B e f o r e :
LORD JUSTICE DAVIES
LORD JUSTICE KARMINSKI
and
LORD JUSTICE MEGAW.
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(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters, Ltd.,
Room 393 Royal Courts of Justice, and 2, New Square, Lincoln's Inn, W.C.8.)
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Mr D.A. FAIRWEATHER, (instructed by Messrs. Backet, Gill & Langhams, Agent a for
Messrs. Philip Baker & Co. of Birmingham) appeared on behalf of the Appellant (Petitioner).
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HTML VERSION OF JUDGMENT.
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LORD JUSTICE DAVIES: Lord Justice Karminski will deliver the first judgment.
LORD JUSTICE KARMINSKI: This is an appeal by a petitioner wife from a decision of the learned county court Judge at Birmingham dismissing her petition for agility. The grounds of her petition were first that she did not consent to the marriage, but was induced to enter into it by duress and coercion exercised upon her by her parents. Secondly, and in the alternative, that she was at the time of the ceremony of Marriage, and has been ever since, incapable of consummating the marriage with the respondent husband in that she evinced an invincible repugnance to him. The case was conducted as an undefended case on behalf of the petitioner by Mr. Fairweather, and it is therefore unnecessary for me to say more than that ha pat the wife's ease with all his knowledge and clarity both before the learned county court Judge and before this Court. The respondent was not represented and did net appear la either Court.
The facts of the ease are comparatively simple. Both parties, as their names suggest, are Sikhs. The wife was a girl of about 17 at the time of the ceremony of marriage, which took place before the registrar at West Bromwich on the 1st October, 1968. The husband was 21 years of age, and he was described as a bachelor living at West Bromwich. The wife, in accordance with what she believed to be Sikh practice and custom, had never seen the bridegroom before the actual ceremony of marriage. Following what we wore told was the long-established eastern of the Sikhs, the marriage was arranged by her parents with this man. The first time that aha aver saw him was at this ceremony of marriage before the registrar. According to her evidence, she did not expect to see him before her marriage, and in that she was obeying the eastern of her people and the wishes of her parents. The idea was that after the civil ceremony before the registrar, and after the customary interval of about one week for that ceremony the spouses, having been married according to English law, should then go to a Sikh Temple to have the benefit of a religious service which would make them man and wife according to the law of their religion as well as to English law.
The wife's story was that, having gone to the registry office she then saw her intended husband for the first time, and she did not like what she saw. Her evidence was that she was told that her husband to be was a man of education, and handsome; but having seen him, she thought that he was neither. In the result therefore after the civil ceremony of marriage had been carried through she went back to her people and refused to go on with the Sikh religious ceremony a week later. She now says that there was no marriage in law, first because she did not consent, and secondly, because she was incapable of consummating the marriage with this man because he was repugnant to her. There was never any attempt at consummation.
The facts of this case are not in dispute. The father gave evidence, as did an uncle of the bride. Medical evidence was given by a gynaecologist who deposed that she was physically capable of marriage, and was at the time that he examined her after the ceremony a complete virgin.
Mr. Fairweather says that there was here a marriage by duress because of the circumstances. He says that very likely Sikh girls who come to this country with their family traditions are revising their ideas about marriages which have been arranged by their parents, and which result in their being brought to a ceremony of marriage without ever having seen the man of the parents' choice. In the present ease it appears that the petitioner did not even know the respondent's name.
I propose now to pass briefly to the law. It is common ground, and has been for many centuries, that the first essential of a valid marriage is consent. Anything short of consent makes the marriage a nullity ab initio. If authority is needed for that in general terms it is to be found in the well-known treatise on Marriage in Canon Law by Professor Esmein, in which (if I may translate from the French text) he says; "Consent being an essential element of marriage, where there is no consent on the part of the alleged spouses there is no marriage. It cannot even be said that the marriage la null; it only exists in appearance. This is the fundamental and proclaimed principle of canon law." In short without consent there can be no marriage.
There have been in the course of the history of our law a good many decisions on this point, and in recent years there have been a number which have resulted from persona going through a form of ceremony of marriage in order to escape from danger in countries where they were at risk for political reasons. The law on these sort of topics wag discussed in H. -v- H. (1954 Probate, p.258) and a number of other eases, and recently by the President la Szechter (orse. Karsov) -v- Szechter (1 W.L.R. 1971 p,171). In each of those cages there was a danger to the petitioners (both women) unless a ceremony of marriage was arranged which would enable them to escape from a country where they were at serious risk of at least their liberty. In H. -v- H. the country concerned was Hungary, and in Szechter -v- Szechter it was Poland. It is net necessary to go in detail or at all through the grounds of these decisions. But it was held in both eases that: "In order for the impediment of duress to vitiate an otherwise valid marriage, it must be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger, for which the party is not himself responsible, to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock. See Szechter -v- Szechter supra
In his judgment the learned President referred to some of the earlier decisions, including H. -v- H. in 1954 and the more recent decision of Mr. Justice Scarman in Buckland -v- Buckland (orse. Camillari) (1968 Probate, p.296). He concluded with these words at the end of the judgment in Szechter -v- Szechter:
"It is, in my view, insufficient to invalidate an otherwise good marraige that a party has entered into it in order to escape from a disagreeable situation, such as penury or social degradation. In order for the impediment of duress to vitiate an otherwise valid marriage, it must, in my judgment, be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party is not himself responsible), to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock. I think that in the instant ease that test is satisfied."
