it should be treated as an integral part of the religious and cultural rights of its
followers.
As there is no concrete historical written document regarding the establishment or beginning
of the custom of Kumari, the life style, food habits, daily routine and the matters of discipline
to be observed by Kumaris do not seem to be regulated by any historical document, custom
or beliefs. Because those things seems to have evolved in accordance with some unwritten
tradition, custom or beliefs, there could not be found any legal source for them. Custom
may be a source of law but custom cannot take the form of law. Historical documents may
also be treated as a source of law in regard to the religious and cultural rights. But because
there is no such written document in respect of the custom of Kumari, this custom seems
to exist in practice only in the form of a tradition.
If any custom or tradition has caused any infringement to the fundamental rights granted by
the Convention on the Child Rights or any other Convention on Human Rights or the Interim
Constitution of Nepal, this Court is competent to enforce the enjoyment of rights thus
infringed by exercising its extraordinary jurisdiction under Art.107(2) of the Constitution
and by issuing a directive order to act in accordance with the law or to take other necessary
action. This court may also issue an order prohibiting such custom or tradition by law. In
case of conflict between religion and custom, tradition and practice, religion must
yield to provide space for social reforms. Religious practices cannot be an
impediment to social reforms. Social reform is virtually an eradication of traditional
practices and dogmas. The State may prohibit such practices and dogmas if they
tend to create impediments to any human rights. The custom of Kamlari can be
taken as an example. This custom is prevalent in the Western region of Nepal. Under this
custom, poor parents send their children aged 5 or 6 years to the house of the landlords who
use them in their household work. The minors used as ‘Kamlari’ are supposed to work as
lifelong domestic servants at the house of the masters who have purchased them. Under
the custom of Kamlari, the rights granted to children by the Convention on the Child Rights
and also the rights granted to them by the Constitution, such as, the educational and cultural
rights (Art. 17), the rights relating to women (Art. 20), the right to social justice (Art. 29),
etc., are infringed. Kumaris don’t have to do any work for anyone. Since the custom
of Kumari seems to have been developed for the purpose of offering ‘puja’ (worship)
treating girls as a living godesses, and since the Kumaris are seen to only accept
the ‘puja’ and devotion of the devotees the custom of Kumari does not seem to
have infringed any rights of children. Kumaris cannot be compared with priests of
temples. The priests are required to perform daily worship and prayers in the morning and
the evening being present in temples. But the Kumaris are required to be present only on
special occasions and at festivals to accept the ‘puja’ of the devotees in their capacity as
living Goddesses. And during the rest of the time, there seems to be no restriction imposed
on them in regard to the activities such as spending time with the family according to their
desire, going to school for study, engaging in recreation, moving about freely, etc. There is
an obvious difference between a priest and a Kumari. A priest is appointed by a Trust or
the director of a temple. In this sense, there exists a master and servant relationship between
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