Supreme Court of Nepal: In a significant development in the neighbouring country of Nepal, the country’s Apex Court on 02-05-2023, ordered Nepal Government to recognize the same-sex foreign spouse of a Nepalese citizen1 Human Rights Watch reported that the Supreme Court also ordered the Government to urgently consider a 2015 court-ordered report that recommended broader recognition of same-sex relationships2.
Referring to its landmark precedents in Sunil Babu Pant v. Nepal Government3, and Suman Panta v. Ministry of Home Affairs4, which recognized rights of lesbian, gay, bisexual, and transgender (LGBTQ+) people, the Court ruled that failure to recognize same-sex spouses violates Nepal’s Constitution and its international human rights obligations.
This is not the first time that Nepal’s Supreme Court had made its stand clear regarding LGBTQ+ rights. Apart from decisions in Sunil Babu Pant case (2007); Rajni Shahi v. National Commission of Women (2012), where the Court had allowed a lesbian couple to co-habit5; and Suman Panta case (2017); the Court in a decision rendered in March 2023, ordered the Government to recognise the same -sex marriage between a Nepali citizen and a German Citizen.
Adheep Pokharel v. Ministry of Home Affairs6
In this writ petition the Division Bench of the Court comprising of Hari Prasad Phuyal* and Tank Bahadur Moktan, JJ., heard the prayer made by Abhdeep Pokharel and his spouse Tobias Volz, a Nepali and German citizen respectively.
Abhdeep, who had worked in several United Nations affiliated organisations, met Tobias. They fell in love and got married according to German law in 2018. However, the couple had trouble in getting their marriage registered in Nepal and they were informed there is no provision of registering same-sex marriage in Nepal. Tobias’ non-tourist visa application was also denied.
The petitioners stated that Constitution of Nepal has established the rights of homosexuals or gender and sexual minorities and provides that both citizens and individuals shall not be discriminated against and shall be provided with equal protection in the eyes of the law. The provisions of Section 7 of Nepal’s Immigration Act, states that the Immigration Department can issue visas as prescribed by the law and can extend the duration of the visa, while Rule 8 of the Immigration Regulations, states that foreigners who maintain a marriage relationship with a Nepali citizen and submit a marriage registration certificate There is a legal system for granting non-tourist visas.
Supreme Court’s Assessment: The Court deliberated over some important questions like—
What kind of provisions have been in the Constitution of Nepal regarding the rights of sexual minority communities and their marriage?
What are the Court’s current views on marriage?
What is the opinion of the Court so far regarding the provision of non-tourist visa to the foreign spouse of a Nepali homosexual person?
It was observed that the law, administration, and society of Nepal have been discriminating against the minority communities based on sexual orientation and gender identity during the making of the Constitution of Nepal regarding gender and sexual minorities. Finally, in Sunil Babu Pant’s case this Court held that, “gender includes the third gender apart from women and men”, the Court observed that the term “gender identity and sexual orientation” entered the Nepali legal literature after Sunil Babu Pant case and established the LGBTQ+ community’s right to live with dignity.
The Court took note of another of its precedent in Suman Pant case, wherein an order for grant of non-tourist visa to the petitioner was issued.
“When it comes to the question of the rights of the individual, except in cases where the law clearly prohibits it, everyone’s thinking should be towards the fact that the individual has the right”.
The Court pointed out that Constitution of Nepal has accepted the separate identity of sexual minorities and guarantees that discrimination on the basis of gender cannot be done, and if the immigration law or regulations do not deny such identity, it is unfair to deny the rights granted by the constitution by the word “husband/ wife” mentioned in the application form. “A foreigner who is married to a Nepali man will receive a non-tourist visa because it is connected with the identity and honor of the person of that community”.
The Court noted that legal questions and demands of the Adheep’s matter are consistent with that of Suman Panta case. Therefore, following the rule of stare decisis, the Court followed the dictum laid down in Suman Panta’s case and directed the Immigration Department to grant a non-tourist visa to Tobias Valz. However, the Court strictly noted that the Immigration Department’s actions are unacceptable and unlawful.
Court’s Decision: The rights and interests of same-sex couples should be protected by amending the system. Therefore, in the procedures for obtaining a non-tourist visa for a person who is married to a Nepali citizen of a gender and sexual minority community, the provision of filling in the details as spouse/wife in the Immigration Regulations, is an obstacle and there is a high risk of destroying the enjoyment of the right to conduct marriage and family life in an unbroken manner. Therefore, it is necessary to make amendments in the provision and make arrangements so that foreign citizens who establish conjugal relations with Nepali citizens of the said gender and sexual minority community in the future can easily obtain non-tourist visas.
Gender Neutrality and Recognition of Same-sex Marriage
The Court in Adheep Pokharel v. Ministry of Home Affairs, noted that legislative definition of marriage states that a man and a woman shall be considered married when they accept each other as husband and wife through a celebration, ceremony, ceremony or any other act. “Even though the right to live a family life has been approved by the Constitution and the judgments of this Court, it does not seem to be informed by such orders or provisions. In reality, binary words such as ‘son’ and ‘daughter’ are a hierarchy in themselves (…) In this perspective, laws using such words are considered questionable and changeable”.
The Court noted that efforts have been made to maintain gender-equality by removing gender-related words many Nepalese subject laws, but Federal laws are still not gender neutral which dulled the enjoyment of rights for the LGBTQ+ community vis-à-vis marriage.
It was observed that the concept of human rights seems to have developed based on the dignity and respect inherent in each person and that no person should be deprived of any right based on their identity. The Court also pointed out that that various countries have begun to recognize same-sex relationships, registered partnership, civil partnership, civil relationship civil union, same-sex marriage, domestic partnership, non-binary marital relationships. Countries like Netherlands, United Kingdom, United States of America, Australia etc., all have either amended their laws to include the LGBTQ+ community or repealed discriminatory laws. The Nepalese Court also pointed out two landmark Supreme Court of India’s decisions in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, which have furthered the objective of inclusivity of the members of LGBTQ+ community.
Perusing the studies undertaken by reputed universities and reports of internationally recognised human rights commissions, the Court stated that it seems necessary to find out how the gender and sexual minority communities can be included in the definition of marriage so as to give positive legal recognition to same-sex marriage and to include legal provisions including divorce, annulment, adoptions.