Strand, London, WC2A 2LL
B e f o r e :
|- and -
Ms Tina Villarosa for the respondent husband
Hearing dates: 16-18, 20-22 May 2012
Crown Copyright ©
Mrs Justice Parker :
i) H married Arvindaben on 23 August 2006 in India;
ii) Both the Indian and British authorities have accepted the divorce as valid in permitting H to remarry;
iii) Both the British and Indian authorities regard H's marriage to Arvindaben as valid;
iv) On that basis she has been granted a spousal visa permitting her to come to England as his wife, where she lives as part of his household in a fully functioning marriage.
The marriage and divorce
• W Petition dated 25 June 2009
• W affidavit 24 June 2009
• H Answer to Petition 2 January 2010
• H affidavit 4 January 2009
• H "statement of the case" 22 July 2010
• H Application to strike out the petition 21 October 2010 (not progressed)
• W Amended petition 20 December 2012
• W "final statement" 16 January 2012
• W statement 9 May 2012
• Statement of Jagjivandas 14 May 2012
• Statement of Dipika 14 May 2012
• 31 March 2001
• 5 May 2011 (in the form of response to questions)
The litigation history
a) The divorce was not of such a nature that it would be recognised in this jurisdiction
b) W sought financial provision
c) In any event W was entitled to apply for financial relief pursuant to Part III Matrimonial and Family Proceedings Act 1984.
a) She will ultimately seek a financial remedy;
b) She was not seeking a reconciliation with H;
c) She had been advised by the immigration adjudicator that she should apply for a declaration as to the validity of the divorce;
d) She had been told by Professor Menski that this was a test case.
The background, the evidence, and some conclusions
a) The deed has a government 500 rupee stamp affixed to it together with a photograph of W;
b) It names W;
c) It is described as a "deed of divorce";
d) W is described as the "first part party" and H as the "second part party";
e) It records that there had been matrimonial differences and the parties had started to live apart;
f) It states that the parties and members of their community had decided and the parties had decided on divorce;
g) It is asserted that the parties have executed the deed together;
h) It records the date of the marriage;
i) It records that marital gifts had been handed back;
j) It records that the "first party" has no concern in the property of the second party;
k) It bears signatures, and a further photograph of W and a photograph of H;
l) It bears signatures purportedly of JP and Anilkumar;
m) It is counter signed by the registrar at Chikli;
a) Why she did not suspect that H was engineering a divorce, since she had been told by Anilkumar that this was what he wanted;
b) Why, however beleaguered she felt, W did not ask H, or Dipika, her friend, or the registrar what was going on, or according to her, even hesitate or express any surprise at what was happening;
c) W has changed her account about whether she was told, or whether she believed, that the deed related to separation since on her own account she knew that H was talking about divorce with his family and community members;
d) Her explanation that she did not think that H could get a divorce 'just like that' did not ring true;
e) She could not explain why her father did not accompany her to the venue and why she did not tell her father that H was talking of divorce: why he was angry with her: and why, having been commanded to attend the register office, he did not accompany her to support and protect her.
Mr Desai's evidence
Events after W returned to England.
a) H instigated the divorce. I do not accept H's case that W instigated the divorce, nor that she had personal reasons to do so.
b) W assented to the divorce and facilitated it by instructing Mr CD. Her father knew about the process. He must have known about the divorce registration. There are many reasons why her father may have gone along with the divorce and many reasons why W may have assented and participated.
c) I accept that there was a family meeting attended by W's father, in the presence of community members, at which the divorce was approved. I cannot find on the balance of probabilities that W was present at a meeting.
d) I accept that the divorce was validly registered by the registrar in proper form at his offices, in the presence of family and community members, after the registrar had explained the process and confirmed assent.
e) H had no expectation that there would be any challenge to the divorce by W in this jurisdiction, and remarried on that basis.
Professor Menski's opinion
a) This is a customary panchayat divorce;
b) In India registration does not create the divorce: "the customary solemnisation in accordance with the community Hindu custom is the decisive criterion";
c) There is no legal requirement for formal legal proceedings;
d) There is no fixed and definite procedural requirement to obtain a customary divorce;
e) S 29 (2) of the Hindu Marriage Act 1955 specially preserves the right recognised by custom to obtain an extra judicial divorce: these account for 80% of Hindu divorces "Nothing contained in this Act shall be deemed to affect any right recognised by custom ... to obtain the dissolution of a Hindu marriage...";
f) The deed is executed under that statutory provision. "Such document would be accepted and recognised by any court in India as documentary evidence of the fact that a customary divorce was agreed between the parties and sanctioned within their community context Some documentation is usually called for but there is no rule that this should be in any particular form still less that it should be registered";
g) The deed is entirely typical of many he has seen and would be accepted and recognised by any court in India as documentary evidence of the fact that this customary divorce was agreed;
h) The document records the presence of community members on the pronunciation of the divorce;
i) The involvement of community members is sufficient but it is impossible to define quite what happened: it is sufficient "if there is evidence of involvement of elders and there is a document of divorce";
j) In oral evidence he said that the involvement of community members at the registration stage is sufficient;
k) It is unlikely that W could claim maintenance in India;
l) Hindus living overseas can have recourse to the customary divorce procedure in spite of long residence abroad;
m) A deed documents status and ensures that the parties are free to remarry.
