Singh v Singh
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE KARMINSKI,LORD JUSTICE MEGAW |
| Judgment Date | 01 February 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0201-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 February 1971 |
[1971] EWCA Civ J0201-1
In The Supreme Court of Judicature
Court of Appeal.
Lord Justice Davies
Lord Justice Karminski and
Lord Justice Megaw
MR D. A. FAIRWEATHER, (Instructed by Messrs. Blacket, Gill & Langhams, Agents for Messrs, Philip Baker & Co. of Birmingham) appeared on behalf of the Appellant (petitioner).
Lord Justice Karminski will do liver the first judgment.
This is an appeal by a petitioner wife from a decision of the learned county court Judge at Birmingham dismissing her petition for nullity. The grounds of her petition were first that she did not consent to the Marriage, but wee induced to enter into it by duress and coercion exercised upon her by her parents. Secondly, and in the alternative, that she was at the time of the ceremony of carriage, and has been ever since. incapable of consummating the marriage with the respondent husband in that she evinced an invincible repugnance to him. The case was conducted as an undefended case on behalf of the petitioner by Mr. Fairweather, and it is therefore unnecessary for me to say more than that he put the wife's case with all his knowledge and clarity both before the learned county court Judge and before this Court. The respondent was not represented and did not appear in either Court.
The facts of the case are comparatively simple. Both parties, as their names suggest. are Sikhs. The wife was a girl of about 17 at the time of the ceremony of marriage, which took place before the registrar at West Bromwich on the 1st October, 1968. The husband was 21 years of age, and he was described as a bachelor living at West Bromwich. The wife, in accordance with what she believed to be Sikh practice and custom, had never seen the bridegroom before the actual ceremony of marriage. Following what we were told was the long-established custom of the Sikhs, the marriage was arranged by her parents with this man. The first time that she ever saw him was at this ceremony of marriage before the registrar. According to her evidence. She did not expect to see him before her marriage. and in that she was obeying the custom of her people and the wishes of herparents. The Idea was that after the civil ceremony before the registrar, and after the customary interval of about one week for that ceremony the spouses, having been married according to English law, should then go to a Sikh Temple to have the benefit of a religious service which would make them man and wife according to the law of their religion as well as to English law.
The wife's story was that, having gone to the registry office she then saw her intended husband for the first time, and she did not like what she saw. Her evidence was that she was told that her husband to be was a man of education, and handsome; but having seen him, she thought that he was neither, In the result therefore after the civil ceremony of marriage had been carried through she went back to her people and refused to go on with the Sikh religious ceremony a week later. She now says that there was no marriage in law, first because she did not consent, and secondly, because she was Incapable of consummating the marriage with this man because he was repugnant to her. There was never any attempt at consummation.
The facts of this case are not in dispute. The father gave evidence, as did an uncle of the bride. Medical evidence was given by a Gynaecologist who deposed that she was physically capable of marriage, and was at the time that he examined her after the ceremony a complete virgin.
Mr. Fairweather says that there was here a marriage by duress because of the circumstances. He says that very likely Sikh girls who come to this country with their family traditions are revising their ideas about marriages which have been arranged by their parents, and which result in their being brought to a ceremony of marriage without ever having seen the man of the parents' choice. In the present case it appears that thepetitioner did not even know the respondent's name.
I propose now to pass briefly to the law. It is common ground. and has been for many centuries, that the first essential of a valid marriage Is consent. Anything short of consent makes the marriage a nullity ab initio. If authority is needed for that in general terms It is to be found in the well-known treatise on Marriage In Canon Law by Professor Esmein, in which (If I may translate from the French text) he says: "Consent being an essential element of marriage, where there is no consent on the part of the alleged spouses there is no marriage. It cannot even be said that the marriage is null; it only exists in appearance. This is the fundamental and proclaimed principle of canon law," In short without consent there can be no marriage.
There have been in the course of the history of our law a good many decisions on this point, and in recent years there have been a number which have resulted from persons, going through a form of ceremony of marriage in order to escape from danger in countries where they were at risk for political reasons. The law on these sort of topics was discussed in H. v. H. (1954 Probate, p.268) and a number of other oases, and recently by the President in Szechter (orse. Karsov) v. Szechter (1 W. L. R. 1971 p. 171). In each of those cases there was a danger to the petitioners (both women) unless a ceremony of marriage was arranged which would enable them to escape from a country where they were at serious risk of at least their liberty. In H. v. H. the country concerned was Hungary, and in Szechter v. Szechter it was Poland. It is not necessary to go in detail or at all through the grounds of those decisions. But it was held in both cases that: "In order for the impediment of duress to vitiate an otherwise valid marriage, it must be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fearcaused by threat of immediate danger, for which the party is not himself responsible, to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock. See Szechter v. Szechter supra.
In his Judgment the learned President referred to some of the earlier decisions. Including H. v. H. in 1964 and the more recent decision of Mr. Justice Scarman in Buckland v. Buckland (orse. Camilleri) (1968 Probate, p. 296). He concluded with these words at the end of the judgment in Szechter v. Szechter: "It is in my view, insufficient to invalidate an otherwise good marriage that a party has entered Into It In order to escape from a ale-agreeable situation, such as penury or social degradation. In order for the Impediment of duress to vitiate an otherwise valid marriage, it must. in my Judgment, be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party la not himself responsible), to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock. I think that In the Instant case that teat is satisfied.
Here there is no suggestion of any danger to life, limb or liberty of the petitioner spouse. It is true that she obeyed the wishes of her parents, no doubt having a proper respect for them and for the traditions of her people, when she went through the ceremony of marriage. But it appears that after the ceremony she changed her mind. For myself I find nothing on the facts of the instant case to establish, or even to indicate, an absence of consent on the part of the petitioner at the time of the marriage, I am not without sympathy for this young lady, who, at the age of 15, coming to a new country with different Ideas,...
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