NS v MI
| Jurisdiction | England & Wales |
| Judgment Date | 2006 |
| Neutral Citation | [2006] EWHC 1646 (Fam) |
| Date | 2006 |
| Court | Family Division |
Marriage – Forced marriage – Nullity – Consent to marriage – Duress – Whether petitioners will overborne by duress.
The petitioner was born and brought up in the United Kingdom. The respondent was born and brought up in Pakistan. In June 2002, the petitioner was taken to Pakistan on the pretext of going on a holiday, but was kept there until the parties married in September 2003, when they were both 17. Subsequently, the petitioner returned to the UK with her mother following which she had no contact with the respondent. In January 2006, the petitioner sought a decree of nullity as the purported marriage was voidable on the grounds of duress. The respondent failed to defend the petition. The petitioner contended that she had married the respondent as a result of moral blackmail and pressure placed on her by her family. The marriage was never consummated.
Held – In the instant case, the threats and pressure to which the petitioner had been subjected over a period of many months were such as to destroy the reality of her consent and to overbear her will. She had met the test set out in Hirani v Hirani. Accordingly, the petitioner would be granted a decree nisi of nullity on the ground of duress.
Per curiam. A petitioner alleging forced marriage must establish her case of duress by oral evidence in open court. In the instant case this had not generated any difficulties, but there might be cases in which a petitioner would be reluctant to give evidence with members of her family present. In an appropriate case the court would do whatever it could to afford the petitioner proper protection, while, at the same time, safeguarding both the interests of the respondent and the wider public interest in the proper administration of justice. If special arrangements were to be sought, the court must be alerted to the issue in good time and before the day of the hearing.
Cases referred to in judgmentAllcard v Skinner (1887) 36 Ch D 145, [1886—1890] All ER Rep 90, CA.
H and R (minors) (sexual abuse: standard of proof), Re[1996] 1 FCR 509, [1996] 1 All ER 1, [1996] AC 563, [1996] 2 WLR 8, [1996] 1 FLR 80, HL.
Hall v Hall (1868) LR 1 P&D 481.
Hirani v Hirani (1983) 4 FLR 232, CA.
K, Re, A local authority v N[2005] EWHC 2956 (Fam), [2007] 1 FLR 399.
KR (a child) (abduction: forcible removal by parents), Re[1999] 2 FCR 337, [1999] 4 All ER 954, [1999] 2 FLR 542.
M v B, A and S (by the official solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117.
P v R (forced marriage: annulment: procedure) [2003] 1 FLR 661.
R v R (April 2005, unreported).
SA (vulnerable adult with capacity: marriage), Re[2005] EWHC 2942 (Fam), [2007] 2 FCR 563, [2006] 1 FLR 867.
SK (an adult) (forced marriage: appropriate relief), Re[2004] EWHC 3202 (Fam), [2005] 2 FCR 459, [2005] 3 All ER 421, [2006] 1 WLR 81.
Scott (falsely called Sebright) v Sebright (1886) 12 PD 31.
Sheffield City Council v E[2004] EWHC 2808 (Fam), [2005] Fam 326, [2005] 2 WLR 953.
Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] 1 FLR 308.
Singh v Kaur (1981) 11 Fam Law 152, CA.
Singh v Singh [1971] P 226.
Szechter (orse Karsov) v Szechter [1971] P 286.
T (an adult: medical treatment), Re[1992] 2 FCR 861, [1992] 4 All ER 649, [1993] Fam 95, [1992] 3 WLR 782, [1992] 2 FLR 458, CA.
X City Council v MB, NB and MAB (by his litigation friend the official solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968.
ApplicationThe petitioner brought a suit for nullity, claiming that her purported marriage was voidable on the ground of duress. The facts are set out in the judgment.
Teertha Gupta (instructed by Dawson Cornwell) for the petitioner.
The respondent was neither present nor represented.
