S.h. V. K.h.
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen,Lord Marnoch,Lord Penrose |
| Date | 13 October 2005 |
| Docket Number | A867/01 |
| Court | Court of Session |
| Published date | 13 October 2005 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Penrose Lord Macfadyen Lord Marnoch
| A867/01 OPINION OF LORD PENROSE in RECLAIMING MOTION by S.H. Pursuer and Reclaimer; against K.H. Defender and Respondent: _______ |
Act: Clarke; Balfour & Manson (Pursuer and Reclaimer)
Alt: Hayhow; Digby Brown (Defender and Respondent)
13 October 2005
[1]In this reclaiming motion, the pursuer and reclaimer seeks recall of an interlocutor dated 18 March 2003 by which the Lord Ordinary dismissed her action for declarator that a pretended marriage between the parties at Stirling Registry office on 22 June 1998 was null by reason of lack of consent by the parties to the marriage.
[2]On 31 May 2004, the Extra Division allowed a minute of amendment for the pursuer (no 21 of process) to be received and answered, on the ground that the
averments proposed might involve res noviter veniens ad notitiam. Answers were lodged (no 22 of process), and both documents were thereafter adjusted. On 24 June 2004, the court allowed the pleadings to be amended in terms of the adjusted minute of amendment and answers, allowed parties a proof on the issues raised by the new material, and remitted to Lord Macfadyen to take that proof and to report. In due course he reported the proceedings and the findings in fact made in the light of the evidence led. Some of his findings differ from the findings of the Lord Ordinary. The Lord Ordinary accepted evidence that has subsequently been admitted to have been perjured. In these unusual circumstances it is necessary to review the factual basis on which a decision in this reclaiming motion must now proceed.
[3]The pursuer was 21 years of age at the time of the original proof. She had been born in Scotland on 19 June 1981. Her parents, who were then divorced, had come to Scotland from Pakistan. The pursuer was living with her mother at the time of the proof. She was a student at Glasgow University. The defender and respondent was 29 years of age. He had come to Scotland in or about February 1998 from Pakistan to stay with his older brother who, with his wife and daughter, lived in Stirling. He had come for medical treatment on a visitor's visa which entitled him to remain in the United Kingdom for six months for the purpose of receiving that treatment.
[4]Both parties are Muslims. In or about March 1998, Mrs Salima Iqhbal made contact with the pursuer's mother. Mrs Iqhbal was acquainted with the defender's family in Scotland. She suggested that the defender would make a suitable husband for the pursuer, who was still at that point a secondary school pupil. Mrs Iqhbal was a friend of Mrs Jamila Chaudry who was, in turn, a friend of the pursuer's family.
[5]A meeting took place, attended by the pursuer's mother, the defender's older brother and his wife, Mrs Chaudry and Mrs Iqhbal. The pursuer's mother considered that the defender's family were good people, and a further meeting was arranged so that she could meet the defender. The meeting took place and was attended by the same parties with, in addition, the defender. As a result of this second meeting, the pursuer's mother formed the view that the defender would make a suitable husband for the pursuer.
[6]A further meeting took place towards the end of May 1998 for the parties to be introduced. It was attended by the pursuer and her parents; the defender, his brother, his brother's wife, and the defender's niece, Mr and Mrs Chaudry and Mrs Iqhbal. The meeting followed pre-arranged procedures. The pursuer, who already knew that her mother approved of the defender as her future husband, was in her bedroom. The defender was invited by the pursuer's mother and Mrs Chaudry to go into the room. The two ladies stayed outside the bedroom, but close to its door. The parties had a little time together. The duration of that period was not established. The defender thereafter withdrew from the bedroom.
[7]After the defender withdrew, the pursuer's mother and father asked if she was happy at the prospect of having the defender as her husband. She said that she was quite happy to go along with her mother's wishes. At that stage each party found the other attractive, and contemplated the prospect of being a married couple without any difficulty. Once it had been ascertained by the pursuer's mother and father that she had no objection to being married to the defender, the parties became engaged to be married. The defender's family and friends delivered to the pursuer customary gifts of an engagement ring contained in a flower, clothes and shoes. Mrs Iqhbal placed the engagement ring on the pursuer's finger. These items had been brought to the meeting by the defender's family and friends in the hope and expectation that the pursuer would not object to being betrothed to the defender. The event became an engagement party.
