Tufan Nuepane/ Kathmandu March 3,  If Nepal government formulates a law to legalise same-sex marriage, it will obviously shakes some traditional norms of values of the society. Chanchala who married with Umesh in a Budhasubba temple now has been warmly accepted by family, society and relatives.  

 “I have been recognized in the family as well as in the society,” she said. Country’s law is yet to recognize the same-sex marriage but Chanchala and Umesh are fortunate same-sex couple. However, hundreds of same-sex people are yet to marry due to the various social problems and constraints.

A government committee has already recommended the legalization of same-sex marriage and amendments of related marriage law such as property rights, divorce and adoption.  “After the Committee recommended, we are very much happy, many people like us now should marry without any hesitation,” Chanchala said.

Contribution of historic verdict

The Supreme Court, in a decision delivered on December 21, 2007 in Sunil Babu Pant v Office of the Prime Minister and Council of Ministers (2009), made a very important verdict in the field of legalizing same-sex marriage. He ordered the government to make law to ensure the equal rights of gay like other people in the society. The Court also ordered to change the existing laws to pave the way for the same-sex marriage. Later government formed a committee to suggest the ways about legalizing the same-sex marriage with six month’s mandate but it took six years to complete its tasks.  “We strongly recommend to amend the laws to pave the way for same-sex marriage,” the report states.

Nepal already has some of the most progressive policies on homosexuality in South Asia, but the law does not allow for gay marriage. It introduced a transgender category for citizenship certificates in 2013, and the Supreme Court has said passports must also include a third gender category. “It shows that our society is gradually becoming more liberal. We have accepted the pluralism and identity of sexual minorities,” said Committee member and Advocate Hari Phuyal

Sociologist Dilli Ram Dahal said such laws have a long-term implication in the society. “The hidden relationship will be open and it would increase the attraction to same sex,” Dahal said. Nearly 8 lakh sexual minorities will get the justice in Nepal.

Pinki Gurung, Chairman of  Blue Diamond Society: 

It has been a long wait. We are very encouraged by the recommendations. We ill now see if the government will materialize it into law. According to Society, there are 8 lakh gay in the 40 districts and they will get the justice. Fundamental rights and state directives Committee of previous CA has recognized the family rights as a fundamental right. It has also identified the gender identity and sexual orientation.  It has given a space to the same-sex marriage.

Pressures

There is a perception in the society that marriage is only between man and women. There is a need to amend the existing laws and regulations to ensure the property rights for the gay and homosexuals. Advocate Phuyal said there is need to recognize the same-sex marriage by the society.

The committee in its report has asked the government to amend the Civil and Criminal Code bills tabled at the Parliament and redefine marriage as a relationship between two individuals. It has also asked to decriminalize homosexuality.

 Although the Criminal Code bill does not explicitly criminalize homosexual behaviors, ‘unnatural sex’ is punishable by law.  The term ‘unnatural’ sex, however, is left undefined, but legal advocates believe that it refers to homosexual acts.

 It seems that there is not impact of Supreme Court verdict in the government because it has not incorporated such provisions in the bills. The committee has asked the government to bring uniformity in the constitution drafting process and law making process. Receiving the report, Chief Secretary Lila Mani Poudel assured to make the law as suggested by committee. Gurung said there is still a traditional mindset which needs to be changed.  As gay intercourse can not give birth to children, new law should pave the way of surrogate mother and father to ensure the children.

Nepal is an example for world : Advocate Hari Phuyal

We submitted the report working hard for six years. In this period, we discussed with all stakeholders inside and outside the country. We also conducted a comparative study of domestic law and international law. Though many countries are liberal on same sex marriage, there are very few countries that have formulated laws.

Many countries have allowed living together on mutual understanding, while others are silent on same-sex marriage. Courts of many countries have ruled that if same sex people are living together not to hinder them.  As per the verdict of Supreme Court, we have recommended to formulate gender neutral law. We have advised to formulate legal structures. There are more than a dozen laws which have to be amended to guarantee the property, dowry, pension, and other property related laws. This means our society is heading towards open society where there will not be any discrimination. This could be an example for the world.

Source : http://nepalihimal.com/article/4047