Forced Marriage

by Jinryu

This is a case that the legal centre I work with was involved with, that I’m now looking into.

 

It’s a pretty easy read even for non-law students– give it a go.  Brings up some interesting ideas.


 

 

 

FAMILY COURT OF AUSTRALIA

 

 

KREET & SAMPIR

[2011] FamCA 22

 

FAMILY LAW – NULLITY – Nullity application based on duress – Duress established – Marriage occurring in a country other than Australia

 

 

Family Law Act 1975 (Cth)

Marriage Act 1961 (Cth)

 

Cooper v Crane [1891] P 369

Hirani v Hirani [1982] EWCA Civ 1; 4 FLR (Eng) 232

In the Marriage of S (1980) FLC 90-820

Parojcic (otherwise Ivetic) v Parojcic [1959] All ER 1

Scott (falsely called Sebright) v Sebright (1886) 12 PD 21

Teves & Campomayer (1995) FLC 92-578

 

 

APPLICANT:

Ms Kreet

 

RESPONDENT:

Mr Sampir

 

FILE NUMBER:

MLC

7406

 

of

2010

 

DATE DELIVERED:

18 January 2011

 

PLACE DELIVERED:

Melbourne

 

PLACE HEARD:

Melbourne

 

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

 

HEARING DATE:

15 DECEMBER 2010

 

 

SUBMISSIONS RECEIVED FROM

 

SOLICITOR FOR THE APPLICANT:

Victoria Legal Aid

 

 

 

 

 

Orders

(1)              That the Court declares that the marriage solemnized between the parties at S Village, India, on … June 2009 and registered on … July 2009 is not recognized as a valid marriage in Australia.

(2)              To the extent necessary to say, the said marriage is declared void.

 

IT IS NOTED that publication of this judgment under the pseudonym Kreet & Sampir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

 

Family Court of Australia at Melbourne

 

FILE NUMBER: MLC 7406  of 2010

 

MS KREET

Applicant

 

And

 

MR SAMPIR

Respondent

 

 

 

