Annotated Bibliography on Comparative and International Law relating to Forced Marriage

8.0 Selected relevant case law

This section includes selected cases from Britain, Scotland, Australia, and Canada, and does not purport to be exhaustive. On the contrary, it seeks to present a glimpse at some of the principal forced marriage cases and demonstrate the development of the case law in this area over the past few decades. Numerous other cases exist which are not included, most notably many immigration/refugee claims where petitioners are seeking asylum due to fear of forced marriage, as well as nullification of marriage cases.

8.1 British cases

1. Singh v. Singh, [1971] 2 All ER 828.

In this case, a 17 year old Sikh girl went through a civil ceremony of marriage arranged by her family. She had not met the groom before the wedding and when she met him she refused to go through the Sikh religious ceremony. She applied for nullity on the grounds that she had only gone through the ceremony out of a sense of duty to her parents and Sikh customs. The court rejected her argument that her consent was vitiated by duress since there was no evidence that her will had been overborne or that her consent had been obtained through fear.

2. Singh v. Kaur, [1981] Court of Appeal (Civil Division).

The appellant was from a Sikh family and had lived in England since he was four years old. He was pressured by his parents to marry a girl from India. He was told that if he refused, his family would be a disgrace to the community and that he would not be allowed to work in the family business. At the age of 21, he agreed to go along with the marriage. Case law stated that duress exists only when the will of one of the parties had been overborne by genuine and reasonably held fear caused by threat of immediate danger to life, limb or liberty. The court held that the evidence in this case fell “far, far short of that.”

3. Hirani v. Hirani, [1983] 4 F.L.R. 232.

A 19 year old Hindu woman living in England became friendly with a Muslim whom her parents did not approve of, so they arranged for her to marry a man neither she nor her parents had met. The marriage took place at a registry office and was followed by a religious ceremony, but was not consummated and the woman left after six weeks. She petitioned for a decree of nullity on the ground of duress exercised by her parents, upon whom she was financially dependent, and who had threatened to turn her out of the home if she did not go through with the marriage. The court granted the decree of nullity, holding that it is not necessary to find a threat to life, limb or liberty in order to find duress, the crucial question being whether the threats or pressure were such as to overbear the will of the individual and destroy the reality of their consent. The duress must involve a coercion of the will so as to vitiate consent. The test for duress is simply “whether the mind of the applicant has in fact been overborne, howsoever that was caused.”

4. Re KR (A Child) (Abduction: Forcible Removal by Parents), [1999] 2 F.L.R. 542.

KR, the youngest daughter of a Sikh family of Indian origin, left home at 16 to live with her sister, who had earlier moved in with a man against her parents' wishes. The father reported KR as a missing person, and the police returned her to the care of her father. When she was 17, KR was taken to India by her parents and placed in custody of her aunt. KR's sister instituted wardship proceedings and KR was made a ward of court, which was continued during her minority. KR persuaded her relatives to take her to the British High Commission in Delhi to establish whether her stay in India was voluntary, and when she stated that she was not in India voluntarily she was flown back to the UK. The judge held that child abduction remains abduction, even when both parents are abductors and the child is nearly an adult.

5. P v. R, [2003] 1 F.L.R. 661.

The plaintiff, a British citizen of Pakistani origin, began a relationship her parents did not approve of at the age of 17. When she was 20, she travelled with her parents to Pakistan for the funeral of her sister. While there, her parents announced that she was to marry her cousin. The plaintiff did not consent and was allegedly forced by emotional pressure and threats of force to go through with the ceremony. Several months later she was able to return to the UK where she went into hiding and applied for annulment of the marriage. The application was allowed, and a decree was granted, holding that any apparent consent shown by the plaintiff was extinguished by the nature of the circumstances.

6. Re M Minors (Repatriated Orphans), [2003] EWHC 852.

Two girls, aged 13 and 15, were born in Pakistan, but came to live in the UK in 1991. Their mother had died, and after the death of their father in 1999, they lived with a paternal relative R. A court order prohibited R from removing them from the UK, but after it expired they were taken to Pakistan where they lived with relatives. Since the girls had inherited land, their relatives forced them to go through betrothal ceremonies. Wardship proceedings were initiated in the UK, and they were repatriated in February 2003. Justice Singer noted that ‘[a]s a society, we have become increasingly aware of the need to preserve the individual's ability to make effective choices, and to safeguard the integrity of a child or young adult from the risk of marriages forced or imposed upon them by undue pressure and sometimes by violent threat.’ The judgement stresses the responsibilities of local authorities and the need for speedy action.

7. In Re SK (An Adult) (Forced Marriage: Appropriate Relief), [2004] E.W.H.C. 3203 (Fam).

A British citizen living in England visited her family in Bangladesh and was detained in Bangladesh against her will for a forced marriage. An application for relief was made on her behalf. Relief was granted by the court, which used its inherent jurisdiction to provide declaratory relief to an adult deprived of the capacity to make relevant decisions. The court gave directions to ascertain whether or not the victim had been able to exercise her free will in decisions concerning her civil status and her country of residence by requiring that she be seen by an appropriate official at the British High Commission overseas.

8.2 Scottish cases

1. Mahmood v. Mahmood, [1993] S.L.T. 589.

A 21 year old woman had married a man and lived with him for three months before seeking to have the marriage nullified on the grounds of duress. She claimed that her parents had threatened to disown her, stop supporting her financially, and send her to live in Pakistan if she refused to marry. Since both her elder sister and brother had been disowned when they refused arranged marriages, this seemed a plausible threat. Because of the specific nature of the threats, the Court sent the case for proof before answer, but held in general that duress to a sufficient extent vitiates consent, and each case depends on establishing the degree of duress.

