The government is preparing to make a legal provision with reduced punishment for consensual physical relations between teenagers of the same age group.

Preparations for making such a legal provision have been initiated by the Ministry of Law, Justice and Parliamentary Affairs. The government has taken the process forward after a study task force formed by the ministry under the leadership of Law Secretary Parashwar Dhungana, at the initiative of Law Minister Sobita Gautam, recommended the formulation of such a law.

Law Minister Gautam had decided to form a study task force to address rape cases as one of her first decisions after assuming office on Chaitra 13.

The study committee formed on the basis of that decision had concluded that a law on 'Romeo and Juliet' was necessary in Nepal. This suggestion was made in the section on legal reforms of the ‘Study Report on Removing Obstacles in Laws, Including the Criminal Code, to Punish Offenders and Provide Speedy Justice to Victims of Heinous Crimes such as Rape and Murder Following Rape, Sexual Violence and Crimes against Adolescents’.

An 8-member study task force was formed under the leadership of Law Secretary Dhungana, including Senior Advocate Mira Dhungana, the Supreme Court, the Attorney General’s Office, Nepal Police, Nepal Bar Association and independent legal practitioners. This committee was formed to improve the legal problems seen in providing speedy justice in rape cases and hearing cases on a fast track in the case of women and children.

The committee is going to include the ‘Romeo and Juliet Law’ of developed countries in the Criminal Code as a ‘provision regarding consensual sexual intercourse between adolescents’. The report has also recommended three main provisions for this. The report mentions ‘age appropriateness, protection from criminalization and maintaining the principle of human development’. The report mentions that four issues need to be improved for this. The law on rape, the law on children, the law on women and sex education need to be improved, and the ‘Romeo and Juliet Law’ was suggested because it was seen that ‘Romeo and Juliet Law’ is needed, said Secretary Dhungana. He claims that instead of making a separate law for this, it will be included in a section of the National Criminal Code. As soon as the report was approved by the Council of Ministers, the Law Ministry has also started discussions for drafting. The Law Ministry is preparing to move the ‘Some Nepal Acts Amendment Bill’ or the Code Amendment Ordinance in the parliament to reform other laws including the National Criminal Code.

In point number 5 of the report, it is suggested that a law on ‘Romeo and Juliet Law’ is needed. The report notes that in 2016, the UN Committee on the Rights of the Child recommended that the minimum age for marriage be 18 years, and that international standards on the age of consent recommend that policies be formulated taking into account the evolving capacities and maturity of adolescents, rather than setting a fixed limit.

‘The UN has urged states not to criminalize consensual and non-exploitative sexual activity between adolescents of the same age,’ the report says, ‘However, many countries are raising the age of consent to match the age of marriage to 18 in order to promote social acceptance, control teenage pregnancy and legal uniformity.’ In the above-mentioned background, there is a need for a ‘Romeo and Juliet’ law.’

For this, Law Secretary Dhungana delivered a Supreme Court verdict. On 28 Kartik 2079, the Supreme Court had delivered a verdict regarding rape and kidnapping. The case of a teenager from Saptari had reached the Supreme Court via the district court and the High Court. He was in a relationship with a neighboring teenager, and they had physical relations. When the family found out, they eloped and got married. At that time, the teenager was 15 years old and the teenager was 17 years old. The family filed a police complaint against the teenager for kidnapping and rape. The police arrested him and filed a case in the district court. The district court acquitted him.

Both of them could not be separated and lived together and a child was born. However, the case reached the High Court from the District Court. The Biratnagar High Court sentenced a person to 7 years in prison and a fine of Rs 50,000. Since the victim is a minor, an additional 2 years in prison was also ordered. The teenager approached the Supreme Court against this. The Supreme Court acquitted him of rape and kidnapping, but sentenced him to 6 months in prison for child marriage.

Law Secretary Dhungana said that the government has started preparing to formulate a 'Romeo and Juliet Law' to address the increasing number of such incidents. He said that there is an example not only in Saptari but also in Pokhara where a teenager has been imprisoned on charges of rape after an inter-caste love marriage and has been imprisoned in many other cases.

What is 'Romeo and Juliet Law'?

According to the Civil Crimes (Code) Act, 2074, there is a provision that no one can marry or get married before the age of 20. There is a provision that marriages made contrary to this will be automatically void and the offender will be imprisoned for up to 3 years and fined up to 30,000 rupees. Before this code was introduced, the minimum age for marriage was 18 for women and 20 for men. The relationship between teenagers who are in love without the consent of their parents, who have not reached the age of marriage, was named the 'Romeo and Juliet Effect'. On that basis, the concept of 'Romeo and Juliet Law' was developed. The play 'Romeo and Juliet' written by the world-famous writer William Shakespeare was taken as its starting standard. Since Juliet, who is in love with her parents and is 14 years old, and Romeo is 15-16 years old, it is called 'Romeo and Juliet Law'.

