IN THE HIGH COURT OF FIJI
AT LAUTOKA
FAMILY DIVISION

ORIGINAL JURISDICTION
PRINCIPAL RELIEF

HBM 006/09L
FAMILY CASE NO. 0039/2009

P P
Applicant

AND:

R P
Respondent

Appearances: Dr Sahu Khan for Applicant
Mr H Ali Shah for Respondent

Date of Hearing: 6 March 2009
Date of Judgment: 11 March 2009

JUDGMENT

Nullity; s. 32(2)(d)(i) Family Law Act 2003 – duress; ‘No real consent’ – meaning of ‘duress’ under Family Law Act; Civil standard; Impact of ‘no fault’ principle on nullity applications; ‘Slap’ vs ‘beating’ – level of physical violence; Physical violence not required; Patriarchal norms relevant to ‘duress’; Paternal power & authority; Cultural power & authority; Power & authority of tradition; Religious precepts & beliefs; Nature & role of ‘obedience’ as ‘duress’; ‘Force’ & ‘pressure’ as ‘duress’

APS and DAS (FHC No. 0883/07, 14 January 2008)
Hirani v. Hirani (1983) 4 FLR 232
LPS and SDM (File No. 0809 of 2008, 21 January 2009)
MIR and NNJ (FHC No. 08/2007, 28 February 2008) 
Mahmood v. Mahmood (1993) SLT 599
Pao On v. Lau Yiu Long [1980] AC 635
Pre and VPra (HBM No. 33 of 2007/L, 25 January 2008) 
SS and EM (File No. 0515/2008L; HBM 66/2008L, 30 January 2009)
Singh v. Singh [1971] P. 326, [1971] 2 WLR 963, [1971] 2 All ER 828
Singh v. Singh (2005) SLT 749, (2005) SCLR 1000, (2005) SLT 749
Szechter v. Szechter [1971] P. 286, [1971] 2 WLR 170, [1970] 3 All ER 905

1.	BACKGROUND

This application for nullity is made by the wife, Ms P P. The marriage took place at the Lautoka Registry of the Office of Births Deaths and Marriages in the Republic of Fiji Islands on 11 April 2007. The husband, Mr R P, was born in Fiji however is resident now in Vancouver, British Columbia, Canada and was so resident as at the date of the marriage.

1.1	Details of the parties appear on the Certificate of Marriage, copy of which was provided to the Court together with the application and was identified as Exhibit ‘A1’ by Ms P at the hearing on 6 March 2009.

1.2	The application provides that the ground is ‘No real consent given’. 

1.3	Albeit Mr P was not present at the hearing, both parties were represented by Counsel and the Affidavit of Acknowledgement of Service in respect of Mr P was filed with the Court on 28 February 2009.

2.	EVIDENCE BEFORE THE COURT

Ms P and her mother, Mrs R D, attended the hearing. Each gave evidence. In addition, the Certificate of Marriage provided evidence useful to the Court.

2.1	(a)	Certificate of Marriage: The parties’ particulars are described in the Certificate of Marriage as follows:

Ms P P

Date of Birth - 2 April 1987
Age at Marriage – 20 years
Occupation – Domestic Duties
Conjugal Status – Spinster
Birthplace – Lautoka Hospital
Usual place of residence – Soroko, Ba

Mr R P

Date of Birth – 26 December 1981
Age at Marriage – 25 years
Occupation – Painter
Conjugal Status – Divorcee
Birthplace – MM Hospital, Ba
Usual place of residence – Vancouver, British Columbia, Canada

2.2	The marriage took place on 11 April 2007 and was registered on that day, the Registration Number being 1029855.

2.3	(b) Ms P: Ms P told the Court that she did not want to marry. She said that Mr R P was from Canada and it was an arranged marriage. She met Mr P ‘about a week’ before the civil ceremony when he came to her house. She had not met him, known him or known of him before that time. 

