Adding insult to injury: Nepali women, children grapple with statelessness

At 13, Sanumaiya Chhetri left her village in Kavre and arrived in Kathmandu in search of work to support her parents. But just six months after coming to the capital city, she had to return home following the death of her father. She had to stay behind to look after her mother; her plan to work her way out of poverty was postponed. Eighteen months after her father’s passing, Sanumaya lost her mother. Orphaned at a young age, Sanumaiya spent some time in the village, until she finally decided to go to Kathmandu once again. 

She started working odd jobs here and there in order to survive. Some years later, Sanumaya would marry Krishna Chhetri, whom she met while working as a wage laborer. The couple had three children, but their marriage was far from ideal. Krishna was an alcoholic and it was up to Sanumaya to raise the children. 

Sanumaya says her husband disappeared some 40 years ago, and that she can barely remember his face. She is 74 now and all her children are adults now. Sanumaya, who lost her parents at a young age, doesn’t have citizenship, neither does her three children, whose father disappeared four decades ago.

“The lack of citizenship documents troubles me every day,” Sanumaya, whose concern is that her children may not be able to find decent jobs and open bank accounts. 

Three years ago, Sanumaiya petitioned the Supreme Court after the District Administration Office (DAO), Kathmandu, claimed that the family can’t be granted citizenship as her husband’s identity couldn’t be ascertained. On 8 Jan 2023, a joint bench of Justice Til Prasad Shrestha and Justice Anil Kumar Sinha ordered the DAO to issue citizenship certificates by descent to Sanumaya and her children in accordance with the law. But the DAO didn’t issue Sanumaya a citizenship document, as she couldn’t provide proof of her parents’ nationality. 

Chief District Officer Jitendra Basnet says that despite the passage of the Citizenship Act, challenges persist due to the absence of rules and procedures. “The basis and procedure for granting citizenship haven’t  been decided yet. So the court’s order remains unimplemented.” 

Madhab Prasad Dhungana, head of the citizenship department, argues that a citizenship can’t be granted based on emotions. 

“In Sanumaiya’s case, the court ordered the chief district officer to look into the issue and grant citizenship. However, there’s a lack of documents to support this decision,” he says. “She doesn’t have any neighbors or relatives to vouch for her, the only testimony is from the ward office, stating she’s been living in Kathmandu-4, Chandol for 40 years.”

Without citizenship, Sanumaya cannot get senior citizen’s allowance and other state facilities. Her children have long since moved on, and she lives alone in a rented room. She says she is too old to frequent courts and government offices. 

Reluctant DAO

Unlike Sanumaya, Neha and Nistha Thapa have not given up. The two sisters have been visiting the DAO, Kathmandu, to obtain citizenship documents under the name of their mother. The Supreme Court has instructed the DAO to provide citizenship to the sisters, as the whereabouts of their father are unknown. Neha and Nistha don’t even know any close relatives from their father’s side.

“Despite the court’s express instruction, the district administration office is refusing to issue us the citizenship documents under our mother’s name. The office wants us to present our missing father just because his name was mentioned on our academic certificates and other documents,” says Neha.  

Without citizenship papers, Neha says she and her sister cannot find a proper job. The other Nistha wants to go abroad for further studies, but she cannot do so until and unless she has a proper citizenship. 

“Is it our crime that we  know the name of our father who disappeared after giving birth to us? Why cannot our mother, who raised and educated us, pass on her citizenship to us?” laments Neha.

Advocate Binu Lama, who is overseeing the case of the two sisters, insists that the DAO cannot deny citizenship to her clients because they mentioned the name of their missing father on their academic certificates and other documents. 

“The district administration office should honor the court’s decision. They cannot be asking my clients for the details of their father’s citizenship details just because they happen to know his name.”  

The predicament of Neha and Nistha mirrors that of Sajan and Simran Manandhar from Lalitpur. The DAO, Lalitpur, has denied them citizenship by descent under their mother’s name, because their academic and birth registration certificates bore the name of their father.

