Forced Marriage: A Violation of Human Rights

Part- 6

By  Munazza Abbasi LL.B  (Hons )

Assessment of the Validity of Forced Marriages. The court must not hesitate to use every weapon in its protective arsenal if faced with what is, or appears to be, a case of forced marriage (Munby J).

The Validity of Forced Marriages

A forced marriage will be considered valid up until the time the court awards a decree of nullity, thus invalidating the marriage. The court limits its powers in awarding this decree nisi (an order made by a court which states that a divorce must take place at a certain time in the future unless a good reason is produced to prevent this) to where there is no valid consent between the parties to the marriage.

Defining Forced Marriage as a Void or Voidable marriage

The difference between a void and voidable marriage is that, a marriage will be regarded as voidable if it once existed, but due to certain circumstances, it had been annulled by the courts and therefore ceased to exist. In such a circumstance, a divorce will be granted. On the other hand, a void marriage is a marriage that never existed in the eyes of the law, therefore a divorce cannot take place. The circumstances on which a marriage may be declared void are on grounds which reflect a public policy objection to the marriage. Only the parties to the marriage can seek an annulment. It is, therefore, important to make a distinction between void and voidable marriages, as there is no element of a public policy objection in voidable marriages. Rather, that a party to the marriage may wish to annul the marriage if there is a major problem in it. A forced marriage does not fall within the grounds on which a marriage is void. It therefore falls within the categories of a voidable marriage, which are contained in the Matrimonial Causes Act 1973: A marriage celebrated after 31st July 1971 shall be voidable on the following grounds only, that is to say— (c) That either party to the marriage did not validly consent to it, whether in consequences of duress, mistake, unsoundness of mind or otherwise… It is evident that s.12 (c) is applicable in the case of forced marriages, as it clearly falls within the scope of the definition of a forced marriage ‘a marriage conducted without valid consent [emphasis added] of both parties, where duress is… invariably a factor.’

Nullity of forced marriages

Previously, it was held that a marriage was voidable on the above ground, only if it could be shown that there was a threat of imminent danger to life, limb or liberty, so that the constraint destroys the reality of consent (per Sir Jocelyn Simon P in Szchter v Szechter. This line of authority was followed by the Court of Appeal in two following cases. Both of which were considered to be valid arranged marriages. In Singh v Singh (1972), a young woman married under emotional pressure from her parents. It was held to be a valid arranged marriage, as she did not marry under a threat to life, limb or liberty, but rather out of a reluctant duty to her parents and religion. Akin to this is the Singh v Kaur (1981) case that involved the husband who gave in to family pressure. His family stated that if he refused to go ahead with the ceremony, he would bring disgrace and dishonour to the family in front of the Sikh community, and was threatened to lose his job (working in a business with his father and brother), his van, and his income. Ormrod LJ stated that it was a case where “the court must have considerable sympathy for the husband”, as he had never lived away from home before, and at the age of 21 considering the situation he was placed under, he had no choice but to go ahead with the marriage. However, it was held that under English law, he was considered an adult, and the decision was up to him whether to give in to his family’s pressure or refuse to go ahead with it. Ormrod LJ held that it was a valid marriage and that: this court cannot possibly…hold that this marriage is invalid by reason of duress unless it can be shown that there were threats to his life, limb and liberty…It would be a very serious matter if this court were…to water down Sir Jocelyn Simon’s test…It would be a most serious thing for this court to introduce any less religious burden of proof in these matters than that which the court decided was right in the case of Singh v Singh… However, this test is no longer the law. A couple of years later, Ormrod LJ rejected this subjective test in the case of Hirani v Hiram (1983) where a young Hindu woman was threatened with eviction from the family home if she did not submit to an arranged marriage, initiated due to her parents’ abhorrence of her dating a Muslim. The Court of Appeal reversed the first instance judge’s decision and expressed that he had erred in law by applying the above subjective test. It was held that: the crucial question…is whether the threats, pressure, or whatever it is, is such as to destroy the reality of the consent and overbears the will of the individual.

This test was applied by Coleridge J in P v R (Forced Marriage: Annulment: procedure, 2003). This case involved the victim being forced into marriage through physical duress, by her mother pushing her head forward to nod three times to convey consent to the marriage. It was held that the victim had not validly consented to the marriage, as her consent had been extracted by physical force, and enormous emotional pressure brought to bear on her (by her mother and brother) while she was in Pakistan. The emotional pressure consisted of her mother blackmailing her that she would commit suicide had the daughter failed to go ahead with the marriage. It can be suggested that the victim was in such awkward circumstances where she was placed in front of her family and community guests and therefore, at that time, had no opportunity to object to the marriage. Coleridge J stated that:

“There is a real stigma attached to a woman… if merely a divorce decree is pronounced and it is desirable from all points of view that where a genuine case of forced marriage exists the court should, where appropriate, grant a decree of nullity and as far as possible remove any stigma that would otherwise attach to the fact that a person… has been married. Munby J described in NS v MI (2006) that there are many ways in which duress or coercion may be brought to bear. In this case, there was a series of situations where the victim was placed under immense emotional pressure and moral blackmail over many months, as the parents threatened to commit suicide if she did not marry her cousin. The Court of Appeal granted an annulment under s. 12 (c) of the Matrimonial Causes Act 1973 where the girl had been “lured to Pakistan on a false pretense (for holiday) … subjected to unrelenting pressure … [d]eprived of her passport as a means of escape … [and] overborne by duress. She did not validly consent, as “her lips may have spoken, but not her mind.” It was held in this case, that pressure of whatever character is a species of restraint under which no valid consent can be made, and very little pressure may suffice to bring about the desired result.

Procedure of nullity

Where the marriage is considered voidable at law, it can be annulled on the basis of lack of consent on the part of the party (or both parties) to the marriage. Emphasis is added here, that the petition will be for nullity, and not for divorce. The rationale behind this is that a petition for divorce may not be the most appropriate legal action for numerous explanations. Initially, access to divorce proceedings is generally much harder to gain, not forgetting the expense that can be incurred from such arrangements. Secondly, and more significantly, undertaking divorce proceedings may create further frictions between the parties and their families. Once a divorce has been granted, in many communities, the status of a divorcee will be seen as stamp of shame and dishonour on the family and the divorcee herself, for the rest of her remaining life. Even once a divorce is successfully granted, the claimant may continue to suffer pressure from her family to return to her matrimonial home. It is for the above-mentioned reasons, to avoid the financial and emotional turmoil of divorce proceedings that a petition against a forced marriage will be made for nullity, instead of a divorce. The advantage in nullity as against divorce proceedings is that it could help the victim to avoid stigma within their community. There is a requirement that there must be a court hearing in every case of nullity, whether defended or not. Thus, proving to be a very distressing experience for the applicants (victims), as the hearing takes place in open court. Oral evidence is required in court, after which the judge will decide whether a decree of nullity should be granted on the basis of the evidence given. In cases of forced marriages, this would prove to be a very unsatisfactory requirement, as it would further aggravate the position between the parties, placing the victim under further immense pressure. Under general forced marriage circumstances, applicants are referred to mediation to see if there are other methods of resolving the issue. Health professionals dealing with cases of forced marriage might sometimes pressure the victim in their care to seek mediation, reconciliation and counselling with their family. This has often proved to be a dangerous and erroneous solution, unwittingly increasing the victim’s vulnerability by placing them under a risk of further abuse, with cases of women being murdered by their families whilst mediation was taking place (FCO, 2007).

Court’s Inherent Jurisdiction in the International matrix of forced marriages

Forced marriage is not only an abuse of human rights, it is an abuse of parental power, which can affect children, primarily girls, suggests Sir Peter Singer. The court’s wardship powers were utilised in the case of Re K.R. (a minor) to protect a young girl from a forced marriage overseas, where she was being held against her will, and to facilitate her safe return to the UK. In this case, the young woman was returned to her family by the police after informing them of her threat of abduction to India by her family for the purpose of forced marriage. The UK then intervened once the woman had been abducted to ensure her safe return to the UK. In another case, I Hogg J considered that the English courts could exercise jurisdiction and make the child a ward of the court, even though she had never lived in the UK. The only connection she had with the UK was her father’s nationality. However, these were “dire circumstances”, as she sought help from the British High commission, and it was held that “the tentacles of this court should stretch towards Pakistan to rescue this child…[i]t is a very unusual thing to do but such were the circumstances that [it was] justified”, and the parens patriae principle was used to protect her (a doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their behalf). In this case, the circumstances were exceptional because the child was only 15 years old, and the law in the UK prohibits marriages before the age of 16. Her protection was necessary as “she is, and always has been, a British child, and was seeking British help. It would therefore, be inequitable to ignore her pleas. This case suggests that the outcome of every case turns on its own facts. Willingness of the court to intervene in the international matrix of forced marriage cases can be seen, not only on behalf of minors, but also adults, although support is more reluctantly offered to adults. Although courts can utilise their powers and ensure the safe return of the victim back to the UK, in some cases this will not be possible. In typical cases where the victim is abducted and taken abroad to be forced into marriage, the victim is often hidden away and kept as far away as possible from the public view. She is often deprived of using the phone or any other methods of communication with anyone apart from the immediate family members, prevented from leaving the house unescorted and a watchful eye is employed to ensure that she does not escape. What solution would the court then be able to provide to victims in such an imprisoned situation? In some cases, therefore, this procedure could be ineffective and too late.