2.4	After the marriage took place (the civil ceremony), Ms P said she discovered that Mr P was divorced. This was not welcome news, albeit she had decided she did not want to marry before she learned of Mr P’s marital status and had told her mother and father that she did not want to marry.

2.5	Ms P said:

I told my father I did not want to marry. My father forced me to marry him [Mr P]. My aunties and parents and grandma were all involved in the arrangements. I spoke to my mother and said to her that I did not want to get married. She told my father. My father said that I have to get married. My father slapped me. My grandmother said that I had to get married.

I didn’t want to go overseas. I wanted to stay with my parents. He [Mr P] was talking as if he owns Canada. He said: ‘Why are you living like this – in a small village?’ I didn’t like him at all. 

2.6	Ms P said that after the civil ceremony there was a ‘small party at home’. She did not fill in any forms to go to Canada.

2.7	In response to questions from the Court, Ms P said that she ‘didn’t want to get married’. She said she ‘wanted to stay’ with her parents. She did not want to go overseas. However, her grandmother said: ‘I am getting old and I want to see you married before I die.’ Her father ‘forced’ her to get married, Ms P said. Asked what she meant by ‘forced’, Ms P said her father would not accept that she did not want to marry, neither when she said that to him or when her mother told him. 

2.8	Ms P repeated that her father ‘slapped’ her when she told him she did not want to marry. She said that it is the ‘Indian custom that we must obey our father’. She said that she was ‘not allowed’ to disobey, even though she did not want to marry.

2.9	Ms P said that Mr P stayed in Fiji for one week after the civil ceremony then ‘went back to Canada’. She said that she was able to make the application for nullity only because her uncle supported her in doing so. She said that her uncle (father’s brother) came to Fiji from Aotearoa/New Zealand where he lives, and when he learned that MsP was married but did not want to marry, he said that she should get a divorce or a nullity. He made all the arrangements. Her father, she said, ‘was against it and he would not pay. My uncle paid for it’. 

2.10	She said that the fact that Mr P was divorced and she did not find out until after the marriage was important. She did not want to marry someone who was divorced, she said, because she was a single person. However, she said, she had not wanted to get married at all, so that although Mr P’s divorcee status was important, whether or not he had been married and divorced she did not want to marry him, and had not wanted to marry him at all, at any time. She said that she did what she could to stop the marriage by telling her mother and telling her father. Neither what she said nor what her mother said made any difference to her father’s determination that she should marry Mr P.

2.11	(c)	Mrs D: Ms P’s mother, Mrs R D, said that Mr P was from Canada. She said that her husband ‘arranged the marriage. My daughter did not agree to marry’. She said:

He [father/husband] told her to get married because his mother was getting old, and [Ms P] was forced into marriage.

2.12	Asked what she meant by ‘forced’, Mrs D said that Ms P’s father ‘scolded her and also beat her into saying "yes" to the marriage’.

2.13	Mrs D confirmed that neither she nor her daughter knew prior to the marriage that Mr P was divorced. She said that she was ‘upset about it’ as was her daughter and her daughter ‘did not agree to the marriage in the first place. But her father was forcing her into marriage’. 

2.14	As to the marriage itself, after the civil ceremony, she said, the family ‘had a small engagement party at home’. As to her daughter’s advice to her that she did not want to marry, Mrs D said that Ms P told her before the marriage ceremony that she did not want to marry. Mrs D then went to her husband (Ms P’s father):

I did speak to him [her father] but he was angry and in our custom and tradition it is necessary to follow the husband and the father. 

2.15	Asked about her daughter’s wishes, Mrs D said:

Yes, my daughter was always against getting married to this man. She did not want to marry except that her father forced her. She was not wanting to go overseas. But my husband wanted that. 

2.16	She said that her family members spoke to her husband:

The aunties and other members of the family went to my husband and said the girl did not want to marry. I spoke to my husband. He would not listen to any one of them. He would not listen to me.

2.17	She said that her daughter ‘wouldn’t have married except that my husband forced her’.

2.18	As for the nullity application:

My husband’s brother came from New Zealand in November 2008. He spoke to my husband and brought my daughter to Dr Sahu Kahn. He did all the things, footed all the bills and did everything required.

