The Supreme Court of Nepal has ruled in favor of same-sex marriage since 2008. On 28 June 2023, Supreme Court Justice Til Prasad Shrestha directed the government to establish a "separate register" for "sexual minorities and non-traditional couples" and to "temporarily register them".[1][2] However, the Supreme Court has yet to deliver a final verdict.[3]

Despite the recent Supreme Court directive, on 13 July a district court in Kathmandu denied a same-sex couple's application to marry.[4][5] The couple appealed to the Patan High Court, but it rejected the appeal on 6 October 2023.[6] In the last week of November 2023, they were informed via phone call from the Ministry of Home Affairs that local administration offices may register the marriage. The couple successfully registered their marriage on 29 November, followed by a second couple the following month.[7][8][9] Nepal was the first country in South Asia, the second in Asia after Taiwan, and the 35th worldwide to legalize same-sex marriage.[10][3][11][12] However, no supporting legislation has been passed, and it is unknown if other same-sex couples have been able to marry.[13]

Previously in March 2023, the Supreme Court had ordered the government to recognize a same-sex marriage performed in Germany and directed the Federal Parliament to legalize same-sex marriage in Nepal.[14] However, the Parliament did not pass a national same-sex marriage law.

In 2011 and 2012, as the country was undergoing a political transition, there was an attempt to add LGBT-inclusive language to the proposed constitution. However, negotiations among political factions failed in spring 2012 and the drafting of a new constitution was placed on hold until new elections were held. A constitution was approved by the Constituent Assembly on 16 September 2015,[15] and while it includes "gender and sexual minorities" as a protected category, it does not address same-sex marriages.[16] The National Code of Nepal enacted in 2018 explicitly defines marriage as "when a man and a woman accept each other as husband and wife".[17]

Background

Restrictions

The Marriage Registration Act, 1971 does not explicitly forbid same-sex marriage but generally refers to married spouses as "male or female" and requires that the spouses take one another as "a husband and a wife".[18] The National Code of Nepal, enacted in August 2018, explicitly defines marriage as "when a man and a woman accept each other as husband and wife". While the National Code was under discussion in the Federal Parliament, the government requested that provisions addressing same-sex marriage be omitted from the draft code. Activists called this out as unconstitutional and contrary to Supreme Court guidelines.[19] A spokesman said that the government intended to pass a separate law on same-sex marriage.[20]

Despite these restrictions, a lesbian couple held a traditional Hindu marriage ceremony at the Dakshinkali Temple near Kathmandu in 2011, but the marriage has no legal status in Nepal.[21] In July 2017, a couple, Monica Shahi and Ramesh Nath, successfully registered their marriage in Parshuram in the far-western Dadeldhura District. Shahi is a third gender person, with their sex recorded as "other" (अन्य, pronounced [ˈʌnːe]) on their official identity documents. LGBT activist Sunil Babu Pant congratulated the married couple,[22] but Home Ministry spokesman Deepak Kafle said the marriage could be invalid.[23]

2015 Constitution of Nepal

Nepalis at the first Nepal Pride Parade in 2019 calling for the legalisation of same-sex marriage

In 2010, several sources reported that same-sex marriage and protections for sexual minorities would be included in the new constitution being drafted.[24][25] The Interim Constitution provided for a Constituent Assembly, which was charged with writing a permanent constitution. Under the terms of the Interim Constitution, the new constitution was to be promulgated by November 30, 2011, but a final six month extension was granted just before this deadline bringing the date to May 31, 2012. Negotiations failed and Prime Minister Baburam Bhattarai dissolved the Constituent Assembly on 28 May 2012 in preparations for the 2013 elections.[26] The elections were held on 19 November 2013.[27] The vote was repeatedly delayed, having previously been planned for 22 November 2012 following the dissolution of the Constituent Assembly on 27 May 2012, but it was put off by the Election Commission.[28] On 10 February 2014, Sushil Koirala was elected as prime minister with a large majority, breaking the political deadlock and opening the way for the constitution to be finalised.[29]

