Scottish Court of Session Decisions

Sohrab v. Khan [2002] ScotCS 117 (23rd April, 2002)

OUTER HOUSE, COURT OF SESSION
A2756/00	OPINION OF LORD McEWAN in the cause ANEEKA SOHRAB (AP) Pursuer; against RAJA SULMAN KHAN (AP) Defender:   ________________

 

Pursuer: Wise; Balfour & Manson

Defender: Hodge; Gray Muirhead, W.S.

23 April 2002

Introduction

1. On 13 December 1998 in the Mosque at 138 Butterbiggins Road, Glasgow a Nikka took place, that is a Muslim wedding ceremony. It was conducted by the Imam of the Mosque, Mohammed Faroq Ahmad. The bride was a girl Aneeka Sohrab, then aged just 16 years, and at the time a school girl in Glasgow living there with her parents. The groom was Raja Sulman Khan, a young man aged 19. He was a student and lived with his parents in Bury, England. He had at the date of the marriage been only three months in Britain, having come here from Pakistan. By the spring of 1999 the marriage had foundered and the proceedings before me now are a result of that. The wedding was recorded on video and it is No 6/5 of process.
2. Now the pursuer seeks nullity of what was undoubtedly an arranged marriage. The Record, in summary, tells me this. The pursuer alleges certain irregularities about the necessary documentation for the marriage. She then says that her parents and the defender's parents met some weeks before the marriage and agreed that an arranged marriage would take place. It was duly arranged for the Mosque and guests were invited. When the pursuer was told only the week before she refused to go through with a marriage to a man she had never met. Her parents pressurised her, said she would disgrace the family and have to be sent to Pakistan. Her mother threatened suicide. Without means or any other accommodation she was forced to go ahead. There are a number of other detailed averments to which I will return when dealing with the evidence. The defence, on the other hand, avers that the pursuer was willing and happy to go through with the marriage. Thereafter it is averred by the pursuer that on two short occasions early in 1999 she cohabited unwillingly with the defender in England and after each time returned to Glasgow. She has not lived with him since. There are certain other averments about various ceremonies after the wedding and I will revisit these later. Although it is not averred, the background to the marriage appears to have been a wish by the defender's mother to have him marry a British citizen in order to remain legally in England and continue his education. The pursuer pleads that the marriage is null by reason of lack of consent due to duress. She also pleads the marriage to be null for lack of a marriage schedule and no proper registration. On this latter point the summons was intimated to the Crown but there was no appearance by the Lord Advocate before me.
3. In the course of the proof, a number of expressions were used and I hold these proved to mean the following. Firstly, and most important, is the Nikka which took place on 13 December 1998 in the Butterbiggins Road Mosque. That is the wedding ceremony at which the parties consent to marry, it is conducted by the Imam; all other subsequent events or parties are of less significance. The Mhendi is a kind of "stag" or "hen" party. Unusually, this took place after the wedding, and in the present case was on 28 December. Strictly speaking, the Mhendi is the party for the girls. For reasons that are unclear to me, the defender attended this event. An important event is the Rushkati, which is the traditional going away of the bride to the house of the husband; that happens after the wedding and here took place on 31 January 1999 when the pursuer left Glasgow for Bury. Mention was made of the Baraat, that is a stag night for men but it is unclear to me whether one took place for this wedding. There is the Ghana, which takes place when the bride arrives at the home of the husband and she is displayed to others. In the present case this happened in the early morning of 1 February, when the parties arrived in Bury. It is seen on the video and a form of game is played involving catching at items in a bowl of water. There was mention of two other things. There is the Fatia Dua, which is a mourning or condolence on the death of a family member. Also spoken about was Eid, which is a kind of celebration after the end of Ramadan (the ninth Islamic month) and when cards are sent (similar to Christmas cards). I am conscious that the spelling of some of these names may not be absolutely accurate and have suffered in the transliteration, translation or phonetics. It also appeared to me that as the witnesses gave their evidence some of the names were interchangeable; for example, it seems to be that the Mhendi and the Baraat can be one and the same thing. Everyone, however, was agreed that the Nikka only had one name and the Rushkati was confirmed by all the witnesses to be what I have described.
4. A number of witnesses gave evidence on the general merits viz. the pursuer and her parents, her brother Awais, a witness called Mohammed Raza. The defender, his parents and his sister spoke to the merits. Mrs Khan required the services of an interpreter at all times.
5. On the question of the registration the evidence was that of the pursuer, her father, Raza, Mr Robert Sneddon and the defender. I shall indicate my findings in fact and on credibility later when I deal with the detail. The parties also lodged two statements of agreed facts and I accept them unless in my opinion they do not reflect the evidence as I have found it.

