While many societies are rethinking the traditional role of marriage in regulating sexual and reproductive behaviour, Nepal still continues to preserve it as a sacrament under the Muluki Civil Code, 2074. Section 74 of this Muluki Civil Code, deems a man and woman married,  if a woman is proved to have delivered a child by conceiving pregnancy from physical intercourse with a man, except in cases of rape and incest. Although this clause seems practical and protective at first glance, it is a severe blow to women's autonomy.

The foundational concept of marriage, at least in this modern society, is based on mutual agreement and consent. It is personal as well as a legal commitment based on socio-legal construct, one that arises from a conscious choice and not an automatic imposition. By collapsing the idea of parenthood and marriage into one, the law strips away the foundational aspect of marriage based on consent and choice. It turns the biological reality of a conceived couple into a legal imposition.

The lawmakers have not only failed to recognize the fundamental difference between idea of parenthood and marriage as different concepts, but have also exposed their double standards of this particular provision by including the exceptions of rape and incest. These exceptions of rape and incest prove the fact that conception alone is not a sufficient basis for marriage and consent since context is also significant. These situations reveal that law seems to be testing the extremity of the cases where consent of women would be validated. Yet outside these extreme scenarios, the woman’s agency is ignored. 

By enforcing marriage solely based on parenthood the lawmakers are reinforcing the patriarchal norms that view women merely as a vessel of childbirth and reproduction. The exceptions of rape and incest provided by the lawmakers, imply that a woman’s consent and autonomy only matters in the extreme cases, while in other instances their role as a reproductive vessel supersedes. This reinforces the conventional notion that a woman as a secondary sex is dependent on a man, her primary value lies in childbirth instead of her autonomy as a human being. Simone De Beauvoir in her book “The Second Sex”, has mentioned how women have gained only what men have been willing to grant, they have taken nothing, they have only received. This resonates with the clause; how exempting rape and incest seem like breadcrumbs thrown at women while delicately balancing the a facade of justice in this fundamentally patriarchal system.

Although, this provision seems intentional but the underlying patriarchal values in this idea forces women to depend on the man. Even if a woman wants to exercise her independence to have a child, the law pushes her to rely on the father for the child to be considered legitimate. In cases where the father is absent, unwilling, abusive or unavailable, this law puts undue burden on women while casually underestimating her independence and autonomy.

The United Nations Declaration on Human Rights Article 16(2) deems marriage shall be entered into only with the free and full consent of the intending spouses. Based on this article, the United Nations has even drafted a treaty called the “Convention on Consent to Marriage” to reaffirm the consensual nature of marriages. Contradictory to this provision, the laws of Nepal itself in Section 68 of the Civil Code deems a marriage to be an inviolable social bond based on free consent.

If the aim of these provisions were to protect the child’s welfare then, enforcement of  robust child support laws, custody agreements and co-parenting responsibilities could have been alternative options. These measures address the actual needs of the child without forcing unwanted marital bonds. It can also be easily attained by “responsibility of the biological father for child support regardless of the marriage status.” Marriage should not be the default solution to ensure accountability. This act is the legal equivalent of forcing passengers of a sinking ship into the same lifeboat; which yields risk and can be effective for some and disastrous for others.

The Act Relating to Children, 2075 already guarantees the protection of children in case the parents are living separately due to any reason. Section 7 of this Act ensures, Right to protection , subsection (2) reads “ The parents shall have equal responsibility in relation to care, protection and maintenance of their children. In cases where the parents are divorced or living separately due to any other reasons, financial expenses for the maintenance of their children shall be borne by both parents according to their capacity.”

Furthermore, in 1988, in the landmark case of Annapurna versus Kathmandu District Court, the Supreme Court ordered that a couple could not be considered legally married merely because of their consensual sexual relationship and/or had given birth to a baby. The appellant, Annapurna Rana who was in a live-in relationship and had a child with her partner, had moved the apex court after she was denied mana chamal (sustenance) by her parents. According to the prevailing law, only unmarried daughters were eligible for mana chamal and Annapurna’s parents had argued that she was ipso facto married because she had had a child. The SC ruled in favour of Annapurna and the verdict was celebrated as a victory for women’s sexual autonomy.

The law reduces a woman’s standing as a biological being over her autonomy and agency. Although the law might have had a good faith, it still forces marriage while reinforcing the patriarchy. Even if a woman exercises her sexual and reproductive rights to independently have a child, the law places undue burden on women, especially in absence of the father. It also implies that a woman’s choice to have a child isn’t valid or complete without the father’s validation thereby devaluing her decision-making power.

In relation to this prevailing law and precedents, this clause appears to undermine the progressive attitude toward gender equality. Instead of promoting equality for women and moving forward into a more equitable future, this law takes a regressive approach. It contradicts the principles of fairness and autonomy by reinforcing outdated gender norms and limiting women’s rights. This law is ultimately reversing the strides being made toward realization of gender equality.