Saira Hakeen (ap) V. Khalid Hussain
| Jurisdiction | Scotland |
| Judge | Lord Clarke |
| Docket Number | A876/01 |
| Date | 18 March 2003 |
| Court | Court of Session |
| Published date | 18 March 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| A876/01
| OPINION OF LORD CLARKE in the cause SAIRA HAKEEM (Assisted Person) Pursuer; against KHALID HUSSAIN Defender: ________________ |
Pursuer: Clarke; Balfour & Manson
Defender: Hayhow, Digby Brown
18 March 2003
INTRODUCTION
[1]In this action the pursuer seeks a declarator to the effect that "a pretended marriage between the pursuer and defender at Stirling Registry Office on 22 June 1998, is null by reason of lack of consent to the marriage by the parties". The matter came before me for proof. The witnesses led on behalf of the pursuer were the pursuer herself, her mother, Mrs Akhtar Hakeem, Mr Tariq Chaudry and Mrs Jamila Chaudry, friends of the pursuer's family, and Mr Brian Gillespie, who is an immigration officer. The only witness led for the defence was the defender himself.
[2]As the result of the evidence adduced at the proof, I found the following to be established.
FACTUAL BACKGROUND
[3]The pursuer is now 21 years of age. She was born in Scotland. Her parents had come to Scotland from Pakistan. Her parents are now divorced. The pursuer is presently a full-time student at Glasgow Caledonian University. She lives with her mother at 50 Coldstream Drive, Glasgow. Both the pursuer and the defender are followers of the Muslim religion. The defender is now 29 years of age. He came to Scotland in or about February 1998 from Pakistan. He has an older brother who, in 1998, was living in Stirling with his wife and daughter. The defender came to stay with his brother. The purpose of the defender coming to Scotland was to obtain medical treatment for a problem which, at that time, he was having with his ear. He obtained a visa to remain in Scotland for six months for the purposes of obtaining medical treatment.
[4]In or about March 1998, a friend of Mrs Jamila Chaudry, who is a friend of the pursuer's family, made contact with the pursuer's mother. The person in question was variously described by the witnesses in their evidence as Auntie Salima, Mrs Salima and Mrs Salima Iqhbal. This lady was acquainted with the defender's family in Scotland. She suggested to the pursuer's mother that the defender would make a suitable husband for the pursuer. At that time the pursuer was attending high school.
[5]A meeting was arranged at which the pursuer's mother met with the defender's older brother and his wife, together with Mrs Chaudry and the woman known as Auntie Salima. On the basis of that meeting the pursuer's mother considered that the defender's family were good people and a further meeting was arranged so that the pursuer's mother could meet the defender. The pursuer's mother met the defender with his brother and his sister-in-law. Again Mrs Chaudry and Auntie Salima were present. As a result of the second meeting the pursuer's mother formed the view that the defender would make a suitable husband for the pursuer.
[6]A further meeting was arranged which took place towards the end of May at the pursuer's home for the purpose of the defender meeting the pursuer. The defender attended at the pursuer's home with his brother, his sister-in-law and his niece. The pursuer's father was also in attendance together with Mr and Mrs Chaudry and Auntie Salima. The pursuer and the defender were introduced to each other in the following pre-arranged way. The pursuer was in her bedroom. The defender was invited by the pursuer's mother and Mrs Chaudry to go into the room. The pursuer's mother and Mrs Chaudry remained outside the bedroom, but close to its door. The couple had a little time together. At the proof a good deal of time was taken up with discussing exactly how long they were together, it being maintained on the pursuer's side that it was only a few minutes whereas on the defender's side it was contended that the couple were together for some 10 to 15 minutes. Ultimately I do not consider that the duration of that encounter, as opposed to its occurrence, really pertains to the decision I have to reach in this case. The pursuer already knew that her mother approved of the defender as a future husband for the pursuer. After the defender withdrew from the pursuer's bedroom the pursuer's father and mother asked her 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. I am satisfied that both the pursuer and the defender, at this stage, found each other to be attractive and that the prospect of being a married couple was something they contemplated without any difficulty.
