England and Wales Court of Appeal (Civil Division) Decisions

IN THS SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL
(From: His Honour Judge Lind-Smith – Coventry County Court)

		Royal Courts of Justice
		20th October. 1971

LORD JUSTICE DAVIES: This is an appeal by a wife from a judgment of Judge Lind-Smith at Coventry County Court on March 10, 1971. He had before him a petition by the wife, who was a Sikh, for a decree of nullity of marriage on the ground of the alleged wilful refusal by the husband to consummate it. The learned judge heard the evidence on 27^th January 1971, and then adjourned in, as it were, the middle of the hearing because he had expressed the view that perhaps this case and another similar one (the facts of which we do not know) presented some difficulty and might be thought to be better dealt with by a judge of the Probate, Divorce and Admiralty Division. However, on consideration he thought that in the circumstances he had no jurisdiction to transfer, because he had heard the evidence, and he, therefore, proceeded to judgment on 10^th March dismissing the wife's petition.

The facts are in a very short compass indeed. The husband had been living in this country for some seven to ten years prior to the events in question. He was a Sikh too. He was a student at Surrey University, where he met one of the brothers of the wife. The wife up to then had lived all her life in the Punjab in India where she had been born. Eventually, it was arranged between the brothers and the father of the wife, on the one hand, and the husband, on the other hand, that he should marry the wife. There was apparently an engagement party held some time in the spring of 1968. On 30^th November 1968, the wife arrived at London airport (Heathrow) and was met by, among others, the husband, and I dare say the brothers were there too. She had never seen the husband before, but apparently they had corresponded to some extent between the time of the engagement party and her arrival at Heathrow. Having arrived, she went with one of her brothers to Leamington, where he was living. The husband continued to live in Shepherds Bush. On 15^th February 1969, they went through a ceremony of marriage at the Hammersmith Register office, their respective ages then being, the husband 30 and the wife 22. That evening the wife went back with her brother to Leamington, and she has not seen the husband from that day to this.

It is beyond question that in order fully to marry according to Sikh religion and practice it is necessary to have not only a civil ceremony in a register office but also a Sikh religious ceremony in a Sikh temple. It was the belief of all these parties, the wife and the brothers, and no doubt the husband as well, that they should in due course go through such a Sikh ceremony. Indeed, one of the brothers did at some time make tentative arrangements with the committee of the Sikh temple for a religious ceremony to take place. No sign of any step by the husband in that behalf was forthcoming, and so the brother or brothers on a number of occasions approached him and asked him what he was proposing to do about the religious ceremony. He gave various excuses. On one occasion, he said that he had tonsillitis and was ill for a fortnight or so. On another occasion, he said that he could not really deal with the matter at that particular time because he was engaged in writing a thesis for a degree of Doctor of Philosophy and that he could not consider the matter while that was in hand. He failed, he apparently told one of the brothers, in his examination to obtain his degree. To put it quite shortly, on every occasion when one of the brothers spoke to him he gave one excuse or another. Finally, he told them that he had no intention of arranging for the religious ceremony at all.

Those are the facts. The judge was in no doubt as to the sincerity of the wife. He said that he had some doubt about the sincerity of the two brothers. What he meant by that I do not quite know and how it is relevant do not know, for there is no doubt that they did approach the husband on more than one occasion. Then the judge went on:

"There is no doubt in this case in respect of the [wife] that she regarded it as entirely wrong that she should live with her husband before the Sikh ceremony, and in that I find the [wife] was entirely sincere"

Then lower on the same page he said:

"The marriage being spoken of" – that is to say, which was asked to be declared null – "of course, must be that in the register office, but according to the evidence, and I accept it, the petitioner did not expect or would not have allowed -- a severe problem, no doubt, according to her view -- sexual intercourse to take place: it is difficult to see, in my mind, how it could be said to be wilful refusal by the respondent. I have no doubt at all of the sincerity of the petitioner in her views, but I have the gravest doubts, as I have said, about the sincerity of the respondent in his views, because he evinced reluctance to arrange a Sikh ceremony immediately after the register office ceremony had been completed, and never did he give any sort of ground for failing to arrange a Sikh ceremony. I think I ought to add here a further finding of fact, that it appears to be the duty of the man to arrange for the Sikh ceremony."

