On 29 November 2023, Nepal became the second Asian Country to register a same-sex marriage after Taiwan. This represents a significant development in the struggle for marriage equality for the Rainbow community worldwide. However, even as Nepal records this breakthrough achievement, existing gaps in the legislative framework mean that true marriage equality remains a practical and legal challenge.
The Struggle
In the landmark 2007 case of Sunil Babu Pant and Others v Nepal, the Supreme Court of Nepal not only recognised LGBTI people as equal citizens who possess all constitutional rights but also acknowledged LGBTI identities as natural. Further, the court recommended anti-discrimination provisions for sexual and gender minorities in the new Constitution that was before the constitutional assembly at the time. The court’s progressive stance extended to the issue of same-sex marriages, with a directive for the government to establish a committee tasked with exploring issues related to such unions. The judgment therefore not only reflected a commitment to inclusivity and equality, but also set a precedent for legal frameworks that safeguard the rights of the LGBTI community, influencing social and legal progress in Nepal.
That committee tasked with exploring the issue of same-sex marriage was finally formed in 2010. Headed by Laxmi Raj Pathak, in February 2015 the committee submitted their recommendations to the Chief Secretary of Nepal. These included a significant overhaul of civil and criminal laws. Seven months later, Nepal enacted its current Constitution: Article 18 of the Nepalese constitution grants equality to all citizens, while Article 18(3) permits the state to make legal provisions to protect and empower various groups, including gender and sexual minorities. Yet in spite of these significant advancements, same-sex marriage remained illegal.
The National Human Rights Commission of Nepal emphasised in 2016 and 2020 the need for legislation allowing same-sex marriage to be enacted by the Nepalese government, to no effect. It was not until June 2023 that activist Pinky Gurung (along with 8 others) filed a writ petition in Nepal’s Supreme Court, seeking the legalisation of same-sex marriage and challenging the discriminatory system. The petitioner argued that denying LGBTQIA+ individuals the freedom to marry, as granted by Section 69(1) of the NCC Act 2017, is both discriminatory and violates Article 18 of the Constitution. Justice Til Prasad Shrestha affirmed these claims and passed an interim order to register same-sex marriages amid pending legislative changes.
However, when a queer couple went to Kathmandu District Court to register their marriage in June 2023, the court stated that it legally recognises only the union of a man and woman. When the couple appealed in the Patan High Court, the court again rejected the request stating that the federal government must change the legislation before the lower authorities could register the marriage. Undeterred, the couple finally found recognition in Dordi, a municipality in their home district of Lamjung, where authorities and the Ministry of Home Affairs acknowledged the union, concluding their struggle triumphantly.
The Way Forward
Although registration of this same-sex marriage is a moment of celebration for the rainbow community worldwide, it is important to note that Nepal continues to lack legislation relating to same-sex marriage. This means that marriage is still – as per the National Civil (Code) Act 2017 – only a union between a man and a woman. Due to legislative gaps, queer couples’ entitlement to perform activities accorded to heterosexual married couples, like opening a joint bank account or awarding alimony upon divorce, remains unclear. Furthermore, as evinced by the struggle faced by Nepal’s first same-sex married couple in registering their union, it remains difficult to officially register a queer marriage.
Nepal has long been a flag-bearer for LGBTQIA+ rights, from electing Asia’s first openly-gay federal-level politician in 2008 to protecting and empowering the community from discrimination through its Constitution. Nevertheless, spurred by the first registration of a queer marriage, the Government of Nepal must now decisively move forward with the process of creating legislation to affirm the equality of same-sex marriages.