The arguments

6. At the end of the evidence, Miss Wise for the pursuer invited me to sustain her first plea-in-law and also her second plea-in-law. Dealing first with lack of consent, she listed a number of undisputed facts. First of all she said that the timing of any agreement was admitted on Record as being in early December 1998 and the evidence supported this. The wedding which took place in Bury probably occurred in mid-November and at that, the possibility of an arranged marriage was discussed. There was then a gap of one or two weeks before the Fatia (which took place in Glasgow) towards the end of November or even into December. The defender's mother and sister had put the Fatia much earlier but their evidence should be rejected as unreliable on that. Also, the sister spoke to two visits allegedly made by the pursuer to Bury before the wedding. No-one else agreed with that, and that evidence should not be accepted.
7. It was critical to establish when the pursuer knew that she was facing a wedding. The weight of the evidence indicated that this was not at the end of November but in fact the week before 13 December. Her mother told her when she came home from school. The mother corroborated the pursuer on this matter and the father and brother also agreed. Even the defender accepted this because he assumed that the pursuer knew but without any firm basis for that belief. A number of matters that are alleged to have happened in Glasgow during the Fatia, i.e. going for a walk, only arose late in the evidence and certain things were never put to the pursuer.
8. It was important to establish whether the pursuer did go to Bury before the wedding. The purpose of this was said to be to buy wedding clothes at the expense of the defender. This was a matter of credibility. No receipts had been produced for any clothing. The pursuer said that the whole matter was done in haste and she only had one day off school. Her mother had a lot to do, she had other children to look after. In these circumstances it is highly unlikely that the pursuer and her mother would go off to England for a whole week as the defender claimed. It was also difficult to reconcile the defender's evidence about what he said happened in Bury before the wedding. According to him some kind of courtship took place, but that would have been against all Moslem traditions. The question of the purchase of clothing in Manchester and displaying it, again arose later in the case and many of these details were never put. It seemed to be the case that the garments were simply purchases as opposed to being tailor-made as there was no time to acquire them in any other way. There were a number of other discrepancies in the defender's evidence about these matters. In particular, it was odd that they did not know what the pursuer did and it was odd that there was mention of the grandmother on the maternal side looking after other children. That could not have happened as she was in Pakistan. In any case there was no evidence that anyone else looked after Mrs Sohrab's children to allow her to go to England. It would have been unlikely as, at the material time, there had been a family rift.
9. As to the day of the wedding the evidence showed that this happened in haste, the bride was very young, had had one week's notice and although she gave consent it was not freely given.
10. There was a convincing body of evidence about threats and this all depended on the pursuer's proof. The defender accepted that his family had no means of knowing what pressure, if any, was put on the pursuer. The question was whether she had no choice. The evidence showed there were a number of scenes with crying, shouting, things being thrown, refusals and threats of increasing severity to send her to Pakistan, to disown her and the mother threatening that she would take her own life. It was of some significance that the pursuer spoke about a friend of hers called Kalsum, who had been sent to Pakistan in similar circumstances. At the age of 16 the pursuer was wholly dependent on her parents and was not forisfamiliated. She had only been in Pakistan when she was 4 years old and was basically a Glaswegian. What happened after the Nikka only mattered in the sense that it reflected on her state of mind at the time. There was no real cohabitation. Seeing the pursuer at proof showed that, at the age of 19, she was a very different and more confident girl than she had been at the age of 16. It was plain she had, herself, no interest in Pakistan and that the threat of her mother's suicide was enough to tip her into the wedding. At the time the mother was depressed and that was the reason the daughter went through with the ceremony. The video, No 6/5 of process was important to the extent that it was open to the Court to conclude in fact that the pursuer never smiled throughout the ceremony although at the proof she demonstrated frequently and often that she could smile beautifully. The video supported her own evidence that she was in a sense silently protesting on the day of the wedding and how she looked was how she felt. Later scenes in videos show her as unhappy.
11. Post-Nikka events showed that there was no significant cohabitation for any period. The defender's case was in some confusion over what had occurred after the wedding. There was no real proof that there had been considerable coming and going between Bury and Glasgow. The sexual relations between the parties were unsatisfactory but it was not entirely clear whether this was due to inexperience or rough behaviour. There was very little evidence also of what life the pursuer lived in Bury. The photographs produced were inconclusive, the cards which were sent as Eid cards were in fact sent by the pursuer's brother. It was not entirely clear why the defender's mother advanced the day of the Rushkati because she did not in fact return to Pakistan. Her motive may have been to secure cohabitation so that the Home Office could be persuaded that the marriage was genuine. The defender had a clear motive to want to marry the pursuer, he was in the country on a six month "window" and had to do something. Mrs Sohrab realised that when the Rushkati was advanced it was not to allow Mrs Khan to go to Pakistan but to allow cohabitation to persuade the Home Office to let the defender stay. She then realised that the pursuer would not be allowed to remain in Glasgow for two further years to complete her education, before any Rushkati, and that she had been tricked by the defender's mother. Also, if the marriage was indeed happy it was curious that the pursuer never went back to England and that the defender made no attempt to try to persuade her to return. There were two possible explanations for this: one was that only the wishes of the various parents mattered; or that there was in fact no happy marriage. There was no evidence that either set of parents tried to undo the marriage.
12. The Court should be careful in assessing Mrs Khan's credibility because most of her evidence was given through the interpreter unlike Mrs Sohrab who was able to speak some English.
13. Moving to legal matters Miss Wise said that marriage required free consent and she referred me to Stair: Institutions 1.4.1. She then referred to the case of Mahmood v Mahmood 1993 S.L.T. 589 where, after a debate, Lord Sutherland allowed a proof before answer on the question of threat. She referred me to Fraser on Husband and Wife, Vol. 1, 226 and to the case of Mahmud v Mahmud 1994 S.L.T. 599, a case decided after proof. The case of Gall v Gall 1968 S.C. 332 was also noticed.
14. Miss Wise then moved to her second plea-in-law, concerning lack of proper registration and once again she read from the list of agreed facts. What the pursuer signed at Martha Street had been brought there in an envelope which she had been given by the Imam. The witnesses Raza and Saddique were not there. She drew attention to the different colours of ink appearing on the document. When the parties signed on the 30th, that was not done in the presence of the witnesses or the Imam and of course the witnesses did not witness any marriage on 30 December. The Registrar's evidence on all these matters was important. It was clear that if the particulars are entered and both parties were present at the ceremony then the validity cannot be challenged. The date was central and important, 14 days notice was needed and accordingly before a schedule could be issued the parties would have to wait 14 days. After the ceremony there are 3 days to register. This time-frame had its origin in the issue of banns. I was told in the course of the argument that there were "good reasons" why the Imam had not given evidence. The only marriage which could be registered is one with a schedule and here there was a schedule but it did not relate to the marriage and accordingly the registrar has been misled. The Act did not give a licence to marry without a schedule. Miss Wise referred me to the case of Saleh v Saleh 1987 S.L.T. 633. It was also of some importance to notice that in the marriage legislation, Parliament thought things sufficiently serious to create criminal offences. I was referred to the Scottish Law Commission Report No 135 of 1992, to the case of Bradley v Mochrie 1947 S.L.T.(Notes) 27 and also to a report of a wedding involving a person called Clifford.
15. Miss Hodge, for the defender, began by referring me to Mahmood, showing that there could be a range of consents and to the other case of Mahmud showing the importance of events before and after the ceremony. She continued that there was a two-stage test. The questions she posed were these: was it the kind of force which on the evidence would be sufficient to overcome her will and, secondly, was her will in fact overcome. The defender on the other hand could only point to circumstances which have been agreed, to the visit to Bury, to the telephone conversations and the absence of complaints within his happy family. His position was that the pursuer did consent but became unhappy for other reasons. There were a number of competing tensions in the evidence. It was clear that the older generation put the young people under pressure. There were also linguistic problems of understanding questions at the proof. It was important to determine what happened at the Fatia and whether the young people did go out into Glasgow. Even if the defender was disbelieved about the trip to Bury, this did not mean that the pursuer did not consent to the marriage. It was quite possible that she did go there for a short trip. The pursuer liked her freedom and was westernised and it was not her natural instinct to obey her parents. Her evidence had been crafted. The pursuer tended to be asked leading questions. On balance, she gave reluctant consent and much more was needed than was proved before the marriage could be vitiated for this reason. The Court should be wary about the video. It was important also to notice that the pursuer allowed events to take their course.
16. On the question of formalities, counsel pointed to the fact that the old law had worked harshly and required relief by amending. Section 23A was in very wide terms and she argued that the particulars referred to there do not require to be the correct particulars. The couple in this case were ignorant. Saleh was a different case where there was never any schedule. She invited me to sustain the defender's first plea-in-law and second plea-in-law and repel both the pursuer's pleas-in-law.

