Children`s Act, 2048 (1992) - Central Child Welfare Board

Childre n's Ac t, 2048 (1992)
Da te o f the Ro ya l S e a l a nd P ub l ic a tio n Da te
2 0 49 /2 / 7 (Ma y 2 0 , 1 9 92 A.D .)
Am en dme nt Act
1 .Chi l d Labo r (P ro hi bi t i o n an d Re gu l at i o n) Act , 2 0 5 6
7 Ash ad 2 0 5 7 ( Jun e 2 1 , 2 0 00 )
Act N o. 10 of 2049 B.S.
Act re lati ng to protect the right s and inte rest of Chil dren
Pre amble : Wherea s, it is e xpedient to make timel y le gal pro visions in
order to protect the rights and interests of children for the physical,
mental and intellectual development of children;
Be it enacted by Parlia ment in the twenty first year o f the reign of
His Majesty's King Birendra Bir Bikram Shahdev.
Chapter -1
Preliminary
1.
Short Title and Commence ment : (1) Th is Act ma y be called as
"( The) Children's Act, 2048 (1992 A.D.). " ∗
(2)
It shall come into force on such date as Go vern ment of
Nepal ma y appoint by a notification published in the Nepal
Gazette.
2.
Definitions: Unless the subject or context otherwise require s, in
this Act, (a)
"Ch ild" means a minor not havin g co mpleted the age of
sixteen year s.
(b)
"Guardian "
means
the
guard ian
appointed
under
Section 22 for the purpose of protecting the Child.
(c)
"Ch ildren Welfa re Board " means the Central Children
Welfare Board and the District Children Welfare Board
∗
This Act has been appointed to commence on date 2050/1/1 B.S. (April 13, 1993 A.D.)
1
constituted under Section 32 for the protection and well
bein g of Children.
(d)
"Ch ildren Welfa re Officer " me ans the Children Wel fare
Officer appointed under Section 33 by Go vern ment of
Nepal and includes any other person or employee as
prescribed to act on behalf of such Offic er.
(e)
"Abandoned Child" means a Child, (1)
Who has no father, mother or any other me mber
of his fa mil y to look after him.
(2)
Who has been neglected by his father, mother or
any other me mber of his fa mily e ven though they
are livin g.
(3)
(f)
Who does not have any mean s of livelihood.
"Ch ildren's
Wel fare
Ho me "
means
the
Children's
Welfare Ho me established by Go vern ment of Nepal
under Section 34 for the purpose of upbrin gin g and
ma intenance of the abandoned child.
( g)
"Ch ie f of the Children's Wel fare Home " means and
includes any person who works as the Chie f of the
Children's Wel fare Home and the word also includes
any person who acts on behalf of such Chie f in his
absence.
(h)
"Ju venile R e for m Ho me " means Ju ven ile Re for m Ho me
established by Go vern ment of Nepal under Section 42
or any Juvenile Re for m Ho me bein g used for that
purpose.
(i)
"Pr escr ibed" or "a s prescr ibed " means prescr ibed or as
prescribed in the Rules made under this Act.
2
Chapter -2
Rights and Interests of Children
3.
Right to name and dete rmi nati on of date of bi rth of Chil d:
(1) From birth, every child shall be granted a name accordin g to
the religion, culture and tradition by his father, if the father is not
a vailable by his mother and if the mother is al so not a va ilable by
any other member of his fa mil y. In cases where the father, mother
or any other me mber o f his fa mily is not alive or their whereabouts
are not known, the person or organization bringin g up the Child
shall give a na me to such Child.
(2)
In ca se s where the date of b irth of an y child is not
traced, the person or organ ization bringin g up the Child shall, in
consultation with a registered medical practitioner, determine date
of birth of the Child. Unless otherwise pro ved, the date so
determined shall be deemed to be the date of birth of the Child.
4.
Right to maintenance and upbringing, educ ati on and he alth
care: (1) Parents shall be under obligation to make arran ge ments
to bring up Child and to provide education, health care, sports and
recreation fac ilitie s to child according to the financial status of
their fa mily.
(2)
Parents or guardian of a ch ild shall cause to administer
vacc inations necessary to sa ve the Child fro m diseases. The local
authorities and related agencie s of Go vern ment of Nepal shall
render assistance in this matter.
(3)
Go vern ment of Nepal shall render assistance in makin g
arran ge ments for proper health care to the pregnant mothers and
the mothers who have recently given birth to a Child.
(4)
Go vern ment of Nepal shall render assistance in makin g
arran ge ments for providin g ad vice to fa mily plannin g education
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and ser vices relatin g to pre ventive and curative health care to
parents.
5.
Disc rimination not to be made bet ween a son or daughter
and bet ween sons and daughte rs the msel ve s in matte rs
rel ating t o upbringi ng :
No discr imination shall be made
between a son and dau ghter and between sons and daughters
themsel ves in matters relatin g to their upbrin gin g, education and
health care.
6.
Disc rimination not t o be made bet wee n chil dren born out of
wedloc k or in l awful wedl oc k or bet ween the adopted or the
natural Child : (1) No discrimination shall be made between
children born out of wedlock or in lawful wedlock in matters of
their upbringin g education or health care.
(2)
No disc rimination of an y kind shall be made between
the natural or the adopted son or daughter.
7.
Prohibition on t orture or c ruel t re atment : No Child shall be
subjected to torture or cruel treatment.
Pro vided that, the act of scoldin g and minor beating to Child
by father, mother, me mber of the fa mily, gua rdian or teacher for
the interests of the Child himsel f/hersel f shall not be deemed to be
violation of this Section.
8.
Facilitie s t o be give n t o mai ntain c ontact : (1) In c ircu m stan ces
where parents of a Child are livin g separately due to divorce or
any other reason, the Child livin g with the father shall be given an
opportunity to maintain per sonal relation and direct contact with
the mother and vice ver sa on a re gular basis or be allowed to live
together with the other parents for so metime.
