The Nepalese society, deeply rooted in Hinduism, has long upheld the sacred union between a man and a woman as the epitome of marital sanctity. The cultural fabric of Nepal has historically leaned towards traditional norms, heavily influenced by the Hindu mythology, where stories of deities such as Lord Shiva and Goddess Parvati, Lord Ram and Sita, underscore the virtue attributed to heterosexual relationships. The concept of marriage is closely tied to procreation and the traditional gender roles of a man and a woman. This has led to a lack of explicit discourse on same-sex marriage within the Hindu religion. The emphasis on procreation in marital unions has made it difficult for society to accept and acknowledge the legitimacy of same-sex unions.
However, in recent years, there has been an ongoing discourse on human rights and the need for equal rights and nondiscrimination for all individuals, regardless of their sexual orientation. This is particularly important in a society with predominantly religious values, where the lens of human rights sensitization has become essential in navigating the complexities of societal acceptance, particularly concerning the LGBTQ+ community. In the same light, human rights sensitization in Nepal has become a tool not only for raising awareness but also for challenging and dispelling the persistent misconceptions and superstitious beliefs that act as significant impediments to the societal acceptance of the rights associated with homosexual unions. Amidst the current discussions and advocacy for human rights, there is optimism for a change in societal perspectives regarding same-sex marriage, particularly as the laws are becoming increasingly progressive in support of homosexual unions.
Nepal’s International Commitments and National Legal Framework
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Despite Nepal's status as a developing nation, the country has made strides in aligning its legal frameworks with international human rights commitments. The Universal Declaration of Human Rights (UDHR), adopted in 1948 and ratified by Nepal in 1991, recognizes the right to marry and find a family in Article 16. The International Covenant on Civil and Political Rights (ICCPR), signed by Nepal, further reinforces the principles of the UDHR. Article 23 of the ICCPR underscores the right to marry and find a family without discrimination, emphasizing free consent in marital unions. At the national level, the Constitution of Nepal, 2015 in Article 18 reflects a commitment to eliminating all forms of discrimination, explicitly protecting the rights of gender minorities. Article 18 (2) prohibits discrimination in the enforcement of general laws based on various factors including origin, religion, race, caste, tribe, sex, physical condition, disability, health status, marital status, pregnancy, economic status, language, region, ideological beliefs, or similar grounds. Likewise, Section 69 of the Civil Code 2017 contains a provision regarding the Freedom of Marriage, stating that every person shall, subject to law, have the freedom to conclude a marriage, establish a family, and spend a conjugal life. This serves as evidence that the Nepalese legal system strongly advocates for equality and the prevention of discrimination in homosexual relationships.
Judicial Progress
In recognizing and safeguarding LGBTQ+ rights, especially concerning same-sex marriage, it is crucial not to disregard the advancements made within the judiciary. In a 2012 decision, the Supreme Court in the case of Rajani Shahi v. The National Women's Commission recognized the existence of a lesbian partnership by permitting Rajani Shahi to freely select her partner, Prem Kumari Nepali, as her husband. It stated that everyone has the right to choose their own lifestyle, including living alone or with a partner, regardless of their sexual orientation, and regardless of whether they want to formally enter into a marriage. The decision confirmed that a woman or man cannot be legally denied the right to cohabitate with another same-sex woman or man if they wish to live with them. Similarly, in the case of Suman Panta v. Ministry of Home Affairs and Department of Immigration (2017), the Supreme Court indirectly recognized the court marriage that occurred in Sacramento County, California between two homosexual women i.e. Suman Panta and Lesli Louis Melkin by ordering the Department of Immigration to grant them non-tourist visas.
A recent significant milestone occurred on June 27, 2023, when the Supreme Court of Nepal, through the single bench of Honorable Justice Til Prasad Shrestha, issued a landmark ruling by ordering the government to immediately begin registering same-sex marriages, making Nepal the first country in South Asia to allow the registration of same-sex marriages. Following this ruling, homosexual couples like Surendra Pandey and Maya Gurung, as well as Prakash Chaudhary and Manila Neupane, have got their marriage registered, demonstrating the nation's progress towards accepting and allowing same-sex unions.
The journey towards full equality in Nepal may be ongoing, but the progress made in the legalization of same-sex marriage is a testament to the power of love, advocacy, and societal change and has allowed couples to publicly celebrate their love and commitment.
