Recognition of same-sex unions in Nepal

Recognition of same-sex unions in Nepal
Same-sex marriage has been de jure legal in Nepal, though without supporting legislation, since 28 June 2023 in accordance with a ruling from the Supreme Court.
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, and while it includes several provisions pertaining to the rights of LGBT people, it does not address same-sex marriages.
In March 2023, the Supreme Court ordered the government to recognize a same-sex marriage performed in Germany and directed the Federal Parliament to legalize same-sex marriage in Nepal. However, the Parliament has not yet passed a national same-sex marriage law. On 28 June 2023, the Supreme Court de jure legalised same-sex marriage, ordering the government to establish a "separate register" for "sexual minorities and non-traditional couples". However, despite the Supreme Court ruling, a court in Kathmandu denied a same-sex couple's application to marry on 13 July.
Background
Legal restrictions
The Marriage Registration Act, 1971, as well as the National Code of Nepal, enacted in August 2018, define marriage as the union of "a male and a female". 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. A spokesman said that the government intended to pass a separate law on same-sex marriage.
Individual marriage ceremonies
In 2011, a lesbian couple held a traditional Hindu marriage ceremony at the Dakshinkali Temple near Kathmandu, but the marriage has no legal status in Nepal.
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" on their official identity documents. LGBT activist Sunil Babu Pant congratulated the married couple, but Home Ministry spokesman Deepak Kafle said the marriage could be invalid.
2015 Constitution of Nepal
In 2010, several sources reported that same-sex marriage and protections for sexual minorities would be included in the new constitution being drafted. 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. As a result, the future of same-sex marriage was uncertain.
The elections were held on 19 November 2013. 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. 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.
The Constitution of Nepal, approved in 2015, does not address the issue of same-sex marriage. However, Article 18 lists LGBT people among recognized and protected disadvantaged groups as "gender and sexual minorities".
Court cases
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. 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.
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. 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."
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.
In August 2014, the Associated Press reported that the committee had decided to recommend the legalization of same-sex marriage. The same month, the Minister of Justice, Narahari Acharya, said that his ministry would present a bill to allow same-sex marriages. The committee submitted its report to the government on 9 February 2015, and in January 2016 a government official said that the recommendations of the committee were under consultation. In February 2016, the National Human Rights Commission asked the government to introduce a bill to allow same-sex marriage. 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. In August 2018, former Prime Minister Baburam Bhattarai urged the government to legalise same-sex marriage, and on 1 July 2020 the National Human Rights Commission again called on the government to introduce a same-sex marriage bill. 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."
Rajani Shahi v. National Women's Commission
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. The verdict stated: "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."
Suman Pant v. Ministry of Home Affairs et. al.
Leslie Louise Melnyk, an American citizen, married Suman Pant, a Nepalese citizen, in December 2015 in California. Leslie Melnyk applied for a "Non-Tourist Visa" ("NT Visa") with the Department of Immigration (DOIM) in December 2016 as the dependant of a Nepalese citizen. The DOIM denied their application on the ground that Nepali law does not recognize same-sex marriage. The couple filed a lawsuit with the Supreme Court requiring the DOIM to issue an NT Visa to Melnyk. The court issued its judgement on 23 October 2017, 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.
Adhip Pokharel & Tobias Volz v. Ministry of Home Affairs & Department of Immigration
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. 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. 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.
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.
Pinky Gurung v. Nepal Government
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 postponed to 8 November 2023. 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". The court decision de jure legalised same-sex marriage, making Nepal the second country in Asia and the first in South Asia to legalise same-sex marriage, as well as the first least developed country to do so.
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. 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.
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 a "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. 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. 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.
See also
LGBT rights in Nepal
Recognition of same-sex unions in Asia
Notes
References
External links
Summary note of the Supreme Court decision in Sunil Babu Pant and Others v. Nepal Government, 21 December 2007
Supreme Court ruling in Sunil Babu Pant and Others v. Nepal Government, 21 December 2007 (in Nepali)
Supreme Court ruling in Adhip Pokharel & Tobias Volz v. Ministry of Home Affairs & Department of Immigration, 20 March 2023 (in Nepali)
LGBT rights in Nepal
Marriage in Nepal
Nepal