IN THE HIGH COURT OF FIJI
AT LAUTOKA

In Divorce Action No. 53 of 1975

Between:

KANIYA WATI d/o Armugam
Petitioner

-and-

MUNSWAMY s/o Gangaiya
Respondent

Dates of Hearing: 13th, 14th & 15th April, 1976.

Mr. Surendra Prasad, Counsel for the Petitioner
Mr. J. R. Reddy, Counsel for the Respondent

JUDGMENT

Kaniya Wati daughter of Armugam, of Velo Velo, Lautoka on 17th January 1975 entered into a civil marriage ceremony at Lautoka with Munswamy son of Gangaiya. She says that she was persuaded into it believing that the man who has appeared in Court as the respondent was Munswamy whereas in fact he was Muniappa, and she says that the marriage is therefore null and void and she claims a declaration of nullity. The marriage was arranged between the petitioner's father and the bridegroom's father, and as is the custom with such marriages, after the arrangement had been made, the boy's parents brought him to the house of the girl's parents. The petitioner and her father both said that the respondent Munswamy came with his brother Muniappa. The petitioner says that she took tea into the room where the respondent was, but did not look at him, because she was shy. She also said that the respondent was at that time accompanied by his brother. Then the girl's parents went back to see the boy's parents, but neither the principals in the action was with them. It appears that the respondent was not overly keen on the match for he took some time to agree to it, but his father persuaded him into it and the parties duly attended at the office of the Registrar in Lautoka to obtain a special licence for the marriage. The special licence was said to be necessary because the prospective bridegroom was to go to New Zealand, although he himself did not appear to know why it had been obtained.

However, the petitioner's evidence is that she and the bridegroom and their respective parents went and the bridegroom also had one of his brothers. She said that took about 15 minutes. Then about a week later they went to the Registry Office again. The petitioner said that she and her parents and the bridegroom and his parents were again present and again the bridegroom's brother was there. She said that she did not know she was being married. That was to come later, with the religious ceremony. She did, however, say that the respondent and she were given seats at the desk and that she agreed that she and the man sitting next to her were being married to each other. Then she signed the form and he signed. At that stage, she says that she took a look at her husband for the first time and she decided there was something wrong with his eyes, and that was her principal objection to him. It is, perhaps, significant that nothing was asked of the respondent in cross-examination about his eyes, and to the outward observer at any rate, his eyes seemed to be perfectly normal.

The petitioner's claim to a declaration of nullity is that she went through a ceremony of marriage with the respondent believing him to be Munswamy when he was in fact Muniappa, and a great deal of time has been expended in trying to prove that the respondent is not in fact Munswamy but Muniappa. She says that because of this there was not consent.

It is quite clear that, as Karminski LJ says in Singh v Singh (1971) P. 226, 230, the first essential of a valid marriage is consent. He goes on:

"Anything short of consent makes the marriage a nullity ab initio."

That was a case in which a Sikh woman went through a ceremony arranged by her parents. She met her husband for the first time at the ceremony and had nothing to do with him thereafter. She petitioned for nullity on the grounds of duress induced by parental coercion or alternatively incapacity to consummate the marriage owing to invincible repugnance. Neither of those grounds is suggested here, but what the petitioner endeavours to say here is that she was mistaken as to the man she married. She intended to go through a ceremony of marriage but with a different man. Sir Francis Jeune in Moss v Moss (1897) p. 263 refers to this type of fraud at p. 269 "The simplest instance of the fraud that procures the appearance without the reality of consent" is personation, or such a case as that supposed by Lord Ellenborough in Rex v Burton-on-Trent 105 E.R. 712 of a man assuming a name to conceal himself from the person to whom he is to be married. That was a case as the head note says of a marriage by licence, not in the man's real name but in the name which he had assumed because he had deserted. It was held to be a valid marriage, but it seems that it might have been otherwise had the man assumed the name to conceal himself from the party whom he was marrying. However, there was no doubt that the party whom he was marrying intended to marry him, whatever his name may have been. In C v C (1942) 61 N.Z.L.R. 356, the petitioner undoubtedly intended to marry the man she did marry, although she may not have done so, if she had known who he really was. There, also, the petition for nullity failed. Here I have no doubt that the petitioner intended to marry the respondent whatever his name may have been. Sir Francis Jeune then goes on to point out that such marriages are annulled not because of the presence of fraud but because of the absence of consent, and concludes by saying:

"But where there is consent no fraud inducing that consent is material."

