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B v I Case No: FD09F05012

Judgment arising from an application to find that a marriage conducted in Bangladesh was not capable of being recognised in the United Kingdom. A declaration in these terms was made.

The plaintiff was a young English woman of Bangladeshi descent; her first language was English though she understood some Bengali. When she reached 16, in January 2006, she was taken on holiday to Bangladesh and was introduced to her 18 year old cousin, whom she made clear she did not wish to marry. Towards the end of the holiday the plaintiff was given a gift of some clothes and persuaded to wear them. She was then kept in the room until the father, mother, and grandmother arrived with the defendant and an Imaam and a ceremony was conducted. The plaintiff believed that the ceremony was a form of betrothal but the documents shown to the court proved it had been a marriage. Subsequent to her return the plaintiff had left the family home and was living at a secret address.

In this judgment Baron J reviews the evidence and the jurisdiction of the court in this situation. She states that the plaintiff could not apply for a decree of nullity because of the lapse of time between the marriage and this application (though such an application would have been granted). She also states that she is statute-barred from saying that the marriage was void but then goes on to conclude that it was clear that the plaintiff did not consent to the marriage and so therefore it was not capable of recognition in England and Wales.

________________________

IN THE HIGH COURTS OF JUSTICE
Case No: FD09F05012
Strand London England WC2A 2LL
Monday, 23rd November 2009
Before:

THE HONOURABLE MS JUSTICE BARON
B E T W E E N:

B

and

I


Transcript from a recording by Ubiqus
Cliffords Inn, Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370
MICHAEL GRATION of Counsel represented the Plaintiff, instructed by
Dawson Cornwell
The Defendant did not attend and was not represented.
JUDGMENT
(Approved)

MS JUSTICE BARON:
1. This originating summons, comes before the Court based upon its inherent jurisdiction. This court has a duty to act fairly, do justice between parties and make declarations where they are fit to be made. The originating summons is issued by B against I, to whom apparently she went through a form or ceremony of marriage on about 15th January 2006. The fact that the ceremony took place so long ago means that she cannot issue a petition based upon nullity. The crux of her case is that she was forced into marriage with this gentleman in circumstances where she did not freely give her consent. It is her case, inter alia, that she did not appreciate that the ceremony was a marriage as opposed to a betrothal.

2. The factual matrix: in late 1995, the plaintiff went to Bangladesh for what she believed to be a holiday. On about 15th January, at the instigation of her father and her mother, she was involved in the ceremony, to which I have already referred. The plaintiff comes from a Bangladeshi family. Both her parents come from the province of Sylhet and were born there. The plaintiff?s father came to the United Kingdom when he was a child, aged about four, and so he grew up in this jurisdiction. When the time came for him to marry, in accordance with tradition, his bride was chosen for him and he married a girl from a village in Bangladesh. She came to this country and they set up a home. It would seem from what I have heard that the plaintiff?s father was hardworking by nature, originally having a job as an overlocker in a clothing factory. Thereafter he became a radio control operator for a minicab firm. The couple had four children, the eldest, a boy, then the plaintiff, and finally two younger sisters.

3. It would seem that the eldest son was not academic by nature, but, in accordance with tradition, he held a favoured place within the family. The plaintiff herself was/is not only a beautiful young woman, but she was/is obviously highly intelligent. Consequently, at what I am sure was great financial sacrifice, she was sent to an Islamic boarding school in the Bradford area. Her parents' intention was that she would be schooled in all the tenets of Islam and emerge from the school with a degree in Islamic studies. The plaintiff told me that in accordance with many such families in this jurisdiction, her father and the children of the plaintiff spoke good/fluent English, whilst her mother spoke primarily Bengali, so Within the family setting, a lot of discourse was undertaken in English, but the family also used Bengali as a second language. The plaintiff tells me that she thinks and speaks primarily in English. Whilst she did understand Bengali, she is not fluent in the same way as she is in English, which is her first language. At school, a number of lessons were undertaken in Bengali, but the primary language so far as the girls were concerned, was English. In about June or July of 2005, the plaintiff took her GCSEs and was successful. She returned home and told her parents that she would like to leave her school in order to enter education within the English system, leading to A-Levels. It was her hope that she could then go on to college or university to study art or architecture.

