Russ (orse. Geffers) v Russ (Russ orse. De Waele Intervening)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DAVIES |
| Judgment Date | 07 June 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0607-7 |
| Court | Court of Appeal |
| Date | 07 June 1962 |
[1962] EWCA Civ J0607-7
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Willmer
Lordjustice Donovan and
Lord Justice Davies
Mr JOHN B. LATEY, Q. C., and Mr FRANCIS B. PURCHAS (instructed by Messrs Hasties, Agents for Messrs Thomas Eggar & Son, Brighton) appeared on behalf of the Appellant (Respondent).
Mr ROBIN H. W. DUNN, Q. C., and Mr JOHN B. GARDNER (instructed by Messrs Leader, Henderson & Leader) appeared on behalf of the Respondent (Intervener).
I will for convenience refer to the appellant, who was respondent In the Court below, as the husband".
The question raised on this appeal is which of three woman is the lawful wife of the husband. He has in fact been a party to three ceremonies of Marriage. The first was with a lady called Esther May Rosser (to whom I will refer hereafter as "Esther"), and took place on the 29th April 1942 at the Church of St. Andrew, Cairo, according to the rites and ceremonies of the Church of Scotland. The second was with the Intervener, a Belgian lady, and took place on the 24th February 1945 at the Town Hall, Hasselt, In Belgium. The third was with the Petitioner, and took place on the 27th May 1950 at the Register Office of the Distrlot of the City of Westminster.
We are relieved from the necessity of considering any merits en the part of the husband; for It la not suggested that he has any. He is not living with any of the three woman concerned. It is the Petitioner's case that he has for some years been living in adultery with yet another woman.
The trial took place before Mr Justice Scarman, who by his Judgment delivered on the let February of this year held that the Petitioner was entitled to a decree of nullity, on the ground that at the date of her purported marriage In May 1950 the husband's previous marriage to Ester was a valid and subsisting Marriage. It is clear that the Petitioner was upon any view entitled to her decree, for there was no room for doubt that one or other of the husband's prior marriages was valid and substing. There has been no appeal against the finding in favour of the Petitioner, and she has accordingly taken no part in this appeal.
The effect of the learned Judge's decision that the marriage between the husband and Esther was valid and subsisting is that the husband's purported marriage to the Intervener in February 1945 would also have to be regarded asSaid, The husband has appealed against so much of the learned Judge's Judgment aw held his marriage to Rether to be valid and subsisting. It is his case that that purported marriage was void, and If he is right it would follow that his marriage to the Intervener is valid and subsisting. The appeal is resisted by the intervener, who contends that her purported marriage is void on the ground of the husband's prior marriage to
The case, therefore, depends on the validity or otherwise of the hasband's marriage to Esther in April 1948. This in turn depends upon whether at that date Esther was In law free to marry. On the 27th September 1913 Esther had been married at the Register Office in the District of Reading to one Hassan Darweesh, a Mahommedan by religion, who was domiciled in Egypt. Following the ceremony the couple went to Egypt and cohabited there for a number of years. There were three children of the marriage. Some time in 1914, shortly after their arrival in Egypt, Eather and her husband went through a Mahommedan ceremony of marriage. It is not in dispute that by reason of her marriage to Darwaeah Esther acquired an Egyptian domicil.
At the trial evidence as to Egyptian law was given by Dr Jamal Nasir, an advocate in Mohammedan law who had practised in Mahammadan Courts in Egypt. The effect of his evidence was conveniently summarised by the learned Judge in the course of his Judgment, as follows on page 4: "(a) Egyptian law recognises and gives effect to Mohammedan religions law as the personal law of a Mohammedan domiciled in Egypt, (b) under Mohammedan law a man may have four wives: in other words, marriage Is potentially polygamous, (a) under Mohammedan law a man may divorce his wife irrevocably by pronouncing Talak three times in the presence of witnesses: no judicial proceeding or investigation is required before a man exercises this right. The divorce is constituted by the unilateral declaration of the husband in the presence of at Ieast two witnesses: the wife need not be present, nor be given notice of the intention to divorce. (d) Egyptian law recognises;and gives effect to, a Talak divorce pronounced by a Mohammedan domiciled In Egypt. The marriage is recognised by Egyptian law as dissolved with affect from the data of the declaration: and this is so wherever the marriage was It gives effect to the dissolution in a number of ways: for instance, Talak may be and almost always is pronounced before an authorised officer of the Egyptian Court concerned with questions of personal status, whose duty It is to record the divorce In the records of the Court. The record then constitutes, as Dr Nasir was at pains to point out, the solemn recognition by the Courts of Egypt of the fact of divorce: And the parties to the dissolved marriage may have recourse to the appropriate Egyptian Court In matters of the maintenance and support of the divorced wife".
