New Supreme Court order puts Nepal one step closer to marriage equality

Court passed an interim order in June asking authorities in the Himalayan nation to register same-sex marriages, amid delays by state in making laws

July 10, 2023 10:05 am | Updated 11:54 am IST - Kathmandu

Proud moment: People take part in a Pride March in Nepal capital Kathmandu. File photo

Proud moment: People take part in a Pride March in Nepal capital Kathmandu. File photo | Photo Credit: Reuters

After being in a relationship for eight years, Maya Gurung and Surendra Pandey got married four years ago. Their marriage was just like any other in Nepal, in line with regular social traditions. But their union failed to get legal recognition because as a gay couple, they could not register their marriage. Though it recognises LGBTQI rights as fundamental rights, the Nepal state is yet to formulate laws for the registration of same-sex marriages.

However, on a recent afternoon, the couple seemed happy as they were preparing the documents for registering their marriage. This was because Nepal’s Supreme Court passed an interim order on June 28 asking authorities to make temporary arrangements to register same-sex marriages.

Also Read :Explained | How has the Supreme Court interpreted ‘sex’ and ‘gender identity’ in the past? 

“The order has come as a big relief for people like us who have been denied the right to register their marriages,” an elated Pandey said. “We will soon be recognised as a married couple by the state.” A final verdict, however, is pending.

“This has been a long battle and the recent order comes as a small victory for us,” said Pinky Gurung, president of Blue Diamond Society, a non-government organisation working for LGBTQI rights in Nepal. “But the battle is not over yet, as this is just an interim order and we are demanding laws to register same-sex marriages.”

Also Read | Same-sex marriage hearing | The case so far

Court order of 2007

Nepal earned the image of a global LGBTQI rights beacon after a 2007 case in which the country’s top court observed that people of the LGBTQI community must be able to exercise the rights guaranteed under Nepali law to exercise the “right to have one’s own identity.” The ruling recognised LGBTQI rights as fundamental human rights, ensuring protection for gender and sexual minorities, and legalised homosexuality.

In its order, the Supreme Court asked the government to form a committee to study same-sex marriages and formulate legal provisions based on its suggestions and recommendations. The committee submitted its report in 2015 recommending that “the Government of Nepal remove the legal provision that marriage can only occur between a man and a woman and that it embrace the norm that a marriage can occur between two persons, and grant legal recognition to same-sex marriage on the basis of the principle of equality.”

Nepal’s republican Constitution, promulgated in 2015, too has been hailed as progressive as it upholds the rights of sexual minorities. In its latest census, Nepal also introduced the third gender category.

Refusal to budge

LGBTQI rights campaigners say the committee report, however, was ignored when the government introduced the National Civil (Code) Act 2017. Section 67 and Section 70 of the Act continued with old provisions saying that “marriage is deemed to be concluded between a man and a woman.”

With the Nepali state failing to remove the old provisions and make laws for the registration of same-sex marriages, couples like Maya, 36, and Surendra, 26, continued to suffer, facing myriad problems. Unable to register their marriage, they could not identify their spouse as the nominee even while opening bank accounts.

“Such couples were deprived of their basic rights because of the lack of laws even as the Constitution guaranteed their rights as fundamental rights,” Ms. Gurung of the Blue Diamond Society said. “There are issues regarding the right to assets and adoption of children. Even at hospitals, for example in case of a surgery, the spouse cannot sign the papers, as they are not legally recognised as married.”

Campaigners say the indifference towards making laws for the registration of same-sex marriage is tantamount to the Nepali state recognising sexual minorities as its children but leaving them as orphans to fend for themselves as they continued to face discrimination.

Anurag Devkota, a lawyer who argued on behalf of the petitioners to extract the June 28 interim order, says some of the suggestions in the same-sex marriage study committee report are progressive and it has tried to address various issues with regard to the formulation of laws for the registration of same-sex marriages in Nepal.

Mr. Devkota refused to comment further, saying the case is subjudice. But he mentioned that the Nepali state should have abided by the 2007 order of the Supreme Court and formulated laws as per the recommendation of the same-sex marriage study committee.

“This is about inclusion, social justice and equality,” Mr. Devkota said. “I have learned that around 200 couples are going to benefit immediately from the recent court order.”

In the interim order passed on June 28, Justice Til Prasad Shrestha cited constitutional and legal provisions to make arrangements to register same-sex marriages. Stating that the Constitution has provisioned citizenship with gender identity, and the civil code has guaranteed every person the freedom to conclude a marriage, the judge ordered the authorities to register same-sex marriages as demanded by the petitioners. 

“Pending a final verdict, make arrangements for registering the marriage of the petitioners, and others who are like the petitioners, if they apply for the same,” the Bench ordered the government in response to the petition, filed by nine persons, demanding legal instruments for the registration of same-sex marriages.

Denial of visa

Last year, Nepal’s top court instructed the government to recognise the marriage of a same-sex couple — Adheep Pokhrel and Tobias Volz. Mr. Pokhrel, a Nepali Citizen, and Mr. Volz, a German national, got married in 2018 in Germany. The couple had filed a petition against the Department of Immigration of Nepal after Mr. Volz was denied a spousal visa.

Campaigners say that when it comes to LGBTQI rights, Nepal may appear quite progressive on paper, but the country has fared poorly when it comes to putting those principles into practice.

Rukshana Kapali, a law student and campaigner for the rights of sexual minorities, says she is cautiously optimistic about the recent court order, given the country’s poor track record in implementing laws and court rulings.

“I welcome the court order, but I am a bit sceptical,” Ms. Kapali told the Hindu. “It has been a decade-and-a-half since the Supreme Court passed the directive order and eight years since the committee submitted its report. But the required laws have yet to be made. And this shows the lack of understanding among our policy makers about LGBTQI rights.”

Generalising the community

Ms. Kapali says the fundamental problem faced by the queer community in Nepal stems from the tendency to generalise the LGBTQI people simply as “third gender”. “There is a need to have a broader understanding among members of the society, policymakers, legislators and even judges about the wide spectrum of gender and sexual expression.”

Ms. Gurung of the Blue Diamond Society, however, is optimistic. “Just like there is no end to such battles, there is no end to our campaigns,” she told The Hindu. “We will continue to build our campaign with one victory at a time.”

She believes that the interim order will also be helpful in sensitising local-level authorities about the issue, as there is still a lot of confusion among officials regarding same-sex marriage.

“Couples who want to register their marriages have to first reach out to the local authorities. When they produce the court order, they cannot be denied marriage registration,” Ms. Gurung said. “This will also help build pressure on the government and legislators to amend or formulate laws on marriage equality.” The court order makes Nepal the second country in Asia to register same-sex marriages after Taiwan.

Surendra Pandey and Maya Gurung, who are set to register their marriage, said it has been quite a struggle to get recognition from the state as a married couple even when they were accepted by their respective families.

“I don’t know much about legal complexities. What I know is that it makes me feel happy that we are recognised as who we are and what our identity is,” Gurung said. “As citizens of this country, we just want to be treated as regular citizens—with equality and dignity.”

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