REASONS FOR JUDGMENT

  1. Ms Kreet (the wife) married Mr Sampir (the husband) on … June 2009 in India.
  2. The wife now applies for an annulment of the marriage and in the alternative that it is not recognized as a marriage under Australian law. 
  3. The application first came before the court on 12 October 2010, at which time service had not been attempted. It was adjourned for service to be attempted.
  4. A Registrar made orders for substituted service.
  5. On 15 December 2010, I was satisfied that service on the respondent had been effected.
  6. The respondent did not respond to the application but he did send to the wife’s lawyer some divorce papers issued out of an Indian court which must be taken as an acknowledgement of the proceedings in this Court because he would not have otherwise known of the wife’s lawyer.
  7. Having been satisfied that the husband has had an opportunity to participate and chosen not to, it is appropriate to allow the wife to pursue her application.
  8. I have read carefully the wife’s evidence and that of her current partner. I have no evidence to challenge that and I accept it.
  9. The wife was born in Australia. Her parents were born in India and remained closely connected to their former country’s culture. The parents were strict in that regard and were strongly against much of Australian culture. The wife was not allowed to cut her hair or wear skirts or dresses unless they were part of her school uniform.
  10. In July 2007, the wife electronically met Mr U but the relationship remained a secret, he being in Melbourne and she in Sydney.
  11. In June and July of 2008, the wife told her parents of the relationship and they were unhappy about it.
  12. The parents told her she could not marry Mr U and demanded she cease the relationship. They threatened her that if it did not cease, they would take her to India and arrange a marriage for her to someone else. It would appear that their objection related to Mr U’s “caste”. In the midst of this family turmoil, the wife’s father kept her away from school for a week, confiscated her telephone and her internet access.
  13. Despite that, the wife continued the relationship. In approximately October 2008, when the wife was still 17, her father told her that when she turned 18, they would go to India and find her an appropriate husband. The father said that he had been considering some of the wedding proposals from the wife’s Indian uncle.
  14. The wife completed her Year 12 exams in November 2008 and without informing her parents, and clearly against her wishes, moved to Melbourne to live with Mr U.  The parents then called her repeatedly, endeavouring to convince her to return to Sydney. She was reported to the police as missing and an investigation ended with her signing a statutory declaration for police that she was fine and living in Melbourne of her own free will. The parents travelled to Melbourne on 22 November 2008 in an attempt to convince her to return. They told her that she could marry Mr U once she turned 18 and the following day, the wife and Mr U went through an “engagement ceremony” in the presence of the parents.
  15. I accept the wife’s understanding that this was a “proclamation in front of God” that she and Mr U would get married.
  16. The wife returned to Sydney with her parents but they resumed their attempts to convince her to end the relationship with Mr U.
  17. The father made direct threats to Mr U to kidnap and rape his mother and sisters.
  18. In January 2009, the wife’s father slapped her across the face on two separate occasions and hit her on the back.
  19. The wife then moved back to Melbourne to live with Mr U on 8 January 2009 and again attended a police station to declare that she was living in Melbourne of her own free will.
  20. On 31 March 2009, the parents again came to Melbourne to persuade her to move back to Sydney. They apologised to her and asked her to forgive them and offering as an enticement a “proper wedding” for her 18th birthday.
  21. The parents suggested that they get married in India and the wife went back to Sydney. On 4 April Mr U came to Sydney and the wedding was discussed in detail.
  22. The wife was convinced by her parents to do things traditionally and in India but there was no doubt that her marriage was to be to Mr U.
  23. On 24 April 2009, the wife and her mother flew to India and were later joined by her father.
  24. Upon their arrival in India, discussions began about an appropriate suitor and the wife’s passport was taken from her. She was refused permission to speak to Mr U by telephone.  The wife’s parents then introduced the man who was to become her husband.
  25. The respondent attended at the house of the wife’s uncle with a number of other relatives and was asked publicly if he wanted to marry the wife. He agreed without meeting her.
  26. The wife was then asked if she wished to marry the respondent but she did not respond. Her father told her that he would have Mr U’s sisters and mother kidnapped and raped. I accept that the wife believed at this time that if she refused, her father would carry out the threat, and that she would not be able to leave India until she had complied with any marriage arranged by her parents. When asked again publicly if she would consent to the marriage, she agreed.
  27. I accept also that the wife begged her parents not to force her to go through with the marriage and her father’s response was to continue to threaten harm to Mr U’s family. The wife said, and I accept, she contemplated suicide.
  28. The wife was not required to speak at any time during the marriage ceremony but simply to walk four times around the altar.
  29. Following the marriage ceremony, the parents returned to Australia and the wife moved to the respondent’s house where he lived with his parents. The wife there refused the respondent’s attempts at physical intimacy which culminated in assaults.
  30. In late July or August 2009, the wife submitted the respondent’s Australian Visa application to the authorities and eventually flew to Sydney on 11 October 2009. She stayed with her parents for several weeks before returning to Melbourne on 11 November 2009 to live with Mr U. She then withdrew her sponsorship of the respondent’s visa application.   Thus, the husband did not have the opportunity to come to Australia.
  31. The relationship of the wife with the parents has declined to such an extent that there is now an indefinite Intervention Order against the wife’s father. 
  32. For recognition purposes, marriages that take place outside Australia are covered by Part VA of the Marriage Act 1961 (Cth). Sections 88B and 88C provide that a marriage solemnised in a foreign country is recognised as valid under the local law of that country and Part VA of the Marriage Act 1961 applies.
  33. The marriage in this case falls within that provision. Section 88D concerns the validity of marriages, and relevantly states:

(1)  Subject to this section, a marriage to which this Part applies shall be recognized in Australia as valid.

