June Kaur Or Singh (ap) V. Bikramjit Singh
| Jurisdiction | Scotland |
| Judge | R.F.Macdonald, Q.C. |
| Neutral Citation | [2005] CSOH 96 |
| Docket Number | F3/03 |
| Date | 22 July 2005 |
| Court | Court of Session |
| Published date | 22 July 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 96 | |
| F3/03
| OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause JUNE KAUR or SINGH (AP) Pursuer against BIKRAMJIT SINGH Defender ________________ |
Pursuer: Miss M. V. Ross; Erskine MacAskill & Co
22 July 2005
Introduction
[1]This is an action for declarator of nullity of marriage. The pursuer concludes for declarator that a pretended marriage between her and the defender at Jaipur, India on 26 September 2001 is null by reason of lack of consent on her part, the pretended marriage having been entered into under duress. The relevant averments in the summons may be summarised as follows.
[2]At the beginning of August 2001 the pursuer, who was then 18 years old and had been in a relationship with a man, Keith Singh, whom she describes as her partner, in Edinburgh for approximately two years, went on holiday with her mother to India to visit relations. During the holiday her mother became determined that she should be married and her mother and extended family began to introduce her to eligible men with a view to assessing their suitability as potential husbands. The pursuer, who refused to participate in this process, met the defender in the course of these introductions but refused to speak to him. She repeatedly told her mother that she did not wish to get married. Her mother, without her knowledge, arranged for a marriage to take place between her and the defender. When the pursuer was told that her wedding was to take place during her holiday she was shocked, disappointed and terrified. Although she had always expressed her opposition to the idea of an arranged marriage (being already in a long-term relationship) and repeatedly told her mother that she did not want to get married, her mother told her there was no option. Her mother was in possession of her passport and travel documents, which she kept in a locked suitcase, and told her that if she did not go through with the marriage ceremony the documents and passport would be destroyed and she would be left in India. The pursuer had no other means of returning to Scotland. Her mother told her that an agreement had been entered into between her family and the defender's family and that if she were to break this agreement by refusing to marry the defender she would bring great shame upon herself and her family. She was aware of the expense incurred by her family in relation to the marriage ceremony itself and the post-ceremony party which had been organised as a wedding reception. Her mother and other family members in India exerted considerable pressure on her to agree to be married. She was without support in a foreign country, had no one to turn to for help or guidance and felt isolated and very vulnerable. Her family allowed her very little time on her own in an attempt to stop her from fleeing. Her elder sister had previously rejected an arranged marriage and been ostracised by the family as a result. She had every reason to believe that her mother was capable of carrying out the threats made and therefore went through the marriage ceremony with the defender. On the day of the arranged marriage ceremony she was anxious and upset, felt trapped and could not see a way out and felt compelled to comply with the wishes of her mother and other family members present. After the ceremony at Jaipur she and the defender undertook a ten hour car journey to his house in Patiala. They were accompanied in the car by the defender's friend, father, mother, sister and aunt. The day after the wedding they arrived at the defender's house, where the pursuer stayed. She refused to have sexual relations with the defender. She slept on the bed and he slept on the couch. She left his house a week later at the end of her holiday and returned to Scotland on 2 October 2001. She then resumed her relationship with Keith Singh and began living with him. She has had no further contact with the defender.
Procedural History
[3]The summons was signetted on 7 February 2003. It was served personally on the defender in Patiala, India on 12 November 2003 by an Indian advocate and a process server. In a report regarding service of the summons it is stated that the signatures of the defender were obtained to dispense with the period of notice and to state that he did not intend to defend the action. On 26 November 2003 a three page typed foolscap (A3) document (no 10 of Process) headed "Written statement filed on behalf of the defender - Bikramjit Singh" was received by the General Department. It is unsigned but at the foot of the third page states that it is submitted by the defender. The first paragraph states as follows:
"The defender above named submits the following written statement as under:-
Preliminary Objections:-
1.That the Hon'ble Court has got no jurisdiction to entertain the present case.
2.That no cause of action has arisen to pursuer .... to file the present case.