2.19	Asked by the Court as to Ms P’s father’s position in relation to the application for nullity, Mrs D said that ‘after his brother had spoken to him, he was normal again. He did not object but he didn’t want to pay for the nullity’. 

2.20	Mrs D said that she had not thought it was suitable for her daughter to marry Mr P. It appeared from her evidence that influential in this was the fact that Mr P was a divorcee, discovered after the marriage, and that (prior to the marriage) MsP had said she did not want to marry him and did not in fact want to be married to Mr P.

3.	LAW OF NULLITY

‘No real consent given’ as a ground for nullity appears in the Family Law Act 2003 under section 32:

Nullity of marriage

32. -	(1)	An application under this Act for an order of nullity of marriage must be based on the ground that the marriage is void.

(2)	A marriage that takes place after the commencement of this Act is void if –

(a)	…;

(b)	…;

(c)	…;

(d)	The consent thereto 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)	…; 

and not otherwise.

3.1	From the evidence given by Ms P it is apparent that her application is based upon the proposition that her ‘consent’ to the marriage was ‘obtained by duress’. She (and her mother Mrs D) raised the matter of Mr P’s marital status; however, from both Mrs D and MsP it is apparent that was not the fundamental matter insofar as Ms P’s ‘consent’ was in issue, nor in terms of the priority she gave to it in her evidence. Rather, Ms P did not want to marry, told her father and mother so and according to her evidence despite this she was ‘forced’ to marry Mr P. The question then is:

•	whether this assertion and the evidence support her application; and

•	whether the ‘force’ asserted by her and from the evidence qualifies for the purpose of ‘lack of consent’ within the meaning of the Family Law Act.

3.2	That is, does the evidence bring the application within the meaning of ‘duress’ as required by the Family Law Act section 32(2)(d)(i)?

3.3	There was no evidence in relation to the other ‘no real consent’ provisions of section 32(2)(d) – (ii) and (iii). They have no relevance to the present application.

4.	MARRIAGE ‘BY AGREEMENT’ vs ‘FORCED’ MARRIAGE

The marriage between Ms P and Mr P was an ‘arranged marriage’ and, it would appear, a ‘forced’ marriage. 

4.1	Ms P’s evidence is that she did not want to marry and – effectively - had no control over the timing of the marriage, the ‘choice’ of marriage partner, where she should live after the marriage or indeed as to any of the matters pertaining to the marriage at all. She said that not only did she not want to marry, but she did not want to leave her family and Fiji – however, as Mr P is now permanently resident in Canada and returned to Canada shortly after the civil ceremony, it is evident that her wish in this regard was to be ignored also. Her mother, Mrs D’s evidence is that Ms P’s father wanted Ms P to marry Mr P and to live overseas with him, and that MsP did not wish to do either. Further, that this made no difference to Ms P’s father’s determination.

4.2	Ms P said she told her mother and her father that she did not want to marry. Mrs D’s evidence confirms this. Ms P said that when she relayed this to her father, her father slapped her and would not change the arrangements. Mrs D said that Ms P’s father ‘scolded’ Ms P and ‘beat’ her. There is, in my view, a difference between a ‘slap’ and ‘beating’. However, also in my view there is no requirement that a person suffer a beating or violent physical abuse to signify a lack of consent or ‘duress’ for the purpose of a nullity application.

4.3	In my opinion, the law is brought into disrepute if it requires a young woman (or young man – or any woman or man) to undergo (say) prolonged physical abuse, beating, bashing and brutalization prior to marriage to establish that the ‘consent’ procured to the marriage is ‘ no real consent’ for the purpose of nullity law. Some of the authorities, at least, appear to require this, or at least that there be stark evidence of ‘force’ or ‘duress’ as evidenced not only by physical means, but by stark physical imposition..