4. She told me that her father, who she described as a very well-educated man, encouraged her in this regard, but her mother did not think it was appropriate for a girl to be “out in the world”. She thought a woman?s place was as a wife and mother within the home. The plaintiff hoped that her father would sign the necessary forms to enable her to enter a new school, but he delayed. Shortly thereafter she became aware that a plan had been hatched within the family to take her back to Bangladesh and introduce her to a "suitable boy" in the expectation that she would become married. I note that at this time, the plaintiff was barely 16 years of age and so she was in every sense a young girl, unschooled, in the arts and sophistication of life. She tells me and I accept that she made it clear to her parents that, whilst she was a dutiful daughter, she was too young to become involved in a marriage. She wanted more from her life than the confines of a life of domesticity. She said that, on several occasions before the holiday, she made it very clear to her parents that she did not want and she did not expect to be married whilst she was abroad. She felt that they had accepted that this was her position; they may have hoped to persuade her otherwise when she was presented with the candidate who had been destined as their approved spouse for her but she is clear, and I accept, that they knew she did not want to be married.

5. All the family embarked on a holiday to Bangladesh on about 15th December of 2005. The plaintiff and her parents, together with her brother, then aged 18 years, and her two sisters, one about 13 years and the other about 7 years, boarded the plane and landed at Dhaka. The first night was spent in a local hotel and the family then travelled to their extended family village. The plaintiff was introduced to a young man, aged about 18 years, who was her cousin. She was, she says, pushed in his direction in the sense that the family introduced them and gave them periods of time alone. The plaintiff's mother in particular encouraged her to form an attachment with this young man. The plaintiff tells me, and I accept, that she made it clear to her mother and to her father that whereas she found this young man congenial as a brother/cousin, she did not in any sense consider him as suitable or appropriate as a husband. She informed me that she was always polite and dutiful, but that no one could have been under any misapprehension or misconception other than that she did not wish to marry this young gentleman.

6. She told me that the family enjoyed the holiday with visits to theme parks, picnics and the like. They were due to return to the United Kingdom on about 16th or 17th January 2006. The plaintiff states, and I accept, that shortly before their departure the family informed her that a dress was to be brought and that she was to have it by way of a present. On about 15th January, the new clothes, being a lengha and blouse were presented to her. They were in a purple and silver colour. Obviously they were very nice items of clothing, I note they were not the traditional red and gold that a bride is accustomed to wearing in the subcontinent. Accordingly, the plaintiff was not immediately alerted to the fact that this was a marriage. She told me she put on the clothes in the bedroom, but they were too large and her sister assisted with tightening them. She said that neighbours were peering in through the windows. Obviously, people obviously understood that some form of ceremony was in the offing. The family closed the windows to stop prying eyes and the plaintiff was told to remain at the end of the bed to await the next part of the day.

7. I accept that the plaintiff was not permitted to leave the bedroom. Later her mother, father and grandmother entered the room, together with an Imaam and the defendant's brother, (who was in training as an Imaam). She described a ceremony being conducted in Bengali and her father's strictures to her to say the word "Kabool" on three occasions. She understood that the word meant “I accept”. Her grandmother placed a ring, which was too large, upon her finger. As she understood it, she was thereby betrothed to the absent prospective bridegroom. She maintains, and I accept, that she did not understand that this was a ceremony of marriage. Her Bengali was not good enough to make that clear, whatever document was provided for her to sign, she did not have time to read it through and she did not understand it. I accept that evidence. Thus, I am clear that insofar as she consented to anything it was only a betrothal. The circumstances, were in reality, very restrictive as I doubt that she had any choice at all, even in relation to what she believed to be a betrothal. No doubt she thought that when she returned to the United Kingdom, she could persuade her parents that the betrothal should in some way be annulled. Certainly, at the end of that day, she did not regard herself as a married woman.