Was any consent vitiated?

17. Dealing first with the question of whether the pursuer was forced into the marriage against her will, I have to start with her own evidence. There are really three areas to look at, firstly, the events of the marriage, secondly, what occurred before that and thirdly, after the marriage until April 1999 when they finally parted. The pursuer herself has to be found to be credible and reliable otherwise this aspect of the case disappears.
18. When she gave evidence she was almost 19 years old and presented as a confident girl who was understandably nervous about giving evidence. She spoke in a clear and forthright manner and I consider her memory of events to be accurate. Her English was good and fluent. She had to face a skilful and searching cross examination but her evidence did not alter in any material way.
19. She said that she met the defender for the first time in November 1998 when he and his family came from England for the Fatia Dua, i.e. the mourning ceremony for the death of her grandmother. On her evidence, they did no more than meet. She said she was quite unaware then, that he was to be her intended husband and she thought no more about it. I accept her evidence on this. I do not find that she and he went out together with other young people on that visit. The matter was first raised in the defender's case and was never put to the pursuer or her witnesses. I accordingly reject the question of any socialising.
20. For reasons that will later appear I consider that the Fatia must have been towards the end of November rather than earlier. It is in any case part of the undisputed facts. I do not doubt that the parents of both the pursuer and defender may have had a hidden motive for wanting the young people to meet at the Fatia but that was never told to the pursuer. Plainly on the evidence of both sets of parents, marriage negotiations were going on discreetly.
21. It has to be remembered that at this time the pursuer was only just 16 and at school. I hold it proved on the evidence of the pursuer (corroborated if need be by her mother) that about 6 December 1998 her mother told her the defender was to be her husband within a week. To put it mildly that was a great shock to the pursuer. She became upset, hysterical, wept a lot and said she did not want to marry. That is clearly proved in her own evidence and that of her parents and brother.
22. At this point pressure was put on the pursuer. Her mother threatened suicide if she did not marry. The mother had suffered depression and the pursuer took the threat seriously. The pursuer was also told that if she did not do as she was told she would be taken to Pakistan and married there. That she did not wish as she had known of it happen to one of her friends, a girl called Kalsum. The pursuer was also threatened with being put out of the house and accused of bringing shame and disgrace on her family name; since all the arrangements for the wedding were made by her mother, guests invited, and the Mosque booked. The seriousness of all this pressure and the pursuer's reaction was convincingly spoken to by her parents and her brother. There was no contrary evidence.
23. In my view that was more pressure than a sixteen year old girl could bear and I am entirely satisfied that her will was broken and her consent on the 13^th was not true consent but had been vitiated. She had had no thoughts or expectations of marriage and did not want to be stuck in a marriage to someone she did not know.
24. The pursuer said she never met the defender again until the 13^th. That is disputed and for reasons which will be dealt with later I accept the pursuer's account. I also accept she wore clothes given to her by her parents but probably brought by the defender's mother from Bury. On the day of the Nikka the pursuer said she felt "rotten". The event is captured on a video recording which was shown. I can only interpret the video insofar as it was spoken to by the pursuer and others present. The choice is between the pursuer's evidence that she looked and felt wretched and kept her head down (as is a possible interpretation of the film) and the evidence of others that a Muslim bride should look serious and solemn. I prefer the pursuer. In spite of her glorious robes she looked a very unhappy girl. That in my view is consistent with lack of true consent although a form of consent was sought by the Imam and given by both.
25. The pursuer mentioned one other matter which I shall have to deal with again later in a different context. She said she signed no "notice" documents before the wedding. In my view that is consistent with a wedding arranged in haste and the pursuer kept ignorant until the last. If she had known earlier I think it highly likely that some attempt would have been made to give proper notice for the 13^th. Fourteen days would have been needed and if the pursuer had had to sign anything at the end of November as obvious as the relevant "notice" she would have stumbled over the truth. That I hold did not happen.
26. That is all that it is necessary to say at this stage about the Nikka. The defender, who had met the pursuer only the once at the Fatia, believed that she was consenting. It is now important to go back in time to deal with earlier events. I hold it proved on the evidence of the defender and his parents and family that he came to the UK from Pakistan when he was 19 on 3 October 1998. His command of English was poor. At that time he had a six month visitor's Visa, and I hold that his intention or at least that of his mother, was to secure, as early as possible, a bride who was British so that he could remain in Britain to further his education and career. There is nothing wrong with that as the law allows it.
27. In November 1998 a wedding took place in Bury and then in Rochdale. There was a wedding feast. The parents of the pursuer and the defender were both guests at this event. The date is not clear and varied in the evidence from early in the month to later on. The pursuer placed the date later in November though her mother thought it was earlier. The defender in cross examination said it was mid month as did his mother. His father could only recollect that it was in the month of November. His sister opted for October which I think is inaccurate. On this evidence I hold that, on balance, the wedding was not earlier than mid November. That date fits with later events.
28. It is proved and undisputed that at the Bury ceremony both the mothers discussed a marriage between their respective children. Mrs Khan said that Mrs Sohrab showed her a photograph of the pursuer at the wedding feast and the defender said he saw photos (plural) later at home. According to Mrs Khan the photo was in an album and the Sohrabs visited their home on that occasion. The defender's father spoke about a photo but never saw one. The sister Ayeesha claimed that she saw a full album of photos, some of which were given to her mother. Mrs Sohrab denied taking any photo to Bury and was not asked if she and her husband visited the Khan's home.
29. On this detail I prefer Mrs Sohrab. The evidence to the opposite effect is inconsistent and exaggerated and on balance I hold that no photo was shown whatever was discussed. I cannot rely on the defender or his mother and sister.
30. There is another important matter and it relates to who was the more motivated mother to seek the wedding. Mrs Sohrab said she was in no hurry as the pursuer was at school and needed to finish her education. She said Mrs Khan pressed her to do her a favour so that her son could stay in the UK. They were in any event distantly related. The opposite view was given by Mrs Khan who said that the pressure came from the pursuer's mother. Again I prefer the pursuer's side of this. Mrs Sohrab was able to speak English quite well and rarely needed the services of the Court interpreter Dilawer Singh to whom I am indebted. She was quite clear in her recollection. On the other hand Mrs Khan gave all her evidence via the interpreter. Often that meant simple questions easily and shortly translated, and then a long rambling answer from her, retranslated very shortly and swiftly. It is difficult to rely on this unless it fits with other credible evidence. In my view she had a clear "time" motive to obtain an early wedding to allow her son to remain. The marriage itself was not enough. There had to be some cohabitation. Thus time was against her in a way not relevant to the pursuer who was very young. Occasionally Mrs Khan burst out in quite fluent English and I suspect she spoke and understood the language better than the image she sought to give. She was quite keen to tell me how she had studied English at the Army College in Pakistan.
