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K v K [2016] EWHC 3380 (Fam)

Francis J grants a certificate of entitlement to a decree of nullity in circumstances where both parties agreed that there was nothing capable of recognition as a marriage and where the purported ‘marriage’ was unregistered and probably bigamous.

The petitioner was aged 61 and had previously been married to a Mr Z in Pakistan. The marriage was terminated by Talaq in Pakistan in 1994. The respondent was aged 61 and was married to a Mrs B in 1964. That marriage probably subsisted until her death in 2015.

The parties entered into a marriage ceremony at a Mosque in London in 1999. At this time, the respondent was still married to Mrs B. He asserted that the petitioner was aware of this, while the petitioner denied any such knowledge.

Both parties shortly thereafter feared that the 1999 marriage ceremony was invalid. The petitioner travelled to Pakistan and was informed that the Talaq in relation to her marriage to Mr Z had not been registered at the relevant Town Council. She therefore ceased all sexual contact with the respondent and, in 2003, obtained a decree of Khula in Pakistan (a decree available to women, dealing with recognition of an unregistered oral Talaq). The respondent commenced proceedings in Pakistan for jactitation of marriage in relation to Mrs B, although abandoned them before their conclusion.

The petitioner asserted that, on 15 August 2003, she and the respondent entered into an Islamic marriage by way of a telephone call with an Imam in Pakistan. She further asserted that, on 28 August 2003, the parties entered into a formal ceremony at a property owned by the respondent in Pakistan, known as WH. She asserted that there was a formal marriage deed drawn up. Although she initially asserted that the 15 August was the relevant date, her case changed during the hearing to assert that the 23 August was the date on which the purported marriage took place. The respondent flatly denied that either event had occurred and accused the petitioner of fraud.

Francis J unhesitatingly preferred the evidence of the petitioner. In so determining, he relied on the following four aspects of the evidence:

1) The respondent challenged the veracity of the marriage deed. Despite being offered an opportunity at an earlier hearing, he did not make any Part 25 application for expert evidence as to its veracity. Despite having been represented by experienced solicitors and counsel throughout the proceedings and at that hearing, when cross-examined about his failure to make an application, he explained that he was unaware of the opportunity to make such an application and denied that he was represented at that earlier hearing. Francis J considered that this was refuted by the relevant order clearly recording that he was represented throughout.

2) The respondent denied that the petitioner had flown to Pakistan during the week after 15 August 2003, describing the petitioner's case as 'totally concocted'. He was forced to concede this after being presented with 'incontrovertible evidence from the petitioner's passport'.

3) The respondent forcefully denied that the petitioner had ever been to the property known as WH. He was unable to reconcile this denial with photographic evidence of the petitioner and him outside the property. He accepted that the photographs depicted himself and the petitioner outside the property, but described everything as 'bogus'.

4) The respondent did not seek to obtain witness statements from the two witnesses named on the allegedly fraudulent marriage certificate, and gave contradictory evidence about them. He initially asserted they were not independent as they were related to the petitioner, and then in oral evidence asserted that he did not know them.

Francis J refers to the relevant authorities, including Whiston v Whiston [1995] Fam 198, Dukali v Lamrani [2012] EWHC 1748 and Hudson v Leigh [2009] EWHC 1306, and determined that the petitioner was entitled to a decree of nullity. In so determining, he relied on the parties' intention and belief that the ceremony on 23 August 2003 would produce a valid ceremony of marriage.

Summary by Thomas Wilson, barrister, 1 Garden Court Family Law Chambers

__________________________

No. BV15D09955
Neutral Citation Number: [2016] EWHC 3380 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice

Thursday, 24th November 2016

Before:

MR. JUSTICE FRANCIS
(In Private)

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B E T W E E N :

K
 Applicant
-  and  -
K Respondent
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MR. M. LEWIS (instructed by Crimson Phoenix Solicitors) appeared on behalf of the Applicant.
MR. S. NIGAR (instructed by Directus Law) appeared on behalf of the Respondent.
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J U D G M E N T
MR. JUSTICE FRANCIS:

1. The issue before the court is whether: (a) I should grant a certificate of entitlement to a decree of nullity as contended for by the petitioner; or (b) whether I should declare that there is nothing capable of recognition as a marriage and that I should, accordingly, dismiss the petition for nullity as contended for by the respondent.  He, effectively, seeks a declaration of non status on their marriage, or nothing capable of recognition.

