KATHMANDU: The government has proposed an amendment to the legal provisions regarding polygamy, aiming to make both men and women equally accountable.

Under the current legal framework, provisions regarding polygamy primarily target men. If the proposed amendment is passed, neither married men nor married women will be allowed to enter into another marriage without legally terminating their first marital relationship. Doing so will automatically render the subsequent marriage null and void, and it will fall under the scope of legal action.

The bill drafted to amend the National Penal Code, 2017 is currently in the process of gathering feedback at the Ministry of Law, Justice, and Parliamentary Affairs. The bill proposes amendments to 63 sections of the Code. Along with polygamy, provisions regarding the age of criminal responsibility for children, underage marriage, incestuous marriage, abortion, marital rape, and offenses related to sexual and gender minorities are also being revised.

“Married person” instead of “Married man”

In the proposed bill, it has been recommended to replace the phrase “married man” with “married person” in the section concerning polygamy.

According to this, no one will be allowed to marry a person knowing that they are already married. The proposal states that this provision will apply equally to men, women, and sexual and gender minorities.

Previously, the law explicitly stated that action would be taken if a married man entered into another marriage. However, the amendment has been proposed citing legal ambiguity when a married woman enters into another marriage without divorcing her first husband.

Once the bill is passed, both parties involved in entering into another marriage while having a husband or wife will face legal action.

Section 175 of the National Penal Code states that polygamy is prohibited. Citing that the legal provisions regarding polygamy caused practical difficulties, the Council of Ministers had formed the Criminal Justice Administration Study and Improvement Taskforce on February 1, 2024.

The nine-member taskforce, formed under the coordination of the then Attorney General Dinmani Pokharel, submitted its report to the government in June/July 2024 concluding that amendments were necessary to resolve the legal issues.

Marriage age maintained at 20 years

Despite discussions about lowering it, the proposed bill maintains the minimum age of marriage at 20 years.

Section 173 of the National Penal Code prohibits solemnizing or organizing a marriage before reaching 20 years of age. The bill proposes that if a marriage involves a person under the age of 18, the organizers or individuals involved will face up to three years of imprisonment and a fine of up to Rs 30,000.

If a marriage is arranged for individuals in the 18 to 20 age group, a fine ranging from Rs 25,000 to 50,000 has been proposed. The provision that such marriages will automatically be void remains intact.

However, the bill introduces an alternative: if individuals between 18 and 20 years of age marry out of mutual consent and are willing to live separately until they reach the legal age, the government attorney may decide not to prosecute the case. In that scenario, they will not face punishment.

The bill also proposes increasing the punishment for incestuous marriages. According to the proposed amendment, anyone who knowingly enters into an incestuous marriage will face up to five years of imprisonment and a fine of up to Rs 50,000. Those who facilitate such a marriage will face up to three months of imprisonment or a fine of Rs 3,000. The bill also states that such marriages will automatically be null and void.

New provisions for teenage love affairs

The proposed bill includes a new provision to look at consensual sexual relations between teenagers under the age of 18.

Citing that the current law lacks a separate “Romeo-Juliet” provision for such circumstances, the bill proposes a reduction in punishment if the age difference between the couple is two years or less.

According to the proposal, if underage teenagers are in a love affair and have consensual sexual relations, the offender will face an imprisonment sentence of up to one year.

The bill also proposes raising the age of criminal responsibility for children. Currently, acts committed by children under the age of 10 are not considered offenses. The proposed amendment raises this age to 12 years.

Accordingly, children under the age of 12 will not face criminal prosecution for their actions.

Revising abortion provisions

The bill proposes a provision allowing a pregnant woman to undergo an abortion at any time if the pregnancy is a result of rape, incest, or underage marriage, depending on the risk to her life and subject to her consent.

According to the ministry, this has been introduced to address circumstances arising from criminal situations, risks to life, and the health of the pregnant woman.

The proposed bill also revises the provisions regarding marital rape. It proposes an imprisonment of three to five years if a husband non-consensually rapes his wife during the subsistence of the marriage.

However, the relationship will not be considered a subsisting marriage if the couple is living separately after filing for property partition, if property has been received and they live apart, or if a divorce case is ongoing.

Similarly, it has been proposed to add rape to Section 227 of the Act as a criminal offense involving moral turpitude. According to the proposed provision, a person convicted of rape will be deemed to have committed a criminal offense involving moral turpitude.

Additional provisions for sexual and gender minorities

The proposal explicitly aims to include sexual and gender minorities under the offense of rape mentioned in Section 219 of the principal Code.

The bill adds a provision stating that if non-consensual sexual intercourse is committed against a sexual and gender minority individual, or between sexual and gender minority individuals, it will be considered rape.

Furthermore, the bill proposes an additional five years of imprisonment if the rape is committed against a woman who is more than six months pregnant, a person with complete or severe disability, a physically or mentally unwell person, or if it is committed by brandishing weapons.

According to the ministry, the proposed amendments in the bill have been prepared in alignment with the Right to Equality enshrined in Article 18 of the Constitution. The ministry stated that the polygamy provisions are being made gender-equal to implement the constitutional mandate that all citizens are equal in the eyes of the law.