Aneeka Sohrab (ap) V. Raja Sulman Khan (ap)
| Jurisdiction | Scotland |
| Judge | Lord McEwan |
| Date | 23 April 2002 |
| Docket Number | A2756/00 |
| Court | Court of Session |
| Published date | 23 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...
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