not “the custom of Kumari” amounts to “work” for the girls who become Kumaris, the
word “work” denotes any act to be accomplished fulfilled by someone. The term “engaging
in work” denotes some or any act to be performed or accomplished by someone who,
instead of doing it himself or herself, gets it done by someone else and pays him/her some
amount or benefit as compensation for doing such a work on his/her behalf. Accomplishing
any work involves the use of physical labour. During the period of work or so long as the
designated work is not completed, the relation of master and servant is established between
the employer and the person thus employed in the work. The worker must act according to
the dictate of the master who engages him/her in that work. Whereas one may be expelled
from the work in the event of failure to perform the work designated by the master, no one
can abandon in mid-course the work thus designated by the employer and it must be
completed. So long as the work is not accomplished, the person thus engaged in the work
remains completely under the control of the master. To describe the term “to work” or “to
engage in work” means accomplishing any act or matter designated by the master on his
terms and conditions by investing physical labour and time for receiving the benefit agreed
upon in advance.
A minor who has not attained the age of 16 years is not in a position to have attained full
physical or mental development. He or she is not competent to decide about what is in or
against his or her interest. Such minors should get an opportunity to be brought up with love
and affection under the patronage of their parents. Because such minors need the patronage
of their parents or guardians, it has been prohibited worldwide to engage minors in work
and various rights have been granted to children for the development of their personality.
Such rights can be enumerated as the right to get free education, the right to medical
treatment, the right to residence, the right to stay with one’s family, the right not to be
separated from one’s family, the right to opinion and expression, the right to free movement,
the right to recreation etc. And a legal provision has also been made to punish a person
engaged in any kind of exploitation of a minor. Engaging a minor in work is a kind of
exploitation of the minor. Engaging a minor in work virtually means not only material and
physical exploitation of the minor, but also mental exploitation. Article 22 of the Interim
Constitution has granted to children the right against physical and mental violence and any
other type of violence, besides the children’s right to their identity, the right to upbringing,
the right to get basic medical services and the right to social security. It has also been
mentioned in Art. 22 of the Interim Constitution and Art. 32 of the Convention on the Child
Rights that children must not be engaged in any factory, mine or any other hazardous work.
It is for this reason that the fundamental right against physical or mental exploitation granted
to every child by Art. 22 of the Interim Constitution of Nepal, 2063 B.S. has the status of an
enforceable right which enjoys protection from the court under Art. 107(2) of the
Constitution.
It does not appear from the study report and the written replies that the Kumaris
are required to work, under the custom of Kumari, for the sake of others by
investing their labour. The petitioner also does not seem to have stated that under
the custom of Kumari the Kumaris are required to work by investing labour. It is
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