TEJBAI ARJAN HIRANI v Appellant (Petitioner) [1982] EWCA Civ 1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE DIVORCE REGISTRY
(His Honour Judge Roger Willis)
[1982] EWCA Civ 1Case No Case No. 133348 1981Venue Royal Courts of Justice
Between
TEJBAI ARJAN HIRANIAppellant (Petitioner)SHANTILAL MEGHJI HIRANIRespondent
Before
Lord Justice OrmrodLord Justice WatkinsMR. JOHN FOX (instructed by Messrs Jack Bernstein & Co., solicitors, London) appeared on behalf of the Appellant (Petitioner).THE RESPONDENT did not appear and was not represented.Date 5 May 1982
[1](Revised) LORD JUSTICE ORMROD : This is an appeal by a wife petitioner from a judgment of His Honour Judge Roger Willis on 11th February 1982 sitting in the Family Division. He had before him an undefended petition by the wife for a decree of nullity on the ground that she had entered into the marriage under duress, the duress being exerted by her parents. Although it was an undefended suit the learned judge rejected the petition and dismissed it. The wife now appeals. The brief facts are these. At the time the wife was 19 years of age, living with her parents in England. They are Indian Hindus. She made the acquaintance of a young Indian, Mr. Hussain, who is a Muslim. Her parents were very upset when they discovered this and naturally objected to her association with this man. According to Mrs. Hirani's evidence, which the learned judge accepted, her parents immediately made arrangements for her to marry Mr. Hirani. That was in early January 1981. Her evidence went on to say that she had never seen Mr. Hirani, nor indeed had her parents ever seen Mr. Hirani, but, within a fortnight of that first conversation, they -had arranged for her to marry Mr. Hirani at a registry office on 17th January. They put great pressure on her to go through with this ceremony, the threat being:
"You want to marry somebody who is strictly against our religion? he is a Muslim, you are a Hindu; you had better marry somebody we want you to, otherwise pack up your belongings and go. If you do not want to marry Mr. Hirani and you want to marry Mr. Hussain, go."
Of course, she had no place to go and no means of supporting herself at that age and in those circumstances if she did leave the family home, and so, in spite of her opposition, she was forced to go through with the civil ceremony and after that she returned to her parents. She did not go to live with her husband until after the subsequent religious ceremony which took place on 27th February. She said that she was crying all the way through it and was utterly miserable, but after that ceremony she did live with Mr. Hirani for six weeks. After that she left and went to Mr. Hussain. She has never been back and there was no sexual intercourse between her and Mr. Hirani during that six weeks. On that evidence Mr. Fox invited the learned judge to pronounce a decree on the ground of duress, but the judge asked in the course of argument whether that evidence "was anything like enough to say that her mind was overborne by this threat?" Mr.Fox referred the learned judge to two cases, Parojic -v-Parojcic reported in 1959 1 AER, 1 and Scott -v- Sebriqht, which was reported in (1886) 12 P.D. p.31 and the well-known passage in the judgment of Mr. Justice Butt, but the learned judge had Rayden before him and it is clear from his judgment that he was greatly influenced by an extract from a judgment of Sir Jocelyn Simon, then President, which appears in the current Edition of Rayden at page 179 at the end of note (b). It is an extract which comes right at the end of the learned judge's judgment in a case called Szechter -v- Szechter reported in 1971 P., 286. The passage cited in Rayden reads thus:
"While it is insufficient to invalidate an otherwise good marriage that a party has entered into it in order to escape from a disagreeable situation, such as penury or degradation, that was a case where the will of one of the parties hereto have been overborne by genuine and reasonably held fear by the threat of immediate danger (for which the party is not responsible) to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock."
Reading that passage - and one can understand xvhat the learned judge had in mind - he felt that he had to find threat to life, limb or liberty in order to find duress. With respect I do not for one moment think that the learned President intended that result. He was merely contrasting a disagreeable situation with one which constituted a real threat. But the matter can be dealt with quite shortly by referring to a recent case in the Privy Council dealing with duress and its effect on a contract. It is a case called Pao On -v- La-g Yiu Long, reported in 1930 A.C. 614. Lord Scarman, giving the opinion of the Privy Council and dealing with the duress question at page 635 said this:
"Duress, whatever form it takes, is a coercion of the will so as to vitiate consent."
He then quoted a dictum of Mr.

