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Abbassi v Abbassi [2006] EWCA Civ 355

An appeal against the judge's direction that the determination of the validity of a marriage dissolved by talak in Pakistan should be heard by a court in Pakistan.

The wife had presented a petition for divorce in England but the husband asserted that the marriage had already been dissolved by talak some years earlier. Wood J decided that the best course of action would be the adjournment of the case and to defer to the Pakistani court the issue of validity of the talak. On appeal, Thorpe LJ held that the judge had not erred in the exercise of his discretion although he did say that the strong relationships between the judges in England and Pakistan could have facilitated collaboration, leading to a more expeditious determination. Appeal dismissed.

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B4/2005/0881

Neutral Citation Number: [2006] EWCA Civ 355

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM PRINCIPAL REGISTRY

THE FAMILY DIVISION

(MR JUSTICE RODERIC WOOD)

Royal Courts of Justice

Strand

London, WC2

Tuesday, 7th March 2006

B E F O R E:

LORD JUSTICE THORPE

LADY JUSTICE SMITH

LADY JUSTICE HALLETT

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ABBASSI CLAIMANT/APPELLANT

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ABBASSI & ANR DEFENDANT/RESPONDENT

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(DAR Transcript of

Smith Bernal Wordwave Limited

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MISS CHOUDHURY (instructed by H C L Hanne & Co, St John's Chambers, LONDON, SW11 1TN) appeared on behalf of the Appellant.

MS M GALLAGHER & MR JOSHI (instructed by Messrs Atteys & Treasury Solicitor) appeared on behalf of the Respondent.

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J U D G M E N T

(As Approved by the Court)

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Crown copyright©

1. LORD JUSTICE THORPE: The parties to this appeal married in 1988 and within this jurisdiction the wife presented a petition for dissolution which resulted in a decree nisi of divorce which was not made absolute for the simple reason that the husband then asserted that the marriage had been validly dissolved by talak pronounced in Pakistan on 8 July 1999, an assertion which if correct in fact and law and which if recognised under the provisions of the Family Law Act 1986, would have had the consequence of rendering the last two or three years of the parties' cohabitation non-marital. The husband sought a declaration pursuant to section 55(1)(D) of the Family Law Act 1986, a declaration of the validity of the foreign decree.

2. That application was strenuously resisted by the wife, who asserted that there had been no such divorce in the summer of 1999 and further that the documentation relied on by the husband in support of his application was bogus, forged or otherwise improperly procured. Directions were of course given for the trial of the issue and the case was listed before Wood J with a time estimate of four days commencing on 11 April 2005. The Attorney General had intervened in the proceedings and expert opinion had been sought, two of the experts being instructed by the Attorney, the other jointly instructed by the parties. In very broad summary, the experts all noted irregularity and inconsistency in the documentation but were generally of the view that the asserted talak divorce would be recognised as valid in Pakistan.

3. Wood J had the opportunity of reading the considerable case papers over the preceding weekend and at the outside of the trial he informed the parties of his preliminary view that it would be altogether more sensible for the issue as to the validity of the talak divorce to be determined by the court in Islamabad. The husband's counsel, in a way that the judge was to describe as adventitious, accepted or embraced the judge's suggestion with enthusiasm and applied for the adjournment. That course was opposed by both the wife's counsel and the Attorney's counsel and the judge accordingly delivered a relatively brief judgment in which he reasoned his conclusion to follow his first thought and to defer to the Pakistani court the determination of what was essentially a Pakistani issue. The wife's counsel, Miss Choudhury, sought permission to appeal and the application was supported by Miss Gallagher for the Attorney General. The judge refused the application and accordingly on 25 April an application for permission to appeal was lodged with this court. It was supported by a skeleton argument settled by Miss Choudhury on 22 April 2005.

4. I am not clear why the application has taken so long to reach the lists. I have a recollection of having made a direction for the application to be listed for an oral hearing on notice with appeal to follow if permission granted. Effectively, or perhaps I should say implicitly, we have granted permission since from the outset, we have treated this hearing as though it were the hearing of an appeal.

5. Miss Choudhury, relatively early in the course of her submissions, conceded that it was not an error of law on the part of the judge to impose the order which he had; that is to say, she accepted that there was no legal provision that prevented the judge from taking that course. Although Miss Gallagher's skeleton asserted that the judge had been wrong in law so to order, she too early in her submissions conceded that that point could not be sustained. Accordingly, the submission for the appellant, supported by the submission for the Attorney, is the simple submission that the judge erred in the exercise of his discretion in imposing the course which he did.

6. It is I think useful at this stage to look in some detail at the order that followed the judgment. The order was preceded by recitals and undertakings. The important undertaking given by the husband was first within 28 days to issue and serve an appropriate application to an appropriate court in Pakistan for a declaration that the talak divorce is a valid divorce under Pakistan law: secondly, to have determined in Pakistan the following points: namely 1) whether there was a valid divorce in Pakistan, 2) whether the formalities for a valid divorce were complied with, 3) whether any documents adduced in support of a valid divorce are in themselves valid and 4) whether there was required to be any notice of the divorce given to the wife before or after the alleged divorce and if so, whether and when this was given.

