Kalpana v Suresh [2011] FJHCFD 11; Family Case 0057 Nan of 2009 (20 January 2011)

IN THE FAMILY DIVISION OF THE HIGH COURT
AT LAUTOKA ORIGINAL JURISDICTION
CASE NUMBER:	09/NAN/0057
BETWEEN:	KALPANA
	APPLICANT
AND:	SURESH
	RESPONDENT
Appearances:	Mr. J. Sharma for the Applicant.
	No appearance of Respondent.
Date/Place of Judgment:	Thursday, 20lh January, 2011 at Lautoka.
Judgment of:	The Hon. Justice Anjala Wati.
Category:	All identifying information in this judgment have been anonymized or removed and pseudonyms have been used for all persons referred to. Any similarities to any persons is purely coincidental
Anonymised Case Citation:	KALPANA v SURESH - Fiji Family High Court Case Number: 09/NAN/0057.
JUDGMENT OF THECOURT

MARITAL STATUS PROCEEDINGS - APPLICATION FOR AN ORDER FOR NULLITY - application by wife on the ground that the she did not provide her real consent to the marriage because her consent was obtained under duress by her parents -the ground not established-application dismissed with no order as to costs.

Legislation
Family Law Act No. 18 of 2003.

Cases/Texts Referred To

Scott (falsely called Sebright) v. Sebright (1886) 12 P. D. 2.

Cooper (falsely called Crane) v. Crane [1891 ] P. 369.

Szechter (orse. Karsov) v. Szechter [1971] P. 286.

Re Meyer [1971] P. 298.

Hirani v. Hirani (1982) 4 Fam. L. R. (Eng.). 232.

In the Marriage ofS [1980] FamCA 27; (1980) 42 F.L.R. 94.

In the Marriage of Teves and Canipomayor [1994] FamCA 57; (1994) 122 F. L. R. 172.

Leonards v. Leonards (1961) 2 F.L.R.lll

Dickey, A, "Family Law" 4^th Edition (2002) Lawbook Co. Sydney.

The Application

1. This is an application by the wife to have her marriage solemnised in 2008 nullified on the grounds that she did not provide her real consent to the marriage as the same was obtained under duress.

The Response

2. The husband was served with the application but he did not file any response nor did he appear in court to defend the matter.

The Law

3. Section 32 (1) of the Family Law Act No. 18 of 2003 states that a party can apply for an order for nullity of the marriage on the grounds that the marriage is void. There are certain grounds under which a marriage can be held to be void. In this case the ground is alleged to be pursuant to the first limb of section 32 (2) (d) (i). I will have to state the law in respect of the ground alleged.
4. The first limb of section 32 (2 (d) (i) of the Family Law Act No. 18 of 2003 states that a marriage is void if the consent of either party to the marriage is not a real consent because it was obtained by duress.
5. Duress has been defined as follows:-

o State of mental incompetence, whether through natural weakness of intellect or from fear (whether reasonably held or not) that a party is unable to resist pressure improperly brought to bear: (Scott (falsely called Sebright) v. Sebright [1886] UKLawRpPro 51; (1886) 12 P.D. 21.)

o A person's mind is so perturbed by terror that he or she does not understand what he/she was doing or alternatively if he/she understood what he/she was doing then their powers of volition had been so paralysed that he/ she succumbed to another's will: (Cooper (falsely called Crane) v. Crane [18911 P. 369.)

o If there is a threat of immediate danger to life, limb or liberty: (Szechter (orse. Karsov) v. Szechter [19711 P- 286.)

© If there is a threat of immediate danger to life, limb (including serious danger to physical or mental health), or liberty: (Re Meyer [19711 P. 298 at pp. 306 and 307.)

o If the threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual: (Hirani v. Hirani (1982) 4, Fam. L.R. (Eng.). 232.)