Here there is no suggestion of any danger to life, limb or liberty of the petitioner spouse. It is true that she obeyed the wishes of her parents, no doubt having a proper respect for them and for the traditions of her people, when she went through the ceremony of marriage. But it appears that after the ceremony she changed her mind. For myself I find nothing on the facts of the instant ease to establish, or even to indicate, an absence of consent on the part of the petitioner at the time of the marriage. I am not without sympathy for this young lady, who, at the age of 15,coming to a new country with different ideas, may have been influenced by the customs of those among whom she now lives. But she went through this ceremony of marriage, and I think that she has completely failed to prove an absence of consent, and that on that aspect of the matter the learned county court Judge was manifestly right.
There is the alternative matter of repugnance. It la true that the wife never submitted herself to the physical embraces of the husband, because after the ceremony of marriage before the registrar it does not appear that she saw him again or went near him. Having taken the view which she did, that she did not want to be married to this man, it is understandable that she did not want to have sexual intercourse with his. But that again seems to be a very long way from an invincible repugnance. True, as Mr. Fairweather argued, invincible repugnance can have a number of forms; and he reminded us of a decided ease where the wife refused to undress when she went to bed so that the husband could not have intercourse with her. Bat here the wife abandoned the idea of her marriage altogether, and there is nothing of a psychiatric or sexual aversion on her part which is in any way established. In my view, that ground of nullity falls completely.
I have come to the conclusion, therefore, that the learned county court Judge was right on both grounds, and that this appeal should be dismissed.
LORD JUSTICE MEGAW: We are told by Mr. Fairweather that a number of other cases are pending in which the same sort of question arises as arises in this appeal. To my mind, the principles on which this ease falls to be decided are not in doubt; and on the evidence in this ease the application of those principles and the result involved are not in doubt. Whether there is anything in the other eases in which the facta are materially different so that the principles would not apply is a matter of which we have no knowledge and with which we are not concerned.
So far as the present case is concerned, the evidence which is relevant falls within a very small compass. The girl had come to England in 1966; at the time of the marriage, therefore, she had been in this country for two years, and she was then 17 years old. She said that her father had explained to her that what was intended was a marriage. There wag no suggestion that she was under any misapprehension or not fully aware of what is meant by "marriage". However, she did not know the man whom she was going to marry - that means, as I understand it, that she had not met or seen him before the ceremony, and she did not know his name; but she did know it wag proposed that she should get married, and she knew that that was the purpose for which she went to the registry office. She knew that the ceremony which she went through before the registrar was a ceremony of marriage. She was asked: "Did you want to or did you not want to?" (meaning, I suppose, to go through the ceremony); to which her answer was: "No", she did net wish to be married. Then she was asked why did she go through the ceremony, and her answer to that wag that she was bound by her parents, mother and father. It was the proper thing if she got married. After that ceremony, in accordance with the custom of the Sikh marriage, the husband did not go back to her home with her. In the normal way there would have been a religious ceremony in a Sikh temple a week later. That ceremony did not take place. It did not take place because the girl had indicated after the civil ceremony had taken place that she did not intend to go to the Sikh temple for the further steps of the religious marriage. The reason she gave in her evidence for refusing to go through the religious ceremony was that before the civil ceremony her parents and everybody were saying that the husband was educated, but when she came in contact with the husband, presumably at the registry office, she found that he was not educated. She had also been led to believe that he was handsome, and when she saw him he was not handsome. Therefore, she said, she was not prepared to have intercourse with him.
It is said that this marriage was a nullity on two grounds, either viewed separately, or, as Mr. Fairweather submits they ought to be viewed, inter-related with one another. The first ground is invincible repugnance. So far as that is concerned, there is nothing that I wish to add to what has been said by my Lord, Lord Justice Karminski. Whether viewed separately or in relation to the farther allegation, the facts relied upon as constituting duress, in my judgment it does not begin to be sufficient to have the effect that this marriage was a nullity. What then of the alleged duress. I have referred to all the relevant evidence on that matter. As I say, I think there is no doubt whatever about the principles which are applicable where there is an allegation of duress. I would refer first to a passage in the judgment of Lord Justice Karminski (Mr. Justice Karminski as he then was) in H. -v- H. (1904 P.258, at p267):
"It was argued by the Attorney-General that the facts of the present ease cannot be said to prove that the ceremony of marriage was performed under fear or duress, and he rightly emphasized, and I accept, that the principles are strict and should not be rashly extended."