I confess that I find that passage in the judgment a little difficult to understand. There was no evidence here of any approach by the husband to the wife and no evidence that the wife was refusing, on a sincere religious belief or at all, to have intercourse with him before a religious ceremony was performed. The facts were that he never went near her again, and never tried to persuade her to live with him and have intercourse with him. It may very well be true that, if he had made any such approach, she, according to her religious beliefs, might have said that she was unwilling to allow it before the ceremony. But that never happened.

The judge had cited to him Jodla v. Jodla which was a decision of Mr Justice Hewson reported in [1960] WLR 236. The learned County Court judge managed -- I am not quite sure how -- to distinguish that case. For my part, I think that it is indistinguishable. Indeed, I think that the present case is a stronger case than Jodla v. Jodla. The two parties were Poles; the wife was threatened with being sent back to Poland because her visa was going to expire, so in order that she could be able legally to remain in this country the parties, who were both Roman Catholics, went through a register office ceremony. They intended that thereafter they should be properly married according to the rites of their church. They never were. The husband, according to his evidence, was asked several times by the wife to make arrangements for the Catholic ceremony, but he failed to do so. They kept in contact, and on one occasion she rebuked him for not arranging the ceremony. I quote from the statement of the facts :

" ... early in January, 1958, when the husband complained to the wife that she was not looking after him as a wife should, she replied that he had not arranged the church ceremony so that they could live together. Thereafter the parties drifted apart."

There you have a case where the wife, consequent upon the default by her husband, was refusing to live with him until he corrected that default and arranged the ceremony. Mr Justice Hewson took the view that that did not amount to wilful refusal by the wife, because she had a legitimate and proper excuse in the circumstances, and that it was the husband's conduct in failing to arrange the religious ceremony that resulted in the non-consummation of the marriage.

As I have said, I think this case is a stronger case than that, and I am unable to accept, and, indeed, if I may say so without disrespect, do not entirely understand, the distinction which the learned judge sought to draw between that case and the present one. I refer to page 14 at "D" in his judgment:

"Eventually, Mr Justice Hewson was able to arrive at the conclusion that the refusal of the husband to arrange a further ceremony put it out of his power to have sexual intercourse with the wife, and, accordingly he was able to grant the wife a decree. I cannot think that Mr Justice Hewson would have found the same if there had been no evidence that the parties had tried to live together in the sense of making a home together. I think that it is very different where the husband has actually been in a position to complain to the wife that she has not been looking after him as a wife should, and then they have drifted apart."

I cannot understand that distinction. The facts of the present case, are as clear as they could be. The husband from the time of the register office ceremony entirely failed and refused to arrange a religious ceremony of marriage, and so failed to implement the marriage. I think that it is clear that in failing to implement the marriage he wilfully refused to consummate it.

I would allow this appeal and grant the wife a decree.

LORD JUSTICE KARMINSKY: I agree with the judgment of my Lord and would venture to emphasise what he has said about the error of the learned judge below in the passage my Lord has read from page 14 of the judgment. It is clear from that passage that the learned judge below misdirected himself both on the facts and on the law. If the learned judge had availed himself of the provisions of section 6 of the Matrimonial Causes Act, 1965, I think that it is at least possible that he would have avoided that particular error. That section allows the court to ask for help by way of argument before the court from counsel instructed under the direction of the Attorney-General on any question in relation to the matter which the court deems it necessary or expedient to have fully argued. That is a provision which is obviously of great help to the court when, as here, only one party is before the court. I hasten to add that what I am saying is not in the slightest degree disrespectful to the argument of Mr. Toyn below, who put the matter fully, and obviously with great care and skill, before the learned County Court judge. But the effect of that section is to enable the court to be quite certain that all the relevant facts and authorities are put before it by a skilled and wholly neutral source. Speaking from my own experience, I would say at once that in the past I have had very great help in difficult cases from the arguments of counsel instructed by the Queen's Proctor at the request of the court. I have called attention to section 6 because I have sometimes wondered whether that section is quite as well known as it perhaps ought to be.

I agree with my Lord that this appeal succeeds and that the wife is entitled to a decree.

LORD JUSTICE ROSKILL: I agree that this appeal must be allowed for the reasons which have been given by my Lords. It seems to me that Jodla's case is indistinguishable. But, if there be any distinction to be made between the present case and Jodla's case, it is a distinction which on the facts leads inexorably to the result that the present is a stronger case.

(Appeal allowed. Appellant's costs here and below. Decree nisi granted. Legal aid taxation in Court of Appeal. Certificate: no children)