England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(HIS HONOUR JUDGE EVERALL QC)

		Rolls Building Fetter Lane London EC41 1NL
		27 February 2014

1. LORD JUSTICE KITCHIN: This is an application for permission to appeal against the judgment of His Honour Judge Everall QC given on 23 August 2013 whereby he found that there was a valid marriage between the petitioner, Mrs Goyal, and the respondent, Mr Goyal, on 15 September 2003 in Meerut, India; that the marriage had irretrievably broken down; that the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with him; and that a decree nisi of divorce would be pronounced.
2. The respondent, the applicant for permission, argues that the judge ought to have found that the petitioner married another man on 15 September 2003, that the marriage ceremony that she entered into with the respondent in fact took place on 18 September 2003 and that it was invalid because the petitioner was, by that date, already married to somebody else.
3. In very broad outline, the judge accepted the evidence of the petitioner that her marriage to the respondent was arranged by their respective parents and that they became engaged in August 2003. At that time, the respondent had been offered and accepted a place to study for a PhD at INSEAD in France. It was planned that the petitioner and the respondent would marry on 18 September and that this would allow the petitioner to travel back to France with the respondent on 21 September.
4. On 12 September the petitioner attended at the French embassy hoping to be granted a visa but this was refused because she was not yet married. It then became apparent that they would not have enough time to obtain a marriage certificate and a visa between the wedding ceremony on the evening of 18 September and their departure to France on 21 September. The respondent and his family therefore asked the petitioner's family to arrange a short marriage ceremony in advance of the main wedding so that an application for a visa could be made in good time before their departure. The ceremony was arranged for 15 September and took place in Meerut, this being the petitioner's home town.
5. The judge rejected the respondent's case that the petitioner married somebody else on 15 September, finding that this was never the petitioner's intention and it was most unlikely that she would marry another man on that day and then proceed to marry the respondent on 18 September and fly off to live with him in Europe, particularly since that other person has never been heard of since. The judge also found that the respondent knew that the marriage certificate recorded the fact of their marriage on 15 September from the time that it was handed over to him by the petitioner's father on 17 September during a ceremony referred to in these proceedings as the henna ceremony. The respondent had used the marriage certificate since that date to enable the petitioner to accompany him both to France and subsequently to the UK and to enable the petitioner to obtain indefinite leave to stay in the UK. Indeed, he instructed his solicitors to seek the dissolution of the marriage between him and the petitioner on the basis that it took place on 15 September in Meerut. On 18 September the petitioner and the respondent then attended the French embassy with the certificate and applied for a visa. They then enjoyed their further marriage ceremony on the evening of 18 September and on 19 September collected the visa. On 21 September they flew to France.
6. The respondent now contends that the judge fell into error in the following respects. First, it is said that he ignored the relevant and material evidence of the marriage record of 15 September. Second, it is said that he failed to consider the Indian law applicable to the marriage, namely the Hindu Marriages Act of 1955. Third, it is said that he failed to consider the recommendations of the court appointed single joint expert and the Registrar of Hindu marriages in Meerut. Fourth, it is said that he failed to give due weight to the authority, operating proceedings and practices of the public offices of the Registrar of marriages. Fifth, it is said that he failed to give due weight to the practical evidence given in respect of the impossibility of the respondent being able to travel to Meerut in the relevant timeframe. Finally, it is said that he wrongly relied upon the uncorroborated evidence of the petitioner and her family and failed to consider the inconsistencies in that evidence.
7. Before coming to these grounds it must be observed that the respondent is seeking to challenge what is ultimately a finding of fact. As this court has recently reiterated in the case of Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, appellate courts have been repeatedly warned by recent cases at the highest level not to interfere with findings of fact by trial judges unless compelled to do so. This applies not only to findings of primary fact but also to the evaluation of those facts and to inferences to be drawn from them. The reasons for this approach include the expertise of trial judges in determining what facts are relevant to the issues to be decided and what those facts are if they are disputed; that in making his decision the trial judge will have regard to the whole of the evidence presented to him whereas an appellate court can only consider aspects of that evidence; the atmosphere of the courtroom cannot be recreated by reference to documents; and duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court and will seldom lead to a different outcome in a individual case.
8. As the judge explained, he heard evidence over three days from 15 to 17 July 2013 and then final submissions on 19 August 2013. He reserved judgment over until 23 August 2013. He then gave a long and careful judgment, reviewing much of the evidence which he had heard and expressing his conclusions. He had regard to the fact that the certificate itself showed that the petitioner and the respondent were married on 15 September 2003 and then carefully evaluated the evidence given both by the petitioner and the respondent. He found the petitioner was a truthful witness and that she gave a generally reliable account. By contrast, he found the respondent gave evidence which was unconvincing and implausible. He arrived at this conclusion in the light of all the evidence before him, including the fact that the respondent maintained that, despite being in possession of the certificate from 17 September and using it for a number of distinct and different purposes over the succeeding years, he never appreciated that it recorded both the wrong date and the wrong place of their marriage.
9. The judge also found implausible the respondent's account that he married the petitioner on 18 September, got to bed some time after midnight and then went to the embassy the following morning to obtain the visa. As the judge explained, this account failed to explain how they could have obtained a marriage certificate in time to be able to present it to the embassy on the morning of 19 September.
10. The judge also heard evidence from the petitioner's father, Lieutenant Colonel Ghuman and the petition's brother, Mr Sahil Ghuman. The judge found both of these witnesses to be careful, reliable and honest. He recognised that he should approach their evidence with some caution because of their relationship to the petitioner, but he nevertheless found it of some value.
11. Finally, as I have mentioned, the judge considered it relevant that it was inherently unlikely that the petitioner would have married one man on 15 September and then another quite different man on 18 September, particularly when there was no suggestion that the first man had ever appeared again. The reasoning of the judge is, to my mind, coherent and convincing.
12. Turning to the particular grounds of appeal, I do not accept that the judge ignored the relevant and material evidence of the marriage record. Mr Goyal has urged upon me during the course of his submissions this morning that the marriage record contains a large number of pages, the overwhelming majority of which were, as it turned out, inaccurate. However, the judge noted that the marriage certificate itself was accepted as a genuine document. The application form, that is to say the other aspect of the marriage record to which Mr Goyal has attached such weight this morning, was, however, as the judge put it, notable in two principal respects. First, the photograph, signature and thumbprint of the bridegroom were not those of the respondent. Second, there were serious oddities concerning the application form registration which the expert, Mr Chandra, mentioned in his report. These were matters which the judge therefore had very much in mind and I do not believe it can be said that he ignored relevant and material evidence in coming to his evaluative conclusions.
13. Nor do I accept that the judge fail to consider the Indian law of Hindu marriages and in particular the Hindu Marriages Act of 1955. As section 8 of that Act explains, particulars may be entered into the register for the purpose of facilitating the proof of Hindu marriages. It also says that the validity of any Hindu marriage shall in no way be affected by the omission to make an entry. It is, of course, entirely true that the judge focused on the marriage certificate which recorded that the petitioner and the respondent were married on 15 September, but he did not do that in isolation. As he explained in his judgment, in particular at paragraph 42, he took into account the application form and the certificate in conjunction with all of the other evidence in the case.
14. I can take grounds 3 and 4 together. Here it is said that the judge failed to consider the recommendations of the court expert and to give due weight to the authority, procedures and practices of the public offices of the Registrar. There is, in my judgment, nothing in this point. The judge referred to the evidence of Mr Chandra from paragraphs 34 to 40 of his judgment and specifically had regard to the evidence that he gave about the marriage document as a whole. The judge took all of this evidence into account in the manner I have described. He made no error of principle in so doing.
15. It is then contended that the judge failed to give due weight to the evidence about the practical impossibility of the respondent being able to travel to Meerut. In that regard the respondent has taken me to the statement of the petitioner, made on 30 November 2012 in which she said at paragraph 9:

"It is noted that Amit has argued that he was not present in Meerut on 15 September and that he was staying with his family in another part of India on that day. As previously stated, Amit's home town is a five hour drive from Meerut, so he could very easily be both in Bhatinda and Meerut on the same day and I maintain that he was with me in Meerut on 15 September."

16. My attention was also drawn to the statement of Mr Sahil Ghuman, the petitioner's brother, who said in paragraph 9:

"On the 15th morning I was informed by my father around 9.00 to 9.15 am that Amit has left Bhatinda with his driver for Meerut and should be with us in around 4-5 hours."

17. Now, it is true that the judge does not mention this evidence specifically in evaluating the respondent's evidence but I do not find these particular aspects of the evidence, to which the respondent has taken me this morning, particularly persuasive and they do not seem to me to drive a conclusion contrary to that at which the judge himself arrived. Indeed they may be said to be consistent with it. As I say, the judge does not mention this evidence specifically but a judge is not required to detail each and every aspect of the evidence which he has heard, nor is he obliged to recite every argument which has been developed before him. The judge dealt with the evidence given by the respondent in considerable detail and, for the reasons I have given, he found it unsatisfactory. In those circumstances, it seems to me to be entirely understandable that the judge has not accepted or attached weight to the respondent's claim that he simply could not have been in Meerut on 15 September.
18. I can deal with grounds 6 and 7 together. I do not accept that the judge relied solely on the uncorroborated evidence of the petitioner and her family, or that he failed to consider their evidence including its inconsistencies. As I have sought to explain, he considered all of the evidence which the petitioner and the various members of her family gave with very great care. He approached the evidence given by her father, her brother and her mother with some caution. It is true that there is no reference to any photograph of the ceremony on the 15th and this is, again, a matter to which the respondent has attached particular weight this morning. Nevertheless, stepping back and having regard to all of the evidence and the judge's reasoning, I do not detect that he had any real difficulty arriving at his conclusion. Indeed, having regard to his finding that the respondent's evidence given to him was not reliable, it seems to me that the conclusion to which he came was, in reality, the only one which was open to him.
19. Finally, the respondent has taken me this morning to a statement of the petitioner dated 14 September 2012, of which he has provided what he describes as a partial translation and in which the petitioner is said to have stated:

"My marriage was conducted through a relationship site shaadi.com with SO Shri Parmod Goyal R/o 654 Sector 28 Faridabad whereby a Court Marriage happened with acceptance of both sides on 15 September 2003 in Meerut."

20. The respondent says that here the petitioner is condemning herself out of her own mouth because the marriage was not ever said to the judge to be a court marriage but rather a Hindu marriage. The petitioner is, however, present in court and she observed to me that she neither accepts the accuracy of this translation nor does she accept that it reveals any inconsistency in the evidence that she gave because, insofar as anything is being referred to here, it is the certificate of marriage rather than the Hindu ceremony itself.
21. This further evidence was not, however, before the judge and there is, in fact, no application before me today that it should be admitted on this appeal. Nevertheless, the petitioner having been present in court, as I have said, I invited her observations upon it, as would have been necessary had an application been made to adduce it by way of further evidence. For my part, I do not believe it could possibly have a material effect upon any appeal.
22. For all of these reasons, I am satisfied that an appeal does not have a real prospect of success and this application must therefore be dismissed.