31. I now look at a matter which is very important to consent. It concerns whether the pursuer and her mother went to England after the Fatia and before the Nikka. On Record the defender at page 7D to E alleges that they visited Bury and went shopping in Manchester. This was expanded in evidence to show that the visit was enjoyed and expensive clothing was purchased. Clearly if such a visit took place so close to the wedding it would affect the pursuer's credibility and my assessment of her consent. What then was said about this? Ayeesha, the defender's sister put the matter thus. She said the pursuer and her mother came to Bury. It was a happy visit with music and dancing and a video was taken. They came to buy clothes and stayed for 2 or 3 days. She had earlier said the visit lasted for a week. The purpose was to buy clothes and jewellery. Apparently it is the custom for the bride to be provided with 7, 11 or 21 pairs of clothes (shirt and trousers) for different ceremonies. She said this visit was in the last week of November or the first week in December and they came by train. This bride got 11 outfits and some had to be altered before being hung up and displayed to others. The defender's father paid for the clothes. Ayeesha finished by saying that the pursuer came a second time in December on her own for a fitting. Before dealing with other evidence led I pause to observe that none of the detail of this was ever put to the pursuer or her mother. No receipts for such a large "trousseau" were ever produced.
32. The defender's father Raja Khan said that after the Fatia the pursuer and her mother came a few times to Bury staying for a few days or a week. This he said was in November and December. He said that the reason for the visits was to have the pursuer get to know his son. I am surprised at this allegation as other witnesses said it was contrary to all tradition. He said that wedding dresses were prepared, left in Bury for them to take to Glasgow as their "input" to the marriage. In cross examination this witness said that the Fatia was a few weeks after the Rochdale wedding in mid November. If his evidence is correct about this then the pursuer's visits must all have been in December which I do not accept. The witness continued in cross to say that when the pursuer came with her mother before the wedding there was dancing and a video film was made. He had earlier said that "they" by which he meant the pursuer and her mother came to his house in the early hours of the morning "a lot of times" to ask about guests and the distribution of wedding cards.
33. Comparing this evidence with that of Ayeesha there are obvious discrepancies and inconsistencies. No video was produced. Given the probable date of the Fatia there simply would not be time to make so many trips. Mr Khan did not say that he paid for anything and I consider that his evidence about this matter is not only unreliable but untrue. I am of the same opinion about Ayeesha on this matter.
34. That is not the end. The defender and his mother dealt with the matter. Mrs Khan said a number of things. In chief she said that the pursuer and her mother came to stay for a week and bought clothing and jewellery of their choice. This she said was in the first week of December. She said she paid for the shopping. She said Mrs Sohrab was dancing with joy and playing a musical instrument. Photos were taken. She went on to say that the pursuer had taken time off school and her grandmother was looking after the other children in Glasgow.
35. In cross examination she said that Mrs Sohrab broke tradition by bringing the pursuer to her house before the wedding. At another point she said that the pursuer and her mother came to Bury several times, including after the wedding but before the Rushkati.
36. However, in re-examination she said "they" came by train and it was for one day only. It is self evident that this evidence is full of contradictions. There is no consistency about how long the visits lasted or when they happened. She said she paid, not her husband. There was no photo of the dancing, if any was taken. Again given the timing I do not think one visit far less several could have taken place. There was no vouching for the clothing.
37. Finally there was the defender himself. Throughout his testimony he kept repeating (almost like a mantra) "She come (sic.) to Bury" (meaning the pursuer). It was not always clear to what he was referring. On the pre-wedding visits he began in chief by saying the pursuer and her mother came in mid November and stayed for 3 to 4 days or a week. The other children had been left with their father in Glasgow. They came by rail, stayed in his home and there was singing and dancing. He went out with the pursuer. There was the shopping for clothes and jewellery. His family paid for these things. He also said the pursuer and her mother wanted the marriage in Bury.
38. His position differed in cross. He began by saying that the visit was during the period of the 12 days before the wedding in December. Soon thereafter he changed that back to November. He said he had an affidavit from the jeweller (none was produced). He agreed that it would not be right or proper for the pursuer to stay in his house before the wedding. He stressed how educated his family were.
39. Once again this evidence is not consistent and the dates vary within the evidence and with other witnesses. Had these four witnesses been the only evidence I would not have accepted it as reliable or credible. Such a visit would have been contrary to tradition. The dates differ markedly. I do not think that after the Fatia and after the mothers agreed a date there would have been time for one such prolonged visit far less two. Much of the detail of what these witnesses said was never put to the pursuer and her mother. No films or video was produced if one existed, and as this was an important matter, I am surprised at such an omission. There is no independent check against this family evidence. There was no affidavit or bills or receipts for the clothing. If 11 outfits and jewellery were bought the cost must have been significant and could easily have been proved.
40. There is, however, a contrary account although of a negative nature. The visit (singular) was put to the pursuer in cross and she denied any visit to Bury for a week; any party or expensive shopping or socialising with the defender. She said her dowry of clothes and jewellery was for her going away. Mrs Sohrab also denied any visit and it was her impression that any clothing provided was hired. Mr Sohrab said neither the pursuer or his wife went to Bury. As I have already said, the fine details of the defender's case on this aspect was never put and I am certain it was heard for the first time in the witness box. Some of it e.g. the video, the dancing, the proposal to marry in Bury is not the subject of averment. I accept the account of these three witnesses i.e. the pursuer and her parents on this point as being inherently probable and also fitting the time scale.
41. Accordingly the defender has failed to prove this part of his case upon which so much reliance was placed. I have to reject as untruthful and unreliable the evidence of these four witnesses he led including himself. That obviously affects my view on their evidence on other matters unless they are agreed or can be reliably tested against independent evidence which I hold credible. As often happens with witnesses parts of their evidence may be correct and other parts have to be rejected. The pursuer's case on this point, which I accept, is consistent with her own ignorance of what was going on around her and being arranged without her knowledge.
42. That disposes of events before the marriage and I now move to deal with what happened afterwards. To a degree this is less important since any cohabitation after the end of January was short, unhappy, interrupted and finally not resumed. The defender made no attempt to win back the pursuer which I find odd and suspicious.
43. At the end of December on the 30^th, and contemporaneously with registration and the defender's reappearance in Glasgow, there took place the Mhendi. That is the bride's "hen" night party and normally ought to be held before the marriage. It is not normally attended by the husband. In this case it was. This event is not a ceremony.
44. The first matter to notice is when this was held, i.e. after the wedding. That is strange but I am satisfied that it so happened in this case because there was not time to hold one before the Nikka. Also, to have done so would clearly have alerted the pursuer to an impending marriage in which she was to be the bride. I hold that the date and nature of this Mhendi are entirely consistent with the pursuer's account of her ignorance of events. If she had indeed gone happily to Bury in November to buy clothes etc. I think it inconceivable she would not have wanted her Mhendi at the proper time. I suspect that the real reason there was one at all was Mrs Sohrab wanting to keep up appearances with the Glasgow Asian community.
