Nepal Registers First Legal Same-Sex Marriage In South Asia

Nepal has become the first South Asian country to formally register same-sex marriage after the Supreme Court legalized it.

• The marriage of 35-year-old trans woman Maya Gurung and 27-year-old gay Surendra Pandey has been legally recognized and their marriage has been registered in Dordi Rural Municipality of Lamjung district in western Nepal.
• Same-sex marriage was permitted by the Supreme Court of Nepal in 2007.
• In this regard, the Constitution of Nepal, adopted in 2015, also clearly states that there can be no discrimination on the basis of sexual orientation.

Supreme Court's comments regarding same-sex marriage in India

• Recently the Supreme Court has given its much awaited judgment rejecting the petition to legalize same-sex marriage and delved into the provisions of the Special Marriage Act, 1954 to examine the issue in depth.
• The five-judge Constitution Bench of the Supreme Court of India, headed by the Chief Justice of India, voted 3:2 against allowing constitutional validity of same-sex marriage.
• The Chief Justice clarified that the Court can neither invalidate the Special Marriage Act (SMA) 1954 nor add provisions to include homosexual members within the ambit of the Special Marriage Act, 1954. It is the responsibility of the Parliament and the State Legislature to make laws on this.
• The judges of the Constitution Bench also agreed that there is no fundamental right to marry under the Constitution.
• However, the Supreme Court says that marital relationship is not permanent.
• The SC holds that homosexual persons have equal rights and freedom to enter into "association".

Legality of same-sex marriage in India:

• Under the Indian Constitution, the right to marry is not explicitly recognized as a fundamental or constitutional right, but as a statutory right.
• Its recognition as a fundamental right has evolved only through judicial decisions of the Supreme Court of India. Such declaration of law under Article 141 of the Constitution is binding on all courts throughout India.

Previous views of the Supreme Court on same-sex marriage:

Marriage as a Fundamental Right (Shafin Jahan vs. Asokan KM and others 2018):

• Citing Article 16 of the Universal Declaration of Human Rights and the Puttaswamy case, the Supreme Court said that the right to marry a person of one's choice is an integral part of Article 21 of the Constitution.
• According to Article 16(2), there shall be no discrimination on grounds of religion, race, caste, sex, origin, place of birth, residence or any of them.

The LGBTQ community is entitled to all constitutional rights (Navtej Singh Johar and others vs Union of India 2018):

• The Supreme Court holds that members of the LGBTQ community, "like all other citizens, are entitled to the full range of constitutional rights including liberties protected by the Constitution" and are entitled to equal citizenship and "equal protection of the laws."