Pro vided that, court may re strict to grant the facilit y of
ma intainin g dire ct
contact or livin g to gether
if there
is a
reasonable ground to belie ve that such direct contact and personal
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relation or livin g with the other parent may be detrimental to the
Child's interest.
(2)
If parents do not a gree on the question of the fr equency
of ma intainin g direct contact or the duration of livin g with the
father or mother under sub-section (1), it shall be as prescr ibed by
the court.
9.
Adopte d son or daughte r t o be pe rmitted to make di rect
contact or c orrespondence with natural pare nts : A person
adopting a son or daughter ha vin g fulfilled the legal require ments
shall, if such adopted son or daughter wills, permit him or her to
ma intain direct contact or ma ke corre spondence with his or her
natural parents on a regular basis.
10.
Right to menti on t he name
of mothe r and mate rnal
grandfat he r : In ca ses where a Ch ild is requir ed under a law to
mention the name s o f h is father and grandfather in connection with
official
proceedin gs
or
practice,
the
Child
may,
until
the
whereabouts of his father are traced, mention the names o f his
mother and maternal grandfather. In ca se of a Ch ild either of
whose parents are not traced, if the person or organizat ion brin gin g
up the Child certifie s in writ in g that the parents have not been
traced, such Child shall have right not to mention the names o f his
father, mother or grandfather.
11.
Child and C rimi nal Li abi lity : (1) If a Child below the a ge of
10 years commits an act which is an offence under a law, he shall
not be liable to any type of punishment.
(2)
If the a ge o f the Child committin g an o ffence which is
punishable with fine under law, is 10 yea rs or abo ve and below 14
year s, he shall be admonished and convinced and if the offence
committed is punishable with imprisonment, he shall be punished
with imprison ment for a term which ma y extend to six months
depending on the offence.
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(3)
If a Ch ild committin g an o ffence is 14 year s or above
and below 16 years, he shall be punished with hal f o f the penalty
to be imposed under law on a person who has attained the age of
ma jority.
(4)
If a child commits an offence under advise or influence
of any person, the person doing such act shall be liable for full
punishment as per the law as if he/she has co mmitted such offence.
12.
Disqualific ati ons or counts not be applic able : (1) If a person
is to be disqualified to hold any office or to enjoy any fac ility
under
a
law
for
rea son
of
co mmittin g
an
offence,
such
disqualificat ion shall not be applicable with regard to the Child
committin g an offence durin g his/her childhood.
(2)
For the purpose of deter mination o f counts of offence,
an offence committed during childhood shall not be counted.
(3)
Even if a Child commits the sa me o ffence more than
once, he shall not be liable to additional punishment on the basis
of additional counts of offence.
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Prohibition to engage Chi ldren i n begging and t o Shave
hai r :
(1) No Child shall be enga ged in be ggin g e xcept during
obser vin g religious or cultural traditions.
(2)
No child shall be shaved with the purpose of makin g
such Child a Sanysi , Bhi kchhu or Faki r, and even if sha ved, it shall
not have le gal validity.
(3)
A Child who has been made Sanyasi , Bhi kchhu or Fakir
prior to the commence ment of this Act may, if he/she so wishe s,
give up such fa mily life vesh and to join.
14.
Prohibition on offe ring of Chi ld in name of God or
Godde ss :
(1) No per son shall, for the purpose of ful fillin g the
promise made to God or for se r vin g any other religious purpose,
offer or surrender to any God or Goddess his own or anybody
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else's Child ha vin g brou ght such Child, offerin g financial ga in,
under any kind of coercion or undue influence.
(2)
No person shall, for any financial consideration, sell or
otherwise hando ver his Ch ild to anybody for the purpose stipulated
in sub-section (1).
(3)
No Panda, Dhami, Pri est or the chief o f any religious
enshrine ment shall incite to commit an act referr ed to in subsection (1) nor shall perfor m or per mit to per form religious rites or
for malit ies in case s where a person brin gs a Child to any temple
with the purpose of offer in g or surrenderin g to God or Goddess.
(4)
If any act is co mmitted after the commence ment of this
Act, in violation o f sub-sections (1), (2) and (3) abo ve, the father,
mother or any me mber of the fa mily shall take custody of the Child
and ma ke arr an ge ments for upbrin gin g, education and health care
of such Child on equal footing with other me mber s o f the fa mil y as
if such act is not committed.
(5)
Notwithstandin g anythin g contained in sub-section (4),
a Child referr ed to in sub-section (1) and (2) who is below the age
of 16 year s at the commence ment of this Act shall be brought by
either of the livin g parents.
15.
Prohibition
on
imposing
rigorous
punishment :
Notwithstandin g anythin g contained in the exist in g laws, no Child
shall be subjected to handcuffs and fetters, solitary confine ment or
be committed to live to gether in prison with prisoners ha vin g
attained the age of ma jorit y in case a Child is con victed for any
offence.
16.
Childre n not to be involve d in immoral professi on : (1) No
person shall invol ve or use a Child in immoral profe ssion.
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(2)
No photograph of a Ch ild shall be taken or allowed to
be taken, nor such photograph shall be distributed or exh ibited for
the purpose of enga gin g a Child in immoral profe ssion.
(3)
No
publication,
exhibition
or
distribution
of
photograph or personal events or descriptions of a Child tarnishing
the character of such Child shall be made.
(4)
No Child shall be in volved in the sale or distr ibution or
smu ggl in g o f intoxicatin g substances, narcotic dru gs or any other
drugs.
17.
18.
19.
×
×
………
………..
Childre n's c ase not to be e ntert aine d i n abse nce of legal
practiti one r : (1) The Court shall not entertain or decide a
criminal charge brought a ga inst a Child unless there is a le gal
practitioner to defend the Child.
(2)
In c ircu mstance s re ferr ed to in sub-sect ion (1), the
concerned Court shall make a va ilable the ser vice of a le gal
practitioner appointed on behalf of Go vernment of Nepal or of any
other legal practitioner willin g to provide such ser vice.
20.