2. It is common ground between the parties that they were not lawfully married and that the petitioner is not, therefore, entitled to a decree of divorce, although initially she did seek one.  The parties have between them spent some £300,000 litigating this issue.  To the layman it might seem remarkable that so much time and money could be spent on this fine distinction between a decree of nullity and a declaration that their relationship fell short of anything that could be recognisable as marriage, yet that they both agree and recognise that they were not validly married.  However, if I do grant the certificate of entitlement to a decree of nullity, the petitioner will then be permitted to pursue a claim for ancillary relief and for financial remedy; whereas if I dismiss the petition, she will have no such rights. 
3. In opening this case, Mr. Lewis, counsel for the petitioner, said one thing is absolutely clear: one of them is lying.  Although that is not a very attractive proposition, I am bound to say that having heard the evidence and read the papers, I agree with him.  Mr. Nigar, counsel for the respondent, submitted that the petitioner had powerful motives to lie: namely, that she would be able to prosecute her claim for ancillary relief if she were successful.  I accept that proposition, but it is clear to me that, equally, there is the same motive for dishonesty on the part of the husband.  It is the same motive on either side, or at least they balance each other out, because the respondent has made it clear that he wishes to make no financial provision at all for the petitioner despite the many years of association, and so, if I am looking at motive here, the motive is the same for each of them.  It is, therefore, a binary outcome.

4. The factual background is well set out in the papers and in giving this ex tempore judgment, I am not going to recite a great deal of it, but I set out the necessary background as follows.  The respondent is 74-years' old.  In 1964 he was married to a Mrs. B and that marriage probably subsisted until her death in 2015, last year.  There are four children of that marriage.  They are not relevant for the purposes of these proceedings.  The petitioner is 61-years old.  In 1972 she underwent an arranged marriage to a Mr. Z in Pakistan.  That marriage also produced four children who are now adults.  That marriage was terminated by Talaq in Pakistan in 1994 by which time the petitioner was already habitually resident in England. 

5. Although there is a relatively minor issue between the parties as to when their relationship commenced, it is accepted by both of them that they entered into a marriage ceremony at a Shia Mosque in Tooting, South London in 1999.  When they went through this ceremony in 1999, the respondent was still married to Mrs. B, although the respondent asserts that the petitioner knew this.  The petitioner says that she was told by him that he was divorced.  She says that she would never have contemplated marriage had she known that she was entering into a polygamous marriage.  In any event, it is common ground that the 1999 marriage was not something that is recognisable as a valid marriage between them under the laws of England and Wales. 

6. The petitioner says that she had very real concerns as to whether the 1999 ceremony was valid from quite an early time.  Moreover, it was a Shia ceremony and yet the parties are Sunni Muslims.  The respondent says that does not matter because it is all the same ceremony, but the petitioner also asserts that she was concerned that the Talaq that she had from her first husband had not been registered at the relevant Town Council.  The respondent also had doubts about the status of the 1999 marriage and at one point even went so far as to commence proceedings in Pakistan for jactitation of marriage, albeit that in due course he abandoned those proceedings. 

7. The petitioner says that in late December 1999 she went to Pakistan to see her mother in Islamabad.  She told her mother that she was married and she showed her mother the Nikkah (the marriage certificate).  Her mother told her that she was very worried indeed about the status of the marriage; that Shia Islam permits a temporary marriage and the mother said that she should take immediate steps to correct the position.  The mother expressed the strong view that she did not regard the 1999 ceremony as effective.

8. The petitioner says that immediately upon realising, or at least having this conversation with her mother and having been put into very serious doubt as to the status of the 1999 marriage, she said that she immediately stopped having a sexual relationship with the respondent.  She said that although she and the respondent travelled back and forth to Pakistan frequently, they now travelled separately rather than together, and that they did not want to be seen, or perceived by family or friends in the Pakistani community, as engaging in intimate relations in circumstances where they might not be legally married.  The petitioner says that her family come from a village where traditional morals are felt and enforced by the community very strongly, and that the honour of members of the village is something that everyone in the village considers to be of their concern.  She says that she is absolutely clear that she did not have any sexual contact of any kind with the respondent until after 28th August 2003, a date which will assume very considerable relevance later in this judgment.

