Ismail v Choudhry [2016] EWCA Civ 17

Case No B6/2014/0612 & A & C

[2016] EWCA Civ 17

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM Kingston-upon-Thames County Court & Family Court

Her Honour Judge Williams

KT11D00364

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/01/2016

Before

LORD JUSTICE PATTEN

LADY JUSTICE KING

DAME JANET SMITH

Between

Noshin IsmailAppellant

Tariq Ismail ChoudhryRespondent

Noshin Ismail the Appellant in person assisted by her McKenzie friend for in person

Arlene Small (instructed by Arani & Co Solicitors) for Respondent

Hearing Hearing date: Wednesday 18th November 2015

Judgment

Lady Justice King :

[1]This is an application for permission to appeal, with the appeal to follow if granted, in respect of an order of Her Honour Judge Williams dated 23 July 2013, whereby she declared that a marriage which took place in Pakistan on the 15 December 1993 between Noshin Ismail (the wife) and Tariq Choudhry (the husband) was valid and therefore recognised in this jurisdiction.

[2]Unhappily, as a consequence of the appellant’s notice of appeal dated 7 August 2013 having been lost by the court, there has been significant and unacceptable delay in this case. It was not until February 2014 that the appellant’s notice found its way to the Court of Appeal. By the time the matter came to be considered on paper by Lord Justice Atkins, on 2 February 2015, the wife (acting as a litigant in person) had filed a raft of documents which had not been before the judge at first instance and upon which she seeks to rely for the purposes of her appeal.

[3]Atkins LJ adjourned the application for permission and the application to produce fresh evidence to this court and saying ‘if this new material is not to be admitted on appeal the appeal must fail. However, if it is to be admitted then there is a reasonable prospect (as things stand at the moment) of the appeal succeeding.’

[4]The wife has raised numerous grounds of appeal and produced quantities of documents covering a number of issues, not all of which were canvassed at first instance. The issue before this court is a narrow one, namely whether by looking at either the court records available to the judge at trial, or at court orders which have become available since the hearing, it can be shown that the judge was wrong in having made a declaration that the marriage in question was valid.

[5]The court having concluded, as it does, that the judge was wrong to declare the marriage valid, it must then consider whether it should substitute its own declaration, to the effect that the marriage was in fact invalid or whether the case must, now, notwithstanding the delay, be remitted for re-hearing.

[6]In order to conduct this exercise the court has granted the wife permission to adduce as fresh evidence an order made by the Leicester District Registry on 27 January 2014 to which reference will be made later in this judgment.

Background

[7]The wife has been married three times.

First Marriage to Mr S

[8]On 6 November 1983, the wife first married a Mr S by way of Nikah in India. This ceremony was followed on the 20 March 1984 by a civil ceremony in the UK. Five years later, on 14 July 1989 a decree nisi was pronounced in England followed by the decree absolute dissolving that marriage under English law. The wife remains vehement in her protestation that, notwithstanding the English decree absolute, she remained married to Mr S at all material times as the marriage was never formally dissolved through pronouncement of a Talaq. This she submits means that both her subsequent marriages are void.

[9]In support of this submission the wife says that in November 2013 (four months after judgment) she received (from India) a notarised marriage certificate indicating that she was still married to Mr S. It was only on 28 October 2015 that she was formally divorced by the Sharia Divorce Council in Birmingham. The court has not engaged with this submission which is not relevant for today’s purposes and accordingly has not examined any of the documents said to support the wife’s contentions. The court has considered the matter, as the judge did, that as of the granting of decree absolute the wife’s marriage to Mr S was dissolved and she was free to marry again.

[10]So far as this first marriage is concerned then, it seems clear that the marriage to Mr S was dissolved under domestic law in 1989 but only as to Sharia Law in 2015.

