As I am a Law Graduate from India and a practicing lawyer in Nepal, there isn't much information to look through on the Internet concerning the rules and regulations of Nepal. During this lock down is when I realized the importance of individual opinion and the facts that govern a case. I am nowhere trying to manipulate one's thought but here, providing a baseline as to what are the laws and remedies one can get if approached the court or if they are being treated ill by anyone in the society. Another matter that got me concerned is, the number of people approaching me for legal aid concerning child-related laws, so here's my attempt in providing all the necessary information regarding the same if one feels being victimized.
- Who is a "CHILDREN"?
Children" means a person who has not completed the age of eighteen years. [AS UNDER CHILDREN ACT,2075- U/S. 2(J))]
They are also known as Minors and a person who has completed or is 18yrs and over 18yrs is considered to be a Major.
- What is a 'JUVENILE COURT'?
It is a type of court designed for the person who has committed any offense below the age of 18yrs. It is different than an ordinary court in the sense that Juvenile court is like a rehabilitation center that restricts grievous forms of punishment upon the children who are proven guilty.
So, aforesaid are the basic general definitions that might help the readers below the age to understand the meaning of the terms used hereafter.
Moving on, for the children to know their rights is as important as that of an adult. As under section 3 of the children act, 2075, the following are the rights guaranteed by the laws on behalf of the children:
NOTE: 1. After a recent amendment in law, a child now can get his/her citizenship even from his/her mother's name.
2. If the child is found in Nepal whereby no location of the natural parents can be traced then one can be entitled to a Citizenship based on the land he/she was found in.
3. If none of the parents can be traced down then the child has the name given by any other family member or guardian who looks after him or her.
4. It is up to the discretion of the child or the mutual consent of the parents as to whose surname he/she wants to carry.
5. If the parents are opting for a divorce then, it is up to the best interest of the child as to who he/she wants to be with (only if the age of the children is above 10yrs)
6. and lastly the mother, father, or guardian of a child shall not change his or her name, a surname that hides the identity of the child to gain undue benefits.
3.Right against discrimination:
a. No child should be discriminated on the basis of their grounds of religion, race, caste, tribe, sex, origin, language, culture, ideological thought, physical or mental condition, physical disability, marital status, family status, employment, health condition, economic or social condition of him or her or his or her family or guardian, geographical area or similar other ground.b. No one shall discriminate between son and daughter, son and son or daughter and daughter or children from ex-husband or wife or present husband or wife in maintenance, education or health care of children.
c. No one shall make any kind of discrimination between their own son, daughter and adopted son, daughter.
d. No discrimination shall be made with regard to maintenance, education and health care between children born to a man and woman before and after their marriage.
4.Right to live and meet with the parents:
A child after their parents divorce can still meet and live with his/her natural parents. (Except as provided by the law)
5.Right to protection
Every child shall have the right to obtain proper care, protection, maintenance, love and affection from his orher father, mother, other member of family or guardian.
Every child shall have the right to protection against any type of physical or mental violence and torture, hatred, in human treatment, gender or untouchability-based mistreatment, sexual harassment and exploitation that might be caused by his or her father, mother, other family member or guardian, teacher and other person.
Every child shall have the right to protection from being exploited economically and shall also be entitled to be protected from any activity which may be harmful to him or her or be obstacle to his or her education or detrimental to his or her health, physical, mental, moral, social development.
No one shall attack, or make hindrance to the operation and management of any school, including the place, service or facility, used for the best interests of children, with any excuse at times of armed conflict or in any adverse situation of whatever type.
Children below fourteen years of age shall not be deployed in any risky work or used as a house-servant or house-maid.
6. Right to participate
in a family decision, schools, extra-ciricular and other forms of public institutions.
7. Right to freedom of expression and information
The topic itself is vague but the gist one can get from this title is one has a right to speak and put on their views as it covers their freedom of speech but that doesn't necessarily mean that one is allowed to promote hate speech, or can say anything they want and get away with this provision.
8. Right to open organization and assemble peacefully
9. Right to privacy: Privacy means SECRECY
NOTE: If a child is being blackmailed by anyone who has their personal photographs or videos or anything likely to cause a negative impact on a child mental and physical health then, the child can approach the nearby police station under this section and the person who is found guilty of blackmailing shall be punished under this section.
* Also, if a child is involved in a case, then the name of the child is to be held confidential and the matters of the case shouldn't be made public until provided by law.
