After the Supreme Court of Nepal passed two progressive Orders directing the Prime Minister and the council of ministers of Nepal to recognise non-heterosexual marriage and establish an transitional mechanism for the registration of marriages earlier this year, the lower court’s Order turns the clock back.
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THE Patan High Court in Nepal has upheld an Order of the Kathmandu district court that refused to recognise the marriage of a non-heterosexual couple.
On July 13 this year, the Kathmandu district court had cited Section 77 (marriage by registration) of Nepal’s National Civil (Code), 2017 (2074) while rejecting a petition for the recognition of marriage of Maya Gurung and Surendra Pandey.
Gurung identifies as a transgender woman and Pandey as a gay man. The duo got married in a Hindu temple in 2017.
Section 77 of Nepal’s civil code reads:“[I]f a man and a woman desire to conclude marriage by registration, they shall file an application in the concerned district court.”
According to the district court’s Order: “As the two persons applying to get married through the registration are not men and women of different sexes, the court has refused to register the marriage through illegal registration.”
On October 6, Justice Madhav Prasad Manali of the Patan High Court upheld the decision.
The Order dissents from two previous Orders of the Supreme Court of Nepal.
In March, a division Bench of the Supreme Court of Nepal, comprising Justices Nepal Hari Prasad Phuyal and Tanka Bahadur Moktan, had recognised marriage equality in Adhip Pokharel & Tobias Volz versus Ministry of Home Affairs & Department of Immigration. The court had asked Nepal’s Ministry of Law and Justice to prepare an equal marriage law or amend existing laws to accommodate the principles of equal marriage.
Subsequently, on June 28, a single-judge Bench of Justice Til Prasad Shrestha of the Supreme Court of Nepal had passed an interim Order directing the establishment of a “transitional mechanism” for the registration of marriage of gender and sexual minorities in Nepal.
To facilitate the process, the Order had further directed the office of the Prime Minister and the council of ministers of Nepal to establish a “separate register of marriages” for couples belonging to gender and sexual minorities.
With the latest Order, Gurung and Pandey’s hopes of becoming the first non-heterosexual couple whose marriage had obtained legal recognition in Nepal have been dashed. The six-year-long legal uncertainty surrounding their union will continue.
This decision comes close on the heels of the marriage equality judgment by the Supreme Court of India.
On October 17, Indian Supreme Court held that there is no fundamental and unqualified right to marry and that non-heterosexual couples do not have the right to form intimate associations or unions, thus leaving an innumerable number of non-heterosexual couples in limbo.