The Constitution of Nepal, approved in 2015, does not address same-sex marriages.[30] However, Article 18 lists LGBT people among recognized and protected disadvantaged groups as "gender and sexual minorities" (Nepali: लैङ्गिक तथा यौनिक अल्पसङ्ख्यक, laiṅgik tathā yaunika alpasaṅkhyaka, pronounced [ˈlʌi̯ŋɡik ˈtʌtʰa ˈeu̯nik ˈʌlpʌsʌŋkʰek]).[lower-alpha 1]

Court cases

Laws regarding homosexuality in Asia
Same-sex sexual activity legal
  Marriage performed
  Other type of partnership
  Legal guardianships or unregistered cohabitation
  Limited foreign recognition (residency rights)
  No recognition of same-sex couples
  Restrictions on freedom of expression
Same-sex sexual activity illegal
  Prison but not enforced
  Prison
  Death penalty on books, but not enforced
  Enforced death penalty

Sunil Babu Pant and Others v. Nepal Government

On November 17, 2008, the Nepali Supreme Court ruled in favor of laws to guarantee full rights to LGBT people and define gender minorities as "natural persons" under the law, including the right to marry. "This is a landmark decision for sexual minorities and we welcome it," said Sunil Babu Pant, Nepal's first publicly gay lawmaker and a leading gay rights activist in South Asia.[31] The court asked the government to form a committee to study same-sex partnership laws in other countries and mandated that the new law not discriminate against sexual minorities, including transgender people.[32][33]

Reaction and aftermath

On March 22, 2009, Pant said in an interview with the Indo-Asian News Service that "Though the court has approved of same-sex marriage, the government is yet to enact a law," signaling that while a same-sex marriage bill has been ordered by the Supreme Court, it has yet to be drafted or voted on, much less legislated.[34] In June 2009, Pant said the process has just started: "Nepal is going through transition and everything seems to move slowly. The seven-member committee has formed and just started working to study same-sex marriage bills in other countries. Hopefully they will draft the suggestion to make same-sex marriage law soon and give it to the government to approve."[35]

In January 2014, Chaitanya Mishra, a member of the committee formed to study international laws on same-sex marriage, stated that work on the report had been completed, except for a summary to be drafted by the chairman of the committee. The chairman, Laxmi Raj Pathak, promised to submit the report to the Nepali Government within a month, but said that the government was "not interested in the matter". Bhumika Shrestha of the Blue Diamond Society, a Nepalese gay rights group, said he was not ruling out the possibility of another lawsuit with the Supreme Court.[36]

In August 2014, the Associated Press reported that the committee had decided to recommend the legalization of same-sex marriage.[37] The same month, the Minister of Justice, Narahari Acharya, said that his ministry would present a bill to allow same-sex marriages.[38] The committee submitted its report to the government on 9 February 2015,[39][40] and in January 2016 a government official said that the recommendations of the committee were under consultation.[41] In February 2016, the National Human Rights Commission asked the government to introduce a bill to allow same-sex marriage.[42] Consequently, the Ministry of Women, Children and Social Welfare created a committee for the purpose of preparing a draft bill on the issue in October 2016.[43] In August 2018, former Prime Minister Baburam Bhattarai urged the government to legalise same-sex marriage,[44] and on 1 July 2020 the National Human Rights Commission again called on the government to introduce a same-sex marriage bill.[45] In 2023, Pant criticised the legislative inaction, saying, "The committee was formed, its members even went to Norway to study how same-sex married couples live. In 2015, the committee submitted their report to the government stating that Nepal should implement full marriage equality. Since then, the government and the parliament did nothing."[46]

Pinky Gurung v. Nepal Government

The Nepali Supreme Court (building pictured) issued a landmark ruling in June 2023 ordering the legalisation of same-sex marriage.

In 2023, Mitini Nepal, an LGBT advocacy group, filed a lawsuit challenging the constitutionality of the definition of marriage in the Nepalese Civil Code. Oral arguments were originally scheduled for 31 May 2023, but were later postponed.[47] On 7 June, Pinky Gurung, president of the Blue Diamond Society, alongside eight other applicants, filed a public interest ligitation seeking the legalisation of same-sex marriage in Nepal.