4.4	United Kingdom reports by government or government bodies have purported to see a distinction between ‘forced’ or ‘coerced’ marriages and ‘arranged’ marriages. The report Forced Marriage: A Wrong Not A Right says:

•	A forced marriage is conducted without the valid consent of one or both parties and is a marriage in which duress – either physical or emotional – is a factor;

•	An arranged marriage is entered into freely by both people although their families take a leading role in the choice of partner.

4.5	As has been said elsewhere by this Court, ‘arranging’ a marriage for a son or daughter, with the marriage ‘partner’ selected by the parent or parents (or a ‘marriage broker’ or some other relative) is to take the choice and right to marry freely out of the hands of that child. Parents do not have a right to do this: under the law of Fiji and in accordance with international Conventions and Covenants to which Fiji subscribes, it is a human right to determine whom one will marry, when one will marry and whether one will marry at all. Fiji’s subscription to these international treaties is through signature and ratification, through domestic legislation, and/or through the provisions of the Constitution which affirm that the laws of Fiji are to be interpreted bearing in mind developments in international law.

4.6	The Family Law Act says this Court must apply the Convention on the Elimination of All Forms of Discrimination Against Women in decision-making: s. 26 That Convention does not give any imprimatur at all to ‘arranged’ marriages – indeed, the opposite is so. How a family can ‘take a leading role in the choice of partner’ and this be a marriage conforming to the principles espoused in the Convention on the Elimination of All Forms of Discrimination Against Women and other international treaties providing for equal rights and entitlements of women (and indeed all persons) in the free determination to marry is difficult to accept. 

4.7	That a daughter or son ‘goes along’ (or may ‘go along’) with the parents’ wishes because they are taught to obey and within the culture and tradition of their family and community they are obliged to do so cannot turn the marriage into one accorded a valid consent.

4.8	Traditionally, the authorities dealing with coerced or forced marriages have relied upon physical force and overt physical force at that to signify a lack of consent. These authorities should, in my view, no longer hold sway. Rather, it is essential to affirm the rights and freedoms that are every humanbeing’s entitlement, rather than to give imprimatur or support to paternalistic or even patriarchal principles that purport to govern the family.

4.9	The notion that a party must be subject to ‘kidnap’ or be transported by subterfuge to another country, where s/he suddenly finds her/himself destined for marriage to a stranger, or that stark physical abuse must be directed at her/him, or at least that a parent must threaten suicide or self-harm demonstrably before ‘duress’ can be accepted as operative turns upon its head the proposition that marriage is (or should be) a state freely entered into and a status which a person freely chooses. However, cases such as Singh v. Singh (2005) SLT 749, (2005) SCLR 1000, (2005) SLT 749; Mahmood v. Mahmood (1993) SLT 599; Hirani v. Hirani (1983) 4 FLR 232; Singh v. Singh [1971] P. 326, [1971] 2 WLR 963, [1971] 2 All ER 828; and Szechter v. Szechter [1971] P. 286, [1971] 2 WLR 170, [1970] 3 All ER 905, amongst others, give an indelible stamp to this sort of thinking, or may be interpreted as doing so. In my opinion, these notions should not dictate the law of Fiji in the 21st century just as they should have no place in countries which profess to adhere to international standards of rights and freedoms.

4.10	Albeit it was referred to in Singh v. Singh with approval, I am not persuaded that Fraser on Husband and Wife, 2nd edn, should be taken as restricting notions of force to ‘terror’, or that a person should be ‘terrified’ into compliance in order to come within the bounds of ‘duress’ under the Family Law Act. Fraser says that if either party ‘is compelled by force to marry, or by some rational fear is terrified into compliance, the law holds that there has not been given that free consent necessary to show an agreeing mind’: at 444 If force comes about through cultural and/or religious pressure, traditional precepts imposed upon a party, or parental authority which commands obedience, it seems to me that that can be sufficient to oust the reality of consent. That a person is terrified, terrorised or subjected to terror cannot be the last word on lack of consent.