Second Marriage to Mr A

[11]In July 1988 the wife contracted her second marriage with Mr A. On this occasion the Nikah took place in Leicester. This was followed by a civil ceremony in England on 1 March 1990. On the 17 August 1993, a decree nisi of nullity was granted at the Leicester County Court. Although this court has not seen a copy of the nullity petition, it is agreed that the ground for nullity was that, as of the date of the civil ceremony in March 1990, Mr A remained married to his former wife; as a consequence his marriage to the wife is void, pursuant to Section 11 Matrimonial Causes Act 1972.

[12]On 3 November 1993 an order for decree absolute (the ‘first decree absolute’) was made by the Leicester County Court saying that : It is hereby certified that the said decree was on the 15 Day of September 1993, made final and absolute and that the said marriage was by law void and that the said petitioner was and is free from all bond of marriage with the said respondent.

[13]Astonishingly, after 20 years had elapsed, on 27 January 2014 the Leicester District Registry issued an amended pronouncement of decree absolute (the ‘amended decree absolute’) which was sent to the wife. It is this order that this court has allowed to be adduced as fresh evidence. The accompanying letter said that the date given for the decree absolute in the order of 3 November 1993 (namely 15 September 1993) was wrong and substituted an amended date for decree absolute of 26 October 1993.

[14]It can be seen by reference to the date of the amended order that, as of July 2013 when the judge was hearing evidence and examining documents in order to determine whether the wife’s third marriage was or was not valid, the evidence before the court was that the date of decree absolute in relation to the wife’s second marriage to Mr A was 15 September 1993; the evidence that the correct date for the decree absolute was in fact the 26 October 1993 and not 15 September 1993 would not have been available to, or ascertainable by, the court or to the parties, given that the amended order post dated the judgment by some 7 months.

The third marriage to Mr Choudhry (the husband)

[15]The wife’s third marriage, and the one with which this court and the court below are concerned, was to the husband in this case, Mr Choudhry. Before considering the chronology in relation to this marriage, I should interpose to record that it is common ground that, for there to be a valid marriage between a man and a woman where the woman has been previously married there must, under Sharia Law, be a period of 3 months between a decree of divorce or nullity before she may marry again. This is called Iddah. This period of time is required in order to ensure that the prospective bride is not pregnant by her former spouse at the time of her remarriage. It is against the backdrop of the requirements of Iddah that the wife’s third marriage must be examined.

[16]On 27 March 1992 the wife and husband were married by Nikah in the UK. It was accepted by the husband at trial that this was not a valid marriage as, on any analysis, the wife remained married to Mr A at that time. On 15 December 1993 the husband alleges that he and the wife were married in Lahore, Pakistan by way of a second Nikah ceremony. The wife denies that any such ceremony took place and that, even if it had, it would not have been a valid marriage.

[17]It was the validity of this third marriage that was the subject of the finding of fact hearing which took place in front of the judge.

The Trial

[18]During the course of the trial, the wife produced what purported to be a photocopy of the decree nisi nullity certificate from the Leicester District Registry relating to the dissolution of her marriage to Mr A; it was dated 17 August 1994. The judge made enquiries at the Leicester District Registry about this certificate and at her request, copies of both the decree nisi and the ‘first decree absolute’ relating to the marriage with Mr A were sent through to the judge. When they arrived, the sealed orders confirmed that the decree nisi had in fact been made on 17 August 1993 and not 1994. This led to the inevitable finding by the judge that the decree nisi put before the court, had been falsified by the wife with a view to deceiving the court into believing that there was incontrovertible evidence that the wife was still married to Mr A at the time of the purported marriage to the husband on 15 December 1993.

[19]The judge used the two dates on the sealed orders (namely decree nisi of nullity from Mr A on 17 August 1993 and ‘first decree absolute’ of nullity on 15 September 1993) as the relevant dates upon which to base her determination as to the validity of the third marriage.

[20]In the event, the judge, having found both parties’ oral evidence to be wholly unsatisfactory, made her findings in reliance upon documentary evidence (including the decree nisi and ‘first decree absolute’) and declared the marriage to the husband to be a valid marriage.

