to live.
In this arrangement, all decision-making authority lies with a single parent. This includes choices about the child’s education, healthcare, residence, and overall upbringing. The other parent may have visitation rights but does not share legal control. Sole custody is awarded when the court believes that a unified environment under one parent would be more beneficial for the child’s stability and development.
- Joint Custody
Though still evolving in Nepalese practice, joint custody allows both parents to actively participate in the child’s life after separation. It promotes shared responsibilities and decision-making, even if the child primarily resides with one parent. This form of custody acknowledges that children benefit from maintaining strong connections with both parents emotionally, socially, and developmentally.
By differentiating custody types in this manner, Nepalese law aims to balance tradition with the child’s evolving rights and needs, ensuring that decisions reflect compassion, care, and the child’s future well-being.
Essential Documents Required for Filing a Child Custody Case in Nepal
When initiating a child custody case in either the District Court or High Court in Nepal, it is important to gather and present a complete set of documents that support the case and demonstrate the parent’s ability to care for the child. These documents help the court assess the situation holistically and make a decision in the child’s best interest.
Below is a list of the key documents required for filing a child custody petition:
Required Documents
Submitting these documents not only fulfills the legal requirements but also strengthens the case by providing a clear, responsible plan for the child’s welfare. Preparing thoroughly ensures that the court has a well-rounded view to make a decision in line with the child’s best interests.
What Custodial and Non-Custodial Parents Are Responsible for in Nepal
When parents separate, the law makes sure that the child’s needs remain a top priority. Both custodial and non-custodial parents have important duties, each playing a vital role in the child’s life.
- What the Custodial Parent Must Do
The custodial parent who lives with and takes care of the child day-to-day carries the main responsibility for the child’s well-being. According to Section 116 of National Civil Code 2017, this includes:
- Looking after the child’s daily care, health, and education.
- Providing for the child’s school fees, medical treatments, and even activities like sports or hobbies, as much as their finances allow.
- Creating a stable environment that helps the child grow physically, mentally, and emotionally.
Simply put, the custodial parent is the child’s primary guardian and provider in everyday life.
- What the Non-Custodial Parent Must Provide
Even if the child doesn’t live with them, the non-custodial parent has a duty to support the child financially. As per Section 116 (2) of National Civil Code 2017:
- If the non-custodial parent earns more, they must contribute to the child’s expenses like education, healthcare, and general upkeep.
- The amount they pay can be worked out together by both parents.
- If they can’t agree, the court decides a fair financial contribution to cover the child’s needs.
This ensures that both parents share the financial responsibility, so the child’s welfare doesn’t suffer due to separation.
In this way, Nepalese law balances the roles of both parents, ensuring the child’s best interests come first whether or not the parents live together.
Visiting Rights of the Non-Custodial Parent
Section 117 of the Civil Code guarantees that the parent without custody doesn’t lose the chance to be part of the child’s life. They are entitled to regular visitation, fostering ongoing relationships. How often and how long these visits last can be agreed upon by both parents, but when disagreements arise, the court will decide what’s best. Crucially, any visits must never jeopardize the child’s safety or well-being; if they do, the court can restrict or cancel them to protect the child.
This provision ensures children maintain meaningful connections with both parents, which is vital for their emotional development.
The Child’s Right to Support and Protection
Financial support is a shared responsibility. Section 114 mandates that both parents contribute to the child’s education, healthcare, and overall necessities. If one parent neglects these duties, the court can enforce their legal obligation.
Further, Section 118 clarifies that a child’s rights remain intact regardless of their parents’ marital status. The child continues to be recognized as having a relationship with both parents, securing their right to care and support throughout their upbringing.
CASE LAW RELATED TO CHILD CUSTODY
Case Title: Nilam Subedi et al. v. Shambhu Raut
Decision No: 165
Case No: 077-FJ-0042
Court: High Court Patan
Case Summary:
This case revolves around a custody dispute concerning a minor child between the maternal family and the child’s father.
Nilam Subedi, the mother of the child and the primary applicant, currently resides in Canada. She asserts that after giving birth to her daughter in April 2013, her marital relationship began to deteriorate. As a result, she chose to live with her parents in Nepal, and the child was also raised in her maternal grandparents’ home from infancy.
Despite the strained marital relationship, the father, Shambhu Raut, was permitted to maintain contact with the child and frequently visited her. However, on February 18, 2021, he reportedly took the child with him during a visit without informing the family and subsequently refused to return her.
Laxmi Subedi, the child’s grandmother, tried to retrieve the child, but her efforts were obstructed by the father. Allegedly, he denied her access to the child even as the granddaughter pleaded to meet her grandmother. When the family attempted to file a complaint with the local police to seek intervention, the authorities declined to act, citing that it was a domestic matter outside their jurisdiction.
The case was then brought before the High Court Patan to resolve the custody issue and determine whether the grandmother had a legal claim or standing to regain guardianship of the child in the absence of the mother’s physical presence in Nepal.
Decision
The court awarded custody of the child to the father. Given that the mother lives in Canada, the child’s grandmother was allowed to visit and support the child, as long as it doesn’t disrupt her education or well-being and is done in coordination with the school. [1]
Our Opinion:
In this custody dispute between the child’s maternal family and the father, the High Court Patan concluded that the best interest of the child lies in staying with her father, Shambhu Raut. Considering the mother, Nilam Subedi, resides abroad in Canada and is unable to provide
The decision reflects a balance between the legal rights of the father and the emotional needs of the child, ensuring continued contact with the maternal side of her family.
Note :
[1] Decision no.9219 NKP 2071 NO-8–It remains uncertain whether the applicant has lodged an appeal before the Supreme Court of Nepal. In the absence of such an appeal, the judgment shall be deemed final and conclusive.