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Established Principle
In determining the punishment it is necessary to determine the nature as well as the limit of the punishment. Any country while preparing the model of criminal justice system, it is indispensable to be clear about the policy of determining sentence. It is not only appropriable but constitutional necessity to have clear standard of fixing sentence. It is not constitutional to fix different punishment to the offender of the similar status for similar offenses.
In absence of national sentencing policy, the judiciary has to make consistent judicial understanding for fixing similar sentence and similar limit of sentence to the offender similarly situated, while selecting among the prevailing alternatives and limit of punishment. It is necessary to systematize the exercise of discretionary power through guidelines.
Established Principle
Any person detained during investigation shall not subjected to physical or mental torture, how far it will be legitimate and justifiable to imagine a person to inflict torture or inhuman behavior who is not charged of any criminal offence or not detained in custody for investigation process.
It will be erroneous to say that the person who is not detained in custody during investigation or for trial or for any other reason shall be denied to enjoy his rights. Since the aforementioned provisions of the international treaties prohibit torture and inhuman degrading treatment, it will not be appropriate legitimate to make any law contrary to the aforementioned provisions.
Lot of incidents of torture related activities are found in practical life of the child. The activities permitting torture and inhuman behavior are not valid and justifiable.
Established Principle
Established Principle
According to the provision of the above mentioned Clause (b) of the Section 4(2), it is not necessary to have complete act of trafcking and transportation to constitute the crime. Taking such person from his/ her home or place of residence or separating from guardian for the purpose of trafficking is sufficient to constitute the offence even if it is yet to reach to the place of destination.
In No 2 of the Chapter on Marriage, it is provided that “…no one shall arrange to marry nor cause to be married where the male and the female have 285 not completed the age of Eighteen years with the consent of the guardian and that of twenty years in case of absence of the consent of the guardian.”From the provision mentioned, the age limit of men and women has been based on the consent of guardian. While solemnizing/ conducting marriage, the age of men and women must be 18 years if there is the consent of guardians and 20 years if there is no consent of guardian. If there is no consent of guardian, marriage cannot be solemnized or caused to be solemnized unless the age of the men and women is 20 years. In this case, there is a plea that marriage has been solemnized between the defendant Lok Bahadur and the victim. According to that provision the appellants have neither made the plea that there was the consent of the guardian nor the victim had attained the 20 years of age. Asmentioned above, the age of the victim was 14 years at the time of occurrence and she had not attained the age of valid marriage and therefore, the so called marriage between the victim and the defendant was not a valid marriage but a child marriage.
In No 1 of Rape, it is provided that “If a person enters into sexual intercourse with a woman without her consent or enters into sexual intercourse with a girl below the age of Sixteen years with or without her onsent shall be deemed to be an offence of rape.”
Established Principle
Money Laundering Prevention Act has been brought into effect with the purpose of providing preventive measures that the property earned from criminal activities shall not be invested in criminal activities again and the criminal activities be prevented. The offence of money laundering is not a predicate offence in itself, it is secondary offence as the byproduct of the substantive offence. The offence committed with the purpose of laundering the asset acquired from committing the substantive offence by concealing that offence and the asset acquired therefrom falls under the purview of this Act.
It is also a multi-dimensional financial offence. Since the underlying (substantive) offence is often concealed, it is not necessary to establish whether the person actually committed that offence or had the intention to commit it.
Accordingly, Section 28 of the Act states:
“If the assets of a person appear unnatural in comparison to their income source or financial condition, and if he or she fails to prove the lawful source of such assets, it shall be deemed that the assets were acquired through offences under this Act.”
In cases where a person’s property appears disproportionate or unaccounted for, the burden of proof lies on the individual to establish that the assets were lawfully acquired. If the defendant fails to provide satisfactory proof, it is presumed that the property was obtained through criminal means.Importantly, the law does not require the prosecution to prove the exact illegal activity from which the asset was derived. It is sufficient for the state to seize the property if its source is hidden or unjustified.
Money laundering falls under the extra-territorial jurisdiction of the law, meaning it applies to any person or entity, regardless of nationality or location. The law is enforceable throughout Nepal and extends to anyone involved in transferring assets to or from Nepal, whether a Nepali or foreign citizen.
Carrying an amount is one thing and proving the source of unnatural asset is another thing. The notice issued pursuant to Section 5 of the Foreign Exchange (Regulation) Act, 1962 has exempted the legal money to be carried from one country to another of the currency that is in circulation of the respective country taking into view of the friendly and cultural relationship between Nepal and India. The notice has not exempted for hiding the legality of the money or it is not stated anywhere in the notice that the source of such an amount need not be proved by its holder.
