Thailand set to legalise marriage equality

After Taiwan and Nepal, Thailand may soon become the third Asian country to recognise the right to marry of non-heterosexual couples.

AFTER Taiwan, Thailand may become the third Asian country and the first Southeast Asian country to legalise marriage between non-heterosexual couples.

Last month, the Thai government approved a draft law put forth by the country’s ministry of justice, which seeks to amend the Thailand Civil and Commercial Code to define marriage as between any two “individuals”.

Currently, Section 1458 of the Thailand Civil and Commercial Code states that a “marriage can take place only if the man and woman agree to take each other as husband and wife, and such agreement must be declared publicly before the registrar in order to have it recorded by the registrar”.

The Prime Minister of Thailand, Srettha Thavisin, stated that the Bill seeking to amend the Thailand Civil and Commercial Code could be tabled before the National Assembly (Thai Parliament) for consideration in December this year.

Marriage equality in Asia

There have been some major developments with regard to marriage equality in Asia, especially in South Asia, in the last decade.

Nepal’s Supreme Court endorsed the idea of marriage equality as early as 2007 in Sunil Babu Pant versus the Government of Nepal, when the Himalayan nation became the first Asian country to decriminalise homosexuality.

Although the court did not explicitly deal with marriage equality in that case, it held that the right to marry is an inherent right of every adult based on free consent and will.

However, even as the higher judiciary in Nepal proactively continues to support marriage equality, the lower courts fail to comply with the precedents of higher courts.

The Nepalese legislature prima facie seemed to be in support of marriage equality when they stated on affidavit that the Constitution of Nepal and relevant laws are equally applicable to all citizens.

However, the recent overhaul of The National Civil (Code) Act, 2017(2074) and the National Penal (Code) Act, 2017, where marriage continues to be defined in binary terms, depicts a different ground reality.

Taiwan’s marriage equality law, the Enforcement Act of Judicial Yuan Interpretation No. 748, was passed in 2019 as a response to a 2017 ruling of a constitutional court.

Four years later, Taiwan recognised marriage equality, becoming the first Asian country to grant joint adoption rights to non-heterosexual couples.

India could have joined Nepal and Taiwan as the third Asian country to grant marriage equality rights.

In 2018, Indian Supreme Court read down Section 377 of the Indian Penal Code, 1860 to decriminalise sex between consenting adults in private.

In subsequent years, petitions were filed in different courts across the country for marriage equality as the next logical step for equal rights for gender and sexual minorities. 

However, on October 17, 2023, Indian Supreme Court refused to recognise marriage equality, declaring that there is no fundamental and unqualified right to marry.

Of the 48 Asian countries in Asia, homosexuality continues to be outlawed in ten, including Sri Lanka, Bangladesh, Pakistan and Maldives.

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