45. On Record there is an averment that the defender had a stag night in Bury on 24 December. It is said the pursuer and her family attended. That was not pursued in evidence or in submission. Indeed the defender himself gave contrary evidence. He said two things, firstly that his stag night or Ghana was after the pursuer's; and was in Bury on 1 February. To that extent his evidence agrees with the pursuer. The detail of what occurred in Bury coincides with the next matter I have to deal with but before doing so I mention one detail concerning documents which were probably sent to the defender in January. They are Nos. 7/4, 7/5 and 7/6 of Process. These are three greeting cards; all of an affectionate nature in style and bearing expressions of love. Two of these appear to have been sent to the defender by the pursuer (7/4 and 7/6). The status of 7/5 is unclear. It may have been sent to the defender and his parents by Mrs Sohrab but she denied it. Nos. 7/4 and 7/5 are Eid cards. In fact I hold on his undisputed evidence, that the author of 7/4 and 7/6 was the pursuer's brother Awais. He said he sent them at his mother's behest and was trying in some way to help his sister. I am certain the pursuer did not write any of them. She denied doing so and I believe her. Whether she knew about them at the time is unclear.
46. The cards were not helpful since they encouraged the defender into a false hope of the pursuer's affections.
47. It is tradition in a Muslim wedding that there is a "going away" of the bride from the parental home to live with the husband. On the evidence, when this can occur varies considerably. It may be the day of the wedding itself or a date in the future. That later date, I was told, could vary from weeks, to months and even years depending on the age of the parties and what were the surrounding circumstances. In the present case it is agreed that the going away from Glasgow happened late on 31 January 1999. The ceremony is called the Rushkati.
48. What happened is not seriously in dispute. There was a social event at the pursuer's home and late at night she left in a car for Bury. I hold it proved that she was upset when she left Glasgow. That I do not find surprising since it would inevitably be an emotional time for the pursuer. She sat in the back of the car with the defender and his sister. The sister said that she acted as a kind of chaperone to restrict the kisses and embraces exchanged by the couple on the journey. The evidence about what precisely happened in the back of the car on this journey is less than clear. The car was driven by a friend of the defender and there was a front nearside passenger and possibly a child. When the car arrived in Bury the Ghana took place. This is recorded on video and shows the parties taking part in a form of game involving items in a bowl. The precise reason for this game was never made clear to me. I hold it proved that that night the parties cohabited and sexual relations took place. Precisely what these were was unclear as both parties made allegations and counter allegations. The pursuer (in some distress) said she was forced to have sex and the defender claimed that she made him do "... sexual things ...". Whatever happened that night or later is impossible for me to determine nor do I think that it matters. Clearly any sexual relations were unsatisfactory and I suspect that this was due to inexperience on the part of both and the pursuer's antipathy to the whole idea of the marriage. There is no question of either party being happy and contented with the sexual side of things whatever they were. Its relative lack of importance is confirmed by the confusion in the evidence as to how long the parties cohabited after 1 February until the pursuer left for ever in April.
49. It is not disputed that the pursuer left Bury for good on or about 25 April and that since then neither has met the other until the proof some two years later. Neither has made any attempt to resurrect the marriage.
50. As I have already said the evidence about how long the pursuer stayed in England is confusing. The pursuer said she was unhappy in Bury and did not accept the defender as her husband. She said she never had any plans to go to college in Bury or to look for work. She went back very soon to Glasgow and I hold it proved on the evidence of the pursuer, her mother and father that this was probably near the end of February. Her parents went to fetch her home. She returned probably nearer the end of March but unwillingly. She said her mother forced her to go back. I am unclear about this as Mrs Sohrab said that the reason she persuaded her daughter to return was due to pressure from Mrs Khan. That is entirely possible as the defender's six month visa would be about to expire.
51. Mr Sohrab who said that he was not at "the front line of all of this" (which I sincerely believe) could not remember dates. He did remember that he made two trips to England to fetch his daughter home. The defender broadly agreed with the periods when the pursuer was absent from Bury agreeing that she went and returned twice. He said he went back with her in April by bus. I do not hold that as a fact. It was never put to the pursuer or her parents. Mrs Khan in cross examination could not remember how often the pursuer was (as it was put) "coming and going". Her evidence does not contradict that of the pursuer and her parents. Mr Khan's evidence on this chapter was brief, vivid and in my opinion wholly invented. He said the pursuer stayed a few months, gave him a present on his wedding anniversary (27 April he said) then left and never came back. None of this was ever put to the pursuer and nobody else mentioned it in these terms. Then he said that in May 1999 at 5.00am the pursuer's mother, uncles and aunts came to his home to bring the defender back to Glasgow! I need hardly say that this was never mentioned by the defender or put to any other witness. I regard this evidence as dishonest, misleading and quite fantastic. It confirms the opinion I have already expressed about this witness.
52. The defender's sister Ayeesha said the pursuer went back three or four times to Glasgow. She suggested that she left on 27 April and remembered her parents' anniversary and a cake being cut. It was not suggested the pursuer was even present when, if ever, this happened. Again it was never put to the pursuer and I reject it. It is also contrary to the agreed facts.
53. From all of this I conclude that from the outset the marriage was unhappy because the pursuer had not genuinely consented to it and wanted to leave. She was unhappy and was in a strange home. She left twice and whatever proper cohabitation there was, if any, was of brief duration. Nothing occurring between the Rushkati and 25 April affects my view that there never was any genuine consent by the pursuer. Indeed, her conduct in England confirms her evidence of events before the marriage.
54. There are two details of what happened in England which I must deal with. In my opinion neither is important.
55. The first relates to documents Nos. 7/1, 7/2 and 7/3 of Process. No. 7/1 purports to be a letter to the pursuer from the Bay Trading Company. It is dated 15 April. It refuses her a job. No/ 7/2 is a similar refusal of her by Asda on 13 April and 7/3 (undated) is a Starter Form for Labourpool Ltd in Aston-under-Lyne. The pursuer admitted she may have completed 7/3 but the matter was not pursued with her in cross. Her evidence about the Bay Trading Company letter was unclear and she denied applying to Asda. There was some vague contrary evidence from the defender and his parents and sister. All the sister said was that the pursuer went to the job centre. The father said she wanted to work part-time. Mrs Khan only knew about Asda. The defender said he went with her to Bay Trading Company and Asda by car with his father (a matter denied by the father in examination in chief).
56. I can draw no firm conclusion from the vague and unsatisfactory nature of this evidence. It is not a matter clearly focused on Record. It in no way impinges on the issue of consent.
57. There was also evidence given, which I need not dwell on, about four photographs taken of the pursuer and defender in Blackpool, London and the Trafford Centre in Manchester. These are posed prints (Nos. 7/1, 1-4). They merely show that the parties went to these places but in my view have no relevance to the issue of consent.
58. This concludes my findings of the merits of the action but before dealing with the decided cases I should make this further observation. During the proof both parties were prone to solve problem areas for them in the evidence by resorting to the formula of the mobile phone. Time and again witnesses would say that many phone calls were made about "this or that". I found such evidence to be unsatisfactory. It was never specific nor clearly focused in the pleadings and I regret that I can place little or no reliance upon it.

