Submitted by: Anisha Bhusal

Roll no: 13

Section: A

Recognition of foreign same sex marriage in Nepal

In the context of foreign general marriage, it is much easier to recognize it by relating it
to the connecting factors as mentioned in the Muluki Civil Code of our country. But in
the case of recognition of same sex marriage in Nepal, it is very difficult.

In this 21st century, recognition of same sex marriage has been hot the matter of debate.
There are some states for which same sex marriage is legal whereas there are some
states which never have a culture of accepting same sex marriage.

In the context of Nepal, it is very difficult to say that same sex marriage is legalized. But
constitutionally, there is no restriction over same sex marriage as it has provisioned
Right to Equality and Right to freedom in Article 18 and 17 respectively.

Looking over these Articles of Constitution of Nepal, we can assume that, right to family
and Right to marriage is also guided by principle of equality. But when we look over
other Acts, rules of Nepal, we don’t find it favoring right to marriage of same sex
couples.

Though Supreme Court of Nepal claims that Right to marriage is well protected and
recognized in Nepal when we look over the prevailing legal frameworks it doesn’t seem
that Right to marriage is well protected and recognized in Nepal as it says that Marriage
can only be concluded between ‘men’ and ‘women’ i.e. it has only focused on two
specific gender; male and female.

So, in the context of Nepal recognition of foreign same sex marriage is still very difficult
to imagine.

Several petitions have been filed in the Supreme Court regarding the recognition of
foreign same sex marriage. Some of them are discussed below:

 Sunil Panta vs. Immigration department and others (NKP 2074 B.S Decision no.
9921)

Nepali girl was married to American citizen Lessi Louis in 2015. Later when Lessi applied
for a non-tourist visa in Nepal based on her marital relation with Nepali girl, the
Immigration refused to give spousal visa. So the writ was filed.
Legal question: whether the marriage that took place in foreign nation shall be
recognized or not? Whether spousal visa should be granted or not?

In this case firstly, court very clearly said that it will not speak about the recognition of
same sex marriage as it is not allowed by law. Court set the boundaries for itself. But on
the other hand it invoked the constitutional principles and said that Nepal ensure
equality for all, prevents discrimination on the ground of sexual orientation. Suman
Panta is a Nepali citizen. She should be treated equally like that other Nepali citizen. Her
right to family should be respected. So, spousal visa should be granted to her partner
Lessi.

This case was the golden opportunity for the court to discuss about the recognition of
foreign same sex marriage. But instead of doing so, court invoked the constitutional
principles in this case.

Criticisms: What will be the courts responses incase Lessi filed a case of divorce in
accordance with Nepalese laws in upcoming days?

 Adhip Pokharel vs. Home Ministry and Immigration Department (070-w0-0198)

Adhip, a Nepali citizen got married to Tobias according to German law in 2018. However,
the couple had trouble in getting their marriage registered in Nepal and were informed
that there is no provision regarding registration of same sex marriage in Nepal. The
spousal visa was also denied in this ground. So, the writ was filed.

Rule 8 of Immigration Regulation of Nepal states that foreigners who maintain a

marriage relationship with a Nepali citizen and submit a marriage certificate, there is a
legal system for granting non- tourist visa.

Legal Question: what kind of provisions have been in the Constitution of Nepal regarding
the rights of sexual minority communities and their marriage? What are courts current
views on marriage? What is the opinion of the Court so far regarding the provision of?
Order to be issued or not?

(Note: though this case is purely related to private international law, Supreme Court has
not viewed and interpreted the case through that dimension.)

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 observed that the term “gender identity and sexual orientation” entered the
Nepali legal literature after the Sunil Babu Pant case and established the LGBTQ+
community’s right to live with dignity.
The court also 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.
The Court noted that demands of the Adhip’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 Tobia.

Order was issued on following grounds:

Protocol and Consular Handbook no.2 provided by foreign ministry: provides spousal
visa to the same sex partner of the diplomatic agent based on the principle of
reciprocity, it would be discriminatory to not provide such visa to Nepali Citizens.

Civil Code, Sec. 692, 699, 701 has provision of recognizing the marriage occurred in
foreign country, neutral words regarding marriage.
Similarly, Regarding compulsory fill up of husband/wife in the form of visa application on
bullet no 11 of the Schedule 2 of Immigration Rules, 2051, it seems to be obstacle for
the exercise of fundamental rights of gender and sexual minorities so directive order
was issued for necessary amendment in the law in order to make it easier to grant non-
tourist visa in such cases.

Here, above mentioned cases are related to Private international law. So, the
interpretation and invocation of private international law was expected. But instead of
doing so, the court has invoked the constitutional provisions in these cases. So, when it
comes to invocation and interpretation of Private International Law for the purpose of
recognition of foreign same sex marriage, the role of Supreme Court seems a bit
disappointing.

References:
 https://www.scconline.com/blog/post/2023/05/03/nepal-supreme-court-orders-
government-to-recognise-same-sex-spouse-legal-news/
 https://www.hrw.org/news/2023/05/02/nepal-court-orders-recognition-same-
sex-spouse
 NKP
 Subject Teacher’s presentation slide