7. The husband's further undertaking was to pursue expeditiously such an application. The order then records a concession made by the husband, relatively close to the trial, to the effect that he had financial responsibility for the wife under the provisions of the Matrimonial Causes Act 1973 should his application under the 1986 Act fail; alternatively, under part 3 of the Matrimonial and Family Proceedings Act 1984 should his application under the 1986 Act succeed. On the basis of that concession, the judge made a tight order that the husband comply with earlier directions made in the ancillary relief proceedings; secondly, file and serve all the documents required by his form E; and thirdly, file and serve answers to the outstanding questionnaire; all that to be done within a tight timetable and to all of that a penal notice was attached. The remaining provisions of the order required the husband to file with the court a copy of the application to be issued in Pakistan and finally the order provided that if there were any difficulties in issuing proceedings in Pakistan, then application was to be made to the judge initially in writing.

8. The order reveals the judge's pragmatic intentions, first that the issue that he was referring for determination in Pakistan should be placed before the court without delay and pursued expeditiously thereafter and second, that the export of this determination should not delay or prejudice the wife's financial claims, which were to be processed for trial without any delay given the concession that there was no escape from the husband from financial obligations, whatever the outcome of his application under the 1986 Act. We have this morning received, as an addendum to the husband's recent skeleton, a bundle of documents to establish the history of the subsequent proceedings in Pakistan.

9. The husband's application pursuant to his undertaking was duly issued on 2 May. It seems that in Pakistan it is still possible to petition for the old remedy of jactitation of marriage and that is the form of his application of 2 May. Subsequent progress has bogged down on what seems to me to be a purely technical objection taken by the wife's Pakistani lawyer to the issue of the jactitation suit in the Islamabad court. His contention, which succeeded before the family court judge, was that the proper forum for the jactitation petition was the court in Abbotabad. Subsequently, on an appeal to the district judge brought by the husband's lawyer, the decision of the family court judge was overruled, the district judge holding that he had fallen into error and that the proceedings had correctly been issued in the Islamabad court. It seems to me that it is not unfair to observe that there is a good deal of strategic manoeuvring in this case on both sides and inevitably there must be concerns as to the mounting costs of legal proceedings between this couple, particularly given that we have been told that the wife in this jurisdiction is in receipt of public funding.

10. To come to the only question that we must resolve, namely the exercise of the judge's discretion, it is perhaps sensible to briefly summarise the judge's reasoning. First of all, he stressed that the issue raised by the husband's application under section 55 was not a matter of technicality or one of little moment, despite the a concession that in either event the wife was entitled to financial relief. The judge, quite rightly in my opinion, stressed that the question of status is, as he put it, a matter of overarching importance in any society. He went on to observe that given that both of the parties were of Pakistani origin and both still have family in that jurisdiction, it would be a matter of grave consequence to the wife were the court in this jurisdiction too lightly to uphold the husband's application, which would demonstrate that the wife had, for a period of some years after the dissolution of the marriage, been co-habiting with the husband under the same roof and holding herself out to be his wife. So the importance of a profound investigation to ensure justice to the wife was at the heart of the judge's reasoning.

11. The second point to which he, almost inevitably, attached great importance was the huge difficulties facing a judge in London in getting to the heart of the wife's case that the husband's application was essentially fraudulent and was buttressed by documents that had either been forged or improperly procured. He noted the difficulties that had been emphasised by the experts in their respective reports and he made the almost obvious point that all these issues of fact and law could be so much more satisfactorily investigated and decided in Islamabad, where the judge would be familiar with the language, with the law and with the local customs.

12. The submission advanced by Miss Choudhury, to the effect that the judge exercised his discretion improperly, is not easy to reduce to concrete summary. The most superficially attractive criticism and the easiest to understand and state is that the judge placed a considerable emphasis on the fact that there were potentially ten witnesses either to the issue of pronouncement or to the validity of documents or to the giving of notice of the proceedings, and all those witnesses were in Pakistan. Miss Choudhury says, effectively, that the husband had knowledge of the nature of the wife's case for some considerable time and had not sought to file any evidence in reply from any other witness. He presented his case in this jurisdiction relying only on his own statement and on the reports of the three experts. So, she submits, the judge had been plainly wrong to found himself on the availability of witnesses or the convenience of witnesses when the consideration had its origin only in exchange between the judge and Mr Joshi for the husband, during the course of which Mr Joshi had said, somewhat speculatively, that his client might wish to call anything up to ten witnesses in Pakistan.