For those children who are being victimized by anyone be it their family, friends or someone who they don't know, I request you to speak up and not stay or confine yourself within four walls of the room rather, should be vocal with your parents or someone who is close to you cause the person who should be worried about the reputation is the one who is blackmailing you, not you. Also, I personal request children who are reading this not to share any personal information or messages or photos or videos with anyone as this world is fully automized with technology and as technology helps people be close, it doesn't take a minute to disrupt one's lifestyle too.
10. Special rights of children with disabilities:
Special arrangements shall be made, as prescribed, for the children with disabilities.
Every child with disability shall have the right to determine his or her own honour and prestige, to promote his or her own independency, to participate actively in the society and to live a life with dignity.
Every child with disability shall have the right to obtain special care and to be assimilated in the society and to obtain the opportunity to education, training, health care, rehabilitation service, preparation for employment and entertainment for the development of his or her personality.
Every child with disability shall have the right to equal access and utilize the public services and facilities.
11.Right to nutrition and health
12.Right to sports, entertainment and culture
13.Right to education:
(1) Children below six years of age shall have the right to learn in a proper way according to their age and level of development and to pre-child development.(2)Every child shall have the right to acquire free and compulsory education up to the basic level and free education upto the secondary level pursuant to the prevailing law in a child friendly environment.
(3)Every child shall have the right to acquire education through proper study materials and teaching method according to his or her special physical and mental condition, pursuant to the prevailing law.
(4)Dalit children shall have the right to acquire free education with scholarship pursuant to the prevailing law.
Hereby, the main motive I have in publishing this article isn't for the law graduates (well partly) , not for adults but for the children who are scared to talk to their parents or anyone thinking they wouldn't be accepted by the society if some mishap happens rather there are remedies provided by laws within which one can approach a competent authority and file for a case against the wrongdoer. If you speak against the blackmailing or any other offence then seeing you, other people can get inspired and this will automatically help in controlling the crime ratio in the society. So, now we have discussed the rights of the children as in when can a children go and file for a case before court, now following are the punishment against a criminal for committing any offences.
[Also, the age of marriage in Nepal is 20yrs for both the male and female and if anyone below age is being forced to get married then will be punished as per the laws. To add on, if a child below the age of majority is raped with or without one's consent, the person will be subjected to imprisonment as per the law under Muluki Dewani Samhita, 2074]
Note: Before getting into the punishment of the crime, the case that has a child as a victim will be conducted in a closed room aka in-camera proceeding where only a few of selective people will be allowed to be inside the courtroom. So, you don't have to be worried about the spoiling of the family reputation as no one will hardly know about the case you're in.
AS UNDER S.66 OF CHILDREN ACT, 2075 MENTION ABOUT "THE OFFENCES AGAINST THE CHILD"
The following are the punishment that an offender is subjected to if any offence is committed against the child:
1. If any person, organization or body violates any of the child rights set forth in Chapter-2 or does not fulfil any of the liabilities towards the child set forth in Chapter-3, such a person or the chief of such organization or body shall be liable to a fine of up to fifty thousand rupees.
2.If the guardian or any family member does not fulfil his or her liabilities or if the mother, father or guardian alters the name and surname of the child with the intentionof acquiring undue benefits or misappropriates the child’s property, such a mother, father or family member or guardian shall be liable to a fine of up to one hundred thousand rupees.
A person who commits the offence against the child shall be liable to the following punishment, according to the degree of the offence:
(a)In the case of the commission of any act referred to in clause(a), (b), (c), (d), (e), (f) or (r) of sub-section(2) of Section 66 or sub-section(1) or (2) of Section 78, a fine of up to fifty thousand rupees and imprisonment for up to one year,
(b)In the case of the commission of any act referred to in clause (g), (j), (k), (l), (m), (o) or (q) of sub-section(2) of,or clause(a), (b), (c), (e), (f) or (i) of sub-section(3)of,Section 66,a fine of up to seventy-five thousand rupees and imprisonment for up to three years,
(c)In the case of the commission of any act referred to in clause(d) of sub-section(3) of Section 66, a fine of up to eighty thousand rupees and imprisonment for up to four years,
(d)In the case of the commission of any act referred to in clause(h) or (i) of sub-section(2) of Section 66, a fine of up to one hundred thousand rupees and imprisonment for up to five years,
(e)In the case of the commission of any act referred to in clause(n) of sub-section(2) of Section 66, half the punishment that is imposable on the liable to the offender of the offence that is taught or trained to be committed,
(f) In the case of the commission of any act referred to in clause(p) of sub-section(2) of Section 66, a fine of up to five hundred thousand rupees and imprisonment forup to ten years,
(g)In case of an act as per clause(g) or (h) of Sub-section(3) of Section 66, the punishment that is imposable on the offender of rape under the prevailing law,
(h)In the case of the commission of any act referred to in clause(i) or (k) of sub-section(3) of Section 66, a fine of up to one hundred fifty thousand rupees and imprisonment for up to fifteen years. (for s.66 refer to http://www.lawcommission.gov.np/en/wp-content/uploads/2019/07/The-Act-Relating-to-Children-2075-2018.pdf)
Further, as much as a children should be aware about their rights and its legal grounds, one should also be aware about the punishment that can be imposed upon them if any misconduct is done.