[8]In the course of the engagement party, there was discussion about the parties' future marriage. These discussions and the agreements reached are, in my view, critical to the decision in this reclaiming motion. The Lord Ordinary's findings are set out in paragraphs [7], [11] and [19] of his opinion. It is necessary to rehearse them together. It was agreed at the party that the ceremonies required by the parties' religion to constitute marriage would not take place until the summer of 1999 to enable the pursuer to complete her school education. The pursuer and her mother had intimated that they did not want the pursuer's education to be interrupted. She was at that time hoping to go to university. There were practical as well as religious factors pointing to postponement: the pursuer's education on the one hand, and the defender's wish to obtain employment or to set up in business, on the other, to put himself in a financially more secure position.
[9]At the date of the engagement party, and thereafter and in particular at the date of the civil ceremony referred to below, both parties considered that to be married validly in the eyes of their Muslim religion they required to go through prescribed religious ceremonies known as 'nikkah' and 'rushkati'. They, and their families, did not consider it appropriate that they should live together as man and wife, and have sexual relations, until those proceedings were gone through. This finding, in paragraph [19] of the Lord Ordinary's opinion is important. It deals with two distinct issues. In the first place, it explains the position of religious Muslims, on the evidence, that there is no valid marriage unless and until the religious ceremonies are performed. In the second place, it makes it clear that it was the agreed position that the parties would not live together as man and wife until those ceremonies were performed.
[10]The Lord Ordinary found that, at the time of the engagement party, it was appreciated that the defender would require to return to Pakistan on the expiry of his visa in or about August 1998 unless the visa was extended. It is not immediately clear how this can be reconciled with his intention to obtain employment or set up business, and the connection, if any, between this interest of the defender and what was to transpire was not explored in the Lord Ordinary's opinion. But it appears that the people involved in the discussion understood that one way of obtaining an extension of the visa would be to satisfy the immigration authorities that the parties were married and that they were living together as husband and wife. It was agreed that the parties should go through a civil wedding ceremony in early course. It was in that context that it was agreed that after that ceremony the parties would not live together as husband and wife until the ceremonies prescribed by their Muslim religion were performed.
[11]It was arranged that a marriage ceremony would take place on 22 June 1998 at Stirling registry office. That ceremony took place. It complied in all respects with the procedural formalities prescribed by the Marriage (Scotland) Act 1977. Both parties knew at the time that, according to the law of Scotland, persons who voluntarily went through that form of ceremony would be regarded as being man and wife. (Indeed, it has to be noted that, but for that understanding, there would have been no purpose to be served in undertaking the procedures before the registrar.) The parties, of their own volition, went through the ceremony before the registrar in Stirling in that knowledge.
[12]It is clear, from the Lord Ordinary's findings, that the parties' conduct at and immediately after the ceremony, both public and in the company of friends and relatives, was consistent with their sharing a view that what had taken place was a 'special occasion'. The pursuer and her family on the one hand, and the defender and his family on the other regarded it so. The pursuer wore a special wedding dress. Her sisters acted as bridesmaids and wore special dresses. The occasion was videod and the video film preserved. Photographs were taken. The video and the photographs presented a graphic image of the occasion as a happy and special family occasion where those attending had taken particular care over their dress and where the attitudes struck were what one would see at any wedding ceremony.
[13]The proceedings at the registry office were followed by a party at the pursuer's family home. That party celebrated not only the event which had just taken place at the registry office, but also the fact that the pursuer's birthday had taken place some three days previously. The party was attended by the friends and family who had attended at the registry office ceremony and also by others - about 20 persons in total. This party was videod. The pursuer's home had been decorated and as well as decorations referring to her birthday there were others with the words "happy wedding" written upon them. There were flowers made up to depict the initials of the couple's first...
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