13. Her second complaint, which I consider harder for her to make good, was that the judge should not have had regard to the provisions of Article 6 of the Human Rights Convention. It is plain that the judge was concerned that there should be a full and fair trial on the issue, particularly for the protection of the wife's interests, and it does not seem to me open to Miss Choudhury to criticise the judge for seeking to protect the rights and interests of her client. She sought to suggest that there was insufficient evidence before the judge as to the nature of the application that might be brought in Pakistan or the likely duration of Pakistani proceedings, nor did the judge have regard to the wife's difficulties in her participating in the Pakistani proceedings, given that she is habitually resident here and of limited means. I would reject that criticism. It does not seem to me that those points were specifically put to the judge and manifestly had they been put, they could have formed either the basis of an application for adjournment for further investigation, or alternatively as the foundation for a submission that there should be direct communication between the judge in London and the liaison judge in Islamabad, in order to clarify the nature of the application and to enlist the aid of the liaison judge to ensure an expedited trial.

14. She has also submitted that the real issue to be decided is whether or not her client had notice of the talak divorce in 1999, an issue that falls to be determined under section 51(3) of the statute, and accordingly there is the risk of a contradictory finding between the two courts, since the judge in this jurisdiction would not be bound by a finding of a judge in Islamabad. However, as my Lady has pointed out during the course of argument, the order of Wood J in undertaking B(iv) only requires the court in Pakistan to make a finding as to notice in the event that the court has first determined that a notice is a requisite ingredient of a valid talak divorce.

15. Miss Gallagher, who followed, essentially submitted that the issue of validity was almost irrelevant. She suggested that on the expert reports, validity in Pakistan was almost overwhelmingly established and that the wife should have conceded that issue and simply fought the case on the notice issue and perhaps on the issue of public policy. She submitted that in those circumstances, the judge could perfectly well have made an adequate investigation and finding as to validity, and his failure to do so has resulted, and predictably would result, in delay.

16. We asked Mr Joshi only to respond on the first criticism, namely the judge's reliance on the greater convenience of trial in Islamabad given the availability of the supporting cast of witnesses. Mr Joshi fairly accepted that the suggestion had come from him but, although his client had not sought to bring the supporting cast onto the London stage, plainly he was entitled to make the point that those witnesses would be available and presumably an advantage to any judge trying the issue in Islamabad.

17. On those submissions, I have no doubt at all that the attack on the judge's discretion fails. The judge has an opportunity, and indeed a responsibility, to adjourn a case for investigation in another jurisdiction of his own motion, even if that outcome is not initially sought by any of the parties. The exercise of such a discretion must necessarily have a broad ambit and it would accordingly be exceptional to hold that such an order was plainly wrong. Nor do I think that the suggestion that the judge took account of factors that he should not have regarded is made out. Once the reference to the ten available witnesses is fully explained, it seems to be a factor the judge was entitled to have some regard to. Nor do I think that the suggestion that the judge has disregarded relevant considerations has been made good. As I have already explained the deficits are, if existing, as much the consequence of the way the wife's case was put as any lack of foresight on the part of the judge.

18. In general conclusion, a number of points can be briefly made. It is no criticism of the judge to say that no precedent for such an order can be found in the reported authorities. In an international family law case such as this, opportunities and practices which exist for the judge of today were simply not there for the judges of earlier decades. It is equally not, I think, impressive to submit that this is some abdication of judicial responsibility which might form a dangerous precedent for the future. Obviously, each case turns on its particular facts and the demands that those facts create for the court. This was not a perfectly straightforward case in which the application for a declaration was to be determined solely on the question of whether the wife had had due notice and whether accordingly section 51 was satisfied. This was a case in which there were quite lurid allegations of fraud and misconduct raised and that, I think, is an important emphasis to answer the suggestions that the judge has abdicated responsibility and that this should not stand as a model for future practice.

19. My final observation is that, in family proceedings with an international dimension, it is becoming increasingly common to have regard to the sensible transfer by the court, acting on its own motion; an obvious example is the provisions of Article 15 of the Brussels II Revised Regulation.

20. Lastly, it is worth emphasising that there are particularly strong relationships between the judges of the family division and the judges of the courts in Pakistan. The collaboration between the two judiciaries has had its most obvious expression in the Pakistani protocol of January 2003. However, this is a classic example of a case in which either the parties in their submissions, or the judge of his own motion, might have made use of the collaboration between the two jurisdictions and the availability of a liaison judge in each jurisdiction to facilitate that collaboration.

21. As I have already observed, it would have been open to the parties to invite Wood J to communicate his decision to the liaison judge in Islamabad, supporting the approach with a copy of his transcribed judgment and perhaps inviting the assistance of the courts in Islamabad to ensure that the husband's undertaking to seek an expeditious determination was recognised and supported in that jurisdiction. With the advantage of hindsight, it can be seen that had that step been taken almost a year ago, there is every probability that the jactitation suit in Islamabad would have travelled further down the road than it has. It is still not too late to invoke the aid of the liaison judge and I would propose to refer this case to him and to invite him to use any proper steps within his jurisdiction to ensure that the issue referred on 11 April is determined at the earliest possible date.

22. For all those reasons, I would grant permission but dismiss the resultant appeal.

23. LADY JUSTICE SMITH: I agree.

24. LADY JUSTICE HALLETT: I too agree.

Order: Appeal dismissed.