England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(Mr Recorder Widdup)

		Royal Courts of Justice Strand London WC2 Thursday, 11th April 2002

1. LORD JUSTICE THORPE: Mr. Bailey, on behalf of Mr. Vekaria, renews an application for permission to appeal which was provisionally refused on paper on 1st February 2002. The order in question is the order of Mr. Recorder Widdup sitting at the Willesden County Court on 14th November 2001, by which he pronounced a decree nisi in a defended cause, refused permission to appeal and condemned the respondent in the costs, those incurred after 6th November on an indemnity basis.
2. At the outset of his judgment the Recorder expressed his sympathy for both the parties. He expressed his sympathy, as he said, because it must have been most unpleasant to recount their matrimonial difficulties in court. He continued:

"I have sympathy for them because after a twenty year marriage they have a family, three children, aged nineteen, sixteen and thirteen, and nothing that is going to happen today is going to make the children happier or resolve the uncertainties that will continue in future."

3. That was a prelude to a full judgment, in which he had to consider a petition that alleged that the petitioner could not reasonably be expected to live with the respondent in the light of conduct which was pleaded in paragraphs 10 and 11 of the petition. The disharmony in the marriage had been pointed out by a previous petition for dissolution alleging only five years separation which was withdrawn without trial, probably because of the difficulties that arise in proving such a case where the parties are still living under the same roof.
4. The particulars pleaded under paragraphs 10 and 11 are not particularly dramatic but nonetheless seek to establish an absolutely barren marriage, in which there had been no communication, no love, no affection and no sexual intercourse between the parties for years and years. In addition, the petition pleaded a complete lack of consideration for the petitioner, exclusion from consultation, let alone decision-making in family life, and a more dramatic exclusion over the six months immediately preceding the presentation of the petition on 20th February 2001. The answer filed on 27th April is a bare denial.
5. The Recorder has delivered a particularly full and careful judgment, in which he has undoubtedly directed himself accurately as to the law. Mr. Bailey makes no criticism of that aspect of his judgment. Mr. Bailey seeks to express his client's understandable feeling of hurt and unfairness in an outcome which he asserts does not sufficiently recognize cultural conventions in marriages between parties who have an Indian background. Mr. Bailey recognizes that it is a hard submission for counsel to develop. He recognizes that, in the end, the crucial function of the Recorder was to assess which of the parties was proffering a more realistic picture of the marriage. The Recorder had no hesitation as to that. He found the petitioner to be a truthful and accurate witness. He rejected the husband's evidence, saying that he did not find him to be accurate. He preferred the evidence of the petitioner. He particularly rejected his evidence as to the duration of the sexual relationship between them.
6. That really is all that needs to be said about this application. As I said in my written provisional reasons, on those findings a decree of dissolution was not only proper but inevitable and by what standard could it be said that the petitioner could reasonably be expected to tolerate the respondent's behaviour as she described it? I hold to that view, despite Mr. Bailey's submissions.
7. The draft grounds of appeal criticize the judge's costs order. He apparently selected the date of 6th November for the inception of indemnity costs because of failure to respond to a settlement offer by letter. It is said in ground 4 on the applicant's behalf that the failure to respond was the fault of the respondent's solicitors. That may be the case, but, nonetheless, that is a matter as between the respondent and those solicitors. If this discretionary determination was to be attacked, it was obviously necessary for the applicant to put before this court a transcript of the application for costs, the submissions in response and the judge's ruling. None of that has been done. In the absence of any material that throws any question on the exercise of the judicial discretion, the presumption must be that the judge was well within his discretionary frame. For all those reasons this application remains hopeless and is dismissed.
Order: Application refused.