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Cite as: [1997] UKSSCSC CG_41_1994

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Fuljan Bibi v. Chief Adjudication Officer [1997] UKSSCSC CG_41_1994 (25 June 1997)

R(G) 1/97
(Fuljan Bibi v. Chief Adjudication Officer)

CA (Staughton, Ward and Mummery LJJ) CG/41/1994

25.6.97

Widowed mother's allowance - whether first wife in polygamous marriage was entitled if the marriage was not monogamous at the time of the husband's death

The appellant married her husband in Bangladesh according to local law on 7 January 1966. Her husband had been born in Bangladesh and registered as a British citizen on 20 September 1961 after working in the United Kingdom. He married again in 1969. The appellant joined her husband in the United Kingdom in 1986. He died on 30 August 1988. The appellant's claim for widowed mother's allowance was disallowed. The adjudication officer and tribunal decided that as the marriage had been celebrated under a law which permitted polygamy and was not monogamous at the relevant time, the appellant could not be treated as the valid wife for social security purposes. The Commissioner allowed an appeal against the decision of the first tribunal and remitted the appeal in order to establish if the appellant's husband had been domiciled in England at the time of the second marriage. The appeal was dismissed again on 19 April 1994 as there was insufficient evidence to suggest that the husband had abandoned his domicile of origin and acquired an English domicile at the relevant time. The claimant appealed again to the Commissioner who dismissed the appeal. Leave to appeal was granted by the Court of Appeal.

It was submitted on the appellant's behalf that: (1) the words of section 25 of the Social Security Act 1975 and section 37 of the Social Security Contributions and Benefits Act 1992 were wide enough to mean that each of the wives in a polygamous marriage would be the widow of the deceased and each entitled to widowed mother's allowance or to a share of widowed mother's allowance; and (2) the Court of Appeal had a quasi original jurisdiction to permit a challenge to the propriety of the Minister's exercise of his powers to make rules under sections 162 and 166 of the 1975 Act and sections 121 and 175 of the 1992 Act, and when the Departments of Health and Social Security were unified, the Minister acted inconsistently when he made one set of regulations which denied widow's pension to the wife in a polygamous marriage yet allowed her an aliquot share under the National Health Service (Superannuation) (Amendment) Regulations 1989.

Held, dismissing the appeal, that:

section 25 envisaged that if a woman who was widowed was entitled to the allowance, she was entitled to the full allowance and that it was not contemplated that the allowance would be divided between more than one widow. Therefore the allowance must be confined to the widow who is the widow in a monogamous marriage or in a marriage which was in fact monogamous (approving Salmon LJ's obiter comments in Imam Din v. National Assistance Board [1967] 2 QB 213);

even if a challenge to the Secretary of State's exercise of his powers could be entertained, the application would fail because neither Acts conferred any power on the Secretary of State to divide widowed mother's allowance (per Staughton LJ). It was not irrational for the Secretary of State to lay down a rule for a social security benefit which was different to a rule made for what was effectively a pension scheme for employees and widows.

DECISION OF THE COURT OF APPEAL

Mr. R. De Mello and Mr. L. Daniels (instructed by Maurice Andrews Solicitors, Birmingham, B46 SE) appeared on behalf of the Appellant.

Mr. R. Drabble QC (instructed by the Solicitor for the Department of Health and Social Security, London, WC2A 2LS) appeared on behalf of the Respondent.

LORD JUSTICE WARD: The issue in this appeal is whether the first wife in a polygamous marriage is entitled to a widowed mother's allowance under section 25 of the Social Security Act 1975 ("the 1975 Act") which is now section 37 of the Social Security Contributions and Benefit Act 1992 ("the 1992 Act") on the death of her husband who died survived also by his second wife.