8. The documents which have been provided show to me that the ceremony was a marriage. The certificate, the Nikah Nama, appears to have been dated days before this ceremony took place, for it bears the date of the 5th January 2006. It also states on its face that a ceremony of marriage was contracted on 31st December 2005, that is some two weeks before the ceremony, in which this lady took part. Therefore, the document does not square with her evidence, which I make clear I have already accepted as being correct. Moreover, her written statement confirms that her signature is nowhere upon the original document. Indeed, it is clear from the face of that document that it was all completed in one hand. She tells me that after the ceremony had been completed, the defendant arrived at the house from the mosque, where he had been securing his devotions, whereupon he signed a document. There was no celebration and no party.

9. The following day, the family left the plaintiff's grandmother's home on their way back to Dhaka, in order to go back to the United Kingdom. They stayed in a hotel that night. There was a family room and apparently, the defendant booked another single room for himself. The plaintiff was asked to go into that room and she informed me, and I accept, that the defendant had sexual intercourse with her without her consent. She did not inform her parents of what had occurred until many weeks later, because she was so ashamed. When she returned to the United Kingdom, she told her sister of what had occurred, and, with her sister's encouragement, she told her mother. Her sister thought that the defendant's behaviour was so outrageous that, insofar as there has been a betrothal, her parents would immediately agree to nullify it for his behaviour towards her was in complete contravention of the traditions of Islam. When she gave a full explanation to her mother, she was told she had to grin and bear it for she was now married. I accept that this was the first time that this young woman knew that the ceremony in which she was forced to take part was a ceremony of marriage, rather than a ceremony of betrothal.

10. She was very upset by this news but she was mollified because, even after that conversation, there was reference within the family to the ceremony of “betrothal” being set aside. It would seem that the plaintiff's family had a disagreement with I's family about financial ramifications resulting from the ceremony, and the expectation that the defendant's family would assist financially to ensure that he could to the United Kingdom. When those financial expectations were not satisfied, the families began to fall out. Here the reference to the attachment of the “betrothal”. Up her return to England, B remained in her family home and continued with her domestic duties. She described assisting her mother with the care of her sisters, brother and father. However, in order to assist with household expenses, she was required to seek state assistance. Part of the requirement for those on Jobseeker's Allowance, is attendance at various courses. In this way, B managed to make contact with someone on the Internet and with their assistance, left the family home. By so doing she has, I expect, brought "dishonour" on her family. Accordingly, she has had to assume a secret identity. She is now living in a secret address, unknown and separated from her entire family. I am clear that her actions would be regarded as having brought shame upon the family, with the result that in accordance with the “code of honour”, she would risk serious injury and, potentially, her life if the family considered that that degree of punishment were merited.

11. The factual matrix makes it patently clear that if she had been able to apply within the relevant three-year period for a decree of nullity, I would have had no hesitation in granting it. I am satisfied that under the laws of this country, there was no valid consent to marriage. The difficulty in this case is that the plaintiff was not able to leave her family home until the middle of 2008. Even then, she could not bring herself to start formal proceedings within this jurisdiction. Accordingly, an application for a nullity is no longer open to her. For that reason she seeks a declaration pursuant to the inherent jurisdiction. It is accepted that such relief is generally available in respect of a marriage that has been solemnised in circumstances where either of the parties did not validly consent to it as a consequence of duress, mistake or otherwise. In this case, I consider the relevant ground would be duress.

12. It is also clear that no declaration can be made by this Court under the terms of section 55 of the Family Law Act 1986 if, it offends against the terms of section 58. I quote, "No declaration may be made by any court, whether under this part or otherwise, that a marriage was at its inception void." That is a term was included in the Family Law Act to ensure that the Act was not used to circumvent the strict requirements of the Matrimonial Causes Act 1973. However, it is clear that the inherent jurisdiction must be used in a way that is flexible to ensure that justice can be provided for all. The plaintiff in this case does not seek a declaration that the marriage was void at its inception, rather, she seeks a declaration that there was never was a marriage capable of recognition in England and Wales.