Registration

59. It is important to make findings about the Extract entry in the Register of Marriages (the Marriage Certificate) and the various Notices and Schedule which preceded it. The documents Nos. 6/1 and 20/5 to 7 are fairly self-explanatory but the Court received helpful evidence on the point from Robert Sneddon, the Chief Registrar for Glasgow. He had with him the principal Schedule (which could not be released to the Court) and I saw it. No.20/7 is a coloured copy of the Principal writ. He took the Court through the detail of the various boxes and how they are completed. He told me of their significance and how there was a need to give notice. I base my formal findings largely on what he told me.
60. The Marriage Certificate which is printed and typewritten is an extract dated 24 July 2000. It bears to register on 8 January 1999 a marriage between the pursuer and the defender celebrated on 30 December 1998 at 138/40 Butterbiggins Road, Glasgow. The celebrant was Imam Farogh Ahmad, and the witnesses M Sadique and M S Raza. This document, proceeds from an identical entry in the Register which itself is made up from the Schedule (20/7) which itself arises from the Notices given (20/5 and 6) and I now look at these.
61. Aneeka's notice (20/5) is largely hand printed and is written in at least two different styles of handwriting. It is on Form M10. It is an untidy document with many score outs and corrections. In Box A the date of the proposed marriage is given as 30 December 1998. The place given is the Khazra Central Mosque in Glasgow. In the box beside sections 1 and 2 is a space for the Registrar's use and this confirms that this document was returned to him on 14 December. On the back Aneeka has signed the declaration that the particulars are correct and her signature bears the date 14 December 1998 (in figures).
62. Raja's form M10 (20/6) is also hand printed in at least two different styles. It is equally untidy. The proposed date of marriage is the same but the place is different, 138 Butterbiggins Road. The Registrar's box confirms receipt on 14 December 1998. Raja has signed the declaration on 14 December also.
63. Accordingly, on receipt of these Notices the Registrar after 14 days can issue a Schedule and did so in this case. There is no special significance in the Notices being untidy as I was told this often happens. Some of the corrections were made by the Registrar's staff. The time limit here was the minimum plus one day for a wedding on the 30^th. I hold it proved that Aneeka did nothing other than sign her Notice and did so at the request of her father on the 14^th.
64. Raja, I hold, signed his form on the same date but did not add the date. On the evidence of Mr Sohrab I hold it proved that the Imam completed both Notices. When he did so I cannot say but I hold it proved he gave the Notices to Mr Sohrab after the Nikka on the 13^th for him to take to Martha Street. He returned there on the 29^th and was given an envelope with "... all the papers ... all ready ...". This must have been the Schedule.
65. The Schedule (No.20/7) is headed "Marriage Schedule", and is computer generated. Boxes one to eleven contain in neat type all the information submitted in the Notices. The date of the marriage is 30 December and the place (Mosque) is correctly stated. What is at that stage (29 December) incomplete are the various sections for the five signatures of bride, groom, celebrant and two witnesses (Boxes 3, 11 and 12).
66. I hold it proved that the pursuer and defender both signed box 3 on the 30^th. Where they did this is unclear, and it may have been at Martha Street. I hold it proved that by this time the Imam had signed box 11. Nobody suggested that it was not his signature. There is a signature of a purported witness Sadique in box 12 and of the witness Raza beneath that. When these were adhibited is not clear. Raza said he signed two or three weeks after the marriage, in the Mosque at the request of the Imam who had asked him to come in and sign. He said the Imam took the papers back after he had signed. I consider he must have signed on the 29^th or 30^th at the latest. Raza was also aware that no documents were ready on the 13^th as the Imam told him so.
67. There are two conclusions I take from this proved state of facts. The first is obvious. The Schedule relates to a marriage which was never celebrated as no wedding between the parties took place on 30 December. The resulting certificate also conveys information which is false about the marriage. No Schedule existed for the ceremony of 13 December.
68. The second conclusion is to question why the Imam did not complete documents for the 13^th but did so afterwards. The marriage took place in haste and there may have been no time to complete Notices. Why the celebrant allowed the ceremony without proper notices is unexplained. He was a celebrant on the approved list and must have known the proper procedures. I heard no evidence from him on the matter. I am satisfied that neither the pursuer or defender was familiar with the need to give Notice and merely signed what was put in front of them assuming it to be regular. I do not think either noticed the wrong date on the front of the Notice since they signed on the back. In the result the Registrar was misled into registering a marriage which never took place. I do not hold this to be the fault of either party or Mr Sohrab who merely acted as a messenger. If the marriage had been a success the problem may never have been noticed. It is unfortunate that I heard no explanation from the celebrant for what has happened. There could be many reasons from at best lack of time, oversight to at worst a deliberate intention to mislead the Registrar. Whatever the true reason it would have assisted the decision on this part of the case.