3.That the present case has been filed by the presure (sic) with the malafide (sic) intention, just to harass the defender."
There then follow, in the style of a set of defences, eight numbered paragraphs answering each article of condescendence in the summons and thereafter what is termed "Reply to the Plea in Law" in the following terms:
"1.That in reply to plea in law, the marriage between the pursuer and defender was not entered into under duress and without the consent of the pursuer, so decree of declarator should not be pronounced in favour of the pursuer and against the defender."
The last paragraph, which follows immediately thereafter, is in the following terms:
"It is therefore prayed that the petition filed by the pursuer before this Hon'ble Court may kindly be dismissed with heavy costs, in interest (sic) of justice."
[4]On 12 November 2004 a Minute for Decree signed by counsel was lodged along with the documents specified in the Schedule, namely, an affidavit of the pursuer and an affidavit of her partner, both dated 22 October 2004, and the marriage certificate no 6/2 of Process. The Minute moved the court for decree in terms of Conclusion 1 of the summons (declarator of nullity) and further stated: "In regard to expenses moves that there should be no award of expenses to or by either party as the Defender has made no defence to the action." The Minute for Decree and the documents specified in the Schedule were placed before me for consideration and, in light of the document no 10 of Process, which has the appearance of a defence to the action, I appointed the case to call By Order on 9 December 2004. Having heard counsel (Mr McFarlane) on that date, I issued an interlocutor in the following terms:
"The Temporary Lord Ordinary, having heard counsel for the Pursuer, in respect that a document had been received by the court from the Defender on 26 November 2003, no 10 of Process, which may be intended by the Defender to be a Defence to the Action, continues the cause By Order to a date to be fixed in order that the General Department of the Court of Session can contact the Defender to ascertain if a Defence to the Action is to be lodged in terms of the Rules of the Court of Session."
[5]On 17 December 2004 the General Department sent by International Recorded Delivery a letter to the defender in India in the following terms:
"I refer to the action raised in the Court of Session by June Kaur or Singh seeking declarator that her marriage to you is null.
We have received the attached response by you to the summons. Would you please confirm that this is intended to be a formal defence to the action and that you are disputing that decree of declarator should be granted. If so, the action will be the subject of further formal procedure of which you will be advised. You are also required to pay the Scottish Court Service a fee of £81 to lodge defences in this family action."
No reply to that letter has been received from the defender by the General Department. The court fee for the lodging of defences has not been paid by the defender.
[6]The case called again By Order on 4 February 2005 when Mr McFarlane again appeared. Following short submissions from him I continued the case to a further By Order diet for further submissions on (1) jurisdiction; (2) whether the document no 10 of Process is a defence to the action; and (3) sufficiency of evidence. On 2 June 2005 an affidavit (no 16 of process) from a further witness who was present in India immediately before and at the time of the marriage was lodged. The further By Order diet was subsequently fixed for 9 June 2005, when Miss Ross appeared for the pursuer and made full submissions. It became clear in the course of her submissions that, in addition to the three points mentioned above, a further point arose for consideration, namely, choice of law in determining lack of consent due to duress. In the course of her submissions Miss Ross tendered a faxed document which is dated 3 May 2005 and bears to be from the defender, although the signature on it is difficult to decipher. She advised me that this document was received unprompted by the pursuer's solicitors, although she understood that there might have been a preceding communication direct to the pursuer herself to advise her that it would be coming. This document was received and marked no 17 of Process. It is in the following terms:
"IN THE COURT OF SESSION EDINBURGH (SCOTLAND)
June Kaur Vs Bikramjit Singh
I Bikramjit Singh S/o Amarjit Singh age 25 years R/o H.No. 15, Preet Nagar, Gurudwara Tripuri Town, Patiala (India) do hereby declare as under:-
That I have no objection if decree of divorce (sic) is passed in favour of June Kaur."
[7]The last point to be mentioned in the procedural history of the case is that, following the submissions on 9 June 2005, in response to a request from me, I received a supplementary affidavit from the pursuer dated 8 July 2005 dealing with the issue of her...
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