13. At one stage, she sought to take her case further by claiming that there were procedural irregularities in the ceremony in Bangladesh. She may well be correct in relation to that aspect of the matter, but unfortunately, the expert report that was ordered to be placed before the Court so as to enable me to find that was indeed the case has not been made available because the expert has been too unwell to provide such a report. In the circumstances, I have no evidence before me, which would enable me to find that there were such procedural irregularities. Counsel, on behalf of the plaintiff, decided that it was prudent not to proceed on that aspect of the case. Accordingly, I am limiting my decision to the assessed lack of consent.

14. A number of Authorities have been placed before me which persuade me that judges at First Instance and more importantly, the Court of Appeal regard the inherent jurisdiction as a flexible tool which enables the Court to assist parties where statute fails. It has been held in a number of cases that the judges of this Division have to take note of reality. It is a matter of judicial knowledge that a number of women within the Bangladeshi community are subjected to forced marriage. In order to prevent that from occurring, parliament recently passed the Forced Marriages Act. Of course, I accept that forced marriage has a number of consequences, which go beyond the ceremony itself and I am satisfied that the plaintiff in this case is but an example of what can happen to a young woman who is forced into marriage against her will.

15. I can understand why her parents, who were very traditional, thought that they were doing their best for her by sending her to Bangladesh and introducing her to what they regarded as a suitable boy. Equally, from her perspective, having been brought up in the United Kingdom, it must have been unbelievably difficult to accept a code of behaviour and ethics which do not slot in with an outlook which has been influenced by the culture to which she had been exposed. The clash between old traditions and the modern life to which young people of Bangladeshi origin are exposed in the United Kingdom is bound to cause problems, particularly where the older generation insist upon marriage to a man or woman who comes from the subcontinent, and does not have the same mores as those who are brought up in the United Kingdom. I have seen an affidavit sworn by the plaintiff?s father in the context of the Bangladeshi ceremony. In that document, he states specifically, and I quote, that he is "giving consent to this marriage because he believes that his daughter has become too westernised." That sums up the sad clash to which I have already referred.

16. There are long-term sequelae from a woman's perspective if a marriage is no nullified. I remind myself what Mr Justice Coleridge said in the case of P v R Forced Marriage: Annulment Procedure, [2003] 1 FLR 661. The learned judge said, "There is a real stigma attached to a woman in the petitioner's situation if merely a divorce decree is pronounced and it is desirable from all points of view that where a genuine case of forced marriage exists, the Courts should, where appropriate, grant a decree of nullity and as far as possible, remove any stigma that would otherwise attach to the fact that a person in the petitioner's situation has been married." In this case, nullity is not an option for it is statute barred. However, the intellectual premise upon which Mr Justice Coleridge made his pronouncement remains completely valid. Of course, this young woman could commence divorce proceedings, but within her community, that would never be sufficient and she would be doomed, if that be the right word, to a scenario where members of her own community regarded her as in some way unacceptable because of her divorce.

17. I do not think that that outcome would be fair in circumstances where she never consented to enter into marriage in the first place. It is clear from the case of Hudson v Lee, [2009] 2 FLR 1129, that Bodey J thought that there was a distinction to be made between holding that a marriage was void at its start and declaring that a marriage never existed. His Lordship made that distinction clear in the body of his judgment. Although it is an extremely fine distinction and may not be thought to be wholly logical, it is eminently fair to provide a declaration. The flexibility of declarations in this type of case has been found to be acceptable to the Court of Appeal. Lord Justice Thorpe, who heads up the international side of the Family Division has made it clear that the law is to be used as a flexible tool in these situations. I take full note of the fact that his Lordship has accepted the position that the Court should deal with cases in a sensible and practical manner.

18. Counsel have informed me that this is the first case in which this type of declaration is being sought in the context of a forced marriage. As a result of all the matters which I have outlined, I am clear that the Declaration is justified. More importantly, it is not outwith section 58.5 because there is a distinction between declaring that there never was a marriage which is capable of recognition in the United Kingdom, and there being a declaration (which is not permitted) that a given marriage was void at its inception. In those circumstances, I make the declaration which is sought. In this case there never was a marriage in this case, which is capable of recognition in this jurisdiction, and I so find that is my judgement.