and legal rights including the freedom of movement and visit to their families and
the freedom of residence granted by the convention on the Child Rights and the
Interim Constitution of Nepal, 2063 B.S. Therefore, it is clear that Kumaris can
go to school to study and acquire education. This Court is empowered, as per Article
107(2) of the Interim Constitution of Nepal, 2063 B.S., to exercise its extraordinary jurisdiction
to issue an appropriate order for the enforcement of any right if any law or any executive
/ administrative order of the government has caused infringement to any right of children.
But if on the basis of tradition, custom, practice or belief, any person does not enjoy such a
right, the society should be itself aware and conscious of enjoying such a right. Furthermore,
it is also a duty of the State to empower the people for the enjoyment of such
rights by creating awareness in the society by conducting awareness raising
programs.
It appears from the writ petition, the written replies and the study reports that the custom of
Kumari is an historical custom of the Kathmandu valley having religious and cultural
significance. This matter has been also taken into judicial notice by this court. The custom
of Kumari seems to be directly related to the right to equality granted by Art.13, the cultural
rights granted by Art.17 and the right to religion granted by Art. 23 of the Constitution to the
followers of that custom. Article 23 has provided that everyone has the fundamental right
to follow, practise and protect their religion having due regard to the prevalent social and
cultural traditions. According to this provision everybody is entitled to follow and practise
their religious and culture practised since the olden times without interfering in the religion
of others. Since Article 22(2) has granted every religious groups the right to preserve its
own independent existence and to operate its religious places and trusts, everybody has the
right to practice their own religion and culture individually or collectively in accordance
with their belief, conscience and faith. No person or community should impose, in contravention
of the Constitution, any undue restriction on the right to adopt and practice any religion
granted by the Constitution. However, the State may make a law laying down reasonable
restrictions on the right relating to religion in the interest of children under the “parens
patriae doctrine”. That is to say, if any religion, belief, custom, tradition or practice seems to
be contrary to the fundamental and human rights of children, the State in the capacity of
guardian and under the “parens patriae doctrine” may make a necessary law imposing
reasonable restrictions on religious and cultural rights for the protection of the interests of
children. The State cannot also tolerate the activities creating anarchy in the society in the
name of religious and cultural rights. In the public interest, the state is empowered to
control such activities by making a law.
The custom of Kumari is a cultural practice deeply connected with the religious
right of the majority of people of Nepal who follow the Hindu and Buddhist religions.
The rights granted to children by the Constitution and the international instruments
including the Convention on the Child Rights and the religious and cultural rights
granted by the Constitution to the religious community are not at all mutually
contradictory. Therefore, so long as the custom of Kumari does not infringe the
rights of children granted by the Constitution and the international Conventions,
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