On 28 June 2023, Supreme Court Justice Til Prasad Shrestha issued an order directing the government to make necessary arrangements to "temporarily register" marriages of "sexual minorities and non-traditional couples".[48][49] The court directed the government to establish a separate marriage register for same-sex couples until supporting legislation is passed. The judge also gave the government 15 days to provide a written reply, though this was ignored by the government.[50][51] Sunil Babu Pant celebrated the court ruling, "People are already celebrating. They are rushing back to their villages to collect documents for their marriages. Hundreds of LGBT couples will register their marriages very soon." However, some observers argued that Justice Til Prasad Shrestha had "exceeded his authority".[52]

On 13 July 2023, the Kathmandu District Court rejected a marriage registration application filed by a Nepali couple, Maya Gurung, 38, and Surendra Pandey, 27, despite the court order. Gurung and Pandey had married in a traditional Hindu ceremony at a temple in Kathmandu in 2017. Pant criticised the rejection as "not only a blow to the sexual minority community but also a disrespect to Til Prasad Shrestha", and vowed to continue appealing to the Supreme Court.[53][54] According to The Himalayan Times, the district court "exploited the fact that it ha[d] not been named by the Supreme Court as the institution ordered to register non-traditional marriages" to avoid recognizing the marriage of Gurung and Pandey.[46] The couple appealed to the Patan High Court, the high court overseeing appeals from the district courts in Bagmati Province, but the High Court rejected the appeal on 6 October 2023, with the couple vowing to take the case to the Supreme Court again.[6]

In the last week of November 2023, the Ministry of Home Affairs allowed local administration offices to begin registering same-sex marriages.[11] The marriages will be "temporarily registered" and after the passage of an updated marriage law in line with the Supreme Court ruling "will get permanent recognition automatically".[55] On 29 November, Gurung and Pandey successfully registered their marriage in Dordi, Lamjung District.[3] However, marriage license forms were not updated in time for their marriage, which meant that Gurung was labeled as the "wife" and Pandey as the "husband" on the license.[56] "It's a great achievement for us, the third gender community of Nepal. This is the first case not only in Nepal but also in the whole of South Asia, and we welcome the decision.", said Pinky Gurung. The decision made Nepal the first country in South Asia, the second in Asia after Taiwan, and the 35th worldwide to legalize same-sex marriage.[55] Some observers have questioned the government's commitment to ensuring that equal marriage rights will be guaranteed long-term, and have accused the media of pinkwashing and falsely portraying Nepal as "a beacon of LGBT rights".[57][58] A second couple, Prakash Chaudhary and Manila Neupane, who are both transgender, were married in the Kailali District on 22 December.[9]

Recognition of marriages performed abroad

In December 2016, Leslie Louise Melnyk, an American citizen who had married her partner Suman Pant, a Nepalese national, in California the year prior, applied for a "Non-Tourist Visa" ("NT Visa") with the Department of Immigration (DOIM) as the dependant of a Nepalese citizen. While the DOIM had initially accepted the request for the visa, it backtracked after media began reporting on the story.[59] The DOIM denied their application on the ground that Nepali law did not recognize same-sex marriage. The couple filed a lawsuit with the Supreme Court in March 2017 requiring the DOIM to issue an NT Visa to Melnyk. The court issued its judgement on 23 October 2017 in Suman Pant v. Ministry of Home Affairs et. al., ruling that under Rule 8(1)(h) of the Immigration Rules a foreign national who submits a valid marriage license with a Nepali citizen is eligible to obtain an NT Visa as a dependant. The Supreme Court further ruled that the Immigration Rules do not specify that a foreign national applying for an NT Visa must either be of the same or opposite gender. It also ruled that Suman Pant, as a member of a "gender and sexual minority", is entitled to the fundamental right to live a life with dignity without discrimination under the Constitution of Nepal.[60][61]