4.11	In Hirani v. Hirani the court framed as the crucial question ‘whether the threats, pressure or whatever it was, was such as to destroy the reality of consent and overbear the will of the individual’. If this is broad enough to take into account cultural, religious and traditional pressures, including parental authority, then it for present day application. Similarly with Pao On v. Lau Yiu Long [1980] AC 635 where it was said: ‘Duress, whatever form it takes, is a coercion of the will so as to vitiate consent.’ (Emphasis added) 

4.12	In a series of cases this Court has considered situations and circumstances that do not encompass overt threat/s of violence, actual violence, or coercion akin to ‘kidnapping’ or preventing a person from leaving a foreign country so as to ensure their participation in a marriage ceremony. Rather, recognition is given to the aforesaid pressures – cultural, religious, traditional – including the perceived requirement to obey a parent: APS and DAS (FHC No. 0883/07, 14 January 2008); Pre and VPra (HBM No. 33 of 2007/L, 25 January 2008); MIR and NNJ (FHC No. 08/2007, 28 February 2008) amongst others.

4.13	This Court has also recognised that physical violence constituted by some force akin to a ‘slap’ and/or by abusive telephone calls or the like can constitute pressure for the purpose of ‘force’ amounting to ‘duress’ within the meaning of the Family Law Act: LPS and SDM (File No. 0809 of 2008, 21 January 2009); SS and EM (File No. 0515/2008L; HBM 66/2008L, 30 January 2009) amongst others.

4.14	Once ‘matrimonial offences’ were abolished for dissolution (divorce), with ‘no fault’ divorce becoming the key to the grant of dissolution of marriage, the importation of criminal or quasi-criminal standards of proof and precepts into matrimonial or family law could not longer be supported (if it ever ought to have been). This must follow for nullity: the civil standard of proof, and civil principles and precepts must apply accordingly. 

4.15	In my opinion, if a daughter (or son) tells a parent (in the present case, the father) that she does not want to marry but is nonetheless required by the parent to do so, the telling being met with a slap, then this is sufficient to amount to ‘duress’. A daughter (or son) should not have her (or his) expression of a desire not to marry responded to by the demand or requirement that she (or he) marry nonetheless. If that demand or requirement is ‘backed’ by a physical expression of force – here, a slap or (in the mother Mrs D’s words) a ‘beating’ (accompanying a ‘scolding’) which results in the child’s ‘consent’ by going through the marriage ceremony because s/he genuinely sees or contemplates the possibility of no alternative, in my view section 32(2)(d)(i) of the Family Law Act is met in its ‘duress’ component.

4.16	An additional factor here is the age of Ms P at the time of the marriage: 20 years. This Court accepts that youth can be relevant as an added element, in that it may be more difficult for a young person to express her/his true wishes to a parent, than for someone who is older. The will to obedience may be stronger in a younger than an older person. At the same time, this is not a decisive factor for, as this Court has recognised, a child is the child of her/his parents ‘forever’. The requirement to obey can be potent, even, for someone who is fully mature and who operates outside the family as a fully independent being. Within the family, parental authority and the traditional and cultural requirement to comply with a parent’s wishes can operate despite expressions of independence in the world and the capacity to live and work independently ‘outside’ the boundaries and confines of family life. Where religious belief is present, too, often with inbuilt notions of parental pre-eminence, paternal authority and the requirement to obey, older children can still be ‘locked in’ to the child-parent relationship of infancy and youth.

4.17	Despite her youth, Ms P did have the capacity to make her wishes known to both her father and mother. This did not have the effect she wished. She then considered herself bound by her father’s demand that she marry. The evidence confirms that he did not accept that his daughter had the right to make her own determination as to marriage. This may have been so whatever Ms P’s age, however, the Court accepts that her being below the age of 21 years, which is the age of majority in Fiji, can be relevant to the question of ‘consent’.