Established Principle
This jurisprudence does accept the approach which looks at the body and health of the victim and believes in the concept that in ordinary conditions, it is not possible for a man or woman to have sexual intercourse with a healthy adult male or female equivalent to him/her and the victim must have screamed and protested marks of resistance must be seen. The mental condition of the victim and the circumstance thereof must also be taken into consideration.
From the use of the term ‘power and authority of the ofcial conducting the deed it is obvious that if the matter is expressed in the condition without putting into fear, pressure, allurement, promise, deception it is admissible as evidence against him.
It is natural to provide the security of 2/4 police if the defendant has to be taken to the place like hospital or court for the purpose of protection not to let the defendant ee away or not to allow the defendant to inuence the physician to prepare report in his favor. However, it cannot be said that the will power of the defendant was controlled by the presence of police in that normal way. The statement taken in the place where there is no general approach of common people and the act done in the public place like hospital where there is the approach of common people cannot be placed in the similar class.
The defendant has not pleaded that the victim had not made any protest freely. In such a condition if it is proved that sexual intercourse had taken place it is ipso facto proved that the offence of rape had taken place. Apart from this, the above mentioned ranges of consent and the evidences including testimony of the physician with certainty the charge against the defendant has been proved with objective evidence beyond doubt.
Established Principle
For same offence of abortion provision of different punishment for a pregnant woman and for the other person who compel for abortion do not seem rational and based on wisdom. No. 28 is the provision for penalize a pregnant woman and No. 28a and 32 are applicable for all whether man or woman, so the provision cannot be regarded as discriminatory on gender perspective, yet the maximal penal provision for a pregnant woman and minimal for those encouraging man or woman for the offence of abortion is discriminatory.
Based on the gravity of the offence the penal provision stipulated for offenders other than a pregnant woman is minimal. For the offence it should be rational and based on wisdom to make the same penal provision as is for a pregnant woman. The penal provision of No. 28 is relatively appropriate.
Therefore, the directive order is issued in the name of respondent the Council of Ministers and Office of the Prime Minister to carry out necessary amendment in the Sapana Pradhan Malla and others Vs. Office of the Prime Minister Landmark Decisions of the Supreme Court of Nepal 39 40 legal provision of No. 28a and 32 or for enactment of appropriate legal provision in relation to the penal provision on offence relating to abortion in harmonization with that provision.
Established Principle
In the journey of life, spouses are expected to support each other physically and mentally. If a life partner becomes physically or mentally ill or disabled, forcing a separation or annulment of marriage under such circumstances contradicts the legal intent of the Act. A wife who has been deceived or coerced into an unlawful marriage does not have the right to abandon or reject her husband as part of her personal rights under the right to life.
The court, being sensitive to matters deeply connected to an individual’s personal life, must exercise judicial discretion within the scope of existing legal provisions and ensure that justice is served adequately to the aggrieved party.
Established Principle
Regarding legal issues related to limitation periods and ownership rights (possession and title), even if a case is pending before any level of court, such court is empowered to adjudicate and decide on these matters. When a case involves questions of limitation and ownership rights, regardless of the court level where the case is pending, the court must first determine the issues concerning limitation and ownership rights before proceeding to the substantive matters of the case.
The law prescribes a specific limitation period within which a case must be filed. Therefore, the case must be initiated within the prescribed limitation period. If cases could be filed at any time, there would be no need for legal provisions governing limitation periods. The legislature has established limitation periods to avoid indefinite uncertainty about when a case can be brought.
If the law sets a limitation period for filing a case, the party initiating the suit—whether an individual or a government entity—must file the case within that prescribed period. If a case is filed after the expiry of the limitation period, the court has no jurisdiction to provide relief or entertain such a suit.
Established Principle
The mere absence of the terms “dowry” or “pewa” in the land purchase deed does not justify presuming that the property is joint family property.
If a co-parcener acquires property independently—without utilizing joint family assets—through their own labor, skill, or by gift/donation, such property must be considered self-acquired property.
Established Principle
For property to be recognized as dowry, it must originate from relatives or well-wishers of the woman’s parental or maternal family.
To qualify as pewa, a written deed of consent must be executed by the husband or all co-parceners from the husband’s side, acknowledging the transfer.
Property acquired through a gift deed from a full sibling who is not a co-parcener shall be deemed the exclusive, self-acquired property of the recipient and not part of the joint family estate.
Furthermore, when a house or land acquired through borrowed funds has been legally determined as self-acquired property, and thus not subject to partition among co-parceners, any contention that the associated debt should nonetheless be distributed among the co-parceners is legally unfounded and without merit.
Established Principle
While adjudicating a matter, the presiding judge must carefully examine the circumstances under which the disproportionate distribution of property among co-parceners has occurred, particularly when equal partition of ancestral property is not evident.
