Right to marry in Nepal

The LGBTQ+ community hailed a historical breakthrough in their rights on 28 June as Justice Til Prasad Shrestha of Nepal’s Supreme Court issued a temporary order to register same-sex marriages.

Ten days later as parties applied to the District Court to register their marriage judge Madhav Prasad Mainali of the Kathmandu District Court rejected the application for marriage registration. A sub ordinate court appeared to be defying a Supreme Court ruling.

The applicant Maya Gurung (legally named Ram Bahadur Gurung in court documents) filed a petition at the High Court Patan asking it to quash the District Court’s illegal order that stopped the registration of their marriage. Last week the High Court upheld the District Court’s ruling calling the refusal to register same-sex marriage legal. The High Court has predicated its decisions on legal procedure as opposed to substantive rights. There are also lawyers on both sides who believe in the human rights and equality of LGBTQ+ community but battle lines have been drawn on legal technicalities.

Supreme Court Justice Til Prasad Shrestha in an ex parte hearing ordered the Government of Nepal to make temporary provisions to register no-heterosexual marriages. ‘This came out of an ex parte hearing!’ several friends who are lawyers (and vocal proponents of LGBTQ+ rights) exclaimed, ‘It might be judicial over-reach’ one observed. Their comments are based on legal principles.

Ex parte hearings are hearings in which only one party to a case presents arguments and evidence to a judge. The other party is absent. An interim order through an ex parte hearing is sought when the matter at hand is urgent and there is no time to invite both parties to a case to hear the arguments and reach a decision.

Read also: One step forward two steps back on same-sex marriage

To take a hypothetical example, a person’s house is about to be knocked down by a commercial builder. The person may seek to challenge the decision to knock down her house. However, it takes time till the builder is served notice of the lawsuit and invited to court to make their counter arguments. In this instance an emergency interim order may be sought to ‘not knock down the house’ until the case is finally decided.

The question is, does the registration of non-heterosexual marriage qualify as an issue of urgency that merited an interim order issued by an ex parte hearing?

Marriage registration, unlike other civil matters, invites a complex web of legal repercussions. It affects laws on divorce, domestic violence, polygamy, adoption, child adoption, custody, property inheritance and property division amongst spouses. Barring domestic violence Nepali laws in all these matters only envision a spousal relationship between a heterosexual man and woman.

Justice Til Prasad Shrestha is not one to shy away from activism from the bench and issue bold orders. However, his order does not appear to have contemplated any of subsequent effects of marriage on issues of children, property or divorce. His order simply directs the registration of non-heterosexual marriages until subsequent laws are amended to accommodate rights of the LGBTQ+ community. Thus his ex parte order on an issue with expansive legal scope can resonate with perceptions that it is judicial over reach.

The Supreme Court order is also issued for the Government of Nepal to make provisions to register same-sex marriages. It is not explicitly issued to the District Courts that are charged with the authority to register all marriages in Nepal. It is a legal technicality but one that is important as it does not compel any courts in Nepal to follow the order. It is a pronouncement for the executive government not the judiciary was one of the arguments presented by a government attorney who defended the Kathmandu District Court’s decision at the High Court. This argument was upheld in the High Court’s ruling.

If the Executive government is implementing a legal order that has wide scale impact on a large number of people such as same-sex marriage, it is a legal requirement that notice of this is published in the Raj Patra, the government’s official noticeboard. It was argued that this Raj Patra notice might have been a more compelling order for the District Court to register the marriage.

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The government attorney argued that to issue a Raj Patra notice, the Government of Nepal needs time to make requisite amendments to a host of laws pertaining to family matters in tandem with registering non heterosexual marriage. He sounded alarms of proceeding without requisite preparation by putting questions before High Court judges such as: What happens if there is polygamy in this newly registered marriage? Will we charge anybody or will we ignore it as the law in its current status criminalises polygamy by men only? How will we proceed with divorce and inheritance as men and women are treated differently by Nepali laws?

Whilst there is allure of a technical argument that asks for reasonable preparation time for the Government of Nepal, it is worth remembering that the government has had 16 years to do this work. The landmark decision in the case of Sunil Babu Panta not just decriminalised same-sex marriage but also ordered the Government of Nepal to make arrangements, including enacting new laws or amending existing laws, to ensure that people of different gender identities and sexual orientations could enjoy their rights without discrimination.

The High Court order states that if the government of Nepal makes required provisions same-sex marriages can be registered accordingly.

An interim order is not a final decision. The case still needs to be heard in full by the Supreme Court with lawyers from the applicant’s side and the Government’s side making arguments for and against registering same-sex marriage. The constitution is unequivocal in its provision of rights to equality and special protection for gender and sexual minorities. This provides grounds to pre-empt that the court will likely uphold the constitution in the final decision though there is always a chance of surprise.

However, in law the devil lies in the details. It will be interesting to see how the Supreme Court manoeuvres orders towards an obstinate government and legislature to implement any judgment it issues. Within the court’s rank is Justice Hari Phuyal who was litigating on behalf of Sunil Babu Panta in 2007. There is no shortage of subject matter expertise in the ranks of judges now.

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Any rights given to the LGBTQ+ community meets with resistance and controversy. The Supreme Court must ensure that if it confers any rights to this community it safeguards it against procedural and technical legal challenges.

Currently the LGBTQ+ community and the country waits in suspense as this petition awaits hearing at the Supreme Court. The uncertainty of when they will get their day in court is unfair to a large population.

The Supreme Court has decided cases swiftly in the past like the case of MP Rabi Lamichhane. There is no reason why it cannot do the same for this case by issuing a date for the hearing with orders that there can be no adjournment. This move would lend clarity to the status or rights of LGBTQ+ communities instead of holding them hostage to procedural arguments and delays.

Read also: "Nepal is ahead of many countries in LGBTQI+ rights"

Aastha Dahal is a Kathmandu-based lawyer with a PhD in criminology from the University of Cambridge.