9. This evidence was not the subject of any challenge by Mr. Nigar, counsel for the respondent and, therefore, I accept it as true.  To be clear, what I am accepting as true is the petitioner's case that she stopped having intimate relations with the respondent when she realised that there was severe doubt over the status of their 1999 marriage, and I accept as true her evidence that that intimate physical relationship did not recommence until at least late August 2003.  August 2003 is, as I have said, a critical date in the chronology of this case since it is in that month that the petitioner asserts that she went through a ceremony of marriage with the respondent.  It is this ceremony on which the petitioner founds her case for a decree of nullity.  The difference between the parties' respective positions could not be more stark, and so I needed to set out their respective factual accounts. 

10. As I have indicated, the petitioner asserts, and I accept for the reasons stated above, that intimate contact with the respondent ceased as soon as she learned about the difficulties in relation to the 1999 ceremony.  On 27th September 2002, she applied for a decree of Khula, which is a decree available to women in Pakistan which, effectively, deals with the recognition of a prior oral or unregistered Talaq.  The decree of Khula was granted on 15th April 2003.  She was cross-examined by Mr. Nigar, counsel for the respondent, about the reasons for the delay between late 1999 when she realised the difficulties there were with her marriage, and September 2002 when she applied for this decree.  She said there were many things that she needed to sort out, including the marriage of -- I am not sure whether it was one or more than one of her children.  She said that also her first husband had had a stroke.  He, in fact, it seems, still lived in the same building, although not the same part of the same building.  Also, she said she had to look after their youngest child who was still at school.  There may be something in the respondent's complaint about the delay during this period, and it is one of the very many lacunae in the evidence that I have heard.  In the absence, however, of any evidence to the contrary, I accept that from late 1999 until August 2003 at the earliest, all intimate or sexual contact stopped and Mr. and Mrs. K, as they knew themselves to be, ceased behaving as if they were man and wife.  I have to consider why they would do that, and having found that they did, I find the reasons given to me by the petitioner compelling. 

11. On 7th January 2003, the petitioner entered into a change of name deed in London, changing her name from Mrs Z to Mrs K.  She asserts that this was a further step taken by her to regularise her status. 

12. It is the petitioner's case that on 15th August 2003, she and the respondent had a telephone conversation with an Imam in Pakistan, the formalities of a Nikkah were completed and that an Islamic marriage was created, or at least that was how she initially put her case.  She later changed it, as I shall set out in a moment.  She says this in para.27 of her statement:

"In August 2003 the marriage contract was arranged by telephone during the course of the conference call.  The respondent and I were in London.  The Imam was in Pakistan together with two male witnesses.  The Imam asked me during this call whether I gave my permission for the paperwork to be finalised for the Nikkah.  I confirmed that I did.  So far as I understand, the formation of the Nikkah contract creates the terms of the marriage settlement and is one of the most important features of an Islamic marriage." 

13. The petitioner asserts that she and the respondent confirmed with the Imam that they were free to marry.  She says that the respondent flew out to Pakistan a day or two later in order to sort out all the paperwork, and that she flew out to Pakistan a week later, there having been difficulty getting her on an earlier flight.  She says that on 28th August 2003, there was a formal ceremony at a property owned by the respondent called WH, and that at that ceremony they were given a marriage deed.  A copy of the original of this marriage deed appears at pages C154 and C155 of the bundle which is in Urdu.  It is a very poor copy and it is a source of amazement to me that I expressed during the course of the hearing that neither party had sought to inspect the original copy which is on the court file.  Given the extraordinary level of costs that have been incurred in this case, it is remarkable that that simple step was not taken.  Be that as it may, in the file at C152 and 153 is a certified copy of a translation of the marriage deed.  The translation was made on 22nd January 2008 and therefore was not translated for the purposes of these proceedings.  There is no reason to believe that it is other than accurate. 

14. The deed records that the marriage was celebrated on 15th August 2003.  This, according to the petitioner, was the date of the phone conversation between the parties in London and the Imam in Pakistan.  The petitioner does not, and really could not now assert, that the 15th August telephone conversation gave rise to a valid marriage, albeit that this was the date that she relied upon in her original petition.  She now says that the phone conversation on 15th August was in fact preparatory to the execution of the marriage contract which occurred on 28th August.  She says that that was the relevant moment and that is the date which gives rise to the ceremony of marriage that she now seeks to annul.