In situations where one co-parcener has accumulated property through personal effort and diligence, while another has squandered or misused existing assets, it is not reasonable to expect equal division of property among them.
Furthermore, where the plaintiff’s father has already sold or distributed his share of the ancestral property prior to the dispute, the resulting inequality in the proportion of inherited property between the plaintiff and the defendants cannot be deemed unnatural, nor can it be interpreted as an unjust or disproportionate distribution of ancestral property.
Established Principle
Where ancestral or immovable property is found to exist in the name of the common ancestor or in the lineage of one branch of the family, but the descendants of another branch are deprived of ownership, possession, or inheritance—whether due to legal, factual, or circumstantial reasons—and are left without any property derived from ancestral or other lawful sources, the resulting injustice and hardship suffered by such descendants shall be carefully examined by the Court.
In such cases, the Court is obligated to render justice by undertaking a thorough assessment of the facts, available evidence, prevailing customs, procedural norms, and legal doctrines, so as to ensure an equitable and legally sound adjudication of the matter.
Established Principle
Although contractual obligations may commence from the date of agreement between the parties, it is generally expected that a contract includes fundamental terms such as: the specific tasks to be performed, the timeline for their completion, the consequences of non-performance, and the conditions under which the contract shall be deemed terminated.
Since contracts are entered into by the parties with lawful expectations and for achieving mutually beneficial outcomes, it is not possible to predict in advance the exact date on which the contract may be breached. However, the determination of whether a contract has been breached must be based on the conduct, actions, communications, and circumstances of the parties, particularly in relation to the violation of agreed terms and conditions.
Established Principle
The provision of Section 88 of the Contract Act, 2056 does not determine the validity or invalidity of a contract, but rather concerns whether a document lacking a required condition is enforceable. Similarly, Section 507(3) and Section 519(2)(b) of the National Civil (Code) Act, 2074 state that a contract requiring certain formalities, procedures, or registration with an authority under the law shall not be enforceable if such formalities or procedures are not fulfilled or if it remains unregistered.
From the study of these provisions, it is clear that the law addresses the procedural enforceability of such contracts. To be enforceable, the specified legal formalities must certainly be fulfilled. However, this does not mean that the contract itself becomes illegal or invalid.
Established Principle
A court order to transfer ownership of immovable property based solely on an immature (premature) document—one that lacks the prescribed legal formalities or the mandatory registration with a government office as required by law—is neither appropriate nor justifiable, especially in the absence of a legal provision allowing termination of one party’s rights and acquisition of another’s rights in immovable property on such a basis.
A court order to transfer ownership of immovable property based solely on an immature (premature) document—one that lacks the prescribed legal formalities or the mandatory registration with a government office as required by law—is neither appropriate nor justifiable, especially in the absence of a legal provision allowing termination of one party’s rights and acquisition of another’s rights in immovable property on such a basis.
Established Principle
Established Principle
The decision of the Council of Ministers made on 2052/06/10, which required women to obtain guardian consent to receive a passport, was found to be unconstitutional and illegal.
In essence, the precedent reinforces that gender-based restrictions, such as denying passports to women without male consent, violate constitutional rights and the rule of law.
Established Principle
Established Principle
Article 48 of the Commercial Banks Act of 2031 states that “no matter what is written in the prevailing Nepali law, the relationship between the bank and the customers, as well as the bank’s account book and account details, will not be disclosed to anyone except the person concerned.” In such a case, the court should not order the bank to make a copy of the documents requested by the petitioner in the writ petition available to anyone other than the bank account holders.
Established Principle
If someone suffers a loss as a result of someone else’s negligence, the negligent party will be compensated in full. Because it is not justifiable for the plaintiff to claim that he will be unable to deposit his money due to the bank’s negligence without even receiving the certificate, the plaintiff will receive a total of Rs. The decision of the zonal court is regarded as reasonable.
Established Principle
The Supreme Court’s ruling in Jhawarmal Goenka’s case against Rastriya Banijya Bank’s Janakpur branch set the precedent. On March 9, 2008, a full bench of Judge Hiranyeman Pradhan and Justice Rudra Bahadur Singh decided the case. This case established the following precedent:
Established Principle
The court may issue an order under the extraordinary powers granted to it in the following cases:
Established Principle
In the writ petition filed by Ram Chandra Chataut 064-WO-0053, a precedent was established that the agreement reached on October 29, 2006 between the then Royal Government and the Multinational company based in Australia Snowy Mountains Engineering Corporation – SMEC and the West Seti River project agreement was not held as a contractual agreement between two countries or the agreement relating to the West Seti River project or the agreement relating to the distribution of multinational natural resources The aforementioned business contractual agreement required the company to generate hydropower electricity and sell it for a specified period of time. As a result, it cannot be said to have its uses and resources distributed.
Established Principle
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