Justice Kerr in another case:

"There must be present some factor 'which would in law be regarded as a coercion of his will so as to vitiate his consent"
'. The crucial question in these cases, particularly where a marriage is involved, is whether the threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual. It seems to me that this case, on the facts, is a classic case of a young girl wholly dependent on her parents, being forced into a marriage with a man she has never seen and whom her parents have never seen, in order to prevent her (reasonably from her parents' point of view) continuing in an association with a Muslim which they would regard with abhorrence. But it is as clear a case as one could want of the overbearing of the will of the petitioner and thus invalidating or vitiating her consent. In those circumstances I would allow the appeal and pronounce the decree nisi. LORD JUSTICE WATKINS : I agree. MR. JUSTICE FRENCH: I agree. Appeal allowed. Decree Nisi pronounced. Legal aid taxation. The brief facts are these. At the time the wife was 19 years of age, living with her parents in England. They are Indian Hindus. She made the acquaintance of a young Indian, Mr. Hussain, who is a Muslim. Her parents were very upset when they discovered this and naturally objected to her association with this man. According to Mrs. Hirani's evidence, which the learned judge accepted, her parents immediately made arrangements for her to marry Mr. Hirani. That was in early January 1981. Her evidence went on to say that she had never seen Mr. Hirani, nor indeed had her parents ever seen Mr. Hirani, but, within a fortnight of that first conversation, they -had arranged for her to marry Mr. Hirani at a registry office on 17th January. They put great pressure on her to go through with this ceremony, the threat being:
"You want to marry somebody who is strictly against our religion? he is a Muslim, you are a Hindu; you had better marry somebody we want you to, otherwise pack up your belongings and go. If you do not want to marry Mr. Hirani and you want to marry Mr. Hussain, go."
Of course, she had no place to go and no means of supporting herself at that age and in those circumstances if she did leave the family home, and so, in spite of her opposition, she was forced to go through with the civil ceremony and after that she returned to her parents. She did not go to live with her husband until after the subsequent religious ceremony which took place on 27th February. She said that she was crying all the way through it and was utterly miserable, but after that ceremony she did live with Mr. Hirani for six weeks. After that she left and went to Mr. Hussain. She has never been back and there was no sexual intercourse between her and Mr. Hirani during that six weeks. On that evidence Mr. Fox invited the learned judge to pronounce a decree on the ground of duress, but the judge asked in the course of argument whether that evidence "was anything like enough to say that her mind was overborne by this threat?" Mr.Fox referred the learned judge to two cases, Parojic -v-Parojcic reported in 1959 1 AER, 1 and Scott -v- Sebriqht, which was reported in (1886) 12 P.D. p.31 and the well-known passage in the judgment of Mr. Justice Butt, but the learned judge had Rayden before him and it is clear from his judgment that he was greatly influenced by an extract from a judgment of Sir Jocelyn Simon, then President, which appears in the current Edition of Rayden at page 179 at the end of note (b). It is an extract which comes right at the end of the learned judge's judgment in a case called Szechter -v- Szechter reported in 1971 P., 286. The passage cited in Rayden reads thus:
"While it is insufficient to invalidate an otherwise good marriage that a party has entered into it in order to escape from a disagreeable situation, such as penury or degradation, that was a case where the will of one of the parties hereto have been overborne by genuine and reasonably held fear by the threat of immediate danger (for which the party is not responsible) to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock."
[2]Reading that passage - and one can understand xvhat the learned judge had in mind - he felt that he had to find threat to life, limb or liberty in order to find duress. With respect I do not for one moment think that the learned President intended that result. He was merely contrasting a disagreeable situation with one which constituted a real threat. But the matter can be dealt with quite shortly by referring to a recent case in the Privy Council dealing with duress and its effect on a contract. It is a case called Pao On -v- La-g Yiu Long, reported in 1930 A.C. 614. Lord Scarman, giving the opinion of the Privy Council and dealing with the duress question at page 635 said this:
"Duress, whatever form it takes, is a coercion of the will so as to vitiate consent."
[3]He then quoted a dictum of Mr.

Justice Kerr in another case:

"There must be present some factor 'which would in law be regarded as a coercion of his will so as to vitiate his consent"
'.[4]The crucial question in these cases, particularly where a marriage is involved, is whether the threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual. It seems to me that this case, on the facts, is a classic case of a young girl wholly dependent on her parents, being forced into a marriage with a man she has never seen and whom her parents have never seen, in order to prevent her (reasonably from her parents' point of view) continuing in an association with a Muslim which they would regard with abhorrence. But it is as clear a case as one could want of the overbearing of the will of the petitioner and thus invalidating or vitiating her consent.[5]In those circumstances I would allow the appeal and pronounce the decree nisi. LORD JUSTICE WATKINS : I agree.[6]MR. JUSTICE FRENCH: I agree. Appeal allowed. Decree Nisi pronounced. Legal aid taxation.

Cited in 1 later judgment