Enforce ment of rights : (1) For enforce ment of rights set out in
this Chapter, e ver y person shall ha ve the right to file a petition on
behalf of the Child to a Distr ict Court of the district where the
Child is re sidin g. On rece ipt of such petition, the concerned Court
ma y, upon inquiry into the matter, en force the right by issuin g the
appropriate order, direction or writ.
Pro vided that, in matters relatin g to the prohibition on
ma intainin g dire ct contact or livin g by the Child in pursuance of
the proviso to sub-section (1) o f S ection 8, such act ion may be
×
Repealed by Child Labor (Prohibition and Regulation) Act, 2056 (2000 A.D.).
8
initiated or an order ma y be issued only on the basis o f a petition
of the father or mother of the concerned Child.
(2)
In ca se s where a person is a ggr ie ved a s a result of
infr in ge ment of an y r ight confer red by this chapter, the Court may
issue order, direction or writ pursuant sub-section (1), and decide
to make payment of a reasonable amount of compensation.
Chapter -3
Provisions relating to the protection of the
Child and relating to the Guardian
21.
Looki ng afte r an orphan and cust ody of hi s prope rt y : (1) If
the Children Welfar e Officer or the Chie f Distr ict Offic er is
infor med of the fact that a Child does not have any relative of the
sa me home to look after the Child, the Children Welfare Officer or
the Chief District Office r, as the case may be, shall make
necessar y arran ge ment for upbrin gin g and ma intenance of the
Child. In doin g so, the Child shall be, as far a s practicable, given
to the custody of the nearest relative o f the Child. In case of nona vailabil ity of such a relative, the Child may be given to any
person or organization willin g to take the custody for his
ma intenance and upbringin g. In ca se o f non-ava ilability o f any
relative, person or organization willin g to take the Child for his
ma intenance and upbringin g, the Child shall be re ferred to the
nearest Children Welfare Ho me.
(2)
In ca se s where the Child re ferr ed to in sub-section (1)
has any property, the Children Wel fare Offic er or the Chie f
District Officer shall prepare a statement thereof in the presence of
at least two local witnesse s and shall keep one copy thereof in his
office and the other one shall be given to the person or
9
organ ization re sponsible for upbrin gin g and ma intenance of the
Child.
(3)
The state ment of property prepared under sub-section
(2) and the property mentioned therein shall be given to the
custody of the person, organization or the Children's Wel fare
Home re sponsible for upbrin gin g and ma intenance of the Child and
such person, or ganizat ion or the Children's Wel fare Ho me shall
certify in wr itin g the takin g o f the custody. Pending the custody of
the property of the Child, the responsibility of ta kin g care o f or of
protecting the property shall lie with the Children Welfare Office r,
and if he is not ava ilable, with the Chief Distr ict Officer.
(4)
The income accrued from the property mentioned is
sub-section (3) ma y be used by the person, or gan ization or the
Children's
Wel fare
Ho me
takin g
re sponsibil ity
for
the
ma intenance, upbringin g, education and health care of the Child.
The person, or ganizat ion or the Children's Wel fare Ho me ta kin g
responsibilit y for the maintenance and upbringin g o f the Child
shall, in respect o f such property enjoy the sa me r ight s and co mply
with the same ter ms and conditions as those of a Guardian
appointed under this Act.
22.
Appointment of Guardian : (1) In ca ses where a Child is
deprived o f his fa mily for rea sons o f not livin g of his parents or
adult relative belongin g to the same home, or e ven if they are
livin g but are unable to bring up or look after the Child for reasons
of physical or mental incapacity, e ver y person may, for the
purpose of being a guard ian to the Child, submit an application to
the Children Welfare Office r. On receipt of such application, the
Children Welfare Officer shall, upon necessary inquiry into the
matter, appoint a Guardian for the Ch ild subject to the pro visions
of this Sect ion.
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(2)
In appointing a Guardian under sub-section (1), priority
shall be given, as far a s practicable, to the nearest heir.
Pro vided that, if it is not appropriate to appoint the nearest
heir as the Guardian for rea sons of fa mily fend or confrontation, or
for any other reason, the Children Welfare Officer may, statin g the
reasons thereof, appoint a distant heir or any other person as the
Guardian of the Child as he deems appropriate.
(3)
In appointing a Guardian pursuant to sub-section (2),
consent of the appointee to that effect shall be obtained.
(4)
Notwithstandin g anythin g contained in sub-section (2),
the following per sons shall not be qualified to be appointed to or
hold the office o f the Guardian : (a)
If he is su ffer in g fro m mental disea se,
(b)
If he has not attained the age o f 25 years,
(c)
If he is rel ie ved o f the office o f Guardian in
accordance with Section 28,
(d)
If he is con victed of any offence in vol vin g moral
turpitude by a court, or
(e)
(5)
If he is bankrupt.
If nobody a gree s to act as Guardian of the Child or if
no appropriate person is ava ilable to be the Guardian, the Children
Welfare Officer shall make arran ge ments to send the Child to a
Children's Welfare Ho me.
(6)
In case there is any property, it also shall be handed
over wh ile handin g o ver the Child to the Guardian pursuant to subsection (2) or the Children's Wel fare Ho me pursuant to sub-section
(5). While handing o ver the property, its statement shall be
prepared and one copy shall be kept in his office and the other one
shall be given to the Guardian or Chief o f the Children's Wel fare
Home who receive s the property.
11
(7)
The Guard ian or Chie f o f the Children's Wel fare Ho me
ma y spend the income acc rued from the property handed over
pursuant to sub-section (6) for the maintenance, education and
health care of the concerned Child and keep its account.
23.
Inte rest and prope rt y of C hild t o be P rotected : (1) The ma in
duty of the Guardian shall be to protect interests of Child.
(2)
The Guardian shall, inter alia, give spec ial attention to
the following points:(a)
To brin g up Child in a way that will enhance the
physical and mental development of the Child,
(b)
To
arran ge
for
education
which
may
help
intellectual development of the Child,
(c)
To pre vent the Child fro m be in g in vol ved in bad
habit or company,
(d)
To keep updated record of the Child's property
and to protect it.
(3)
order
to
The Guardian shall initiate necessar y proceedin gs in
realize
the
property
or
income
of
the
Child
misappropriated by others and to release the impended property.