4.18	In the present case it must also be taken into account that there has been considerable delay between the date of the marriage and the date of application for nullity. The marriage, as noted, took place on 11 April 2007. The application for nullity was signed by Ms P on 1 February 2009 and filed with the Court on 3 February 2009. This delay is, however, explicable by reference to the way in which the application for nullity has come about. The evidence is that it was only with the arrival of Ms P’s father’s brother in Fiji (traveling from Aotearoa/New Zealand where, it is understood, he lives) that Ms P was able to institute proceedings to end the marriage. During the intervening period, there was no cohabitation of the parties – which could not in any event have occurred unless and until a religious or traditional wedding took place between Ms P and Mr P. All that existed between Ms P and Mr P was the formal ceremony which formally put them into the category of ‘wife’ and ‘husband’.

4.19	Had the parties gone through the religious ceremony – and then lived together as wife and husband, the circumstances would be very different from those pertaining here.

4.20	A caution must, however, be expressed. As this Court has said previously, an applicant cannot come forward simply asserting ‘force’ or ‘pressure’ and expect nullity to follow. Nullity is not a question of ‘agreement’ between parties to a marriage that the marriage should be ended. It is for the Court to decide this, not for the parties to come to agreement then expect the Court to endorse their decision. Where any of the grounds are asserted, then the party or parties must discharge the onus of proof.

4.21	The onus is on the applicant/s to prove, on the balance of probabilities, that s/he or they or one or other of them suffered duress by reason of which s/he went through the marriage ceremony albeit s/he did not wish to do so, and did not do so freely. This means that evidence of what constitutes the ‘force’ or ‘pressure’ said to have been exerted must be provided. It also means that that evidence must be linked to the ‘consent’ given to the marriage.

4.22	If the evidence does not meet the requirements of the Family Law Act in that it does not properly discharge the onus of proof, then nullity cannot and will not be granted. However, if there is evidence before the Court that satisfies that onus, then nullity will be granted.

5.	Conclusion

International instruments have been referred to earlier. In particular the Convention on the Elimination of All Forms of Discrimination Against Women has been noted as appearing in section 26 of the Family Law Act. As observed, the right of every person to enter into marriage freely and without pressure or coercion is confirmed in these international instruments. It is as well for the Court to cite the principle explicitly:

State parties shall ensure on a basis of equality of men and women … the same right freely to choose a spouse and to enter into marriage only with their full and free consent.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 16(1) (b)

A woman’s right to chose a spouse and enter freely into marriage is central to her life and her dignity and equality as a human being.General Recommendation No. 21, UN Committee on the Elimination of All Forms of Discrimination Against Women

Marriage shall be entered into only with the free and full consent of the intending spouses.Universal Declaration of Human Rights, Article 16(2)

5.1	This vital principle has not been met in the entry into marriage by Ms P and Mr P. The ‘free and full consent’ that founds marriage did not exist at the time of the marriage, as clarified by the evidence presented to the Court by Ms P and Mrs D.

5.2	This means that the marriage between Ms P and Mr P should be annulled upon the ground that there was ‘no real consent’. Ms P was not a freely consenting party in any true meaning of that expression. The marriage that took place was not based upon her full and free consent, but upon the wish of Ms P’s father imposed upon her by reason of his parental authority and her belief engendered by culture and tradition, that she must obey and had no choice but to do so. 

5.3	There being no valid consent, section 32(2)(b) of the Family Law Act properly applies.

6.	Final Matter – Time

Under the Family Court Rules, where a Respondent is resident in the Fiji Islands, the time that must elapse between filing of a nullity application and its hearing is forty-two (42) days. Where a Respondent is resident overseas, the time is fifty-six (56) days. 

6.1	In the present application, both parties are represented by Counsel. In light of representations made by Counsel, time is abridged.

DECLARATION AND ORDERS

The following declaration and orders are made:

1.	The marriage of P P and R P taking place at Lautoka in the Republic of the Fiji Islands on 11 April 2007 is declared void under section 32 of the Family Law Act.

2.	The marriage is hereby annulled.

3.	No order as to costs.

Jocelynne A. Scutt
Judge

Suva
11 March 2009