The report mentions that this law will prevent the criminalization of consensual love or sexual relations between teenagers who do not have much age difference. Law Secretary Dhungana said that it has been suggested to implement such a law if the age difference is up to three years. He said that if the age difference is more than that, the regular law will be applied. 'If this law is implemented, only a general punishment can be imposed,' he said, 'If the age difference is too much, the regular law will be applied.' He said that the National Criminal Code will be amended without making a separate law for this. 'Many people are in prison. There are cases of teenagers who get married by consent at the age of 16 and go to prison, and when they are in prison for a long time, their wives wander around demanding justice,' Secretary Dhungana said. 'This only covers relationships between teenagers of the same age group or those who do not have much age difference.' This applies only to relationships that are consensual. It does not exempt coercion, exploitation or harassment under any circumstances, the report says. Generally, the law automatically considers sexual relations with children under the age of 18 as rape. However, this provision recognizes that it is not appropriate to give the status of ‘criminal offenders’ when both parties are teenagers. Secretary Dhungana said that this law distinguishes between sexual harassment and natural attraction during adolescence. The report states that the purpose of this law is to punish those who cause harm, but not to criminalize the process of normal human development.

Task Force member and senior advocate Mira Dhungana said that she felt that there was injustice in cases of consensual relationships and marriages before the age of consent and suggested reforms. "We have made this suggestion because of the number of people in prison and the compulsion to punish consensual marriages as serious crimes," she said. "Now the government will prepare the necessary draft for law reform and move forward."

Such a law was also discussed in the previous parliament session. The then Home Minister Ramesh Lekhak had said during the discussion of the Law, Justice and Human Rights Committee of the parliament on 10 Chaitra 2081 that the issue of 'Romeo and Juliet Law' was being discussed. Gopal Krishna Ghimire, former president of the Nepal Bar Association and expert in criminal criminology, said that since the law should be made in line with the times and should be improved according to society, making legal provisions related to Romeo and Juliet Law would be positive, but attention should be paid to the fact that criminals can escape under the guise of it.

Similarly, former member of the National Human Rights Commission and advocate Mohana Ansari said that it seems that she is trying to bring it about the impact on the youth, but she said that it should be brought after looking at social engineering. ‘When creating such laws, women should be aware of their risks. Their socio-economic aspects should be included,’ she said, ‘There should be a comprehensive discussion on this. It should not be brought about by looking only at a Supreme Court verdict or order. There should be sufficient discussion.’ She said that since this law will also reduce the age of marriage, it should be discussed scientifically. She argued that only by discussing extensively now that problems will arise later and moving forward, it can be used correctly, otherwise there is a risk of misuse.

Former general secretary and advocate of the Nepal Bar Association, Ajinta Khanal, said that the effort to include consensual physical relations between adolescents with a small age difference in the Criminal Code is positive, as it requires a separate law from rape. However, she said that both should be made equal partners in this. ‘In the past, only boys were victims and girls had to be left alone,’ she said. ‘Similarly, when making such a law, special awareness should be exercised that more children could be victims or the law could be misused.’

In the past, according to the Children’s Act, boys were punished and girls were protected, but now, she suggests that if equal punishment is given to people of equal status, it should be studied. Her suggestion is that this law should cover what the current law has not covered.

International law expert and advocate Laxmi Pokharel commented that it may have been brought to address the fact that rape occurs even with consent under the age of 18, but it is not a correct understanding to say that young people are being punished on this basis.

‘The issue of lowering the age of marriage has come up for discussion.’ The impact of this should also be studied in the case of girls,’ Pokharel said. ‘If the law itself says that sexual intercourse is consensual and not rape, it can also affect the health, education and other aspects of girls.’ There is a fear that it will lead to recognition of child marriage. Pokharel said that when making laws, all aspects should be considered and that attention should be paid to the fact that girls are more vulnerable.

Since today, from social media to food and housing, it seems that people are mature at a young age, but they cannot mature based on their decision-making ability, she argues that the age of marriage in Nepal is set at 20 years, and it should not be based solely on the UN's 18 years.

'The age of marriage has been set at 20 years considering the situation in our country. The SID has said at least 18 years. It can be anything above that,' she said. 'My argument is not to say that such a law should not be made. However, its impact should be evaluated in advance.'