Nepal’s Supreme Court has released a landmark ruling ordering the government to take action to recognize same-sex marriage.
The decision, handed down by a Division Bench of the Supreme Court of Nepal, comprising Justices Hari Prasad Phuyal and Tanka Bahadur Moktan, ordered the government of Nepal to officially recognize same-sex marriage, and directed the authorities to take action on a long-pending report that recommends the legalization of same-sex marriage in the country; this report, commissioned by the Supreme Court in 2015, has remained unaddressed by the government.
The court’s decision stemmed from the 2018 case filed by gay couple Nepali Abhdeep Pokharel and German Tobias Volz. The gay couple filed a writ petition of mandamus and certiorari against the Home Ministry and the Department of Immigration (DoI) of Nepal for the denial of a non-tourist visa for Volz, said to be a direct consequence of Nepal’s lack of recognition for marital equality.
The Supreme Court acknowledged that since the petitioners were legally married in Germany, then the Department of Immigration’s insistence on the submission of documents under the National Civil Code, 2017, and the National Registration Act was deemed unreasonable. And so the Department of Immigration was directed to grant Volz a non-tourist visa, while also condemning the inappropriate and unlawful actions of the immigration department.
The court similarly ruled that all discriminatory statutes, including those related to rape, marriage, and inheritance should be amended to ensure equality. Here, the country’s failure to recognize same-sex marriages was deemed to be a violation of the Nepali Constitution.
Even sans a law on this yet, the recent ruling of the Supreme Court adds to the pro-LGBTQIA developments in Nepal. In 2007, the Supreme Court of Nepal gave legal recognition to the third gender; in 2015, the court ordered the government to issue citizenship documents with a third gender category; and in 2020, the country passed new civil and criminal laws prohibiting discrimination based on sexual orientation and gender identity.