15. The respondent's case is that the petitioner is lying; the telephone conversation on 15th August never took place; there was no ceremony of any kind at all on 28th August, and that in fact the petitioner has never even visited WH.  He says that the marriage deed, a copy of which is at C154 and 155, as I have referred to, is in fact a forgery, albeit that it purports to bear his signature and his thumb print.  His answer to the obtaining of his signature and thumb print is that the petitioner must have surreptitiously secured his signature and his thumb print from other documents that would have been put in front of him on a different occasion and that that material was used to perpetrate this fraud.  In alleging fraud, a party sets himself a steep evidential hill to climb.  I have to consider whether the petitioner engaged in a sophisticated and devious plan which resulted in apparently different documents, fraudulent documents being produced as evidence of a marriage contract between the parties.

16. When deciding who I believe when I have this stark conflict of evidence, it is useful to look at other assertions and other pieces of evidence.  In this context, I start by recording that when the respondent was sworn, the first thing that he was asked to do by his counsel, Mr. Nigar, was to confirm the truth of the statements that he has filed in these proceedings, and thus it was that under oath he did just that.  Among the more glaring evidential difficulties which, in my judgment, the respondent faces, are the following.

17. First, para.12 of the order of District Judge Robinson dated 7th March 2016 provides, and I quote:

"In the event that either party wishes to apply for a single joint expert to deal with the veracity of the marriage deed dated August 2003, they shall make an application under Family Procedure Rules Part 25 and provide the names of any proposed experts within 14 days prior to the directions hearing referred to below."

18. This issue of the veracity of the marriage deed assumed central significance during the hearing because it is the respondent's case that it is a forgery.  It must have been obvious to anybody advising the respondent and, in my judgment, it was obvious to his advisers, that this was a document of central importance.  When asked in cross-examination by Mr. Lewis why he did not avail himself of this possibility to make an application pursuant to Part 25 for an expert to look at this document, Mr. K, the respondent, denied that he knew anything of this paragraph at all.  I completely accept that I would not expect anyone other than a lawyer to know the details of the court order, still less the technical details of what a Part 25 application is, but the important point here, in my judgment, is that Mr. K was represented at all material times by experienced solicitors and counsel.  Mr. Lewis, for the petitioner, put to the respondent that he was represented and therefore it really was not an excuse to say that he did not know, and Mr. K denies that Mr. Nigar, his counsel, was even in court with him on that day.  So, Mr. Lewis took the respondent to p.54, which is the first page of the order, which, on the face of the document, as court orders now do, records who was there to represent each party, and on the face of the court document we see that Mr. Nigar was counsel throughout this hearing and was present with him on that date.  When faced with this incontrovertible evidence, the respondent changed his mind.  He said that he did not make a conscious decision to get the document properly examined.  In my judgment, the respondent was being deliberately evasive.  He made up the story about Mr. Nigar not being present at court and when found out, he had to change his story. 

19. Secondly, in para.19 of his statement dated 29th April 2016, the respondent quotes the petitioner's evidence that she flew out to Pakistan the week after the 15th August telephone conversation, and that she attended a formal ceremony at the WH on 28th August.  He said in the clearest of terms that these events never happened and, I quote, "they are totally concocted" by the petitioner.  He was then faced with the incontrovertible evidence from the petitioner's passport that she travelled to Pakistan, just as she had asserted, the actual date being 25th August.  When this was put to him in cross-examination, he was eventually forced to concede that she may have gone.  In my judgment, the respondent was lying when he gave this evidence and only when he was faced with the truth on seeing her passport, did he realise that he had to change his position. 

20. Thirdly, as I have already set out above, the petitioner asserts that the marriage ceremony in August took place at the respondent's property called the WH.  This is a large property which is let on a long lease to an organisation called PC.  The respondent asserted forcefully that the petitioner had never been to this property and that it would have been impossible for her to go there at any time since this had been let to PC.  In the bundle at p.198, there is a copy of a document from PC dated 3rd March 2016.  It provides as follows, and I quote:

"This is to certify that PC has signed a lease agreement dated August 5th, 1998 with Mrs. B and Mr. K for the lease of House 7, Street 62, Sector F-6/3, Islamabad.  The lease agreement (inaudible) keep extending", it says, "and is still in effect since then.  The latest lease agreement is scheduled to end on 4th July."