The statutory scheme is as follows; section 25(1) of the 1975 Act provides:

"A woman who has been widowed shall be entitled to a widowed mother's allowance at the weekly rate specified in relation thereto in Schedule 4, Part I, paragraph 6, if her late husband satisfied the contribution conditions for a widowed mother's allowance specified in Schedule 3, Part I, paragraph 5, and either-

(a) she has a family which satisfy the condition specified in (2) below; or"

There is a power under section 162 of the 1975 Act, and now section 121 of the 1992 Act, to make regulations which are to provide under (b) of section 162 the following:

"as to the circumstances in which, for the purposes of this Act-

(i) a marriage celebrated under a law which permits polygamy, or

(ii) any marriage during the subsistence of which a party to it is at any time married to more than one person,

is to be treated as having, or not having, the consequences of a marriage celebrated under a law which does not permit polygamy;

and regulations made for the purposes of subsection (b) above may make different provision in relation to different purposes and circumstances."

That power was exercised by the Minister, and accordingly the Social Security and Family Allowances (Polygamous Marriage) Regulations 1975 came into operation in April 1975. By regulation 1(2) a polygamous marriage was defined to mean:

"a marriage celebrated under a law which, as it applies to the particular ceremony and to the parties thereto permits polygamy"

A monogamous marriage was defined as:

"celebrated under a law which does not permit polygamy, and "in fact monogamous" is to be construed in accordance with regulation 2(2) below"

Regulation 2(1) provides as follows:

"Subject to the following provisions of these regulations, a polygamous marriage shall, for the purpose of the Social Security Act and the Family Allowances Act and any enactment construed as one with those Acts, be treated as having the same consequences as a monogamous marriage for any day, but only for any day, throughout which the polygamous marriage is in fact monogamous.

(2) In this and the next following regulation-

(a) a polygamous marriage is referred to as being in fact monogamous when neither party to it has any spouse additional to the other; and

(b) the day on which a polygamous marriage is contracted, or on which it terminates for any reason, shall be treated as a day throughout which that marriage was in fact monogamous if at all times on that day after it was contracted, or as the case may be, before it terminated, it was in fact monogamous."

It is common ground that no appeal can go to the Commissioners from a decision of the social security appeal tribunal, and from the Commissioners to us, except on the ground that the decision of the tribunal was erroneous in point of law.

The Facts

Mr. Suab Ali was born in Bangladesh and lived there until he arrived in the United Kingdom in July 1958. He found employment in Birmingham and remained substantially in employment for many years thereafter. On 20 September 1961 he registered as a British citizen as he was then able to do. He returned to Bangladesh in November 1965, and it was during that visit of some seven months in duration, that he married the appellant Fuljan Bibi then aged 14. That marriage took place in Bangladesh, according to local law, on 7 January 1966. It was thus a potentially polygamous marriage. He returned to the United Kingdom and to his work sometime in August 1966, and he next returned to Bangladesh in October 1968. Because the appellant was having difficulty in bearing him any children he married his second wife, Fozur Bibi, on 1 January 1969 and in due time he had children by that second wife. He and his wives made their home with his parents in Bangladesh where he remained, on that visit, for some 20 months before returning to the United Kingdom and his old employment in June 1970.

From time to time thereafter he visited his wives and the children by his second wife, but the wives and the families remained in Bangladesh. These return trips were made in 1974 for about ten months, in 1977 for about two months, in 1979 for seven and a half months and in 1983 for over two years. He returned to this country in January 1986 and the appellant followed him in September 1986. His second wife and her children remained and have, as I understand it, always remained in Bangladesh. He and his first wife were able to have children after they had settled here. Mr. Suab Ali died on 30 August 1988. In November 1988 the appellant claimed her widowed mother's allowance. The history of that claim is a little tortuous. In February 1989 the adjudicator disallowed her claim because:

"Fuljan Bibi cannot be accepted for social security purposes as the valid wife of Suab Ali on the ground that their marriage was celebrated under a law which permits polygamy and was not in fact monogamous at the relevant time."