On 20 March 2023, the Supreme Court issued a ruling ordering the government to recognize the marriage of Nepali national Adhip Pokharel and German national Tobias Volz performed in Germany in 2018 and to issue a spousal visa to Volz.[62] Judges Hari Prasad Phuyal and Tank Bahadur Moktan also directed the government to draft legislation for full marriage equality in Nepal, declaring laws banning same-sex marriage to be unconstitutional and discriminatory.[14] After marrying in Germany in October 2018, the couple moved to Nepal, and attempted to have their marriage recognized by immigration authorities. Volz applied for a spousal visa citing the Supreme Court's ruling in Suman Pant; however, the Department of Immigration rejected his application. Consequently, the couple filed a lawsuit, Adhip Pokharel & Tobias Volz v. Ministry of Home Affairs & Department of Immigration, with the Supreme Court of Nepal to have their marriage recognized.[63][64]

The Supreme Court held on 20 March that the equality and equal protection clause of the Nepali Constitution guarantees equal rights to sexual and gender minorities, and criticised the Department of Immigration for not abiding by their previous judgement in Suman Pant. The court ordered the department to amend its visa forms to cover same-sex couples, and ordered the government to amend all discriminatory provisions in existing legislation, including marriage and inheritance laws.[65][66]

Recognition of live-in relationships

In 2012, the Supreme Court recognized the relationship of a lesbian couple in Rajani Shahi v. National Women's Commission. The court allowed Rajani Shahi to live with her partner Prem Kumari Nepali as she wished, rather than with her husband.[67] Shahi had filed for divorce after coming out as a lesbian, but her husband later abducted her and forced her to live with him.[68] The verdict stated:[69] "Individuals can decide as to choosing their ways of living either separately or in partnership together with homosexuals or heterosexuals – with or without solemnizing marriage. Although in the prevailing laws and tradition "marriage" denotes legal bond between heterosexuals (male and female), the legal provisions on the homosexual relations are either inadequate or mute [sic] by now."[67]

See also

Notes

  1. ↑ Maithili: लैंगिक आ यौन अल्पसंख्यक, laiṅgik ā yaun alpsaṅkhyak, pronounced [ˈləɪŋɡɪk aː jəʊn əlˈpəsəŋkʰjək]; Newar: जाः व यचा म्ह्वःल्याः, jā: wa yacā mhwa:lyā:, pronounced [d͡ʑaː wɔ ˈjət͡ɕa ˈmʱwɔːljaː]