21. If the respondent's evidence is to be believed, the petitioner could not have visited WH on 5th August 1998, a time before either of them assert their intimate relationship commenced.  Mr. Lewis sought permission on behalf of his client to introduce into evidence late in the day two photographs.  Mr. Nigar, counsel for the respondent, objected to the late production of these photographs, but I indicated that I was prepared to see them and I admitted them into evidence.  I can well understand in the circumstances why the respondent, through his counsel, did not want me to see these photographs because they show a photograph of the petitioner and the respondent outside the property known as WH.  The respondent accepted, when faced with these photographs, that it was a photograph of himself and of the petitioner outside WH, but he was completely unable to reconcile the photographs with the evidence that he had given about the fact that the petitioner had never visited the WH.  He then said this is all bogus and then he said, "Well, she has been to WH several times.  She has not been since we rented it".  He then said, "I am confused by these photographs".  In his closing submissions, Mr. Nigar valiantly tried to defend his client's position by saying that the respondent was confused.  I entirely accept that giving evidence can be confusing.  It is a difficult process.  It can be a harrowing process.  But I am also quite sure that on this occasion the respondent was not confused.  He was caught out in his lies. 

22. Next, the translation of the marriage deed shows at box 11 the name of the witnesses to the marriage, along with their fathers' names and the witnesses' residence.  The witnesses that are recorded as having been present are Hafiz Tariq Mehmood and Basharat Mehmood.  The respondent said in his oral evidence that he did not know them.  In each case, as I have said, the details of their father and of their residential addresses are given on the marriage deed.  I understand from those that have looked at it, that reading the witness details, or at least their addresses on the Urdu copy, is difficult, but we do at least have the English translation.  I cannot say with any certainty whether the English translation is correct, but in my judgment it is quite extraordinary that no attempt at all was made by those acting for the respondent to contact either of those two witnesses at the stated addresses, unless it was for the reason that they were indeed there and that, therefore, contacting them would have assisted the respondent not at all.  As in the case of the failure to challenge the petitioner in relation to the intimate relationship which she had with the respondent, in my judgment, the reason why these two potential witnesses and the people who said they were witnesses at the ceremony in August 2003, or recorded as being witnesses there, is obvious: the respondent knows that they were there at that ceremony. 

23. It is also noteworthy here that in his witness statement dated 29th April 2016, he gave a completely different version of events when he said in relation to these witnesses, and I quote:

"The first issue is that the witnesses to this document are both related to the petitioner.  As such, they are not independent." 

That version in his witness statement is, of course, completely at odds with the evidence that he gave to me under oath: namely, that he did not know them.  It is, in my judgment, still further evidence of the respondent's obfuscation and his willingness to say anything that he thinks will suit his case. 

24. Next, at p.157H of tab C is the divorce deed, being a deed of divorce made in Islamabad on 17th April 2014 whereby the respondent gave formal written notice to the petitioner of their divorce.  He was asked by Mr. Lewis whether he had taken legal advice prior to preparing this divorce deed.  He said that he had not taken advice.  Of course, had he taken advice, the contents of that advice would have been privileged and we would not have been entitled either to know about it, or to draw any inferences either way, but, in fact, he said he had not taken advice.  Mr. Lewis put it to him that he had deliberately not mentioned in this document -- that is, the divorce deed -- the marriage or ceremony of August 2003, but he had mentioned only the 1999 ceremony.  The respondent's reply in his evidence was that the reason that he did not mention this is that it never happened.  However, at para.24 of his statement dated 29th April 2016, he said, and I quote:

"When I was in Pakistan and upon legal advice of my lawyers, they drew up the document known as the Divorce Deed.  I reiterate that this divorce was in relation to the religious ceremony that took place in London on 18th October 1999.  I was advised by lawyers in Pakistan that as that ceremony had not been recorded by the relevant authorities in Pakistan, it could not be recognised in Pakistan as the petitioner was married to her husband at the time, Mr. Z"

25. So, in relation to this, the respondent gave two completely different versions.  Once again, Mr. Nigar tried to defend this by saying to me that the respondent was confused.  In my judgment, this is still further evidence of the respondent adjusting his evidence to fit what he thinks to be the needs of his case at a given moment. 

26. I have no doubt that his written evidence was carefully considered by those advising him.  I have no doubt that the respondent would have been properly advised to check carefully the contents of his statement before attesting to its truth.  When faced with the difference between what he said in the considered environment of his statement and from the witness box under pressure, I prefer what he said in his statement in relation to this issue about whether he consulted lawyers in the past.  Thus it is, that once again I find that the respondent was lying when he gave his evidence about whether he consulted lawyers before issuing the divorce deed.  I would also add that this divorce deed is not the sort of document that one would expect the layman to be able to prepare on his own. 

