The Supreme Court of Nepal has issued a landmark ruling ordering authorities to recognise a gay foreign spouse of a Nepali citizen and instructing the government to move towards the legalisation of same-sex marriage.
The case in question was brought by Nepali national Adheep Pokhrel and his German husband Tobias Volz after the latter was denied a non-tourist visa by the nation’s Department of Immigration. The couple had married in Germany in 2018 with the intention of later moving to Nepal, but their request was denied on the grounds that the application form read “husband” and “wife”.
The pair thus decided to bring their case before the Supreme Court, citing two previous judgements in their submissions. The first such judgment was passed by the Supreme Court in 2017 when a lesbian couple took their case after a non-tourist visa was denied to one of the spouses, an American national.
The court ruled in favour of the lesbian couple, stating: “[I]f a foreign national claiming to be married to a Nepali citizen submits a marriage registration certificate and the Nepali citizen confirms the marriage in their visa application, then the issuance of visa to the foreign national cannot be denied.”
The second case mentioned dates back to 2007 when, in response to a petition brought forward by LGBTQ+ activists, the Supreme Court ordered the government to set up a committee with the purpose of studying legislation on the recognition of same-sex marriage across the world.
The 2007 judgment read: [W]e hold that it is an inherent right of an adult to have marital relations with another adult with her/his free consent and according to her/his will. Same-sex marriage should be viewed from the viewpoint of interest and rights of the concerned people as well as that of the society, family and all others.”
#Nepal’s Supreme Court has been clear on LGBT rights: equality should be the target.
But the government needs to move faster on implementation.
— Human Rights Watch (@hrw) May 2, 2023
Building on the judgments from 2007 and 2017, the Supreme Court ruled in favour of Pokhrel and Volz, stating that failure to recognise same-sex marriage violates the constitution in Nepal, as well as the country’s international human rights obligations. Moreover, the court ordered the Department of Immigration to immediately grant a non-tourist visa to Volz.
“Given this background, it appears that same-sex marriage should be considered a subject that is envisioned by the constitution and in accordance with the Constitution of Nepal, the decisions made by this Court, the report by the committee formed in accordance with the order by this Court, and the human rights treaties ratified by Nepal,” the ruling stated.
Senior LGBT Rights Researcher at Human Rights Watch, Kyle Knight, commented on the ruling, saying: “The Supreme Court has again drawn attention to the government’s lagging implementation of court orders to recognise same-sex relationships”.
He added, “Nepal has a global reputation as a leader on LGBT rights, and the government needs to live up to it with a tangible policy change.”
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