References

  1. ↑ "Nepal: Apex court issues interim order to "temporarily register" same-sex marriages". ANI. Kathmandu. 29 June 2023.
  2. ↑ Chudy, Emily (30 June 2023). "Nepal ordered to recognise same-sex marriage by Supreme Court". PinkNews.
  3. 1 2 3 Sharma, Gopal. "Nepal registers first same-sex marriage; 'historic', say activists". Reuters. Retrieved 29 November 2023.
  4. ↑ "Kathmandu court rejects marriage registration application of gay couple". Deccan Herald. Kathmandu. 13 July 2023.
  5. ↑ "Nepal gay marriage 'victory' hits legal roadblock". BBC News. 23 August 2023. Retrieved 24 August 2023.
  6. 1 2 SAH, BAL KRISHNA (2023-10-06). "Patan High Court refuses to register same sex marriage". The Himalayan Times. Retrieved 2023-10-06.
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  8. ↑ "First same-sex marriage "temporarily" registered in Nepal". ANI News. 29 November 2023.
  9. 1 2 "prakash-chaudhary-manila-neupane". Sajhaparibesh. 24 December 2023.
  10. ↑ "Same-Sex Marriage Around the World". Pew Research Center. Retrieved 26 October 2023.
  11. 1 2 NBC NEWS. "LGBTQ couple in Nepal becomes the 1st to receive official same-sex marriage status".
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  13. ↑ Knight, Kyle. "Did Nepal Achieve Marriage Equality? Not Quite Yet". Human Rights Watch. Retrieved 7 January 2024.
  14. 1 2 Dulal, Madhav (20 March 2023). "Supreme Court's historic decision, recognizing same-sex marriage (full text of the order and video)". Pahichan.
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  18. ↑ "Marriage Registration Act, 2028 (1971)". Nepal Law Commission.
  19. ↑ "Marriage provision under new civil code of is unconstitutional". Pahichan. 23 August 2018.
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  22. ↑ "Same-sex marriage has been registered for the first time in Nepal". Pahichan. 25 July 2017. Archived from the original on 29 July 2017.
  23. ↑ "Nepali couple registers the country's first transgender marriage". The World.org. 5 August 2017.
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  27. ↑ "Nepal voting ends for new Constituent Assembly". BBC News. 19 November 2013.
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  31. ↑ Nepal's Supreme Court OKs same-sex marriage Archived 2008-12-07 at the Wayback Machine
  32. ↑ Nepal Supreme Court orders full LGBT rights Archived 2010-02-05 at the Wayback Machine
  33. ↑ Nepal SC approves same-sex marriage Archived 2008-12-05 at the Wayback Machine
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  35. ↑ "Progress in new republic of Nepal". Star Observer. 16 June 2009.
  36. ↑ Report on same-sex marriage
  37. ↑ "Nepal's LGBT community parades for same-sex marriage". LGBTQ Nation. 11 August 2014.
  38. ↑ Sharma, Anuradha (14 August 2014). "Nepal to legalise homosexuality and same-sex marriages, says law minister". Scroll.in.
  39. ↑ "Nepal panel recommends legalising same sex marriage". The Hindustan Times. 10 February 2015. Archived from the original on 10 February 2015.
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  43. ↑ "All set to get legal status". Pahichan. 21 October 2016.
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  45. ↑ Ghimire, Binod (1 July 2020). "National Human Rights Commission recommends that Nepal legalise same-sex marriage". The Kathmandu Post. Retrieved 1 July 2020.
  46. 1 2 "In Nepal, the LGBTQ Community's Fight for Marriage Equality is Far From Over". The Diplomat. 28 July 2023.
  47. ↑ Bhandari, Bibek (5 June 2023). "Is Nepal Ready for Marriage Equality?". Foreign Policy.
  48. ↑ Ganguly, Meenakshi (5 July 2023). "Nepal's Historic Achievement on Marriage Equality". Human Rights Watch.
  49. ↑ "Supreme Court of Nepal asks government to establish "transitional mechanism" for registration of marriages of gender and sexual minorities". The Leaflet. 29 June 2023.
  50. ↑ Singh, Vikrant (28 June 2023). "Supreme Court of Nepal directs govt to allow registration of same-sex marriages". Wion.
  51. ↑ "SC interim order legalises same sex marriage in Nepal". The Himalayan Times. 29 June 2023.
  52. ↑ Dahal, Aastha (17 October 2023). "Right to marry in Nepal". Nepali Times.
  53. ↑ "Kathmandu Court Rejects Marriage Registration Plea Of Gay Couple". Pragativadi. 13 July 2023.
  54. ↑ "Kathmandu court rejects marriage registration application of gay couple". The Week. Kathmandu. 13 July 2023.
  55. 1 2 "This Country Becomes 1st In South Asia To Register Same-Sex Marriage". NDTV. 29 November 2023.
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  60. ↑ "Supreme Court on Same-sex Marriage". www.pradhanlaw.com. June 2018. Retrieved 2019-05-10.
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  62. ↑ "पूर्वप्रमुख निर्वाचन आयुक्त भोजराजका सन्तान अधीपले भने, बुबा आमाले स्वीकार नगरे बेवारिसे हुन सकिन्छ". Pahichan (in Nepali). 7 March 2023.
  63. ↑ "Nepal: Court Orders Recognition of Same-Sex Spouse". Human Rights Watch. 2 May 2023.
  64. ↑ Fanucci, Beatrice (3 May 2023). "Nepal Supreme Court delivers historic ruling in favour of same-sex marriage". Gay Community News.
  65. ↑ Kaur Bakshi, Gursimran (16 April 2023). "Marriage equality in Nepal: A long walk to freedom despite recent fillip by the Supreme Court". The Leaflet.
  66. ↑ "Nepal Takes a Step Toward LGBTQ Equality". The Diplomat. 12 May 2023.
  67. 1 2 "UNDP, USAID (2014). Being LGBT in Asia: Nepal Country Report. Bangkok" (PDF).
  68. ↑ "Rajani Shahi v National Women's Commission". South Asian Translaw Database. Retrieved 3 December 2023.
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