While congratulating Thailand’s adoption of equal marriage laws, many news portals have again restated a misinformation that Nepal has also legalised, adopted, or allowed equal marriage laws. That is incorrect information.” Rukshana Kapali, Nepal’s first transgender law student, writes on twitter.
Marriage as an institution affects many areas of a couple’s union, overlapping with laws such as divorce, adoption rights, citizenship, emergency healthcare contact, and more. However, the current Nepali laws only ascribe to gender-binary and heteronormative language and do not have comprehensive research on whether they cater to the same-sex marriage.
In Section 67 of the National Civil Code (NCC), 2017, marriage is defined as a permanent, holy, social, and legal bond between a man and a woman, based on free consent, to start conjugal and family life. The NCC replaced Muluki Ain, previously implemented as an integrated law of civil and criminal matters with the First Muluki Ain issued in 1854.
“Despite the NCC’s reforms, marriage laws in Nepal continue to exclude LGBTQIA+ individuals, recognising only cisgendered and heterosexual unions,” states Rukshana. She then adds, “It is still a topic of research regarding how many laws in Nepal wholly cater to the gender binary only and whether these laws support the issue of marriage equality.”
So, unless the federal parliament amends laws to include non-binary individuals and non-heterosexual relationships or enacts a new law specifically, marriage equality is not legally possible.
Amidst the pervasive binary laws, there have been some landmark decisions on marriage equality and marriages, now and then, too. Perhaps too many landmarks?
“Why is everything a landmark? It is understandable that people want to celebrate, but when will the cycle of these ‘first marriages’ end?” Rukshana questions the hype as someone who understands the much-needed work yet to be done.
In 2064 B.S. (2007/08), the Supreme Court passed a landmark verdict in the writ petition taken by Blue Diamond Society (BDS) et. al. This was the very first verdict as well as a legal mandate in Nepal.
Among several orders, one of the orders was a directive order to the government to form a committee to study about समलिङ्गी विवाह (same-sex marriage). The court suggested that same-sex marriage should be recognised.
The committee was supposed to be formed, study, and make recommendations. The committee submitted its report seven years later in 2071 B.S. (2014/15). The report was based on then prevailing law, मुलुकी ऐन (Country Code).
This law was replaced by the Civil Code and Criminal Code (separate laws now) in 2074 B.S. (2017/18). This verdict was widely reported as the legalisation of same-sex marriage in Nepal.
In 2069 B.S. (2012/13) a writ petition of habeas corpus was filed by Prem Kumari Nepali on behalf of Rajani Shahi. These two women were in love and wanted to live together. Rajani Shahi was “married off” to a man by her family.
Rajani never experienced any attraction towards men and therefore never wanted to stay in that marriage. She found Prem Kumari Nepali, another woman whom she wanted to live together with and be in a relationship with, and probably marry.
However, Rajani was tortured by her family believing it was an “illness.”. Her husband held her as a prisoner. Prem Kumari took this case to the Supreme Court, where one of the rulings was that two legally adult individuals who wish to live together have the right to do so. This was also seen as the legalisation of living together for People of Marginalized Sexual Orientation, Gender Identity & Sex Characteristics (PoMSOGIESC). This verdict was also reported in the media again as the legalisation of same-sex marriage.
Fast forward to 2074 B.S. Suman Panta took the government to the Supreme Court. Suman Panta married an American woman in the USA, Leslie. They both came to Nepal, and Leslie applied for a spousal visa. The Immigration Department denied a spousal visa to Suman’s wife.
The court ruled that Suman and Leslie had a legally valid marriage in America and cannot be discriminated against just because of their sexual orientation. The court ordered the government to issue a spousal visa for Leslie. This was also reported in the media as the legalisation of same-sex marriage.
In 2079 B.S. (2022/23) a gay couple also experienced the same problem. Adhip Pokhrel had married a German citizen, Tobias. Tobias was not granted a spousal visa. The Supreme Court ruled to provide a spousal visa to Adhip’s husband.
This was another groundbreaking verdict because after the second wave of the PoMSOGIESC movement began in Nepal during 2077 B.S. (2020/21) this was the first verdict that addressed many issues within the past Supreme Court verdicts. It also urged the government to amend existing laws that have gender-binary and heteronormative language. By the way, this verdict too was reported as the legalisation of same-sex marriage.
Based on Rukshana’s research, there was news about a landmark marriage in 2017, celebrating the union of Monica Shahi and Ramesh Nath Yogi.
“Their union was apparently possible because Monica, who had her deadname on her citizenship certificate, was referred to as a third-gender woman, which was the existing language of that time. But that is still a valid registration.” Rukshana unpacks the details.
In 2021, the Queer Youth Group filed a writ at the Patan High Court seeking equal marriage rights for all consenting adults. The petition was dismissed due to jurisdictional limitations, highlighting the procedural hurdles in pursuing such cases.
The same year, two cases were filed at the Supreme Court. Mitini Nepal filed a writ petition under article 133 (1) of the constitution demanding the provision of marriage in the current Civil Code be nullified as it contradicts the constitutional provision of the right to equality, et al. The case is pending at the court.