27. So, in weighing up the respective cases given by the parties during the course of their written and oral evidence, I have no hesitation, where there are issues of fact between them, in preferring the evidence of the petitioner over that of the respondent.  I am satisfied and I so find that the telephone conversation did take place on or about 15th August 2003 at which the parties were present in London and an Imam and some future witnesses were present in Pakistan, and that arrangements were made during the course of that telephone conversation for a Nikkah.  I find that on or about 28th August 2003 the parties attended a form of ceremony at the WH which purported to effect the contract of marriage between them and that the formal process of offer and acceptance took place, and that a Nikkah document was formally signed on that occasion in the presence of witnesses.  I find that after that ceremony took place, the petitioner honestly believed that the respondent was divorced from his first wife and that, with effect from on or about 28th August, she was lawfully married to the respondent. 

28. The respondent places heavy reliance upon the fact that there are two names given as the performer, or the Imam, of the Nikkah Khawan.  These are FD, whose name appears with the date 15th August 2003, and MR, whose name appears with no date.  The husband had exhibited to his statement an affidavit from FD saying that he was not present during the event on 15th August 2003.  I do not think anybody suggested he was necessarily present at the 28th August event.  Whether MR was or not, I do not know.

29. In any event, FD's evidence was subsequently updated when I gave the respondent permission to file a short statement from FD at the commencement of these proceedings, which, in effect, confirmed the affidavit that had already been exhibited to the respondent's statement.  FD described the Nikkah as totally bogus and he supports the respondent's contention that the events of 2003 are an invention by/or on the part of the petitioner.  We did make arrangements for a video link to Pakistan so that FD could give oral evidence.  Unfortunately the link could not be established due to power failure in Pakistan.  It is, however, reasonable for me to assume and to conclude that if FD had given evidence, he would have continued with the evidence that was contained in his statement.  I surmise that Mr. Lewis would have put the petitioner's case to FD and FD would have maintained his position.  I certainly do not draw any adverse inferences from FD's failure to give evidence, something which I accept was beyond the control of anybody here, or involved in this case.  I do not, however, think that it makes any material difference to my judgment since I am giving this judgment on the basis that FD verbally would have, as it were, come up to proof of his evidence.

30. I am totally unable to reconcile the fact that FD's evidence was at odds with other compelling evidence in this case which points to the events of August 2003 being more-or-less as the petitioner has described.  Having heard the petitioner give evidence, I find that she was a straightforward witness doing her best to tell the truth.  I am satisfied that she did not in any way appear to me to be capable of the sophisticated fraud which the respondent alleges.  She seemed to me to be, if I may say so without disrespect, a straightforward and unsophisticated woman with whom a fraud of this magnitude and sophistication seems to me to be rather unlikely. 

31. I remind myself here that because the petitioner was concerned that she might not have been validly divorced from her first husband, she brought proceedings for a Khula against her first husband so that she would have a formal declaration of divorce.  This document, as I have indicated, is dated 15th April 2003.  It is entirely consistent with her case about the events of August later that year. 

32. The court has been assisted in this case by the expert reports of Professor Menski of the School of African and Oriental Studies.  By the time, however, Professor Menski came to give his evidence, the parties had largely been able to agree with his reports.  What is clear is that the Nikkah of August 2003 was not registered.  It also seems that the respondent was probably still married to his first wife in August 2003, which meant that she had to consent to what was probably a polygamous marriage, and her consent, it seems, was never secured.  Had these formalities been complied with, it seems that there would have been a strong case for the recognition of this Nikkah according to the civil law of Pakistan, but these two failures meant that it was not so capable of recognition. 

33. As I have said, there are real doubts as to whether the respondent was divorced from his first wife.  It appears that the Nikkah was not registered pursuant to Rule 5 of the Muslim Family Ordinance and, in the circumstances, the petitioner's advisers sensibly amended their pleadings to assert that the events of August 2003 did not give effect to a valid marriage which would be recognised by the courts of England and Wales, hence their request for a decree of nullity, rather than a decree of divorce.

34. Mr. Nigar, on behalf of the respondent, has severely criticised the petitioner's case as being subject to a number of amendments.  In cases like this, as the facts unfold, one's pleadings sometimes have to change and I am satisfied that it was the right and proper course that the decision was taken to change this application from a decree of divorce to a decree of nullity. 