n) An elective customary divorce can be achieved unilaterally without notice. "Dr Livia Holden demonstrates the continuing fluidity of the various customary patterns and does not event attempt to suggest that there are fixed procedural requirements". This means that any alleged absence of consent to divorce by the parties to a Hindu divorcee remains more or less irrelevant. Hindus are able to unilaterally divorce their spouses if they choose.
o) Hindu women can institute divorce: "A woman asking for a divorce deed is nothing unusual… both husband and wife can divorce." And "it is wrong to presume generally that Hindu women cannot or would not initiate divorce in all kinds of circumstances".
p) The customary divorce "would not be readily challengeable in an Indian forum" on grounds of undue influence or duress: the Indian court would consider that "too much water had gone under the bridge".
a) The divorce is effective under the law of the country in which it was obtained: it is common ground that this so;
b) At the date of the commencement of the proceedings, either party is habitually resident, domiciled in or a national of that country: in this case both H and W are Indian citizens.
(3) Subject to section 52 of this Act, recognition by virtue of section 45 of this Act of validity of an overseas divorce, annulment or legal separation may be refused if –
a) in the case of a divorce, annulment or legal separation obtained by means of proceedings, it was obtained –
i) without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or
ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given; ...
(1) in this part - ….. "proceedings" means judicial or other proceedings.
"other proceedings included all proceedings for divorce, other than judicial proceedings, which were legally effective in the country where they were taken".
- The primary criterion for recognition of a divorce / legal separation was that it had been obtained by judicial or other proceedings. It had to be recognised in the country in which it was obtained: it does not have to be quasi–judicial
- The question of whether it is effective in the other jurisdiction is a separate question
- The pronouncement of a bare talaq in front of three witnesses could not be described as a "proceeding": the witnesses play no part in the process: it is essentially a "private act"
- Not all divorces obtained abroad are to be regarded as having been obtained by "judicial or other proceedings"
- Official recognition is essential: it must import a degree of formality and at least the involvement of some agency, whether lay or religious, or recognised by the state as having a function which is more than simply probative.
- Initially one must ask what kind of ceremony the party has chosen to go through: what are the essential elements.
- The word "proceeding" must cover consensual arrangements for informal divorce
Non-recognition: public policy
By s.51 (3) (c) recognition of the divorce, ….. would be manifestly contrary to public policy.
Both parties rely on Kendall and Kendall 1977 Fam 208. The divorce had been obtained by fraud: W's case was that she had been inveigled into signing documents on the pretext that they were for quite another purpose: Hollings J found that this was deceit by the husband's lawyers, quite possibly instigated by the husband, which W had no opportunity to discover or address. W's case here is no longer that she was misled into signing documents: and I have rejected her case as to what happened in any event.
The wife relies on Chaudhary v Chaudhary  Fam 19 and King (formerly Kureishy) v Kureishy  13 Fam Law 82, where the husbands pronounced bare talaqs in order to avoid having to make financial provision for the wives.
In D v D  2 FLR 1042 the Court refused to recognise the Husband's divorce in Nigeria granted in W's absence, in proceedings issued after W had issued in England: W had not been given notice: the husband having failed to tell the court of her address: notice was a requirement, and the court had been misled by H.
In Eroglu v Eroglu  2 FLR 287 where there was fraud by both the Husband and Wife in order to protect the Husband from extended military service and on the basis that they would remarry: this did not justify the court refusing to recognise.
In El-Fadl v El-Fadl  1 FLR 175: husband divorced W by talaq in Lebanon 16 years earlier and no notice had been given: none was required: the court refused to exercise its discretion under s.51: W had known of the divorce for some time and only challenged the divorce when H ceased paying maintenance. Lebanon was the natural forum, and the talaq, without notice, was the prescribed form of divorce. Notice would have availed her of nothing. The principle of comity was important. In the light of my findings as to participation El Fadl does not assist me.
In H v H (Queen's Proctor (Intervening)  the court rejected the public policy argument since the divorce had been obtained "more than 20 years previously and W had since remarried twice and had children. The divorce was recognised in Japan where H had also remarried…. although the Wife's evidence lacked credibility, that was insufficient to raise public policy issues and in the interests of comity the divorce should be recognised".
In A v L  Sir Mark Potter refused to recognise the Husband's Egyptian divorce under s.51(3)(a). The Husband ignored the Hemain injunction granted in the ancillary relief proceedings prohibiting him from issuing in Egypt and he did so without notice to the Wife.
Conclusions on the law on these facts
a) The essential requirements of a panchayat divorce are that
i) One at least of the parties wishes to divorce,
ii) Family and community members endorse the divorce and are involved in the process: this is not a unilateral action by one party or a private agreement.
b) Registration is available to evidence and confirm status.
c) The fact of lack of notice (if there had been lack of notice) and/or participation is not relevant. The fact that W may not have been present at the earlier community meeting is not relevant in a jurisdiction where notice and participation is not a pre-requisite.
d) I accept that the law of India specifically sanctions and provides for customary divorces, and thus there is state participation in the process.
i) The purchase of the deed
ii) Her knowledge of what was intended
iii) The involvement of her father
iv) The reasons for her participation.