Blue Diamond Society et. al. took another case under article 133 (2) and (3) demanding mandamus to legalise same-sex marriage. This writ petition saw an interim order in its preliminary hearing.
The interim order briefly states to “keep temporary records of marriage between petitioners and other people like petitioners.” There was a long back and forth and turmoil for petitioners to get this interim order implemented.
“The Supreme Court issued an interim order for the time being,” Rukshana explains the landmark verdict. “The case by BDS is still ongoing; there has not been a final verdict yet. But there is an interim order that states that the applicant couples for marriage registration shall be provided with a temporary provision of marriage registration certificates. And this temporary provision is being hailed as the legalisation of same-sex marriage.”
Finally, the Department of National ID and Vital Registration, under the Ministry of Home Affairs, issued a directive to all local registrar officers with a template of the record book and provisional marriage certificate.
Rukshana believes that the court intends to get a glimpse of how many PoMSOGIESC across the country want to get married.
But, even after the interim order, couple Maya Gurung and Surendra Pandey struggled a lot to register their marriage, even temporarily. It finally got registered in November 2023, making Nepal the first country in South Asia to do so.
However, the interim order does not entail court marriage for same-sex couples. This is because marriage by registration is not the same as a marriage registration; it is only a temporary record. Court marriage is a separate process. It is a matter of registration, not marriage. You can go to a room for that.
To a query of whether trans people can get married, Rukshana replies, “This takes the route of interpretation of laws. The law says that if it’s between a man and a woman, then they can get married. People who want to change citizenship, there are those who are doing it. Although the law does not set clear guidelines, people have opted for citizenship change by filing a court case.”
Rukshana, also the Chief Executive Officer at Queer Youth Group (QYG), and her team are currently testing a case, and if it becomes a success, it will open ways for trans couples to get married. They are also looking into making initiations from respective wards for same-sex couples’ marriage registration.
Likewise, transgender marriage and same-sex marriage have different marriage recognition in the sense that conversations like this have not happened in Nepal—trans people can also be gay or lesbian. For trans folks who are gay or lesbian, they have to wait for same-sex marriage to be legalized. For trans folks who are heterosexual, if they are getting into heterosexual marriage, then they do not have to wait.
Activists like Rukshana are questioning the validity of this temporary registration since the legal implications are still unclear. Questions remain about whether couples are eligible for rights such as tax deductions and healthcare consent, as these provisions have not been fully addressed in the interim order.
“The current legal system extending rights associated with heterosexual marriages only could be a subject to another litigation; however, interim orders are not permanent verdicts. There is a difference.” She elaborates.
This year, in 2081 B.S., (2024/25) someone named Yuvaraj filed a writ petition against same-sex marriage with heteronormative and queerphobic lines of argument. He specifically opposed the legal acknowledgment of same-sex marriages, claiming that it undermines the traditional definitions of marriage, family, and relationships in Nepal. Furthermore, he requested the court to annul any previous orders or legal recognition of same-sex marriages and to halt the registration of these marriages until a final judgment is delivered.
However, the court rejected his demand and consolidated all related cases, including Mitini Nepal and the Blue Diamond Society, to be tied and heard together.
Going back to the context of the legalisation of marriage equality, it makes one ponder the question: Was it ever criminalized? Nepal does not have Section 377, like India, which was scrapped off in their landmark decision in 2018.
“It is tricky to say it is legalised when same-sex marriage was never criminalized. But then again, it’s not legalised yet,” Rukshana strikes with reality.
While the temporary marriage certificate does provide a certain form of recognition, should the Supreme Court decide to dismiss the case, the validity of that temporary recognition will be gone too. With the temporary recognition, the question of whether it grants other legal rights is yet unanswered.
“So, for rights pertaining to tax, housing, and healthcare to be legal, first the marriage needs to be institutionalised,” Rukshana claims, and adds, “While technically these rights are not guaranteed with the temporary recognition of a same-sex couple’s marriage, maybe they could file another case with the court and claim these legal rights that come with the marriage. These are all just situations of likelihoods and possibilities not experienced yet.”
In Nepal, the constitution is above all. But even with constitutional supremacy, the provisions stated in the constitution are yet to be implemented since there are no acts that need to be made in the first place. And what also matters is who has the responsible authority to formulate the provision of acts. Is it the government of Nepal? Is it the provincial government? Is it a ministry or a commission body?
Depending on all this, acts are made on the basis of the constitution, followed by regulations on the basis of acts and then procedures on the basis of regulations. Once all of these take place, like a domino effect, then there will be a proper implementation. Simply having provisions of rights mentioned in the constitution does not guarantee those rights right away.
Upon being asked if Nepal has a particular government body that oversees gender and sexual minorities, Rukshana laughingly replies, “We are filing a lawsuit about that too.”
This article is based on a conversation with Rukshana Kapali, housing rights defender and transgender activist from Nepal.