2. Mahmud v. Mahmud, [1994] S.L.T. 599.

Mahmud was the 30 year old son of a Scottish Muslim family of Pakistani origin, who was put under pressure by his parents and other family members to enter an arranged marriage and was informed that it was his father's dying wish. He lived with a non-Muslim woman, with whom he had one child and was expecting a second, but agreed to go through a marriage ceremony in Glasgow in January 1992 with his cousin from Pakistan. After the marriage, he informed the immigration authorities and his cousin was deported. Pursuing a claim of nullity on the grounds of duress, he argued that he had been made to feel responsible for his father's death, and that he would be exposing his family to shame and degradation if he refused. The Court held that consent ‘had been vitiated by pressure amounting to force with the result that his own will was truly overborn' and a decree of nullity was granted.’ The judgment notes that one cannot assume that a male will be stronger than a female or an older person less swayed by conscience than a younger person.

3. Sohrab v. Khan, [2002] S.C.L.R. 663.

The plaintiff was 16 and still attending school at the time of her marriage in a Muslim wedding ceremony in Glasgow in December 1998 and the defendant was 19 and on a six-month visitor's visa from Pakistan. In 1999 the plaintiff brought an action for declaration of nullity. She alleged both irregularities in the registration of the marriage and lack of consent, arguing that her mother had threatened suicide and to send the plaintiff to live in Pakistan if she refused the marriage. The video of the marriage ceremony, in which the plaintiff's unhappiness is clear, was used as evidence. The Court held that the marriage was invalid, both on the technical grounds that the pretended marriage was solemnised without a marriage schedule and was not properly registered, and on the absence of free consent.

8.3 Australian cases

1. In the Marriage of S, [1980] F.L.C. 90-820.

A 16 year old Egyptian woman participated in an arranged marriage solely out of respect for her parents and to avoid any prejudice to future marital opportunities of her younger sisters. Watson SJ held that duress creating a nullity should be broad enough to encompass non-violent but controlling parental coercion, since in this case she was not threatened, nor was she in any danger. He emphasised the need to regard the coercive action from the subjective vantage point of the unwilling bride.

2. R v. GJ, [2005] NT Supreme Court [unreported].

A 55 year old Aboriginal man pled guilty to unlawfully assaulting and having sexual intercourse with a 14 year old child. The accused believed that his traditional law permitted him to strike her and to have intercourse with her because she had been promised as his bride when she was four years old, but the law of the Northern Territory forbids this. The accused was sentenced for unlawful intercourse, not rape, because his traditional beliefs may have prevented him from realizing she was not consenting. The judge's comments condemn the traditional belief that it is permissible to assault and have intercourse with a child, stating that change is necessary to reconcile the traditional beliefs with the law of the Northern Territory.

8.4 Canadian cases

1. Thompson v. Thompson (1971), 4 R.F.L. 376 (Sask. Q.B.).

In this case the plaintiff had agreed to marry the defendant as a result of his persistent urging, at a time when her resistance was reduced by her state of depression arising from her rejection by another man. Once the wedding plans were underway, the plaintiff felt that she was unable to cancel them because of the social consequences within her family. The plaintiff sought annulment of her marriage, claiming that at the time she was neither capable of understanding nor appreciating the contract and her will was over-borne by pressure. The marriage was not annulled because the plaintiff could not establish that she was coerced or that she did not understand what she was doing.

2. Parihar v. Bhatti (1980), 17 R.F.L. (2d) 289.

The plaintiff was told that she must submit to an arranged marriage yet she repeatedly told her parents and friends she did not want to go through with it. The marriage was never consummated and the couple never lived together. Previous case law stated that the duress sufficient to set aside the marriage must be of such a nature that her powers of volition were so affected, it really was no consent. The court held that in this case the allegations of fear do not go far enough, and at most it would be unpleasant for her.

3. Asser v. Peermohamed (1984), 40 R.F.L. (2d) 299 (Ont. H.C.).

The petitioner married the respondent, a citizen of Kenya, and the parties had not seen each other since the ceremony. The petitioner sought a divorce based on non-consummation of marriage. The petition was dismissed because the marriage was found to be non-existent since the marriage was entered into as a device to facilitate the immigration of the respondent into Canada and contained no matrimonial feelings.

4. S.(A.) v. S.(A.) (1988), 15 R.F.L. (3d) 443 (Ont. U.F.C.).

The applicant was married at the age of 16 in Ontario with her mother's consent. Her mother and stepfather received $500 for arranging the marriage in order to facilitate her husband's immigration, and the applicant alleged that her mother and stepfather pressured her into the marriage. She never lived with her husband nor consummated the marriage, and applied for an annulment, or in the alternative, a divorce. This case gives a clear outline of the Canadian law on parental consent and duress. First, in terms of limited purpose marriages, the judge held that the mere fact that parties go through a form of marriage for a “limited” or “extraneous” purpose will not, of itself, render the marriage invalid. With regards to parental consent, the court found that the quality of consent is not a justiciable issue, and the court is not empowered to determine whether consent was given too readily, or for an improper motive. Moreover, parental consent is not a condition precedent to the validity of a marriage. Turning to duress, the conduct in this case was pressure of a non-physical nature by the applicant's mother and stepfather, who wanted to obtain financial benefit from the marriage. To constitute duress, it must be established that the applicant's mind was so overcome by oppression that there was an absence of free choice. As long as the oppression affects the mind of the applicant in the fashion stated, neither physical force nor the threat of such force is required. The judge held that the applicant had discharged the onus of proof and was entitled to a declaration of nullity.