Goundar v Gopal [2006] FJHC 122; HBM0005.2006L (20 February 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBM 005 OF 2006L
NO. 21/2006

BETWEEN:

DAYA MANI GOUNDAR
Applicant

AND:

KRISHNA GOPAL
Respondent

Dr. S. Sahu Khan for the applicant
Mr. S. Sharma for the respondent

Date of Hearing: 20 February 2006
Date of Judgment: 20 February 2006

JUDGMENT

[1] This matter comes before the Court by way of an application for an order of nullity filed pursuant to the Family Law Act 2003.

[2] The applicant produces to the Court an affidavit of service together with an acknowledgment of service.

[3] The applicant apart from relying on the matters contained it the application and the affidavit being part (d) of the application also gave oral evidence before the Court.

[4] The applicant in her oral evidence says that her marriage was an arranged marriage and that the respondent, her husband was resident in Australia. He came to Fiji for the engagement party but she learnt something about him and she decided not to go through with the ultimate marriage. There was pressure from her mother who at one point in time threatened to commit suicide due to the embarrassment if the wedding did not proceed.

[5] Later she says her mother was convinced by other members of the family to change her mind and the ultimate religious ceremony did not take place. She says that she learned that the respondent had previously been married to two ladies and that the relationships had broken down after a few months. She said he was in Fiji for only one week prior to the civil marriage ceremony taking place and she had not met him prior to the time.

[6] In response to questions from the Court, it became apparent that the issues with respect to her mother arose after the civil ceremony and prior to the religious ceremony. She acknowledged in answer to questions from the Court that at the date of the civil ceremony, she was happy to marry the respondent, as she did not know about his character. She says that she has never lived with the respondent as husband and wife and that he in fact left Fiji on the 8^th July 2005, the civil ceremony having taken place on the 4^th July. She says it was late July or early August that she learnt of his prior behaviour.

[7] Section 32 of the Family Law Act 2003 provides as follows:

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

[8] Subsection 2 then deals with marriages that have taken place after the commencement of this Act, that is the 1^st November 2005.

[9] The subject marriage took place on the 4^th July 2005 and the Family Law Act 2003 commenced on the 1^st November 2005. The subject marriage is not a marriage that has taken place after the commencement of the Act but it is a marriage that falls within section 32(1). That section as I have said requires a determination of the marriage as being void.

[10] For the marriage to be void, it is necessary in my opinion, to consider its status as at the date of the marriage, relevantly as at the 4^th July 2005. Notwithstanding that the Family Law Act 2003 repeals the Matrimonial Causes Act, I think it is still necessary to look to that Act to determine what will make the marriage void as at the 4^th July 2005.

[11] Section 6 of the Matrimonial Causes Act defines a void marriage relevantly where:

"(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 of the marriage contract."

[12] The issue raised for the consideration of the Court was that it was not a real consent and that is borne out by part (c) of the application.

[13] The evidence placed before the Court by the applicant is in my opinion such that I cannot be satisfied that there was no real consent to the civil marriage ceremony and that is the only ceremony that concerns the Court. There certainly was a withdrawal of that consent shortly after the ceremony took place. That of course does not impact upon the situation that existed as at the 4^th July 2005.

[14] As I have said the evidence of the applicant, who gave very clear evidence was that she had clearly consented to the civil marriage ceremony and there was no duress or in my opinion fraud. Subsequently, the situation may well have been different. Regrettably I come to the conclusion that there is no alternative but to dismiss the application.

JOHN CONNORS
JUDGE

At Lautoka
20 February 2006