16 December, 2004

Waiting for Justice

December 15 2004, Nation Weekly Magazine Sushma Joshi

Morang District Court is crowded at 3pm on a Friday afternoon. Police with guns take a breather in the open air as they escort detainees into the courtroom. Upstairs, a tiny woman braves the all-male crowd and rushes in breathlessly as a hearing is just about to start in the civil bench. She sits down and covers her head with her sari’s pallu. This is Alkadevi Shah (38). She is here to find out if she will finally get property from her estranged husband.

A complicated case involving two lawsuits are about to be heard. Judge Mahesh Prasad Pudasaini reads his “misil” as the lawyers arrive. Advocate Ram Lal Sutihar, of Nepal Bar Association, Morang, addresses the judge. “Sriman,” he says. “My client is a victim of domestic violence. She was thrown out of her house. A woman has a right to maintenance. My client is entitled to her husband’s property. But her husband has taken an imaginary loan from another man, and put a counter lawsuit saying he is bankrupt after borrowing for his daughter’s wedding.”

The lawyer explains that the agreement between the lender and Alkadevi’s husband, Manik Chand Shah, is false because the supposed lender is far poorer than the debtor. He also points out that experts at the Philatelic Society know the stamp put on the loan agreement was published months later than the date of the supposed loan – showing that the paper was forged at a later date. The witness of the “len-den” (loan) also said he as not there at the time when the paper was allegedly signed.

Manik Chand Shah, who has married a second wife and recently had a child with her, is not present at the courtroom. His lawyer is there to represent him. “My client is not a man of means, Sriman,” says his defense lawyer. “How can he give her property if he doesn’t have any? Regarding the stamp – these things happen in villages. People don’t always do things in time. And the witness who claimed he wasn’t there at the time of signing – I can’t remember what I did a week ago. How would he remember what he was doing five months ago?”

The third lawyer, who represents the absent lender, is younger. He argues that there is no way Manik Chand Shah can escape his loan by getting his former wife to claim property. He has to pay his loan. His client has to get justice.

The judge asks if the woman has any children. “She had one daughter who is already married, Sriman,” says the defense lawyer. “Then why should the husband give her his private property that he earned with his own work?” asks the judge. The defense lawyer cites a Supreme Court case and says that there is no concept of “private” in a marriage – what a man earns after marriage also belongs to the wife.

After the hearing ends, Alkadevi walks downstairs. “He used to beat me a lot,” she says. “I don’t know if they will do something else to stop me getting property.”

After her husband started to beat her, Alkadevi’s brother put a petition at the CDO’s office. The husband went there and signed a “milapatra” saying he would live with her. He then ran away to Kathmandu, married another woman, and then stayed in Delhi for a few years before returning to Biratnagar.

Alkadevi says life is hard. She lives with her sister by the Jute mills. Her sister’s husband was killed by dacoits, and the two sisters survive as day laborers in garment factories, where they make thread.

The property in question is 18 katta, nine dhur. Split three ways between the man and his two wives, Alkadevi would get 8 katta and 3 dhur.

In 1993, a case was finally filed in the Supreme Court to amend the Civil Code and give women equal rights over property. It would take almost 9 years before a Bill finally passed on Parliament on March 14, 2002. It came into effect from September 27, 2002.

The new law establishes a wife's equal right to her husband's property immediately after marriage, rather than after she reaches 35 years of age or has been married for 15 years as before. A widow's right to claim her share of property from the joint family after her husband’s, and to keep this property even if she gets re-married, is also established in law.

But legal professionals say that women still have difficulty getting property. Most common are counter-lawsuits which show the man is bankrupt, therefore making it difficult for the woman to claim anything. Counter-lawsuits showing loans, and even property division between brothers are common in cases where estranged wives ask for property. Advocate Ram Lal Sutihar, who is fighting the case pro bono for a fellow villager, says that he has five or six other women in the same predicament.

In the evening, judge Pudasaini gives his verdict: Alkadevi will get her share of property, Manik Chand Shah will pay his loan, and the forgery case is dismissed.

Alkadevi, who’s been coming to the Courts for two years, may have the satisfaction of knowing she won her case. But getting the property is another matter. The land is under “rokka” – it cannot be bought or sold until the loan is cleared. The case can indefinitely be lengthened.
Some of the property cases have taken 20 years to settle, going from the district to the Appellate and then to the Supreme Court level. In one extreme case involving an uncle and a nephew, the uncle finally died after the case had reached the Supreme Court after 15 years. His sons were in India and did not care about the land in Nepal. The nephew, who has spent almost one lakh in legal fees, eventually couldn’t make it to the final hearing in the Supreme Court in Kathmandu because the trip from Nepalgunj would have cost him too much time and money.

The legal game is about wearing out the adversary and supporting the lies of our clients, a lawyer candidly admits. If Manik Chand Shah plays his cards right and hires a good lawyer, Alkadevi will have gotten justice through the Courts of Nepal, but she may never get her property.

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