For this purpose, the Guardian may submit application, complaint
or suit in the offic e or court or may in itiate other necessar y le gal
proceedings on behalf of the Child.
24.
Works may be Perf orme d by the Guardian : The Guardian
ma y, to bear the expenses necessar y for the ma intenance, education
or health care of the Child, give any property of the Child to any
person for earnin g more property or on rent.
25.
Works not t o be Pe rf orme d by the Guardi an : The Guardian
shall not do any of the following works: -
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(a)
To en ga ge the Child in wor k that requires more
labor than his physical capacity can bear.
(b)
To enga ge the Child in any work which ma y hurt
in his religious or cultural traditions or to use his
property on such work, or
(c)
To sell the Child's property to others with an
intention of retainin g it by himself.
26.
Report to be submitted by the Guardian : (1) The Guardian
shall, in each year within the month of Baisa kh (April 15 to May
15), submit a report to the concerned Children Welfare Officer
statin g all the particulars relating to the expenses incurred on his
part for the maintenance, health care and education of the Child
and the income accrued fro m the property of the Child and the
expenses incurred out of such income for the ma intenance of the
Child
(2)
The
Children
Welfare
Officer
ma y,
if he
dee ms
necessar y, check the reliabilit y of the statement or statistics
mentioned in the report submitted pursuant to sub-section (1),
inspect to or cause to inspect the Child and the place where his
property is placed. For this purpose, the Children Welfare Officer
ma y order to present the concerned Child before himsel f and also
ma ke necessar y inquir y with the Child. In case the Children
Welfare Officer issue s an order to pre sent the Child before h im, it
becomes the duty of the Guardian to present the Child.
27.
The Guardi an may reti re with approval : (1) In case a
Guardian appointed pursuant to this Act desire s to retire bein g
unable to dischar ge his duty, shall submit an application stating
the reason thereof to the Children Welfare Officer at least one
month in ad vance. The Guard ian shall also ha ve to submit, along
with the application, the statement of the property of the Child that
13
he has taken in cu stody and the expense s incurred up to the date of
the application.
(2)
If the reason stated in the application submitted
pursuant to sub-section (1) is deemed reasonable, the Children
Welfare Office r shall cause to handover the property in the custody
of the Guardian to any office or person and permit him to retire.
28.
Guardi an may be removed : The Children Welfare Officer may
remo ve the Guardian, in case it is proved that he has done any
work in contra vention to Sections 23, 24 or 25 or give s a false
statement while submittin g the report pursuant to Section 26.
29.
Anothe r Guardian to be appointed : (1) In case any Guardian
dies or the Guardian cannot be retained due to prevalence o f any
situation pursuant to sub-section (4) of Section 22 or the Guardian
is retired pursuant to Section 27 or remo ved pursuant to Section
28, the Children Welfare Officer shall, subject to Section 22,
appoint another Guardian instead of such Guardian.
(2)
If the Guardian, who is re mo ved from the guardiansh ip
or is not retained as a Guardian pursuant to sub-section (1) has any
property of the Child in his custody, he shall handover such
property and the related documents to the office or person
specified by the Children Welfare Office r.
30.
Maintenance of the Chil d having no sufficient inc ome : (1) A
Guardian ma y submit an application to the Chief District Officer
for Go vern ment a ssistance if he could not bring up the Child in a
proper way due to insuffic iency o f income or property or the
property is consumed by any other in an illegal wa y, and the Chief
District Officer shall, if he deems the statement reasonable, make
a vailable necessar y Go vern ment assistance. In case such assistance
is not ava ilable, an arrange ment shall be made to keep the Child in
the Children's Wel fare Ho me.
14
(2)
In case any Child is handed over to the Children's
Welfare Ho me, the responsibilit y of the Guardian shall be deemed
to be terminated fro m the date of such handover.
31.
Guardi an t o be entitled t o remune rati on : (1) The Children
Welfare Officer shall specify the remuneration of the Guardian on
the basis of the property and income of the Child.
(2)
The Guardian ma y take, in the form of re muneration,
five percent of the reasonable expenses incurred for the realization
of the property or income of the Child pursuant to sub-section (3)
of Section 23 and the current price of the property so realized or
the income.
(3)
In ca se the Guardian has spent so me a mount on his part
for the ma intenance, education or health care of the Child, he may
also realize such a mount from the income o f the Child.
Chapter -4
Welfare Provisions
32.
Constitution of Cent ral and D ist rict Children Welfare
Board :
(1)
Go vern ment
of Nepal
shall,
by publishing a
notificat ion in the Nepal Gazette, constitute a Central Children
Welfare Board consistin g o f twenty one me mber s at the ma ximu m
including the me mber s fro m a mon gst the soc ial workers, wo man
social worker s, medical practitioners, Ch ild psychologist s and
teachers. The Na me of the chairper son and me mbers o f the Central
Children's Wel fare Board shall be as pre scr ibed in the sa me notice.
The Board shall work subject to the policy and directive s of
Go vern ment of Nepal.
(2)
A Distr ict Child Welfare Board shall be constituted in
each District under the convenership o f the Chief District Office r.
In the Distr ict Children Welfare Board, there shall be the persons,
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inter alia, as appointed by the Chief District Office r spec ially from
amon gst the followin g persons: (a)
Persons in vol ved in social se r vice,
(b)
Social worker s in vol ved in works relatin g to
rights and interests o f children,
(3)
(c)
Women social wor kers,
(d)
Medical practitioners,
(e)
Child psychologists,
(f)
Teachers.
The tenure of the o ffic ials of the Central Children
Welfare Board and District Children Welfare Board shall be of
four year s and they ma y be eligible for reappointment.
(4)
The chairperson of the District Children Wel fare Board
shall be the person prescribed by the me mber s o f District Children
Welfare
Board
fro m
a mon gst
the msel ve s
and
until
such
chairperson is appointed, the Chief Distr ict Officer himsel f shall
act as the chairperson of the Board.
