Wikipedia

Same-sex marriage in Nepal

Same-sex marriage has been provisionally recognised nationwide in Nepal since 24 April 2024. 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 their marriages".[1][2] Despite the directive, a district court in Kathmandu denied a same-sex couple's application to marry on 13 July 2023.[3][4] In the last week of November 2023, the couple was informed by the Ministry of Home Affairs that their marriage would be registered.[5] They successfully registered their marriage on 29 November 2023 in Dordi, followed by several other, mostly transgender, couples over the following months.[6][7][8][9] On 24 April 2024, Home Affairs' National ID and Civil Registration Department issued a circular to all local registration authorities, instructing them to enter all same-sex marriages into the separate register.[10][11] However, the temporary registration does not grant same-sex couples the same legal rights and recognition as opposite-sex couples. Same-sex couples cannot inherit property, receive tax subsidies, make spousal medical decisions or adopt children, among others.[12][13] They are also labeled as "groom and bride" on marriage licenses,[14][15][16] and it is unknown if all local governments are complying with the instructions of the National ID and Civil Registration Department.

No supporting legislation has been passed by the Federal Parliament,[17][18] and the Supreme Court has yet to deliver a final verdict on the case.[19][20][21] A first hearing was expected to begin on 14 March 2024.[22]

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, following a demand by the Supreme Court. 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,[23] and while it includes "gender and sexual minorities" as a protected category, it does not address same-sex marriages.[24] 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".[25]

Background

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Restrictions

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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".[26] 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.[27] A spokesman said that the government intended to pass a separate law on same-sex marriage.[28]

Despite these restrictions, a lesbian couple held a traditional Hindu marriage ceremony at the Dakshinkali Temple near Kathmandu in 2011, but the marriage had no legal status in Nepal at the time.[29] 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, anya, pronounced [ʌnːe]) on their official identity documents. LGBT activist Sunil Babu Pant congratulated the married couple,[30] but Home Ministry spokesman Deepak Kafle said the marriage could be invalid.[31]

2015 Constitution of Nepal

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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.[32][33] 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.[34] The elections were held on 19 November 2013.[35] 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.[36] 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.[37]

The Constitution of Nepal, approved in 2015, does not address same-sex marriages.[38] However, Article 18 lists LGBT people among recognized and protected disadvantaged groups as "gender and sexual minorities" (Nepali: लैङ्गिक तथा यौनिक अल्पसङ्ख्यक,[39] laiṅgik tathā yaunik alpasaṅkhyak, pronounced [lʌi̯ŋɡik tʌtʰa eu̯nik ʌlpʌsʌŋkʰjʌk]).[a]

Court cases

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Laws regarding homosexuality in Asia
Same-sex sexual activity legal
  Marriage performed
  Marriage recognized
  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, not enforced
  Severe restrictions of association with arrests or detention
Same-sex sexual activity illegal
  Prison, not enforced
  Prison
  Death penalty on books, not enforced
  Enforced death penalty

Sunil Babu Pant and Others v. Nepal Government

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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.[40] 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.[41][42]

Reaction and aftermath

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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.[43] 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."[44]

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.[45]

In August 2014, the Associated Press reported that the committee had decided to recommend the legalization of same-sex marriage.[46] The same month, the Minister of Justice, Narahari Acharya, said that his ministry would present a bill to allow same-sex marriages.[47] The committee submitted its report to the government on 9 February 2015,[48][49] and in January 2016 a government official said that the recommendations of the committee were under consultation.[50] In February 2016, the National Human Rights Commission asked the government to introduce a bill to allow same-sex marriage.[51] 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.[52] In August 2018, former Prime Minister Baburam Bhattarai urged the government to legalise same-sex marriage,[53] and on 1 July 2020 the National Human Rights Commission again called on the government to introduce a same-sex marriage bill.[54] 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."[55]

Pinky Gurung v. Nepal Government

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Court judgement

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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.[56] 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. The Supreme Court scheduled a full hearing on the petition for 14 March 2024.[22]

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".[57][58] 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. Both President Ram Chandra Poudel and Prime Minister Pushpa Kamal Dahal refrained from making any official comment on the matter.[59][60] 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 overstepped the authority of his position.[61] Some observers have also questioned the government's commitment to granting same-sex couples equal marriage rights, and have accused the media of pinkwashing and falsely portraying Nepal as "a beacon of LGBT rights".[62][63]

A government spokesperson said in April 2024 that the Ministry of Law, Justice and Parliamentary Affairs was not in the process of drafting a same-sex marriage bill to comply with the Supreme Court ruling.[64] On 24 April 2024, Home Affairs' National ID and Civil Registration Department issued a circular to all local registration authorities, instructing them to enter all same-sex marriages into the separate register.[11] However, the temporary registration does not grant same-sex couples the same legal rights and recognition as opposite-sex couples. Same-sex couples cannot inherit property, receive tax subsidies, make spousal medical decisions or adopt children, among others.[13] Additionally, they continue to be labeled as "groom and bride" on marriage licenses, and it is unknown if all local governments are complying with the instructions of the National ID and Civil Registration Department. According to Sunil Babu Panta, 150 same-sex couples were waiting to register their marriages in September 2024; "Some of them are fearing refusal by the government office, some of them are also scared because they have to go to their villages to register their marriage."[65]