⁰ If one is caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture that demands filial obedience. If these matters operate and a party has no consenting will then there is duress: (In the Marriage of S [1980] FamCA 27; (1980) 42 F.L.R 94.)

o Duress does not necessary need to involve a direct threat of physical violence as long as there is sufficient oppression from whatever source, acting upon a party to vitiate the reality of their consent. It must be duress at the time of the marriage ceremony and not duress at some time earlier unless the effect of this continues to overbear the will of a party to a marriage ceremony at the time of the ceremony itself: (In the Marriage of Teves and Campomayor [1994] FamCA 57; (1994) 122 F. L, R 172)

The Evidence

6. The wife gave evidence by deposing an affidavit through which she testified as follow:- o Her parents forced her to marry the respondent. She could not go against their wishes and say no to the marriage. They were the ones who supported her all throughout and she could not refuse the marriage.

o As a girl she had to follow her parents' wishes and she could not express her sentiments. Her views and concerns were of no concern to anyone.

o She did not speak to the respondent but got legally married.

o The next morning the respondent flew back without even telling her and he never contacted her.

o When he flew back, then she noticed in the marriage certificate that he was a divorcee.

7. Her parents also deposed in one affidavit as follows:-

o They have a permanent resident status in -a Country abroad.

° They have -three children. One - resides in –their Country of Residence and the another resides in another Country.

o The applicant lives in Fiji and she is the only child that lives in Fiji.

© They have come to Fiji regularly for the daughter.

o They were always worried about the daughter and they wanted her to marry a boy from overseas so that she is not left alone in Fiji when they go back.

° One person known to them informed them that there was a single boy from a Country close-by looking for a girl to marry. He said that he found a boy for his daughter.

o On the same day he brought the respondent to their place.

o They liked the boy and approved him for marriage.

© They did not seek the daughter's approval.

o They thought it was best for the daughter to marry the boy as it was good for her future.

• The daughter did not want to marry but they forced her to marry.

o They told her that they were not able to find a boy from overseas and that she had to get married.

© The daughter had not even spoken to the respondent.

o The daughter was legally married.

o The next morning the respondent flew back -.

o He never kept in touch with the daughter and they subsequently found out that he was a divorcee. He never disclosed this to them.

o They realised this when they went through the marriage certificate.

o The daughter was never willing to get married but they forced her.

The Determination

8. The applicant says she got married because she could not go against the wishes of her parents. She therefore did not say no to the marriage. The father states that she had refused and they forced her.
9. The applicant's act of listening to her parents does not amount to oppression or duress. She had the capacity to resist the marriage and she did not. Her powers of volition were not paralysed and she could have walked away from the marriage. She was already independent in that she was working and living away from her parents. She did not have to succumb to their will because a refusal would not have caused loss of dignity to anyone as the marriage was only at the stage of proposals.
10. The real reason to get out of this marriage is obvious from the two affidavits and that, in my judgment, is because the respondent has not kept in contact and he did not disclose his marital status. Aggrieved at that, the applicant and her parents want her out of the marriage. The parents' evidence that they had forced the daughter is in my judgment, created evidence, to assist the applicant.

11- In Leonards v. Leonards (1961) 2 F.L.R.lll a reluctant bridegroom claimed to have married because he had "wanted to placate his father and mother, who desired the marriage, and that he was a tormented person whose heart was not in what he was doing, and that he was under a considerable emotional stress". The court held that pressure of this kind did not constitute duress.

12. Similarly, the applicants getting married because of her parents suggestion and desire that she gets married, and her concern that can not retaliate, does not amount to duress. Parents are duty bound to suggest and talk about marriages to their children. This does not mean that marriage must take place. In this case as well, the suggestion and dictation may have come about, but the applicant was free to exercise her powers to refuse and resist. She did not, and complied with her parents wishes. She cannot complain now.
13. I find it again in this case as well, that everyone including the applicant had the desire to marry a boy from overseas and the respondent came as an opportunity and he got happily accepted by all. After marriage, when things did not work out, the application for nullity was filed.
14. I am not satisfied that the test for duress has been met.

The Final Orders

15. The application for an order for nullity of marriage is refused.
16. There shall be no order for costs.
    

ANJALA WATI

Judge

20.01.2011

To:

1. Mr J. K. Shanna, counsel for the Applicant.
2. Respondent.
3. File Number. 09/Nan/0057.