MUNBY J.[1] This is a suit for nullity in a case where it is said that a purported marriage is voidable on the ground of duress. The petitioner asserts that she was forced into the marriage. I find that she was and that she is entitled to the decree of nullity she seeks.
introduction[2] Arranged marriages are perfectly lawful. As I emphasised in Re SA (vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam) at [26], [2007] 2 FCR 563 at [26], such marriages are not, of course, in any way to be condemned. On the contrary, as Singer J said in Re SK (an adult) (forced marriage: appropriate relief) [2004] EWHC 3202 (Fam) at [7], [2005] 2 FCR 459 at [7], arranged marriages are to be supported as a conventional concept in many societies. And for that very reason they are, I emphasise, not merely to be supported but to be respected.
[3] Forced marriages, in contrast, are utterly unacceptable. I repeat what I said in Re K, A local authority v N[2005] EWHC 2956 (Fam) at [85], [2007] 1 FLR 399 at [85]:
‘Forced marriage is a gross abuse of human rights. It is a form of domestic violence that dehumanises people by denying them their right to choose how to live their lives. It is an appalling practice. As I said in Singh v Entry Clearance Officer, New Delhi[2004] EWCA Civ 1075 at [68], [2005] 1 FLR 308:
“forced marriages, whatever the social or cultural imperatives that may be said to justify what remains a distressingly widespread practice, are rightly considered to be as much beyond the pale as such barbarous practices as female genital mutilation and so-called ‘honour killings’.”
No social or cultural imperative can extenuate and no pretended recourse to religious belief can possibly justify forced marriage.’
[4] Forced marriage is intolerable. It is an abomination. And, as I also said in Re K case [2007] 1 FLR 399 at [87]–[88], the court must bend all its powers to preventing it happening. The court must not hesitate to use every weapon in its protective arsenal if faced with what is, or appears to be, a case of forced marriage.
[5] Where the victim is a child the court will have recourse to the full breadth of the wardship jurisdiction (as to which see in this context Re KR (a child) (abduction: forcible removal by parents) [1999] 2 FCR 337, [1999] 4 All ER 954 and Re K, A local authority v N). If the victim is a vulnerable adult the court will have recourse to the closely comparable adult inherent jurisdiction (as to which see in this context Re SK (an adult) (forced marriage: appropriate relief) [2004] EWHC 3202 (Fam), [2005] 2 FCR 459, M v B, A and S (by the official solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117, Re SA (vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, and X City Council v MB, NB and MAB (by his litigation friend the official solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968).
[6] Where the court is able to intervene in time it will make orders restraining the celebration of the marriage and, where appropriate, preventing the victim being taken abroad for the purpose of being married: see, for example, M v B, A and S (by the official solicitor), Re SA, Re K and X City Council v M. Where the victim has already been taken abroad the court will make orders designed to ensure the victim’s repatriation: see, for example, Re KR and Re SK. After repatriation further protective orders may be needed to prevent further attempts at forced marriage or to protect the victim from the risk of victimisation or retaliation at the hands of heroppressors (see below).
[7] In X City Council v MB[2006] EWHC 168 (Fam) at [27], [2006] 2 FLR 968 at [27] I commented that particularly in this kind of case one needs to bear in mind that prevention is better than cure. As Singer J pointed out in Re SK[2005] 2 FCR 459 at [4] although a non-consensual marriage is voidable, that alone is plainly not an adequate remedy because, as he went on to observe, such a ‘marriage’ is ‘nevertheless one which might engender irreparable and severe physical and emotional consequences for its victim’. So the protective jurisdiction is particularly important where the need is to take preventive steps in advance.
[8] The court’s protective jurisdiction is also particularly important in this context because, sadly, it is precisely from those who ought to be their natural protectors—parents and other close relatives—that all too typically the victims of forced marriages need to be protected. The law must always be astute to protect the weak and helpless, not least in circumstances where, as often happens in such cases, the very people they need to be protected from are their own relatives.