Aftermath and first marriages

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On 13 July 2023, the Kathmandu District Court rejected a marriage registration application filed by a Nepalese couple, Maya Gurung, and Surendra Pandey, 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.[66][67] 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.[55] 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.[68] In the last week of November 2023, the Ministry of Home Affairs allowed a local administration office to register their marriage.[20] The marriage was "temporarily registered" in a separate record and after the passage of an updated marriage law in line with the interim order "will get permanent recognition automatically".[69] On 29 November, Gurung and Pandey successfully registered their marriage in Dordi, Lamjung District.[19] However, marriage license forms were still not updated, with Gurung labeled as the "wife" and Pandey as the "husband".[70] Pinky Gurung described the decision as "a great achievement for us, the third gender community of Nepal". Manisha Dhakal, executive director of the Blue Diamond Society, hailed the registration as an important first step, but told The Kathmandu Post that "getting a certificate alone is not enough. It is important that same-sex couples have the right to inherit property, get tax subsidies and adopt children, among others".[71][69]

Another couple, Prakash Chaudhary, a transgender man, and Manila Neupane, a transgender woman, were married in Kailari, Kailali District on 22 December 2023.[8] On 31 January 2024, Sarita KC, executive director of Mitini Nepal, stated that same-sex couples still "lack[ed] the right to marry".[72] The first marriage between two women, Suprita Gurung and Anju Devi Shrestha, occurred on 12 February 2024 in Badhaiyatal, Bardiya District. The marriage license listed Gurung as the "groom" and Shrestha as the "bride", despite both of them identifying as female.[73][9] For security reasons, the secretary of the Badhaiyatal Rural Municipality stayed on a 15-day leave after registering their marriage.[74] Another transgender couple, China Nepali and Jyoti Sarki, were married in Rampur, Palpa District on 18 August. The marriage license listed Nepali as the "groom" and Sarki as the "bride".[75][76]

On 24 August 2024, Prime Minister K. P. Sharma Oli stated that he "[did] not understand" same-sex marriage. His comments were cheered by the audience, and went viral across social media platforms. Activists expressed disappointment, "If the policymakers and high-ranking officials like the prime minister do not know the issues, they need to collaborate, they need to invite us to build their capacity in this regard," said Manisha Dhakal. "But by saying he doesn't understand the issue of same-sex marriage, he has diplomatically shown positive ignorance," added Pinky Gurung. "I don't think he has the liberty to say that he doesn't understand or have much knowledge on an issue because he is not an ordinary citizen. He is the country's prime minister!"[77][78] On 9 September 2024, Dhakal told The Kathmandu Post that "the temporary registration falls short of offering full marriage rights, including those related to property, adoption, and tax exemptions. While the court's decision sets a supportive precedent, lack of clarity about the rights associated with the temporary certificate leaves many in limbo. So far, only around five couples have registered, and many couples are hesitant to do so. The [LGBT] community continues to feel cheated of true equality."[79]

Another marriage occurred on 28 September 2024 in Rupa, Kaski District between Anjali Thapa Pokhara and Laxmi Silwal Raj, a third gender person whose sex was recorded as "other" on official documents. The couple said they had faced difficulties to legally register their marriage.[80] Another transgender couple, Sampurna Adhikari and Heema Gurung, were married on 2 October 2024 in Devachuli, Nawalpur District.[81] The first marriage between two men, Prajeet Budhathoki and Joseph Foster, a U.S. citizen, occurred on 6 October 2024 in Dharan, Sunsari District. This marked the first time a marriage license had listed a same-sex couple as "husband and husband". "We are excited to be one of the first same-sex couples to marry in Nepal. We couldn't have done this without a lawyer. So, this is a barrier for people who can't afford such a thing, which in my opinion is something that should be changed", Foster told The Himalayan Times. Sacistha Shrestha, an advocate who helped the couple register their marriage, wrote on Facebook that "This was Dharan's first same-sex marriage and Nepal's seventh same-sex marriage overall. Same-sex couples are pressured into adopting gendered roles with little regard for their orientation. However, this case may have resulted in one of the few marriage certificates to be entirely gender neutral. Although provisional marriage certificates have been issued, consular services have refused to attest them, claiming that ward offices lack the jurisdiction to handle such cases. The lack of clarity continues to create challenges for those seeking full legal recognition both domestically and internationally." Sunil Babu Pant said the registration "will help Nepal to establish not just a gay friendly destination but also a rainbow marriage destination".[82][83]

Recognition of marriages performed abroad

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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.[84] 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.[85][86]

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.[87] 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.[18] 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.[88][89]

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.[90][91]

Recognition of live-in relationships

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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.[92] Shahi had filed for divorce after coming out as a lesbian, but her husband later abducted her and forced her to live with him.[93] The verdict stated:[94] "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."[92]

See also

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Notes

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  1. ^ Maithili: लैंगिक आ यौन अल्पसंख्यक, laiṅgik ā yaun alpasaṅkhyak, pronounced [ˈləɪ̯ŋɡɪk aː jəʊ̯n əlˈpəsəŋkʰjək]; Newar: जाः व यचा म्ह्वःल्याः, jā: wa yacā mhwa:lyā:, pronounced [dʑaː wɔ jətɕa mʱwɔːljaː]

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