Kassim (orse. Widmann) v Kassim (orse. Hassim) (Carl and Dickson cited)
| Jurisdiction | England & Wales |
| Date | 1962 |
| Court | Probate, Divorce and Admiralty Division |
Husband and Wife - Marriage - Intention to marry - Mistake - Mistake as to nature of ceremony - Monogamous marriage believed to be polygamous - Whether consent vitiated. - Husband and Wife - Marriage - Polygamous system - Effect of polygamous marriage - Mistake as to effect - Monogamous marriage believed polygamous. - Husband and Wife - Nullity - Decree - Declaration of nullity - Form - Void marriage ceremony. - Practice - Declaratory judgment - Nullity - Marriage void ab initio - Declaratory judgment not an alternative to decree of nullity -
A respondent, in answer to a petition for divorce, alleged that his marriage to the petitioner in 1952 was void for bigamy, in that he was married in 1945 and that that marriage was still subsisting. In cross-examination, however, the respondent admitted that he thought that the marriage of 1945, which took place in Southern Rhodesia, was polygamous. On the basis of this admission, it was argued for the petitioner that the ceremony of 1945 was void for mistake:—
Held, (1) that mistake as to the nature of a marriage was not so fundamental as to vitiate consent so as to render the marriage void and that therefore the respondent's marriage of 1945 was valid and his marriage to the petitioner void ab initio.
(2) That on finding a marriage to be void ab initio, the court has jurisdiction only to pronounce a decree nisi of nullity, and has no option to grant a declaratory judgment under R.S.C., Ord. 25, r. 5.
SUIT FOR NULLITY OR DIVORCE.
On June 3, 1952, the petitioner went through a ceremony of marriage with the respondent at the Chapel of the Assumption Convent in Kensington. By a petition dated March 14, 1956, the petitioner prayed for divorce on the ground of cruelty, later amending her prayer to ask for the court's discretion in respect of adultery committed by her. The respondent, by his answer dated March 13, 1957, alleged that his marriage to the petitioner was void for bigamy, he having been lawfully married on July 27, 1945, to Ida Mutombe, before a magistrate at Rusape, in Southern Rhodesia, that marriage being valid and subsisting on June 3, 1952. He cross-prayed that the marriage be declared null and void. Alternatively, he denied the cruelty alleged in the petition and prayed for the petitioner's prayer for divorce to be dismissed. By subsequent amendments to the answer, he cross-charged desertion, cruelty and adultery and prayed for divorce. The petitioner, by her reply dated May 31, 1957, put all the respondent's allegations in issue.
R. J. A. Temple Q.C. and John B. Gardner for the petitioner.
M. V. Argyle Q.C. and John C. Mortimer for the respondent.
The following cases, in addition to those referred to in the judgment, were cited in argument: Johnson v. CookeF1; Salvesen (or Von Lorang) v. Administrator of Austrian PropertyF2; Sim v. SimF3; Hutter v. Hutter (orse. Perry)F4; Aldridge v. AldridgeF5; Ramsay-Fairfax (orse. Scott-Gibson) v. Ramsay-Fairfax.F6
ORMROD J. referred to the pleadings and continued: At this stage I am only concerned with the first issue, namely, whether the ceremony which took place on June 3, 1952, between the petitioner and the respondent constituted a valid marriage. On that date the parties went through a ceremony of marriage at the Chapel of the Assumption Convent, Kensington Square, in London, in accordance with the rites of the Roman Catholic Church. No question arises upon this ceremony itself.
The respondent's case is that the marriage was bigamous, he having been previously married to another woman who was alive on June 3, 1952. In fact he says that prior to June 3, 1952, he had gone through ceremonies of marriage with two women, both of whom were alive at the date of the ceremony of marriage to the petitioner.
By agreement of counsel, in order possibly to save time and expense, it was agreed that I should hear evidence and argument upon the first of these alleged marriages and give my decision upon it before proceeding, if it becomes necessary, to consider the effect of the respondent's actions in regard to the second woman.
The respondent is by origin a member of the Mashona tribe in Southern Rhodesia. He is a Muslim by religion. His matrimonial history is comprehensive. He says that in July, 1945, he married Ida Mutomba, also a Mashona, by a native ceremony in Southern Rhodesia. In accordance with custom he gave her a ring and paid the “lobola” or bride price. On July 27, 1945, he went through another ceremony with her at Rusape in Southern Rhodesia, this time in accordance with the Southern Rhodesian Marriage Act, that is, an ordinary civil marriage. Later he apparently married another woman in South Africa, first by native custom, and secondly by Sunni Mohammedan law.
It is not alleged that the first ceremony with Ida — the native ceremony of the ring and the lobola — constituted a valid marriage, so I say no more about it. The ceremony on which Mr. Argyle relies is the ceremony at Rusape on July 27, 1945. It is not disputed that the respondent, in the name of Alam Hassim, by which he was sometimes known, went through this ceremony in accordance with the provisions of the Southern Rhodesian Marriage Act. It is common ground that Ida was alive at the date of the so-called marriage to the petitioner.
Mr. Temple, for the petitioner, however, submits that the onus of proving that a valid marriage was subsisting on June 3, 1953, rests on the respondent and that he has not discharged that burden. Mr. Temple argues that that burden remains upon the respondent and is never shifted away from him.
The respondent gave evidence of the native ceremony with Ida and went on to prove that he subsequently married her in the presence of an official whom he called the native commissioner, who was in fact the magistrate at Rusape, on July 27, 1945. In support of that assertion he produced a certified copy of the duplicate original filed in the marriage register of Southern Rhodesia.
Mr. S. N. Bernstein, a well-known member of the English Bar and an advocate of the Supreme Court of South Africa, who is familiar with the laws of Southern Rhodesia, gave evidence before me and stated that under the marriage law of Southern Rhodesia this certificate is prima facie evidence of a valid marriage in the courts of Southern Rhodesia. So far so good. But in the course of cross-examination, Mr. Temple obtained from the respondent a statement that he, the respondent, did not realise that the marriage constituted by the ceremony on July 27, 1945, at Rusape was a monogamous marriage and thought that he was still free to marry up to three other wives. This, says Mr. Temple, is sufficient to render this so-called marriage to Ida void or at any rate to disable the respondent from discharging the onus of proving a valid marriage subsisting on June 3, 1952.
In my view the matter ought not to be approached on the basis of failure to discharge the onus of proof. The marriage of the petitioner in this case is either valid or void. The marriage to Ida is either valid or void. It is immaterial for present purposes to consider whether it might be...
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