On the 27th July 1932, following differences between the parties, Darweesh did in fact purport to divorce Esther by pronouncing "Talak" three in the presence of witnesses and before an authorised officer of the appropriate Mohammedan Court, who duly recorded the proceedings. Esther herself was present at the cereoomy, and was apparently a consenting party. There can be no room for doubt that by Mohammedan law, which was the law of Esther's domicil, this ceremony had the effect of dissolving her marriage with Darweesh. The divorce was followed by further proceedings between the parties before the same court, as a result of which on the 24th December 1932 Esther obtained against Darweesh what was in effect an order for maintenance. It la plain that these proceedings were founded on the divorce of the 27th July 1932, which was recognised by the court as effective.
In February 1936 Esther contracted a second Mohammedan marriage with one Abdul Pattah Ibrahim. This marriage, however, was only short-lived, and was dissolved in July 1936 by another "Taick" divorce in the same way as the previous marriage.
From July 1936 until the ceremony of marriage with the respondent husband in April 1942 Esther remained resident in Egypt and retained her Egyptian domicil. It is clear that under the lawof her domicil she had the status of a ££ sole, and was free to marry again, since English law regards questions of personal status as governed by the law of the domicil (see ( Le Mesurier v. Le Mesurier. 1895 Appeal Cases, page 517) how, it may be asked, can the conclusion be avoided that the marriage of the 29th April 1942 was valid In the eye of English law, so far as concerned the capacity of Esther to contract it?
The situation In the present case la the converse of that which arose In ( Baindail v. Baindail 1946 Probate Division, page 122). There the question was whether a Hindu domiciled in India, who had contracted a potentially polygamous marriage with a Hindu woman in India, could lawfully marry an English woman In England. It was held that, notwithstanding its potentially polygamous nature, the Hindu marriage gave the husband the status of a married man according to the law of his domicile, and therefore his pretended marriage in England was null and void. Lord Greene, who gave the leading Judgment with which both the other matters of the Court agreed, said at page 127. "The question as it presents itself to my mind la simply this: On May 5th 1939, When the respondent took the petitioner to the registry office was he, or was he not, a married man so as to be incapable of entering into another legitimate union? The proposition I think would not disputed that in general the status of a person depends on his personal law, which is the law of his domicile. By the law of the respondent's domicile at the time of his Hindu marriage he unquestionably acquired the statue of a married man according to Hindu law: he was married for all the purposes of Hindu law, and he impossed upon him the rights and obligations which that status confers under that law. That status he never lost".
If it was right in that case, notwithstanding the potentially polygamous nature of the Hindu marriage, to accord to the husband the statue of a married man in accordance with the law of his domicile, why in this case should we not accord to Esther the status of a fame sole at the date of her marriage in April 1942, inAccordance with the law of her domicile? The answer put forward on behalf or the husband is that we are precluded from doing so by the decision of this court in ( The king v. The Superintendent Registrar of Marriages, Hammersmith, Ex parte 1917 volume 1 King's Bench Division, page 634).
That case arose out of an Application for a writ of directed to the Superintendent Registrar directing him to issue a certificate and license for the applicant Mir-Anwaruddin to marry. It appeared that MirAnwaruddln, who was a Mahommedan domiciled In India, had in 1913 contracted a marriage in England with one Baby Hudd. The marriage did net prosper, and Ruby Hudd refused to accompany Mir-Anwarruddln to India. Both parties instituted matrimonial proceedings. Ruby Hudd commanced proceedings In England for a judicial separation, but did not proceed with them. Mir-Anwaraddin instituted proceedings in India far a decree of restitution of conjugal rights: he obtained a decree, but Ruby Hudd...
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