(5)
Each District Children Welfa re Board shall have to
submit an annual report relating to children wel fare activit ies
conducted in the district level to the Central Children Welfare
Board within the month of Ba isakh ( April 15 to Ma y 15 A. D.). The
Central Children Welfare Board shall prepare a nation-wide report
relating to the Children on the basis o f the annual reports received
fro m the District Children Wel fare Board and submit it to
Go vern ment of Nepal in each year within the month of Ashad (June
15 to July 15).
(6)
Functions, duties, powers and procedures of the Central
Children Welfa re Board and the Distr ict Children Wel far e Board,
other than those referred to in the Act, shall be as prescribed.
16
33.
Appointment of Chil dren Welf are Officer : (1) Go vern ment of
Nepal ma y appoint Children Welfare Officer in required number.
Go vern ment of Nepal may designate any other person or personnel
to act as the Children Welfare Officer pursuant to this Act until the
Children Welfare Officers ar e appointed.
(2)
The Children Welfare Officer appointed or designated
pursuant to sub-section (1) shall work subject to the general
control and directive s of the District Children Welfare Board.
(3)
Functions, duties, powers and ter ms and conditions of
ser vice o f the Children Welfare Officer, other than those refe rred
to in this Act, shall be as prescr ibed.
34.
Establi shme nt and ope rati on of Childre n's Welf are Home:
(1) Go vern ment o f Nepal shall establish Children's Wel fare Ho me
in the var ious re gions o f the Kin gdo m o f Nepal as may be
necessar y.
(2)
Go vern ment of Nepal ma y utilize Children's Wel fare
Home, orphanage or center operated by any other person or
organ ization, for the purpose of keepin g the Children until the
establish ment of Ch ildren's Wel fare Ho me pursuant to sub-section
(1).
Pro vided that, nothing stated in this sub-section shall be
deemed to have given powers to Go vern ment of Nepal to interfere
in the operation of such Children's Wel fare Ho me, orphana ge or
center.
35.
Abandoned C hild t o be kept i n the C hildre n's Welfare
Home :
(1) The Children Wel fare Officer and Police personnel
shall handover an abandoned Child they ha ve found or handed over
to them by any person, to the nearest Children's Wel fare Ho me
after keepin g the records of the Child stating therein the name,
surname, address, photograph, any special mar k on his body and
17
thumb-impressions and as far a s practic able the name o f h is father
and grandfather in their offic e.
(2)
The Chie f o f the concerned Children's Welfare Ho me
shall take into its custody the Abandoned Child brought to
handover pursuant to sub-section (1) except in case o f lack of
place for livin g.
(3)
In case the Chie f of the Children's Wel far e Ho me did
not take into its custody the Abandoned Child due to the reason
mentioned in sub-section (2), such Child may be handed over to
any other Children Welfare Ho me.
(4)
Abandoned children residin g in the Children Welfare
Home shall be kept separately on the ground of sex.
(5)
The Children Wel fare Office r, Police Officer or Chie f
of the concerned Children Welfare Ho me ma y, for the purpose of
tracin g the father, mother, relatives or Guard ian of the Abandoned
Child, cause to publish a notice statin g the de scription and
photograph of such Child in any paper or cau se to transmit through
any other medium o f co mmunication.
36.
Durati on to be kept in the Chi ldren' s Welfare H ome : (1) An
Abandoned Child shall, normally, be kept in the Children's Wel fare
Home until he attains the age o f sixteen years.
Pro vided that, if it see ms that the Child of such a ge relea sed
fro m the Children Welfare Ho me ma y ha ve to fa ce the problem of
livelihood, he may be kept in the Children Welfare Home until he
attains the age o f eighteen year s.
(2)
Notwithstandin g anythin g contained in sub-section (1),
the age bar to live in the Children's Welfare Ho me does not apply
in case of blind, disabled or mentally retarded Abandoned Child,
until they are sent to the Children Welfare Ho me e stablished for
their livin g.
18
(3)
Notwithstandin g anythin g contained in sub-section (1),
if the father, mother or the Guardian of the Abandoned Child
desire s to take the Child with them, the Chie f of the Children
Welfare Ho me shall allow to take the Child at any time and prepare
a document for such hand over o f the Child.
37.
Assi stanc e to provide Vocati onal Training or job : (1) The
Abandoned Children residin g in the Children's Welfare Ho me shall
be in vol ved in vocational trainin g or teach in g and learnin g on the
basis of their interest and knowledge.
(2)
enga ge an
Go vern ment
of Nepal
shall
provide
assistance
to
Abandoned Child who has already obtained any
knowled ge or skill in any vocational jobs su itable to his knowledge
or skill.
38.
Child may be kept in the C hildre n's Welfare H ome on the
condition of payme nt : (1) In case the father, mother or relatives
of the Child who often runs away fro m the home a gree s to bear all
the expenses required for his maintenance, the Chief o f the
concerned Children's Wel fare Home ma y allow to keep such Child
in the Children's Wel fare Ho me ha vin g prepared a document of
a gree ment to bear such expenses.
(2)
When the Child kept in the Children's Wel fare Ho me
pursuant to sub-section (1) completes the spec ified per iod in the
Children's Wel fare Ho me, the Chie f o f the Children's Wel fare
Home shall handover the Child to the custody of his father, mother
or relatives. While handing o ver the Child the balance amount, if
any, of the money deposited for the ma intenance of such Child
shall also be returned along with the statement of e xpenses
incurred for his ma intenance.
(3)
In case an y Child kept in the Children Welfare Ho me
pursuant to sub-section (1) has escaped from the Children Welfare
Home or is dead, the Chief o f the Children Welfare Ho me shall
19
immediately give this in for mation to the father, mother or relatives
of the Child and do everythin g possible to trace him in case of
escapin g.
(4)
The Chie f of the Children's Wel fare Home shall, while
givin g the Child to the custody of his father, mother or relatives
pursuant to sub-section (2), also return his immo vable property, if
any, and the related documents.