She appealed on 8 January 1990. The social security appeal tribunal dismissed her appeal and held:

"... there was a polygamous marriage contracted between Fuljan Bibi and Suab Ali that marriage cannot be treated as monogamous for the purposes of the Social Security and Family Allowance Act (Polygamous Marriage) Regulations 1975 and Commissioner's decision R(G)18/51 and R(G)1/70. Because there was a polygamous marriage contracted between Fuljan Bibi and Suab Ali that marriage cannot be treated as monogamous for the purposes of the Social Security and Family Allowance Act (Polygamous Marriage) Regulations 1975 in that the marriage was not monogamous at the date of claim. Accordingly the tribunal being satisfied that the late Mr. Suab Ali's other wife was residing in Bangladesh the tribunal was unable to allow Mrs. Bibi's appeal today and accordingly the appeal is unsuccessful."

She appealed that decision to the Commissioners and on 21 May 1992 they allowed the appeal, taking the view that the adjudicator and the tribunal may not have been entitled, on the evidence, to find that there ever was this additional spouse. The Commissioner therefore directed that the case turned on whether or not when he "married" for the second time Mr. Ali was domiciled in England. Accordingly he remitted the case back to the appeal tribunal and he directed that the appellant give:

"... as much information as she can as to when and why her late husband came to England, whether he intended to make his home in England or intended eventually to return to Bangladesh, whether he went back to Bangladesh from time to time and when and as to when and in what circumstances he "married" for the second time".

Those inquiries were duly made and the matter returned to the appeal tribunal for the second time. They dismissed her appeal on 19 April 1994.

The appeal tribunal made various findings of fact which were shortly challenged by Mr. De Mello on behalf of the appellant. The thrust of his submissions would have led to the deceased having established his domicile in this country in 1961, but when it was recognised that, if that were so, he would have lacked the capacity as a domiciled Englishman to contract this marriage at all, the appeal against the findings of fact was abandoned. The tribunal's unimpeached findings were:

"7 ... There is nothing in the evidence to indicate that at the time of his second marriage he had abandoned his domicile of origin in favour of an English domicile of choice. There is more than one explanation for everything he did and such evidence is not "strong" (CS/8/1990) or "clear"' (Henderson v. Henderson) and it is insufficient to support the contention that Suab Ali had acquired an English domicile on 1 February 1969 so that his second marriage is void.

Consequently for social security purposes the claimant cannot be accepted as the valid wife of Suab Ali at the date of his death. The marriage was at all times potentially and actually polygamous."

The appeal to the Commissioner for the second time was rejected. The Commissioner was satisfied that the decision was one within the ambit of the tribunal's discretion and that there was no error in law revealed in what they had decided. Nevertheless the appeal is made to us with leave of the single Lord Justice.

Mr. De Mello, who appears for the appellant, submits that upon proper construction the words of section 25 of the 1975 Act, section 37 of the 1992 Act, are wide enough to permit the interpretation for which he contends, namely, that in the case of a polygamous marriage each of the wives, and there can be up to four of them, will be the widow of the deceased, each being entitled to the widowed mother's allowance or to a share of that allowance. He contends that because, by established principles of construction, the single includes the plural; a "woman" who has been widowed is to be construed as "women" who have been widowed. That however begs the question of whether they are properly to be treated as widowed. A widow is a woman who has lost her husband by death and has not married again. Widowhood is therefore, in my judgment, dependant upon a marriage existing at the time of the husband's death. The issue is whether or not that has to be a valid marriage recognised as a marriage in our law. The hallowed definition of marriage is that given by Lord Penzance in Hyde v. Hyde and Woodmansee [1886] LR 1 P&D 130 at 133 where marriage was defined in these terms:

"I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."

That was a case in which there was a petition for the dissolution of a marriage which was entered into by a member of the Mormon faith whose religion permitted him to take more than one wife. His claim for matrimonial relief was rejected but the Court did go on to point out that at page 138:

"This Court does not profess to decide upon the rights of succession or legitimacy which it might be proper to accord to the issue of the polygamous unions, nor upon the rights or obligations in relation to third persons which people living under the sanction of such unions may have created for themselves. All that is intended to be here decided is that as between each other they are not entitled to the remedies, the adjudication or the relief of the matrimonial law of England."

