Child Custody Laws in Nepal: Protecting the Best Interests of the Child Under the Muluki Civil Code 2074

Children have the right to be raised in an environment that promotes their overall development. When a marriage ends and a couple separates, the child is often the most affected. However, protecting the welfare of children is the primary factor to consider when deciding. Which parent should have custody of the children? Both mothers and fathers have equal rights to custody of their children, but the court decides who gets custody.

When parents' relationships deteriorate and lead to separation, children's rights are jeopardized. Even in cases of divorce or separation, children's rights must be protected. Parents often struggle to maintain control over their children, leading to complex issues like maintenance fees. Determining the 'custody of the child' involves determining who has control over the child, including decision-making authority and financial responsibility.

Black’s Law Dictionary defines Custody as “the authority to make significant decisions on a child’s behalf including decisions about education, religious training, and health care”. However, it is not inclined towards who can have control over the child, rather is about the protection of the child as a person, physically, mentally, and morally. Child custody is a legal responsibility to educate, take care of, guide, and supervise the children from their responsible parents after the separation of their parents. Legal provisions relating to child custody after divorce in Nepal are guided by the Muluki Civil Code 2074.

Muluki Civil Code 2074, sec 105 states that maternity or paternity is to be determined by the mother or father.

• Maternity or Paternity is to be determined on the basis of his/her mother or father.
• Paternity is determined on the basis of a person who was the husband of his/her mother at the time of birth of such person.

Muluki Civil Code 2074, sec 106 states that a child is presumed to be born from a married husband.

• A child born after one hundred eighty days from the date on which marriage was concluded.
• A child was born within two hundred seventy-two days from the date on which the husband dies or the divorce was effected.

Muluki Civil Code 2074, sec 110 states that if any dispute relating to maternity and paternity arises then its settlement shall be as decided by court.

Muluki Civil Code 2074, sec 115, states that child custody to be under the father or mother.

A minor born from them shall remain in the custody of the mother or the father as provided herein:

• In the case of a minor who has not attained five years of age, under the custody of the mother, if she so desires irrespective of whether or not she has concluded another marriage.
• In the case of a minor above five years of age, except where the mother has concluded another marriage, under the custody of the mother, if she so desires,
• In circumstances other than those mentioned above the custody would be of his/her father.
• In certain circumstances where the husband and wife have entered a separate agreement on the custody of a minor at the time of divorce or judicial separation, the agreement shall apply to the custody of a minor.
• If the minor is above 10 years of age while deciding the custody then the opinion of a child is considered.
• If the mother or father, under whose custody a minor is living dies, the surviving father or mother shall take the minor under his or her custody without any delay.
• If the mother has already concluded another marriage then she is not obliged to take a minor above five years of age under her custody.

Muluki Civil Code 2074, sec 115(5), if the husband and wife, who get separated in accordance with the law, have a minor, the maintenance, education, and health care of such a minor shall be according to the agreement concluded, between the husband and wife and in absence of such agreement, it shall be as follows:-

• In the case of a minor below five years of age, the minor shall be under the mother's custody,
• In the case of a minor who is five years of age or above five but below ten years of age, the minor shall be under the father’s custody,
• In case of a minor having attained ten years of age, the minor shall be under the mother’s or the father’s custody, with whom the minor desires to live.

Muluki Civil Code 2074, sec 116, states the obligation to take necessary care and provide maintenance.

• The father or mother who takes custody of a minor shall take care of and maintain such minor.
• If the income of the father or mother who does not take the custody of minor, is higher than that of the father or mother who takes the custody of the minor, such a mother or father shall provide such a minor with such expenses.
• Maintenance, education and treatment of the minor, as agreed between such father and mother and in the absence of such agreement as specified by the court.

Muluki Civil Code 2074, sec 117, states the facility of visit where the matrimonial relationship is extinguished or the mother or father are living separately then minor shall be allowed to visit from time to time, the father

• If he or she is living under the mother’s custody, the father is allowed to visit, if he or she is living under the father’s custody, the mother is allowed to visit.
• The frequency of visit to, or the period of stay with the father or mother shall be as fixed by the concerned mother and father and in the absence of such fixation, shall be as ordered by the concerned court.

Child custody is an important legal issue that ensures the care and rights of the child after the separation of his or her parents. In Nepal, the determination of maternity and paternity, custody arrangement, maintenance, and visitation rights has been clearly drawn out under the Muluki Civil Code 2074. The best interest of the child, which ensures his/her physical, mental, and moral development, is the basic bottom of all these legal provisions. The courts, however, consider factors such as the children's age, agreements between their parents, and their economic ability when granting custody. In sum, child custody law protects the well-being of a child by offering the child the needed care and comfort.