PUNISHMENT IF A CHILD IS AN OFFENDER
1. If the child is less than ten years of age at the time of commission of the offence, no case and punishment of any kind shall be instituted against and imposed on him or her.
2. If a child of ten years of age or above but below fourteen years of age commits an offence that is punishable by a fine, the child shall be released after counseling him or her and if such a child commits an offence that is punishable by imprisonment, the child shall be punished with imprisonment for upto six months or be sent to the child reform home for a period not exceeding one year without subjecting him or her to imprisonment.
3. If a child of fourteen years of age or above but below sixteen years of age commits an offence, the child shall be punished with half the punishment that is imposable on the person having attained majority pursuant to the prevailing law.
4. If a child of sixteen years of age or above but below eighteen years of age commits an offence, the child shall be punished with two-third of the punishment that is imposable on the person of legal age.
Notwithstanding anything contained elsewhere in this Section, while punishing a child who has not completed sixteen years of age, no punishment of imprisonment shall be imposed on such a child except in caseswhere he or she has committed a heinous offence, grave offence or repeated the offence.
Not only Children act provides for the child who are victim of a crime but even constitution has several provision which clearly deals with the child and the punishment imposed upon the wrongdoers. Part 3 of Constitution under fundamental Rights u/A. 39 talks about the Right of a child , which mentions:
(1) Every child shall have the right to name and birth
registration along with his or her identity.
(2) Every child shall have the right to education, health, maintenance,
proper care, sports, entertainment and overall personality development from the
families and the State.
(3) Every child shall have the right to elementary child development and
child participation.
(4) No child shall be employed to work in any factory, mine or engaged
in similar other hazardous work.
(5) No child shall be subjected to child marriage, transported illegally,
abducted/kidnapped or taken in hostage.
(6) No child shall be recruited or used in army, police or any armed
group, or be subjected, in the name of cultural or religious traditions, to abuse,
exclusion or physical, mental, sexual or other form of exploitation or improper use
by any means or in any manner.
(7) No child shall be subjected to physical, mental or any other form of
torture in home, school or other place and situation whatsoever.
(8) Every child shall have the right to juvenile friendly justice.
(9) The child who is helpless, orphan, with disabilities, conflict victim,
displaced or vulnerable shall have the right to special protection and facilities from
the State.
(10) Any act contrary to in clauses (4), (5), (6) and (7) shall be punishable
by law, and a child who is the victim of such act shall have the right to obtain
compensation from the perpetrator, in accordance with law.
Also, if a child who doesnot have any financial support can work only in limited work stations for limited time but not as a domestic help. For further more details refer to Child Labour (Prohibition and Regulation) Rules, 2062 (2006)
NOTE: A case that has a child in it shall be disposed within 120days from filing the date of the case unlike other cases and in no circumstance will a child be handcuffed, shackled, or be kept in confinement. The child will not only get justice but will also be given compensation sum by the accused party.
Lastly, it must be noted that if one wants to file for a case against the offender then there is a time limitation provided within which a case must be filed also known as limitation period i.e, within one year of the commission of a crime. Also, if by any chance the child didn't file the case due to any circumstance one can still file the case within one year after they reach the age of majority i.e, 18yrs. else after that, the principle of limitation will be applied and no case can be filed hereafter. Here, I've only talked about the a part crime and the basis of punishment that can be imposed. There are various other offences which I have not mentioned but will surely provide information in near future.
[ This blog is to notify the citizens or children residing in Nepal about their rights and is promoting the children reading this article to speak against the wrong that is happening in the society. As I am a newbie using this platform, if any errors are to be found, I request you to care less and focus on the gist of the article. Thank you.]