Consequently Mr. De Mello submits that a polygamous marriage, valid by the law of the place where it is celebrated and the law of the persons of the marriage, is one which in certain circumstances is entitled to receive, and does receive, recognition of the courts of this country. That is indeed correct. The Courts have from time to time given some effect to the polygamous marriage. One such example is to be found in the case to which he drew our attention of Imam Din v. National Assistance Board [1967] 2 QB 213. There was a polygamous marriage which was valid according to Muslim law. The appellant had a living wife. At the time he entered into the second marriage he came with the second wife and their children to this country and he deserted them leaving them destitute. The National Assistance Board preferred a complaint against him under section 43 of the National Assistance Act 1948. The power of the Court to order him to pay maintenance depended on section 42 of the Act requiring that a man shall be liable to maintain his wife and his children. The fact that the marriage was polygamous did not prevent the Court construing that statute as one which upon its proper construction, led to the conclusion that the "wife" for that Act was to include the wife of the polygamous marriage.

However, the Court in that case, being a Divisional Court with the judgment being given by Salmon LJ, did comment obiter on the social security acts with which we are concerned. The court drew attention to decisions of Commissioners under these acts, for example, the decision in R(G) 18/52 which the commissioners have held, and have held consistently, that the polygamous wife is not entitled to a widows benefit. Salmon LJ said this at 221:

"The ground for those decisions was that as the man paid only one lot of contributions, calculated on the basis of one wife at a time, the Acts applied only in cases of monogamous marriages. It would clearly be wrong for a man paying contributions on the basis indicated to reap benefits in respect of perhaps three or four current wives."

The meaning must depend on the statute concerned. I am entirely persuaded by the reasoning of Salmon LJ that upon its proper construction section 25 envisages that if a woman who is widowed is entitled to the allowance, she is entitled to the full allowance and that it is not contemplated that the allowance will be divided between more than one widow. If there is only one allowance to be paid, it can only be paid to one widow. That allowance must therefore be confined to the widow who is the widow in a monogamous marriage or in a marriage which is in fact monogamous. That, in my judgment, is made abundantly plain by the steps taken by the legislature to alleviate the hardship that would arise where there was a potentially polygamous marriage but in fact no taking of a second wife. Various steps have been taken over the decades culminating in the 1975 regulations to which I have referred. Mr. De Mello submits that those regulations are of no assistance. I do not agree. It seems to me that those regulations were made precisely for the purpose of defining the limited extent to which the widow in a potentially polygamous marriage would be accorded the rights under this part of the Act. Under the regulation her claim is admitted provided that her marriage was in fact monogamous, that is to say, provided that the husband had taken no second wife during the subsistence of the polygamous marriage. Here the deceased had married for a second time and his second wife was alive at the date upon which he died. Under the definition therefore this polygamous marriage could not be treated as a marriage which was in fact monogamous. On the construction of the language of section 25, read with the regulations which are clearly intended to clarify section 25, and which being regulations made under the Act are to be construed as part of the Act, I reach the clear conclusion that the appellant in this case was not the widow of the deceased. Accordingly the decisions of the tribunal were correct.

Mr. De Mello has advanced a second submission which is that this Court should accept that we have some quasi original jurisdiction in respect of renewed applications for leave to apply for judicial review, and that we might hear the substantive application if leave were granted. Accordingly he seeks to submit to us today that we should permit a challenge to the propriety of the Minister's exercise of his powers to make rules under section 162 and 166 of the 1975 Act and sections 121 and 175 of the 1995 Act. This, says Mr. De Mello, is the result of the decision of this court in the Chief Adjudication Officer v. Foster [1991] 3 WLR 473; [1992] 1 QB 31.

For my part I am extremely doubtful whether I would permit that course to be taken today. Even if we were to entertain a application for judicial review, based upon the submissions either that the Secretary of State had improperly exercised his power or had failed to consider whether or not to exercise his power, I would find such an application utterly hopeless. The submission is founded upon the fact that when the departments of Health and Social Security were unified the Minister made regulations under the National Health Service (Superannuation) (Amendment) Regulations 1989. Regulation 14A there provided:

"Where on the death of a person referred to in regulation 13(l), 14(l) or 16(l) it appears to the Secretary of State that there was no widow who would be entitled to receive the death gratuity annual widow's pension or limited pension, as the case may be, but the deceased was at the time of his death married to a wife under a law which permits polygamy, the wife of that polygamous marriage shall be treated as if she were a widow and where there are two or more such wives each shall be entitled to an equal share of the death gratuity, annual widow's pension or limited pension provided that such share in relation to any such pension shall not be increased by reason of the death of any other wife so entitled."