Sajan and Simran also fought the case and got an order from the Patan High Court, issued in the name of DAO, Lalitpur, to issue citizenship documents based on their mother’s name. But the siblings were rebuffed by the employees at the DAO, Lalitpur. 

“We were told that it was impossible to issue citizenship based on a court verdict. The people at the district administration office told us to get our citizenship from the people who pronounced the verdict,” says Sajan.

Patriarchy persists 

Despite the passage of the Nepal Citizenship (First Amendment) Act, which resolves numerous past citizenship issues, it remains inadequate in addressing the challenges faced by thousands of people, including Sanumaiya, Neha, Nistha, Sajan and Simran.

Advocate Lama says while this Act has provided relief for those denied citizenship by birth, it falls short in alleviating the struggles of mothers like Sanumaiya and her children. 

“Despite the positive role of the court, discrimination persists within the administration,” she says.

Advocate Meera Dhungana says that despite the court rulings favoring the plaintiffs in numerous cases, chief district officers are reluctant to follow the orders.

She adds that the court orders face implementation challenges due to the resistance of chief district officers and other employees who refuse to acknowledge the existence and role of women in Nepali society. 

“Patriarchy is at play here. A woman’s role as a parent is not being recognized. Why can’t a mother who can give birth and raise a child give the child a legal identity?”

Lama adds there is no law prohibiting citizenship issuance under the mother’s name when the father is unidentified.

 “There is no law preventing children of mothers with citizenship by descent from obtaining citizenship,” she says. 

According to her, the inclusion of certain points in the existing Citizenship Act, along with a clarified procedure, could resolve the issues like that of Sanumaiya’s. However, there is a lack of consensus among political parties to amend the law. Sub-section 5 of Section 2 of the Act stipulates: “A person born in Nepal to a Nepali citizen mother and living in Nepal, and whose father has not been identified, will acquire Nepalese citizenship on the basis of descent.” Chief district officers have no clarity on the term ‘not identified’.

Advocate Dhungana points out that numerous children who only have knowledge of their father’s name struggle to obtain citizenship. 

“It is unfortunate that even with a mother possessing citizenship by descent, children whose father’s name is documented in other papers are compelled to remain ‘non-citizens’,” she says. 

Landmark verdict 

The Supreme Court recently made a significant decision addressing the matter of unacknowledged paternity. On Aug 17, the court ruled on a writ filed by Christina Maharjan from Lalitpur Mahalakshmi Municipality-6, elucidating the issue of unidentified fathers. 

Christina filed a petition in the apex court, requesting birth registration and citizenship recommendations exclusively under her mother’s name. Despite having a copy of her father’s citizenship, Christina refused to accept citizenship under his name, citing his abandonment of parental responsibilities. Consequently, she applied for citizenship using her mother’s maiden surname.

In this instance, on Aug 17, the bench comprising a joint bench of Justice Anil Kumar Sinha and Justice Nahkul Subedi emphasized that a child’s father’s identity is connected to factors such as his physical presence, the affection and care provided, and the responsibilities undertaken for the children by the person regarded as the biological father. 

The judgment further stated that if there is no physical and emotional connection between the child and the alleged father in their life, the father should be deemed non-identified. The Supreme Court emphasized that even if the child lacks a physical or emotional relationship with the person identified by the mother as the biological father, they are not obligated to accept him as the father. 

The court asserted that such acceptance should not be forced. The verdict also provided clarification on how to determine whether the father has been identified or not.

The verdict states that officials issuing citizenship should determine whether the father is ‘identified’ or ‘not identified’ based on the applicants’ self declaration. It also states that if the biological father or his family members don’t accept them as their children, officials issuing citizenship should deem the applicants as being children of ‘not identified’ fathers. In such cases, where an individual seeks citizenship solely under the name of their mother, citing the non-identification of the father, it is the responsibility of the relevant office to facilitate the grant of citizenship, the verdict states.

Even with this judgment, the challenges faced by Sanumaiya and her children, as well as Neha, Nistha, Sajan and Simran remain unaddressed. 