[9] If the court cannot intervene in time to prevent what Singer J in Re SK[2005] 2 FCR 459 at [5] aptly described as these ‘gross transgressions of an individual’s integrity’, then, as he went on to say, the court must attempt, wherever possible, to remedy their consequences. The primary remedy is, of course, a suit for nullity. I emphasise: a suit for nullity, not a suit for divorce.
[10] As Coleridge J said in P v R (forced marriage: annulment: procedure) [2003] 1 FLR 661 at 666:
‘[17] In cases where a forced marriage is alleged the proper course is for a petition under s 12(c) to be brought before the court. I am informed by counsel for the petitioner that there is a real stigma attached to a woman in the petitioner’s situation if merely a divorce decree is pronounced and it is desirable from all points of view that where a genuine case of forced marriage exists the court should, where appropriate, grant a decree of nullity and as far as possible remove any stigma that would otherwise attach to the fact that a person in the petitioner’s situation has been married.
[18] It follows from that that those charged with the decision of whether or not public funds should be made available in these circumstances should be ready, in the right case, to grant public funding to enable such nullity proceedings to be brought. It is necessary for public funding to be made available so that these cases, which are now not rare, can be investigated by the court. They are of special significance in the community from which the petitioner originates and it is appropriate that they should be...
To continue reading
Request your trial
- Re P (Forced Marriage)
-
Michele Alexia Canham v Cutty Sark Land Company
...his analysis of his raised subsidiary points, as they may guide others in the future. He outlined the subsidiary points as follows [2007] 1 FLR 444, at paras. 32 – 38): '[32] The first is that, as Sir Jocelyn Simon, P. pointed out in Szechter (orse Karsov) v. Szechter [1971] P. 286, at 297,......
-
The Poulton Family Trust Between: (1) Michele Alexia Canham (2) James Alexander Poulton (3) Nicholas James Poulton (4) James Michael Poulton (5) Daisy Elizabeth Houghton-Poulton Plaintiffs v (1) Cutty Sark Land Company (2) Deborah McMullan Poulton (3) Wilson Malcolm McMullan (4) Christine Jane McMullan (5) Cayman National Trust Company Ltd (6) CNT (Nominees) Ltd Defendants
...his analysis of his raised subsidiary points, as they may guide others in the future. He outlined the subsidiary points as follows [2007] 1 FLR 444, at paras. 32–38): '[32] The first is that, as Sir Jocelyn Simon, P. pointed out in Szechter (orse Karsov) v. Szechter [1971] P. 286, at 297, a......
-
Leeds City Council v M and Others
...1950." In the same case, Arden LJ (para 58) described it as "a repulsive practice … deleterious to women's health." I entirely agree. 57 In NS v MI [2006] EWHC 1646 (Fam), [2007] 1 FLR 444. a forced marriage case, I said this (paras 3–4): "[3] Forced marriages … are utterly unacceptable. I......
-
Under The Influence? A Review Of A Recent Cayman Islands Decision That Finds Care For The Entire Beneficial Class Is The Pivotal Factor In Determining Undue Influence
...At para.456 17. At para.466 18. At para.466(g) 19. At para.478 20. At para.491 21. [2016] (1) CILR 179, citing the passage from NS v MI [2007] 1 FLR 444 in relation to duress or 22. At para.493 23. At para.608 This article was first published in STEP's Trust Quarterly Review in June 2002. T......
-
Forced Marriage as a Harm in Domestic and International Law
...( 1961) 2 F LR 437.113 S ee eg In t he Marriage of S [1980]FLC 90^820; HiranivHirani [1983]4 F LR 232; PvR[2003] 1 F LR661; NS vMI [2007] 1 FLR 444; ReS [2007] 2 FLR 461;Ma hmud vMahm ud [1994]SLT 599; SohrabvKhan [2002] SC LR 663.Forced Marriage as a Harm in Domestic and International Law7......