In Nepal the issue of child custody after divorce or separation is one of the most sensitive and contested aspects of family law in Nepal. While traditionally, custody has often been granted to mothers especially when children are below 16 years of age. Nepal’s legal system has gradually evolved to ensure that fathers, too, have legitimate custodial rights. Child custody refers to the legal authority granted to one parent (the custodial parent) to care for, maintain, and make decisions on behalf of a minor child. This responsibility encompasses ensuring the child’s financial security, education, healthcare, emotional development, and overall well-being. Nepalese courts often award physical custody to one parent, although both parents may retain access and involvement in the child’s life.
This article explores the legal provisions, judicial interpretations, and practical challenges surrounding father’s custodial rights in Nepal, with a focus on the Muluki Civil Code 2074.
Legal provision Governing Custodial right of father in Nepal
Muluki Civil Code, 2074 (2017)
The Muluki Civil Code, under Part 4 (To be under custody of mother or father), provides a comprehensive legal structure for resolving custody disputes. Key provisions include:
Section 115 of Nepal’s Muluki Civil Code provides a structured and conditional framework for determining child custody following divorce or legal separation. This provision adopts an age-specific and context-sensitive approach that balances the rights of both parents while prioritizing the best interests of the child.
- For children below five years of age, custody is presumed to lie with the mother, if she wishes, regardless of her remarriage status.
- For children aged five and above, custody remains with the mother only if she has not remarried; otherwise, custody generally transfers to the father.
- For children above ten years of age, the law allows for the child’s own preference to be considered, recognizing the child’s growing maturity and autonomy.
The law also gives legal weight to mutual agreements between parents at the time of separation (Section 115(2)), and addresses the issue of parental death (Section 115(4)) by ensuring that custody transitions to the surviving parent except in cases where the mother has remarried and the child is above five.
In the absence of any prior agreement, Section 115(5) sets out default rules:
- Children under five remain in the mother’s custody.
- Children between five and ten are placed in the father’s custody.
- Children over ten may live with the parent they choose.
Consequences for Fathers’ Custodial Rights
From the perspective of fathers, Section 115 provides several key approaches for asserting custodial rights:
- When the mother has remarried post-childbirth.
- In cases where the child is aged 5 to 10, default custody lies with the father.
- Where a child above 10 expresses a desire to live with the father.
- When the mother is either unwilling or deemed unfit to take custody.
Practical Challenges for Fathers in Getting Child Custody in Nepal
Although Nepal’s law (Section 115 of the Muluki Civil Code) gives fathers the right to get custody of their children in certain cases, many fathers still face real-life problems when trying to get or keep custody of their children. These problems come from unclear laws, strong traditions, and lack of support.
- Law Favors Mothers First: The law says that children under five should stay with their mother if she wants. This makes it harder for fathers to get custody—even if the mother is not able or willing to take care of the child properly.
- Mother’s Remarriage Isn’t Always a Deciding Factor: The law says that if the mother remarries, the father may get custody. But in practice, courts sometimes still give custody to the mother if the child is emotionally close to her. This makes things uncertain for fathers.
- Children’s Opinions Are Not Always Heard: For children over 10, the court can ask who they want to live with. But in many cases, the court doesn’t ask the child, or doesn’t take their opinion seriously, which can hurt the father’s chance of getting custody.
- Society Sees Mothers As Better Caregivers: Nepali culture often assumes that mothers are better at raising children. Because of this belief, fathers may not be seen as suitable guardians, even when they are capable and caring.
- Hard to Enforce Custody Orders: Even if a father wins custody in court, it can be difficult to get the child back especially if the child is living with the mother. The court’s decision may not be followed quickly or at all.
- Lack of Support Services: Nepal does not have enough mediation centers or counseling services to help parents and children during custody disputes. Fathers may not know what to do or may not have the support to deal with emotional and legal stress.
- Legal Process is Expensive and Complicated: To fight for custody, fathers often have to spend a lot of money and time in court. Many do not have access to free legal help or do not know their rights, which makes it hard to move forward.
judicial interpretations
Nepal’s child custody framework, governed by Section 115 of the Muluki Civil Code 2074, lays down the statutory principles guiding post-divorce custody determinations. However, the real test of these laws lies in their judicial interpretation how the courts apply, balance, and adapt these principles in diverse real-world situations. Over time, Nepalese courts have developed a growing body of case law that offers critical insights into the evolving understanding of a father’s custodial rights.
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.
Conclusion
The case of Nilam Subedi et al. v. Shambhu Raut highlights how Nepali courts may prioritize the father’s custodial rights when the mother is residing abroad and the father is capable of providing care. It shows that, despite traditional biases, courts are willing to grant custody to fathers based on the child’s best interest and practical caregiving circumstances
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.