Advocate Sushma Gautam, with extensive experience in citizenship matters, accuses the district administration offices of committing a crime by disregarding court decisions. 

“Even the Citizenship Act has failed to resolve the issues faced by individuals like Sanumaiyan or Neha. This Act is discriminatory and incomplete,” she says.

As per Clause 2 of Article 11 in Part 2 of the Constitution of Nepal, if an individual’s father or mother is a citizen of Nepal at the time of their birth, that person should be recognized as a citizen of Nepal. However, the absence of laws, regulations, and procedures to enforce this constitutional provision has compelled many Nepali citizens to be categorized as non-citizens. 

Rabindra Prasad Acharya, spokesperson for the Ministry of Home Affairs, asserts that adherence to the written law is imperative. 

“We must strictly adhere to the constitution through legislation. If the law is perceived as discriminatory, it is the responsibility of the lawmakers. We cannot surpass the boundaries set by the law.”

Advocate Gautam highlights that in the constitution and the new law, there is no provision for children to acquire citizenship if the father’s name is known but the address is unknown. However, if both the father’s name and address are unknown, the child can obtain citizenship through the mother’s name. 

“Thousands of people across the country have documents with their father’s name on them, but their address is unknown and they have to remain without citizenship,” she says.

Insulting provisions

In sub-section 3 of section 21 of the Citizenship Act, a provision has been introduced requiring any woman to self-declare the status of her husband as missing, unidentified, or absent. If this self-declaration is determined to be false, the individual making the false statement may face penalties, including imprisonment for six months to a year or a fine ranging from Rs 50,000 to Rs 100,000,  or both. 

Sabin Shrestha, director and advocate at the Women’s Law and Development Forum, argues that the provision requiring self-declaration about a missing husband constitutes discrimination against women.

“The state has adopted differentiated treatment towards women by incorporating such a provision into the law. Nurturing children without a husband is inherently challenging. Therefore, seeking the husband’s identity while determining the citizenship of children raised amid hardship is inappropriate.” says Shrestha. “If the mother holds citizenship, her children should receive citizenship unconditionally. The law reinforces the outdated notion that only men carry forward the lineage.” 

Former judge Balaram KC questions: “Why is the system of self-declaration and punishment only applicable to women? Is there a provision for a man to declare himself regarding his wife?” 

He emphasizes that the law should not discriminate between men and women.

Bhadrakali Pokharel, spokesperson for the Supreme Court, says that disputes of this nature can be resolved by adhering to the precedents established by the court. 

“Even though thousands of cases related to citizenship of various natures are registered across the country, we do not have separate data for cases like Sanumaiyan’s.” 

Hari Prasad Sharma, assistant chief district officer Kathmandu, reveals that numerous individuals with such issues visit the administration office daily, hopeful of obtaining citizenship. 

“It is challenging to provide an exact number, but this problem is widespread, and it needs to be addressed through legal means.”

Hollow nationalism

Shashi Shrestha, chairman of the State Affairs Committee in the former House of Representatives, contends that the constitution itself carries discriminatory elements. She attributes the creation of discriminatory constitutions and laws to the mindset of many representatives who do not view women as human beings. 

Shrestha asserts that she advocated for equality, considering provisions in the constitution exclusively for women as discriminatory. 

“When we proposed equal arrangements, there was disagreement. It wasn't possible due to concerns about ‘hollow nationalism’.”

Former Supreme Court justice Balaram KC asserts that this issue emerges when lawmakers neglect their responsibilities. 

“Mothers who are aware of their husband’s name are also compelled to lie, claiming ignorance, fearing that their children will be denied citizenship.” KC says. “The government's hollow nationalism has led to such flaws in the law. The practice of seeking the father’s identity while the mother is present is incorrect.”

Constitutionalist Bipin Adhikari advocates for the establishment of a procedure within the current legal framework to address the existing challenges in obtaining citizenship. 

“Our law has its roots in Hinduism, and this continuity is reflected in the present legal system. It is inherently discriminatory,” he points out.

In collaboration with the Center for Investigative Journalism, Nepal