(5)
In case the Child escaped pursuant to sub-section (3) is
not found or the Child is dead, any goods or immo vable property
of the Child shall be returned to his father, mother or relatives and
realized fro m the m the due expenses relatin g to the Child, if any.
39.
Gene ral
punishment
may
be
given
to
mai ntai n
the
discipline : (1) In case an Abandoned Child does not comply with
the terms and conditions to be compiled with while stayin g in the
Children's Welfare Ho me or co mmits any act which violates
disc ipline, the Chief o f the Children's Wel fare Ho me ma y impose
any of the followin g punish ments on such Child: (a)
To deprive him fro m the facil ities a va ilable in the
Children's
Wel fare
Ho me
for
a
per iod
not
exceedin g three days at one time or,
(b)
To realize full or partial amount belongin g to the
dama ge,
in
ca se
anythin g belon gin g
to
the
Children Welfa re Home is knowin gly broken or
dama ged.
(2)
Notwithstandin g anythin g contained in sub-section (1),
it shall not be deemed to ha ve con ferred power s to the Chie f o f the
Children's Wel fare Home to batter or detain the Child in solitary
confine ment or to stop givin g food and water to such Child.
(3)
For the purpose of realizat ion of the a mount of the
dama ge fro m the Abandoned Child pursuant to clause (b) of sub20
section (1), the Chief o f the Children's Wel fare Ho me shall realize
the amount from income of the concerned Child or from his salar y,
if he is gettin g any for workin g there, and shall have to reconcile
the account by remittin g the re mainin g a mount.
40.
Expense s may be re ali ze d handing ove r the Chil d to his
fathe r, mothe r etc : (1) In ca se it is known that the father, mother
or a me mber o f the fa mil y o f an y Child has enrolled him to a
Children's Welfa re Ho me, orphanage or such other center givin g a
false statement that he is an Abandoned Child or an orphan, the
Chie f o f the Children's Wel fare Ho me shall ha ve to handover such
Child to his father, mother or a me mber of the fa mil y whoe ver
come s into contact.
(2)
In
the
situation
pursuant
to
sub-section
(1),
the
concerned Children's Welfare Ho me, orphana ge or center shall
have to realize all the expense s incurred for the ma intenance of the
concerned Child as a Go vern ment due from the father, mother or a
me mber of the fa mily o f the Child who has enrolled him
fraudulently.
Pro vided that, the concerned Children's Wel fare Home,
orphanage or center shall not realize the expenses incurred for the
ma intenance of the Child in c ase the father, mother or a me mber of
the fa mily o f the Child has no income or property to realize.
41.
Chief of the C hildre n's Welf are H ome t o ke ep rec ords and
to report : (1) The Chief o f the Children's Wel fare Ho me shall
have to prepare personal records of all the Abandoned Children
resid in g in the Children's Wel fare Home. If any punishment is
imposed to any Child, pursuant to sub-section (1) of Section 39,
that also shall be mentioned in such record.
(2)
The for m of personal records to be kept pursuant to
sub-section (1) shall be as prescribed.
21
(3)
The records ma intained pursuant to sub-section (1),
shall be maintained confidential and such records shall not be
shown or given to any person other than the Children's Wel fare
Board or Children's Welfare Officer or the person or office ha vin g
permission fro m such Board or Offic ials.
Pro vided that, this re striction shall not apply to the records
required by the Court in relation to a case.
(4)
The Chie f of the Children's Welfar e Ho me shall send
reports in the prescribed for m statin g all the activities carr ied out
by the Children's Wel fare Home in the last yea r, to the Distr ict
Children Welfare Board and Children Welfare Officer in each year
within the month of Baisakh (Apr il 15 to May 15).
42.
Establi shme nt and ope ration of Juveni le Reform Home : (1)
Go vern ment of Nepal shall establish Ju venile Re for m Ho me as
required.
(2)
The followin g children shall be kept in the Juven ile
Refor m Ho me established pursuant to sub-section (1): (a)
A Child accused o f any o ffence and to be
imprisoned
pursuant
to
existin g
law
for
in ve stigation or adjudication,
(b)
A Child to be imprisoned havin g been punished
with imprison ment punished to existin g la w,
(c)
A Child addicted to narcotic drugs,
(d)
A Child who is used to run away fro m father,
mother or the family,
(e)
A Child who has company with persons in vol ved
in immoral or untoward activit ies or ta kes part in
the activitie s o f such persons or depends upon
their earnin gs,
22
(f)
Children
of
the
cate gor ie s
prescribed
by
Go vern ment of Nepal.
(3)
Go vern ment of Nepal ma y utilize the private Children's
Welfare Ho me, orphanage or center operated by any person or
body in the form o f Ju venile Re for m Ho me te mporarily by
obtaining per mission of such person or body until the Juven ile
Refor m Ho me is established pursuant to sub-section (1).
(4)
In ca se the Child mentioned in the clause (d) of sub-
section (2) is kept in the Juvenile Re for m Ho me with the consent
of his father, mother or a me mber of the fa mily, his father, mother
or a me mber of the fa mily shall have to bear the expenses incurred
for his maintenance.
(5)
The operation of the Ju venile Re for m Ho me and the
fac ilitie s, train in g and education to be provided for the children
resid in g therein a s well as the terms and conditions to be followed
by the children shall be as prescribed.
43.
Establi shme nt and ope ration of orphanage and cente r for
mental ly ret arded C hildren : (1) Go vernment of Nepal shall
establish orphanage and center for mentally retarded children as
required for the maintenance and dwelling o f orphans, disabled or
mentally retarded children havin g no parents.
(2)
Go vern ment of Nepal shall provide nece ssar y education
for the children residin g in the orphanage or center for mentally
retarded children pursuant to sub-section (1).
(3)
Notwithstandin g anythin g contained in sub-section (1),
Go vern ment of Nepal ma y, under an a gree ment, utilize the
orphanage or center for mentally retarded children operated by any
other person or organization, for the purpose of this Act.
44.