The decided cases and the statute

69. I now propose to discuss briefly the authorities. Bradley v Mochrie only enjoys a very brief report. The case discloses that the husband, who was a freemason encountered objections from his people to a marriage to the pursuer who was a Roman Catholic. The pursuer had had banns proclaimed in her parish. The defender told her he had arranged for the proper notice. In fact he had done no such thing nor had he arranged any reception. When the wedding was about to begin, the defender said that he had left the necessary certificate relating to the Notice at home. A guest went to fetch it and the wedding went ahead without it. At the reception the guest returned to say there was no certificate. The defender then left the reception. In an undefended action the Lord Ordinary found the marriage null and void for lack of proper notice. In Gall the problem was the giving of false information about an address which the Registrar then entered in the Marriage Schedule. It was held that the marriage could not be challenged if the Registrar proceeded in good faith on what he was told and believed it to be true, even if the party who supplied it knew it to be false.
70. Saleh is the most recent case. The parties intended marriage and gave notices in the registration district of Grangemouth. It was to have been a church wedding. No Schedule could be issued since it was not clear to the Registrar that the defender was free to marry. The parties then went to Edinburgh and were married by a matour in a Mosque there. No notices had been given and there was no schedule. There was also no registration. Unsurprisingly, the Lord Ordinary held the marriage void as there had been no compliance with any of the preliminaries. No schedule was produced or even existed (635B). In remarks which I consider as obiter he said that lack of a schedule produced at the time of the marriage might not be fatal if there was registration. However, I interpret that to mean a schedule somewhere existing relating to the ceremony which took place and which would allow registration of it, not one which related to a different ceremony which never took place (as here). I consider that when Lord Clyde refers to a defective "marriage schedule" in section 13(2) he means one produced to the celebrant before the ceremony as referred to in section 13(1)(a) of the 1977 Act.
71. Before leaving this vexed topic I should draw attention to a report given to me in the Edinburgh University, School of Law, Scots Law News for 25 September 2001. That in paragraph 126 draws attention to a case where a "society wedding" took place without any schedule. The celebrant was a retired Bishop and the parties were Pandora Clifford and Ivo Curwan. I was told that the parties had to give proper notice and go through another ceremony later!
72. Moving away from this area I now consider the two Outer House cases on duress, only one of which went to proof. In Mahmood there was only a debate. Against familiar averments of an arranged marriage the bride alleged that she only went ahead under duress. Proof before answer was allowed. The girl was 21 but the wedding had been arranged years earlier. Her parents threatened to disown her, stop her allowance and send her to Pakistan. They said that if she did not go ahead she was a disgrace to herself, her family and their community. The parents had already disowned two of their older children who would not enter arranged marriages. At 592A the Lord Ordinary said that it was a question of degree and even reluctant consent, if genuine, would suffice. What happened after the marriage would also be important on the issue of consent. (I pause to observe that in the present case the pursuer was only 16.)
73. Mahmud was decided after proof and this time the groom alleged duress. He was a man of 30. For twelve years his family put him under pressure to marry his cousin and told him he brought shame on the family by refusing. He had a Scottish girlfriend and a child.
74. However, one day he went through a civil ceremony of marriage with his cousin when on his way to work. He left alone and never saw the bride again. She was later deported. The facts are fully narrated at 600H/L. Lord Prosser in granting decree said there had to be free consent showing an agreeing mind. Whether the particular person had his will overborne was a question of fact not whether a more resolute person would have resisted. What happened after the ceremony mattered and it was essential to have regard to the cultural and social background. (See 601G and K). Age and sex may also matter. (See 602A.)
75. The Marriage (Scotland) Act 1977 enacts inter alia by section 13 the following:

"13.-(1) A marriage shall not be solemnised by an approved celebrant unless-

(a) the parties produce to him before the marriage ceremony a Marriage Schedule, in respect of the marriage, issued in accordance with this Act;

(b) both parties to the marriage are present; and

(c) two persons professing to be 16 years of age or over are present as witnesses.

(2) A marriage solemnised by an approved celebrant in contravention of paragraph (a) or (b) of subsection (1) above shall be void.

(3) For the avoidance of doubt, a marriage solemnised by an approved celebrant shall not be void merely because the Marriage Schedule specified a different date or place from the date on which, or the place at which, the marriage was solemnised."