[7]Once it had been ascertained, by her family, that the pursuer had no objection to being married to the defender, the occasion turned into one in which the parties, in fact, became engaged to be married. It was clear from the evidence, that the defender's family and friends had come to the meeting, in the hope and expectation, that the pursuer would not object to being betrothed to the defender. They had brought with them an engagement ring for the pursuer together with clothes and shoes for her in accordance, apparently with their cultural customs. Nos. 7/1 of process is a book of photographs. Photographs 1-14 inclusive and 17 and 18 are photographs taken at the engagement party. They show the parties sitting side by side and a ring being placed on the pursuer's finger. The pursuer is also holding a flower which had been brought to her by the defender and in which the ring was contained. There are various other photographs showing the couple with members of their families and friends. Photograph 4 and photograph 18 show the engagement ring being placed on the pursuer's finger by Auntie Salima. At the engagement party there was discussion about the parties' future marriage. The pursuer and her mother did not wish the pursuer to live in Pakistan nor did they wish her education to be interrupted. She was, at that time, hoping to go to university. It was, however, appreciated that the defender would require to return to Pakistan on the expiry of his six months visa in or about August 1998, unless he could obtain an extension to the visa. One way of obtaining an extension to his visa would be if he were to satisfy the immigration authorities that he had married the pursuer and that they were living together as husband and wife. The pursuer, and her family, agreed that, in the circumstances, the parties should, in early course, go through a civil wedding ceremony. Thereafter the pursuer and the defender would not live together as husband and wife until they went through a religious ceremony, or ceremonies, whereby, according to the Muslim faith, they became husband and wife.
[8]The foregoing agreed arrangements suited both parties for their own respective reasons. It would enable the pursuer to continue and complete her school education and to go to university in Glasgow. The defender would continue to live in Stirling with his family. He wanted to have some time either to obtain employment or set up a business to put himself in a more financially secure position.
[9]The defender arranged for a marriage ceremony to take place on 22 June at the registry office in Stirling. Both the pursuer and her family on the one hand, and the defender and his family on the other regarded this as "a special occasion". The pursuer herself wore a special wedding dress. Her sisters acted as bridesmaids and wore special dresses. The occasion was videod and the video film of the ceremony was played at the proof. Photographs of the occasion were taken which are 7/3/1-36 of process and 7/1/15 of process. Both the video and the photographs present graphically an image of the occasion being a happy and special family occasion where those attending have taken particular care over their dress and where the attitudes struck were what one would see at any wedding ceremony. It is not disputed that the ceremony which the parties went through complied in all respects by the formalities prescribed by the Marriage (Scotland) Act 1977.
[10]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 not only the friends and family who had attended at the registry office ceremony but also others - about 20 persons in total. This party was videod and the video film shown at the proof. 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 names. The pursuer gave evidence that the decoration of the house had been done by friends of her. The pursuer knew at the time she went through the registry office proceedings that, according to the law of Scotland, persons who voluntarily went through that form of ceremony were regarded as being man and wife thereafter. The defender also knew this. So, too, did the pursuer's mother. The pursuer and the defender, of their own volition, went through the ceremony before the registrar in Stirling in that knowledge. The pursuer maintained, however, at the proof, in her evidence, that as far as she was concerned, the registry office ceremony was just like "a second engagement".
[11]Both the pursuer and the defender after the registry office ceremony on 22 June 1998, wished and anticipated that, in due course, they would go through a religious ceremony or ceremonies which would mean that, in the eyes of their religion, they were man and wife. It was, in the first place, at the request of the pursuer and her mother that the religious ceremony was agreed to be postponed to the summer of 1999 to enable the pursuer to complete her school education.
[12]Between June 1998 and June 1999 the pursuer continued...
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