He submits that it is fatally inconsistent for the Minister to deny the widow's pension to the wife in a polygamous marriage who seeks the benefit under the Social Security Act, whereas she can be entitled to her aliquot share under the National Health (Superannuation) Regulations.

In my judgment the short answer to this point is given by the consideration as to whether or not it would be within or without the step of the enabling powers of the Secretary of State, I am persuaded by the arguments that Mr. Drabble QC puts forward in his skeleton argument, that neither section 162 nor 121 of the later Act confer any power to divide the widows benefit. Nothing in the further section 166 of the 1975 Act and/or 175 of the 1992 Act adds to the power. Those powers are merely ancillary to some other regulation for making power. In my judgment the Secretary of State would not therefore be entitled under section 121 or 162 to divide the widowed mother's allowance as Mr. De Mello contends. On the wording of section 25 it seems to me abundantly plain that the entitlement as to the allowance is specified by the appropriate part of the schedule, and that there is only one allowance payable to only one wife. It is payable only to the wife in a monogamous marriage or one which is within the meaning of the word monogamous. Accordingly I would dismiss the appeal.

LORD JUSTICE MUMMERY: I agree.

LORD JUSTICE STAUGHTON: The construction of section 121 of the Act and of the regulations is to my mind perfectly clear. For the purposes of the enactment which regulates widowed mother's allowance, now section 37 of the Social Security Contributions and Benefits Act 1992, regulation 121 applies. One should note the words "only for any day when the condition imposed by the regulation is fulfilled". On all days in which the marriage is not in fact monogamous the marriage is not to be treated, for social security purposes, as having the same consequences as a monogamous marriage. On such a day and for such purposes Mrs. Bibi was not the wife of Mr. Suab Ali, and on the day he died she was not his widow for those purposes.

Then it is said by Mr. De Mello that the Secretary of State is subject to judicial review in that he acted irrationally in making those regulations. A comparison is drawn with the regulations governing pensions for National Health Service employees and similar benefits. By regulation 14A, which was introduced in 1989, the wife of a polygamous marriage shall be treated as if she was a widow. Where there are two such wives each shall be entitled to an equal share of the death gratuity, widow's pension or limited pension, provided that if any one of the wives die the share accruing to another or others shall thereby be increased.

To my mind it was not irrational for the same or a different Secretary of State, to lay down a different rule for social security benefit, payable to all who have paid contributions, compared with what is laid down in effectively a pension scheme for the benefit of employees and widows. The employers of such people are likely to know something of the circumstances of their employees and to be able to discover, without any prolonged inquiry, whether they have any and if so how many wives. That is not, by any means, necessarily the case of the social security adjudicators concerned with people who are not their employees and are part of the general population of the country. The possibilities for uncertainty are then much more likely. In any event I would be reluctant to say that it was irrational of the Secretary of State to make the regulations he did under section 121 of the Social Security Contributions and Benefits Act, seeing that those regulations were subject to consideration by Parliament under the negative resolution procedure. That is provided by section 176(3) of the Act. Lord Bridge in the case of Chief Adjudication Officer v. Foster [R(IS) 22/93]; [1993] 2 WLR 292 said at page 300:

"This is not the occasion when it would be appropriate for your Lordships to consider whether to go beyond the speech of Lord Scarman, unanimously agreed to by the Appellate Committee, in the Nottinghamshire case, which leaves room for possible exceptions in extreme cases from any absolute rule that the courts may not condemn as irrational secondary legislation which has been subject to parliamentary scrutiny."

This, in my judgment would not be an extreme case such as is there mentioned. For those reasons and those that have been given by Lord Justice Ward I too would dismiss this appeal.

Order: Appeal dismissed. Legal aid taxation.