76. Amendments were subsequently made to the 1977 Act by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (Chapter 55) section 22 of which provides as follows:

"22.-(1) In the Marriage (Scotland) Act 1977-

(a) in section 6(5) (restriction as to date and place of religious marriage), for the words '13(3)' there shall be substituted the words '23A';

(b) in section 8(1) (persons who may solemnise marriages), at the beginning there shall be inserted the words 'Subject to section 23A of this Act,';

(c) in section 13 (preliminaries to solemnising of religious marriages), subsections (2) and (3), which in so far as they are not inconsistent with the provisions inserted in the said Act of 1977 by paragraph (d) below are superseded by those provisions, shall cease to have effect;

(d) after section 23 there shall be inserted the following section-

'Validity of registered marriage

23A.-(1) Subject to sections 1 and 2 of, and without prejudice to section 24(1) of, this Act, where the particulars of any marriage at the ceremony in respect of which both parties were present are entered in a register of marriages by or at the behest of an appropriate registrar, the validity of that marriage shall not be questioned, in any legal proceedings whatsoever, on the ground of failure to comply with a requirement or restriction imposed by, under or by virtue of this Act.

(2) In subsections (1) above, "appropriate registrar" means-

(a) in the case of a civil marriage, an authorised registrar; and

(b) in any other case, a district registrar.'.

(2) The said Act of 1977 shall be deemed for all purposes to have had effect as if it had originally been enacted as amended by subsection (1) above."

My decision

77. From the foregoing findings on the general merits I am clearly of the opinion that the pursuer here did not give any genuine consent to this marriage but was put under such duress by her parents that whatever semblance of consent was exchanged at the Nikka was vitiated. None of the authorities cited to me compels any different result. Both cases mentioned are in the Outer House and only one was after proof. In my view the general remarks of the separate judges in these cases support the conclusion I have reached on the evidence here.
78. I now move to the second chapter concerning registration.
79. In the present case the registration was important not only to record the event but also to provide proper evidence to the Home Office that the defender was married.
80. The question I now need to decide is whether section 23A (already quoted) saves this marriage because it was registered. I now address this and begin with the 1977 Act. The scheme of the Act is simple. Sections 1 and 2 lay down restrictions about age and relationship. Section 3 provides for the need to submit a marriage notice, the fee, birth or other certificates and supporting documents. Section 4 provides how the particulars must enter the marriage notice book and be on a list displayed in a conspicuous place. The purpose of all of this is obvious. It is to make public the intention to marry so that if there are any valid objections they can be made. If there was no notice then valid objections could never be made. The nature of the objections can be seen in section 5 e.g. age, prior marriage, subsisting relationship, same sex, inability to consent. Again this is all to the same end to further the aims of sections 1 and 2 and to prevent bigamy. Time is allowed to make objection and section 6 deals with this. As Mr Sneddon told me there has to be 14 clear days of intimation to allow for objection.
81. Section 13(1)(a) which is still in force says that a marriage shall not be solemnised unless the parties produce a schedule issued in accordance with the Act. In the present case, there is a Schedule but it relates to a marriage on a date on which no marriage was solemnised.
82. What then does the amending section 23A say. Read short it tells me that if the marriage is registered then the validity cannot be questioned on the ground of failure to comply with a requirement or restriction imposed by the Act. The argument for the defender has to be that I can excuse the need for a Schedule on 13 December if one came later (as it did here). What is meant by a "requirement or restriction".
83. I observe that sections 1 and 2 are preserved. It is easy to conclude that these are restrictions imposed by the Act which section 23A does not affect and cannot be excused. Other inexcusable restrictions may be the matters in section 5 (otherwise the section can be of no effect). I think the word "requirement" has both a general and particular meaning and in context relates to the giving of notice to allow a chance for objections. It also, I think, relates to the detail in the notice and the time of issue of the Schedule. Section 13(3) has been repealed relating to date and place in the Schedule. These details are nevertheless requirements and I think section 23A would still allow errors about them to be excused.
84. However, I am unable and unwilling to conclude that the very need to have a Schedule at the solemnisation following upon a notice is a requirement which can be dispensed with even where registration follows, as happened here. To take that view would encourage carelessness and dishonesty; would defeat the purpose of notice and effectively render sections 3 and 5 as nugatory. It will not do to ignore the clear terms of the Act at the time and then try to put the paperwork in order later. None of the cases cited to me compels any different conclusion, and once again, they are all Outer House decisions.
85. Before leaving this interesting case I have one or two final observations. I am heartily sorry for both the pursuer and defender. At the time of these events they were both very young, especially the pursuer. I am certain, beyond a peradventure, that each was wholly dominated by his or her respective parents, especially the mothers. These mothers were of a different generation and were both themselves in arranged marriages. No doubt they thought they were doing the best for their children. However, what they both did put an intolerable pressure on both of these young people at an age when neither was able to take an informed decision about their future or to act in any way independently. Neither was in a position to resist the will of their parents. It may be that in the multi-cultural society in which we now live such situations will continue to arise where ancient Eastern established cultural and religious ethics clash with the spirit of twenty first century children of a new generation and Western ideas, language and what these days passes for culture. There is inevitable tension, and clashes will happen.
86. Here what has occurred within the important but arid legal background has, I fear blighted the lives of these young people. No doubt their youth and resilience will let them recover. I feel for the pursuer who was deceived and then frightened into a marriage. I feel also for the defender who knew nothing of what was happening in Glasgow. When he saw and realised that the pursuer was to be his bride I am sure he could not have believed his good fortune. In cross examination he described her as "nice" and "very good looking". That, if ever I heard it, was a serious understatement of the pursuer's appearance and charm. Sadly everything came to nought and that is a matter for great regret.
87. I am also very critical of what was done in an attempt to register this marriage. As I have already said, and now repeat and emphasise, the one person who could have assisted the Court was not called and so I did not have the full facts. Nor could I form any impression of the Imam. What happened at best reflects poorly on the administration of marriages by someone on an approved list of celebrants.
88. The whole matter now requires my cold disposal in an interlocutor and moving to that I sustain the first and second pleas-in-law for the pursuer and repel the defender's pleas-in-law. I will grant decree of nullity of the pretended marriage due to the pursuer's lack of consent induced by duress; and by reason of the pretended marriage having been solemnised without the existence of a Marriage Schedule; and because the pretended marriage was not nor ever could be properly registered.