Inspection of Chil dren' s Welf are H ome, Juve nile Ref orm
Home, Orphanage etc : (1) The Central Children Welfare Board
23
ma y inspect or cause to inspect all Children's Welfare Ho me
orphanages or centers e stablished within the Kin gdo m o f Nepal at
any time and the District Children Welfare Board or Children
Welfare Officer may inspect or c ause to inspect the Children's
Welfare Ho mes, orphana ge s or centers within their own ar ea at any
time.
(2)
The
Children
Welfar e
Officer
shall
inspect
the
Children's Wel fare Ho me s, orphana ge s or center s at lea st twice a
year within his area and while car ryin g out such inspection, in case
it is found that any act to be done pursuant to this Act and the
Rules made there under is not done or any act is co mmitted in
contravention to the existin g la w, he shall have to send its report
to the Distr ict Children Welfare Board.
(3)
The Children Welfare Board of Children Welfare
Officer ma y issue directive s to re gulariz e irr e gularities found in
the Children's Welfare Home, Ju venile Re for m Ho me, Orphana ges
or such other centers and it shall be the main duty of the Chief of
the Children's Welfare Home, Ju venile Re for m Ho me, Orphana ges
or centers to follow such directive s.
45.
Provi si ons
re lati ng
to
the
Children's
Welfare
H ome,
Juvenile Ref orm H ome, O rphanage etc : The person to operate
the Children's Wel fare Ho me, Ju venile Re for m Ho me, Orphanage
etc. power to be used by him, terms and conditions of his ser vice
and the rules to be followed and the education and training to be
provided for the Children residin g in such Children's Wel fare
Home, Ju venile Re for m Ho me, orphanage s or center shall be as
prescribed.
24
×
46.
…………. ×
47.
………… ×
48.
……………. ×
Chapter -5
Chapter -6
Miscellaneous
49.
Only ce rtai n pe rsons to attend in c ase s re lati ng to Child :
(1) While proceedin g o f a ca se relatin g to a Child under this Act or
prevailin g laws is go in g on, the legal practitioner, the father,
mother, relative s or Guardian of the Child and, if the officer
hearin g the ca se dee ms appropriate and per mit s, any person or
representative of the social or ganizat ion invol ved in protection of
rights and interests o f Children ma y appear to the bench.
(2)
The case pursuant to sub-section (1) and particulars of
the incident relating to it shall not be published in any paper
without permission of the in vest igatin g o fficer of the case or the
officer hearin g the case. Such restriction shall also apply to
correspondents or the press photo representative s.
50.
Inve stigati on of case and suspension of puni shment : (1) In
case the officer hearin g the case deems it not appropriate to keep a
Child in prison havin g considered to the physical condition, the
a ge of the accused Child who is to be in ve stigated havin g detained
in prison pursuant to existin g la w, circu mstance s during the time
of commission of the offence and the place of impr ison ment, he
ma y issue an order to handover the Child to the custody of his
father, mother, relatives or Guardian or any social organ ization
enga ged in protection of rights and interests of the Child or the
×
Chapter -5 is repealed by Child Laborer (Prohibition and Regulation) Act, 2056 ( A.D.).
25
Ju venile R e for m Home on the condition to present him a s and
when required and to continue inve stigation or proceedin gs o f the
case.
(2)
In ca se the officer hear in g a c ase dee ms it not
appropriate to imprison a child convicted of an offence and
imposed a sentence o f imprisonment in a pr ison ha vin g re gard to
his physical condition, a ge, c ircu mstances in which the offence has
been committed and time s of co mmission of the office, he may
suspend the sentence to the effe ct of not under goin g the sentence
for the time bein g or he may prescribe to undergo the sentence
resid in g in a Children Rehabilitation Home or in guardianship of
any person or or gan ization. In ca se the sa me ch ild ha vin g had his
sentence suspended in such a way is con victed of the sa me offence
or any other offence and is imposed a sentence of imprisonment
within a period of one ye ar, the offic er hearin g the case ma y order
to execute the sentences of punish ment ha vin g added the earlier
sentence imprisonment.
51.
Case May be filed on be half a Child : (1) In ca se a suit or
complaint is to be filed or a case has to be de fended in any matter
in vol vin g rights o f a Child, his father, mother or Guardian ma y file
a suit, co mplaint or de fend the case. In ca se the ch ild has no
father, mother or Guardian, the claimant of the child shall be
entitled to the right.
(2)
The case relatin g to an offence punishable under this
Act ma y be initiated on the complaint of any person or of
Go vern ment of Nepal.
52.
Statistic s rel ating to the Child and rest ricti on in its use : (1)
A police office shall keep the statistic s o f the Child apprehended
on the charge o f any o ffence in confidential manner ha vin g stated
his
na me,
address,
a ge,
sex,
fa mily
bac kground,
economic
conditions, offence co mmitted by him and if any proceedin g is
26
initiated on it, it s particulars and a copy o f such statist ics shall be
sent to the Police Head Quarter in e very six month.
(2)
In case the statistic s ma intained pursuant to sub-section
(1), are to be published for any study or resear ch work, it ma y be
published or utilized on the basis of a ge or se x without mentioning
the name, surname or address of the Child.
53.
Punishment: (1) Whoe ver commits any offence in contra vention
to Section 13,
×
…… or abets others to commit such offence or
attempts to commit so, he shall be liable to a punishment with a
fine up to three thousand rupees or with imprisonment for a ter m
which may e xtend to three months or with both.
(2)
Whoe ver co mmit s any offence in contravention to
Section 14 or abets others to commit s such offence or atte mpts to
commit so, he shall be liable to a punishment with a fine upto ten
thousand rupees or with imprisonment for a ter m which ma y extend
to five year s or with both. If it is pro ved that any per son has sold a
Child for takin g an y a mount, such amount also shall be seized from
the person selling the Child and in case such amount could not be
realized, he shall be liable to an extra punish ment of imprisonment
for a ter m that may e xtend to two years.
(3)
Whoe ver co mmit s any offence in contravention to
Section 7 or 15, he shall be liable to a punishment with a fine upto
five thousand rupees or with imprisonment for a ter m that may
extend to one year or with both. In case o f torture and cruel
treatment, he may be made liable to pay a rea sonable amount of
compensation to the Child.