Then at page 269 my Lord said this:
"If the present ease was devoid of the element of fear I should be compelled to find that the parties to the present suit intended that the petitioner should become the wife of the respondent."
In ether words, the finding of duress depended upon a finding of fear. Where, I ask, in the present ease is there any possible permissible suggestion of fear on the part of this young lady?. A sense of duty to her parents and a feeling of obligation to adhere to the custom of religion there may be, but of fear not a shred of a suggestion. Reluctance no doubt; but not fear.
Then I come to the other recent decision to which my Lord has referred, Szechter (orse. Karsov) -v- Szechter (1971 2 W.L.R. p.170), a decision of the learned President. At page 179, latter "F" of that report, the learned President said this:
" .... I do not think that in modern law the rales relating to duress as vitiating the reality of consent to an ostensibly valid contract of marriage differ from those relating to other species of contrast ....".
Indeed, I observe that in the well-known text-book Rayden on Divorce, 11th edition, page 118, paragraph 8, under the general heading of "Consent of parties to marriage", it is put more strongly. It is there said, with numerous authorities cited in support:
"The burden of proof on a party attempting to impeach a marriage on the ground of want of consent is heavier than impeaching a commercial contract."
The other passage which I would cite from that case is one that has already been referred to by my Lord, Lord Justice Karminski. At page 180, letter "G", this is said:
"In order for the impediment of duress to vitiate an otherwise valid marriage, it must, in my judgment, be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party is not himself responsible), to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock."
In my judgment, it is not possible on the evidence in this ease to say that anything approaching what is required to establish duress has been established.
There is one other matter to which I should refer. It is something about which I feel some concern, but it is not relied upon by Mr. Fairweather as a ground for allowing this appeal. The evidence of various witnesses was given through an interpreter, and, according to the transcript, the interpreter was sworn in the Sikh form. In the normal way one would assume that the content of the oath taken by the interpreter was the ordinary oath of am interpreter to interpret correctly. According to Mr. Fairweather's recollection, though ha cannot recollect with certainty, the oath which was taken by the interpreter in this case was not that oath, but was the oath taken by a witness - that is to say, to give true evidence. If this be so, it was presumably in error, but no objection was taken. The interpreter then, having interpreted the evidence given by the various witnesses, was asked by the learned county court Judge to "come back into the witness box" (I presume he had net been in the witness box before as according to the transcript his capacity was that of interpreter, not of a witness). He was reminded by the learned Judge: "You are still on oath." Then he was asked by the learned Judge on his own initiative various questions about what is customary in India in relation to such a wedding. No objection was taken, so far as appears on the transcript, either to the oath taken by the interpreter or to the fact that the learned county court Judge, whatevor the oath was that this gentleman had taken, asked him questions as though he were a witness. Apart from the question of his having either taken the wrong oath before he interpreted, or taken the wrong oath before he gave evidence, it is undesirable, at any rate without the express consent of the parties, that someone who is there as an interpreter should be called to give evidence by the Judge, and should be invited to give evidence about custom without any foundation whatsoever being laid to show what is the expertise and qualification which would entitle him to give such evidence. If it had been suggested that this procedure had, or might have, led to a wrong decision here, I should have thought that it would have required vary careful consideration by this court. But no such point is taken. I would dismiss the appeal.
LORD JUSTICE DAVIES: I agree and have very little to add. So far as concerns the question of duress, I respectfully agree that the principles to be applied are correctly stated in the passages that have been quoted by my Lords from the eases of H. -v- H. and Szechter (orse. Karsov) -v- Szechter. Those passages are, in my view, correct statements of the law. That being the law, what is the position here? I can see no evidence whatsoever in the case chat the will of this petitioner wag overborne or that her consent was obtained by force or fear. She went there readily and willingly, thinking that it was the right thing to do. It seams to me that these circumstances are far removed from a ease of duress.
So far as concerns the allegation of invincible repugnance, it seems to me again that there is nothing to show that in this case, There is nothing to show that she suffered a physical repugnance to having intercourse with this man. It seams to me that, if anything, this was a case of wilful refusal. Invisible repugnance is a lack of capacity quoad this man. This is a case of unwillingness, and there is nothing, as I say, to show that owing to some defect in her mental or physical make-up she was unable to have intercourse with him. He might, I suppose, have cross-petitioned on the ground of her wilful refusal under section 9 (1) (a) of the Matrimonial Causes Act 1965, which, as is well-known, provides that:
"In addition to any other grounds on which a marriage is by law void or voidable, a marriage shall, subject to the next following subsection, be voidable on the ground (a) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it."
As I have said, it seems vary likely that the husband, had he been so minded, would have succeeded on a cross-petition. But the wife cannot rely on her own wilful refusal.
Finally, I would respectfully associate myself with the remarks made by Lord Justice Megaw in relation to the form of oath that the interpreter took and his being called as a witness of fact. In the result, I agree that in both of the grounds stated by my Lords this appeal fails and should be dismissed.
