Chand v Raj [2013] FJHC 82; Case 12LBS0006 (1 March 2013)

IN THE FAMILY DIVISION
THE HIGH COURT
AT LABASA

CASE No: 12LBS0006

BETWEEN:

KOMAL KRISTIKA CHAND receptionist of
Korovatu, Macuata
APPLICANT

AND:

PRAVIN SANJAY RAJ formally of Bucalevu,

Labasa now of Wati-ti Place, Manurewa, Auckland.
RESPONDENT

Appearances : Mr. Sen of Maqbool & Co for the Applicant
No Appearance by the Respondent

DECISION

Introduction

This is an application for an order for nullity of marriage on the grounds that the marriage was void in that no real consent was given in that the consent was obtained under duress. The application is made under Section 32 of the Family Law Act 2003.

The application was served on the respondent at 2/22 Waiti-iti Place, Cledon Park, Manurewa, Auckland New Zealand by registered post on the 3 October 2012. Leave was granted for service to be effected this way on the same date at the Magistrates Court. The Counsel for the Applicant was informed by this Court on 19 November that the said order for service should have been obtained in the Mater's Court, leave was thereafter granted and the matter adjourned for hearing on 26 February 2013.

The Law

An application for nullity of marriage on the grounds that the marriage was void by reason that he consent given was obtained under duress can be made under section 32(2)(d)(i) of the Family Law Act 2003. The Section states:-

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) ...

(e) ....

Duress is defined as:-

"A state of mental competence, whether through natural weakness of the intellect or from fear (whether reasonably held or not) that a party is unable to resist pressure improperly brought to bear" as quoted by Honourable Justice Wati inNitesh Ram –v- Mishell Shazrine Nisha 09/Suv/0486

Duress requires the consent of one party to have been obtained by force or threat of force. The leading case concerning the basis upon which Australian Courts will make a decree of nullity on account of duress is In the Marriage of S [1980] FamCA 27; (1980) FLC 90-820. Watson J defines duress to mean oppression and stated:-

"If there are circumstances which taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage that consent is vitiated by duress and is not a real consent. This is so however the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression."

The facts of the above case were that a 16 year old girl had gone through with an arranged marriage in Australia. She was born in Egypt and her marriage was arranged in accordance with Egyptian Coptic traditions. Her evidence was that she had only gone through with the marriage because her parents had insisted and she could not stand up to them. It was held that she had not given her real consent to the marriage in that she had been "caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture that demanded filial obedience". After this decision a further qualification was put on the notion of duress by Lindenmayer J in In the Marriage of Teves and Campomayor [1994] FamCA 57; (1995 FLC 92-578) where he stated "It can be said that duress does not necessarily need to involve a direct threat of physical violence so long as there is sufficient oppression, from whatever source, acting upon a party to vitiate the reality of their consent."

THE EVIDENCE

The Applicant was sworn on the Holy Ramayan. Her evidence in brief are that she is 23 years old is employed as a receptionist and she lived with her parents at Korovatu outside of Labasa and that she lived with them all through her life. That she married the Respondent on the 22 December 2011 at the Labasa Registry. That she has never met the Respondent prior to the marriage and that the married was arranged by her parents without her knowledge. That her parents had intended for her to get married and to move to New Zealand with the Respondent. She states that her parents were of the view that this would be a way for the family to move to New Zealand. She was threatened by them and was told that if she did not marry she was to leave home and to look for a place to stay. She had nowhere else to go and had no money and could not talk to anyone about it until much later when she managed to talk to her aunt. She was 21 years of age at the time and was unemployed. She did not consummate the marriage a nd the religious ceremony did not take place.

The Applicant's Counsel then called Urmila Devi Prasad as the Applicant's next witness. She was on the Holy Ramayan and gave the following evidence. That she is a businesswoman and resides at Sangam Avenue, Labasa. She is related to the Applicant in that she is the Applicant's mother's sister. That she heard of the marriage of the applicant after she was married and that she was aware and was told of the threat given to the Applicant by her parents. It was after the marriage that the Applicant confided in her about her situation and the threat and pressure from her parents. That she later spoke to the Applicant's parents about their threatening the applicant that if she did not marry she was going to be chased out of home. She then explained to them that the Applicant did not wish to go any further with the marriage. That it was her that informed the parents that she was helping the Applicant obtain a dissolution through the Courts. In her view the Applicant's parents now understood that their daughter is unhappy and the implication of what had happened.

DETERMINATON

The Applicant evidence and that of her Aunt Urmila Devi confirms that there were some threat was used by the parents of the Applicant to make her consent to the marriage. I would hope that those to be sworn in by the holy Ramayan or by any holy book do speak the truth when they give evidence in Court. I have no reason to question the evidence provided by the two people who gave evidence in this instance. The Aunt in particular was adamant that her niece was put under pressure by her parents to marry. Perhaps the fact that marrying the Respondent may give the family an opportunity to go to New Zealand was an added pressure for her. I am satisfied that the Applicant was under duress during the period of her marriage to the Respondent and that the threat was exerted by her parents.

In my view the threats exerted on her fitted the definition of duress as stated by Lindenmayer J in In the Marriage of Teves and Campomayor [1994] FamCA 57; (1995 FLC 92-578) and that is:-

"that duress does not necessarily need to involve a direct threat of physical violence so long as there is sufficient oppression, from whatever source, acting upon a party to vitiate the reality of their consent."

I am further convinced that the fact that the Aunty had no knowledge of the marriage before points to the fact that such a duress was exerted before and at time of marriage and may continue to bear on the Applicant. Justice Lindermayer states this duress as-

"It must be duress at the time of marriage ceremony and not duress at some time earlier unless the effect of this continues to overbear the will of the party to a marriage ceremony at the time of the ceremony itself"

For the above reasons I find that there is basis for the application and I grant the Order accordingly.

FINAL ORDERS

1. That the Application for Nullity is granted and I order that the marriage between the parties solemnised on 22 December 2011 at the Labasa Registry be declared null and void.

Dated 1 March 2013.

HARRY ROBINSON

MASTER HIGH COURT
LABASA