(4)
Whoe ver co mmit s any offence in contravention to sub-
section (1), (2) or (3) of Section 16 or abets others to commit such
offence or attempts to do so, he shall be liable to a punishment
with a fine upto ten thousand rupees or with impr ison ment for a
×
Repealed by Child Labor (Prohibition and Regulation) Act, 2056 (1999 A.D.)
27
term which ma y extend to one year or with both and the
photographs ta ken with an a im to en ga ge the Ch ild in an immoral
profession and all the publications printed with an aim to publish
ma y be se ized by the order of the Court.
(5)
The person enga gin g a Child in the business in
contravention to sub-section (4) of Section 16 shall be punished
with impr ison ment for a ter m which ma y e xtend to five year s in
addition to the punishment to be imposed pursuant to existin g
laws.
(6)
In ca se character o f a Child is hurt or ad ver se e ffect is
caused in his health or his physical or gan is dama ged due to the
reason that any person has caused the Child to enga ge in any
prohibited act pursuant to Section 16, × ……. the officer hear in g the
case ma y cause to pay a rea sonable amount of compensation in
proportion to such dama ge to the Child from such person in
addition to the punishment to be imposed pursuant to sub-section
(1) or (4).
(7)
In case the Guardian violates or does not follow
anything re ferr ed to in Sections 23, 24 or 25, he shall be punished
with a fine upto three thousand rupees or with imprisonment for a
term that ma y extend to three months or with both.
(8)
In ca se the Guardian sub mit s a report in contra vention
to Section 26 or does not return the property to be returned
pursuant to Section 29, he shall be punished with a fine upto six
thousand rupees or with imprisonment for a ter m which ma y extend
to six months or with both and the property misappropriated shall
also be realized fro m him.
(9)
In case the Chief o f the Children Welfare Ho me
disclose s or provides the personal particulars ma intained pursuant
to Section 41 to any unauthorized person or in c ase any person
×
Repealed by Child Labor (Prohibition and Regulation) Act, 2056 (2000 A.D.).
28
publishes particulars of a case in violation of Section 49 or
disclose s the confidentiality of statistic s relatin g to the Child or
brin gs it in use or publishes it in violation of Section 52, he shall
be punished with a fine upto three thousand rupees or with
imprisonment for a term wh ich ma y extend to three months or with
both and all the papers and books relatin g to the offence shall also
be confisc ated .
×
54.
(10) ………..
Limit ation : Co mplaints relatin g to an offence punishable under
this Act shall be filed within one year fro m the date of commission
of the offence.
Pro vided that, the complaint may be filed when so e ver in
case property of a Child is sold with mala fide intention and
complaint may be filed within three years fro m the date o f such
happening in c ase a Child is cau sed to enga ge in an immoral
profession.
55.
Officer hearing cases and procedures rel ating to c ase : (1)
Go vern ment of Nepal shall, by publishin g a notification in the
Nepal Gazette, constitute a Ju venile Court as may be necessar y.
The territorial jurisdiction and seat of such Court shall be as
prescribed in the sa me notice.
(2)
Except in the situation of Sect ion 20, the Juven ile
Court constituted pursuant to sub-section (1) shall have power s to
first init iate and decide ca se s in which a Child is e ither a plaintiff
or defendant.
Pro vided that, the Ju venile Court shall not hear and decide a
case in which a Child is in vol ved along with a person havin g
attained the age o f ma jority.
×
Repealed by Child Labor (Prohibition and Regulation) Act, 2056 (2000 A.D.).
29
(3)
The concerned Distr ict Court shall have powers to hear
and decide the case pursuant to sub-section (2) until a Juven ile
Court pursuant to sub-section (1) is constituted, and after the
constitution of the Juven ile Court, cases filed in the District Court
shall be transfer red to the Juven ile Court.
(4)
There shall be a Children's Bench in each Distr ict
Court for hearin g and decid in g the case to be heard fro m the
District Court pursuant to sub-section (3).
(5)
Go vern ment of Nepal shall prescribe the procedures
relating to constitution of the Children's Bench pursuant to subsection (4) on the advice o f the Supreme Court and while
prescrib in g the Bench it ma y include social worker, ch ild specialist
or child psychologist in addition to the judge.
(6)
The procedures to be followed by the Juvenile Court or
District Court for hearin g and deciding the cases shall be as
prescribed and until such procedures are prescribed those Courts
shall follow the procedures of the Summar y Procedure Act, 2028.
56.
Appeal: An y person not satisfied with decisions made b y the
Ju venile Court or Distr ict Court pursuant to Section 55 may file an
appeal to the Appellate Court within thirty five da ys from the date
of such decision.
57.
Pri ority to be give n in hearing cases : Any case under this Act
in wh ich a Child is e ither a plaintiff or a defendant shall be
accorded priority for hearin g and decidin g.
58.
Powe r to frame Rule s : Go vernment of Nepal ma y, in order to
implement objectives o f this Act, fra me necessar y Rules.
59.
Repeal and Amendment : (1) Nos. 1 and 2 on the Chapter "of
Pauper" of Muluki Ain (the country code) are hereby repealed.
30
(2)
The figure "1 " appearin g a fter the word "Mahal"
(Chapter) contained in No. 6 of the Chapter "o f Pauper " o f Muluki
Ai n (the country code) is deleted.
(3)
The words "the Child below the age of 8 yea rs or "
appearin g in No. 1 of the Chapter "of punishment " o f the Muluki
Ain (the country code) and parts of sentences, "If the a ge of the
minor is 8 year s or abo ve 8 year s and below 12 years and he
commits an offence which is punishable with fine under law, he
shall
be
warned
and
if
the
offence
is
punishable
with
imprisonment, he shall be punished with imprisonment for a ter m
which ma y e xtend to two months depending on the offence. If the
minor who is 12 years or above 12 years and below 16 years
commits an offence, he shall be punished with half of the
punishment to be imposed on a person who has attained the a ge of
ma jority. The minor or" appearin g in the sa me No. ha ve been
deleted.
31