(2)  A marriage to which this Part applies shall not be recognized as valid in accordance with subsection (1) if:

            (a)       either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last‑mentioned marriage was, at that time, recognized in Australia as valid;

            (b)       where one of the parties was, at the time of the marriage, domiciled in Australia – either of the parties was not of marriageable age within the meaning of Part II;

            (c)       the parties are within a prohibited relationship within the meaning of section 23B; or

            (d)       the consent of either of the parties was not a real consent for a reason set out in subparagraph 23B(1)(d)(i), (ii) or (iii).

  1. Section 23B of the Marriage Act 1961 (Cth) relevantly states:

(1)       A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

            (a)       either of the parties is, at the time of the marriage, lawfully married to some other person;

            (b)       the parties are within a prohibited relationship;

            (c)       by reason of section 48 the marriage is not a valid marriage;

            (d)       the consent of either of the parties is not a real consent because:

                        (i)        it was obtained by duress or fraud;

                       (ii)       that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

                       (iii)      that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

            (e)       either of the parties is not of marriageable age;

            and not otherwise.

  1. The legislation does not define duress in the context of a marriage.
  2. In Scott (falsely called Sebright) v Sebright (1886) 12 PD 21Butt J said:

Public policy requires that marriages should not be lightly set aside, and there is in some cases the strongest temptation to the parties more immediately interested to act in collusion in obtaining a dissolution of the marriage tie. These reasons necessitate great care and circumspection on the part of the tribunal, but they in no wise alter the principle or the grounds on which this, like any other contract may be avoided. … Whenever from natural weakness of intellect or from fear – whether reasonably entertained or not – either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger.[1]

  1. In Cooper v Crane [1891] P 369 Collins J warned that very clear and cogent evidence must be given before the presumption of consent can be rebutted and the marriage annulled if an adult went through a public ceremony giving all of the indications of consent.
  2. In Teves & Campomayer [1995] FLC 92-578 Linenmayer J said:

…it is duress at the time of the marriage ceremony that is critical. Clearly this can be induced by events prior to it, but in the end it is for the applicant to show that at the time she gave her consent at the ceremony, some overbearing force was operating. In this, evidence about the ceremony, and events occurring during and immediately before or after it, can be extremely important.[2]  

  1. As I pointed out, duress is not defined in the Act but there is no reason to give it any other meaning than that which is normally known to the law. It must be oppression or coercion to such a degree that consent vanishes. (see In the Marriage of S (1980) FLC 90-820)
  2. In several English cases, coercion by parents arising from cultural issues has given rise to a finding of lack of consent (see Parojcic (otherwise Ivetic) v Parojcic [1959] All ER 1, Hirani v Hirani [1982] EWCA Civ 1; 4 FLR (Eng) 232)
  3. Cultural practices are sensitive issues but in respect of this application, the law to be applied is that of Australia. If a cultural practice relating to a marriage gives rise to the overbearing of a mind and will so that it is not a true consent, the cultural practice must give way. Arranged marriages such as would appear to have been the parents’ intent, must not carry with them lack of consent.
  4. I am satisfied that the parents adopted a position which may have been based upon a cultural practice which is unacceptable to Australian law.
  5. I am satisfied that the wife’s physical state at the time of the ceremony was such that she was physically and mentally overborne. Her consent was not real because it was obtained by duress.
  6. I am satisfied the marriage did take place as alleged but that the consent of the wife was not real, it having been obtained under duress.
  7. To the extent that there may be any dispute about what provision I am applying here, as the marriage cannot be recognized in Australia because the wife’s consent was infected by duress, the provisions of s 51 of the Family Law Act 1975 (Cth) (“the Act”) apply in any event
  8. Section 51 of the Act provides:

An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.

  1. The wife’s application sought relief in the alternative.  I am satisfied that because the marriage was conducted overseas, it cannot be recognized under Australian law for the reasons outlined above and to the extent that it is necessary to say so, it was a void marriage.

I certify that the preceding Forty Seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 January 2011.

 

 

 

Associate: 

 

Date:  18 January 2011

 

 

 

 


[1] Ibid.

[2] At 7

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