35. I have been given a helpful bundle of authorities and reference has been made to many of them by counsel in their respective detailed notes.  I am not going to go through all of them because I do not need to for the purposes of this judgment.  I start, however, with the case of Rampal v Rampal (no. 2) [2001] 2 FLR 1179.  In that case, a couple living in England had formed a relationship when the man was already married to a woman living in India.  The man's new partner became pregnant.  Given the strength of feeling about birth outside wedlock within their community, they married in England.  They separated and after separation the wife claimed that she had not known that the husband was married and tried to bar the husband's claim for ancillary relief, relying on a case called Whiston v Whiston [1995] Fam 198, to the effect that a knowing bigamist should be barred from seeking ancillary relief because to do so would be to rely on one's own serious criminal act.  Lord Justice Thorpe said as follows:

"Whilst the decision enables a strike-out application to be launched against a comparably culpable bigamist, and is indeed binding on us in such a case, I do not conclude that, as Mr. Bellamy effectively decided, it establishes a rule that no bigamist is entitled to apply for ancillary relief.  I will endeavour to summarise my reasons for that conclusion:

(i) Under the common law even a marriage between two males was undone by a decree of nullity, thus opening the door to a claim for ancillary relief, rather than by a declaratory judgment which precluded such a claim (see Corbett v Corbett [1971] P 83 at 109).  In his reasoning Mr. Justice Ormrod made plain that the case for a declaration was more strongly made where the marriage had been celebrated between persons of the same sex than where the marriage failed for bigamy, precisely because the latter marriage 'might, in other circumstances, have been a valid marriage'."

36. Lord Justice Thorpe went on to consider how the different degrees of culpability within a range of bigamist situations feeds into the question of entitlement to ancillary relief.  The key point arising from Rampal is the clear confirmation that an actual bigamist marriage, with the potential, but not, in fact, polygamous, is to be resolved by a nullity.  I accept the proposition made by Mr. Lewis for the petitioner, by extension the fact that the invalid marriage in this case might have been potentially polygamous rather than monogamous is not itself a bar to the relief that the petitioner seeks. 

37. Having found that the events of August 2003 did occur more-or-less as the petitioner described, what is the legal effect of that?  Well, as I have said, it is common ground that whatever did happen in 2003 did not create a marriage which would be recognised as a marriage in England and Wales.  In this regard, Mr. Nigar places heavy reliance on the decision of Mr. Justice Holman in Dukali v Lamrani [2012] EWHC 1748.  At para.25 of that judgment, Mr. Justice Holman says as follows:

"In a series of cases which have all recently been heard, apparently coincidentally, by Mr. Justice Bodey, that judge has clearly identified (after erudite consideration of many earlier authorities) that under English law, a ceremony or event, which may have the characteristics or appearance of a marriage, may create a valid marriage, or a void marriage (that is, one which is capable of founding a decree of nullity under section 11 of the Matrimonial Causes Act 1973), or a 'non-existent marriage' or simply a 'non-marriage'."

At para.26 he continues:

"The position is now summarised at paragraphs 77 to 81 of Mr. Justice Bodey's judgment in El Gamal v Maktoum.  At paragraph 81, Mr. Justice Bodey also quoted a passage from his judgment in Hudson v Leigh in which he had said that 'Questionable ceremonies should I think be addressed on a case by case basis' taking account of a number of factors, including whether the key participants, and especially the officiating official, believed, intended and understood that the ceremony would give rise to the status of lawful marriage under English law."

38. Pausing there, I make clear that I have taken into account the matters set out by Mr. Justice Bodey in Hudson v Leigh and repeated by him in El Gamal v Maktoum and then again by Mr. Justice Holman in Dukali v Lamrani, and I take note of Mr. Justice Bodey's indication that these cases are to be decided on a case by case basis because they are fact specific. 

39. I find that although the ceremony carried out in August of 2003 did not give rise to a valid marriage because of the probability that the husband was still married and also because of the lack of registration, the fact that the parties intended and believed that this was a valid ceremony of marriage are highly material when I decide this on a case by case basis, I am completely satisfied that the petitioner is entitled to the decree of nullity that she seeks. 

40. Therefore, subject to any representations that may be made, I am going to list this now in the normal course of events to be listed for a pronouncement of a decree of nullity which I imagine can be done within the next week.

41. That is my judgment.