Then the learned President quotes at p. 272 from Ayliffe's Parergon:

"Now there are four species of error which are hereunto referred. The first is styled error personae as when I have thoughts of marrying Ursula, yet by my mistake of the person I have married Isabella. For an error of this kind is not only an impediment to a marriage contract but it even dissolves the contract itself through a defect of consent in the person contracting. For deceit is often times won’t to intervene in this case which ought not to be of any advantage to the person deceiving another."

The other species are not material to this case.

So that to succeed, the petitioner has to be able to say:

"I had thought of marrying Munswamy, yet by my mistake, the person I have married is Muniappa."

But the position here, putting it at the highest for the petitioner is surely:

"My father arranged for me to marry. He told me I was to marry Munswamy. I did not see him, and I thought that the man I married was Munswamy. I now find that I am married to Muniappa."

The fact of the matter is that her father arranged for her to marry a son of Gangaiya. A son of Gangaiya came to see the girl. I do not believe that two sons came or that she did not see the man she was to marry. I do not believe there was any confusion. I believe that she married the man she intended to marry. There was in my view true consent and no fraud will get her out of this marriage. It can be put another way from her point of view. She agreed to marry the man her parents arranged for her. The respondent was the man her parents arranged for her in spite of what her father now says. She agreed upon the marriage and went through with the ceremony. It is too late for her now to change her mind.

But I think that the matter goes further than that. The burden of proof is upon the petitioner and in my view she has failed signally to discharge it. The marriage certificate indicates that the petitioner married Munswamy who was born on 30th March 1956. The respondent says that he is Munswamy. He produces a passport which bears a likeness of him or of someone not unlike him. The signatures on the marriage certificate and the passport appear to be the same. The passport was obtained in February 1974 - a year before this marriage was even thought of. He certainly gave his age in evidence in cross-examination as 22 years and although that may furnish matter of suspicion, it is no more than that, for if he had been perpetrating a fraud, I would have thought that a mistake he would have been most unlikely to make. It may very well be that Muniappa and Munswamy do not consistently use the same names. It is clear, however, that the respondent was married to the petitioner, and in my view the respondent is Munswamy and I am sure that the petitioner knew that he was Munswamy although it may be that he is also known as Muniappa. Mr. Prasad does not suggest that the marriage evidenced by the certificate of marriage between Muniappa and Subramani's daughter in 1972 is in any/defective, or that the respondent was a party to that marriage. If there is confusion, it arose after 1972. I think it is pertinent to observe that after Muniappa son of Gangaiya was married into a family very closely allied to the family of the father of the petitioner the father consented to ally himself with the second son of Gangaiya. I do not believe that he talked with Gangaiya outside while the wrong man was married to his daughter. I find the respondent's evidence and that of his father Gangaiya far more credible than the petitioner and her father.

Mr. Prasad submitted that the provisions of Section 7(a) of The Matrimonial Causes Ordinance overrule Moss v Moss to which I have previously referred. The Court invited him to develop this argument but he acceded to the invitation only to the extent of pointing out that the provisions in New Zealand as to nullity differ from those in the Commonwealth of Australia and in Fiji. I do not think this difference is in the present case material. I think it merely extends to a declaration in the New Zealand statute that certain marriages are void ab initio whether or not a decree of nullity has been granted. I think it necessary to bear in mind that the English law as to nullity is at present based upon the Supreme Court of Judicature (Consolidation) Act 1925 section 21 which gives to the High Court such jurisdiction in respect of nullity of marriage as was exercised by any Ecclesiastical Court in England prior to the Matrimonial Causes Act 1857. That was the jurisdiction which was exercised by the Court in 1987 in Moss v Moss, and it is upon this jurisdiction that the statutory requirements in New Zealand and the Commonwealth of Australia and Fiji are based. I think it is proper to say that in none of the text books is it suggested that the statutory provisions overrule Moss v Moss, and the statutory provisions in New Zealand and the Commonwealth of Australia are substantially the same as in Fiji see Sim Divorce Law and Practice in New Zealand 7th Ed. (1965) Joske, Marriage and Divorce, New Zealand and Australia Marriage Laws 4th Ed. (1963). I cannot, therefore, accept counsel's submission. I hold that the petitioner's consent to her marriage with Munswamy son of Gangaiya was a real consent and dismiss her petition for nullity. She must pay the costs of the action to be taxed in default of agreement.

K.A. STUART
JUDGE

Lautoka,
14th May, 1976.

Messrs. S. Prasad & Co., Solicitors, Lautoka, Solicitors for the Petitioner;
Messrs. Stuart, Reddy & Co., Solicitors, Lautoka, Solicitors for the Respondent.