[21]On 27 January 2014 the wife was sent the ‘amended decree absolute’ of nullity in relation to her marriage to Mr A. The order amended the date of the decree absolute of nullity to 26 October 1993 from 15 September 1993.

[22]In April 2014 the wife, having already filed her notice of appeal, now applied to adduce a raft of fresh evidence, which fresh evidence included the ‘amended decree absolute’. Given the judge’s finding about the falsified decree nisi in relation to the wife’s marriage to Mr A referred to above, this court has itself made enquiries with the Leicester District Registry in order to ascertain the authenticity of this critical document. Happily, although the file has been destroyed, the orders made were still available and the court has been sent a sealed copy of the ‘amended decree absolute’. The court is accordingly satisfied that the order of the 27 January 2014 is genuine and the decree absolute of nullity from Mr A was therefore made on 26 October 1993 and not on 15 September 1993.

[23]No explanation has been offered either by the Leicester District Registry or anyone else as to how, after over 20 years, the error came to be rectified; one can only suppose that the judge’s enquiry in November 2013 must have led to some sort of review of the file.

The Law

[24]Section 1(5) Matrimonial Causes Act 1973 and the Matrimonial Causes (Decree Absolute) General Order 1972 Section 2 together provide that a decree nisi of divorce or nullity shall not be made absolute before the expiration of six weeks from the granting of the decree nisi. There is power to reduce the period to a shorter period upon application; no such application was made in this case. In Manchand v Manchand

[1995] 2FLR 590

the Court of Appeal held that a declaration of decree absolute was void where the County Court had not complied with the mandatory period provided by statute. In that case the court was concerned with a respondent’s ability to apply for decree absolute after three months in circumstances where the petitioner had failed to make such an application. A premature application made after two months meant that the resulting decree absolute was void. The same principle must apply to a premature application made by a petitioner for decree absolute within 6 weeks of the granting of decree nisi.

[25]How then on the face of it do the various dates given for the dissolution of the wife’s marriage to Mr A impact upon the validity of her marriage to the husband Mr Choudhry? i) ‘First Decree Absolute’ 15 September 1993: the judge made her findings on the basis that this was the correct date for decree absolute. As the disputed marriage was alleged to have taken place on 15 December 1993, it follows that if the marriage had in fact taken place on that date (a fact heavily disputed in itself); the resulting marriage would, all other things being equal, be valid; the three month period required by Iddah had elapsed, there being exactly three months between the decree absolute and the date of the alleged ceremony. ii) ‘Amended Decree Absolute’ 26 October 1993: It is now established that this was the correct date for decree absolute. This date falls within the critical three month period and therefore a marriage contracted on the 15 December 1993 would not be a valid marriage according to Sharia Law and there would not, on the face of it be a valid foreign marriage capable of being recognised in this jurisdiction. iii) The judge’s declaration of validity as made: No doubt as a consequence of the undoubted difficulties there had been in managing the case as a whole and overwhelmed with documents filed seemingly at random, (many of which unsurprisingly, roused the judge’s gravest suspicion as to their authenticity), it would appear that neither the judge, nor counsel representing the parties, noticed that the date on the ‘first decree absolute’ sent through from Leicester County Court, recorded a date for the granting of decree absolute which was less than six weeks after the authenticated decree nisi. (To have been valid, the decree absolute would have had to have been dated no earlier than the 28 September 1993). It follows therefore that the ‘first decree absolute’ dated 15 September 1993 was void and did not dissolve the wife’s marriage to Mr A notwithstanding that there was a three month gap prior to the purported Nikah ceremony in Pakistan. Any ‘marriage’ taking place on 15 December 1993 was bigamous, in the same way as the first Nikah which took place in England on 27 March 1992 had been. The situation would not have been saved, even had the judge been aware of the valid ‘amended decree absolute’ of 26 October 1993 as that placed the marriage within the three month Iddah period, as a consequence, on the evidence available to the judge, the marriage would not be recognised in Sharia Law.

Outcome

[26]When it was drawn to the attention of Mrs Small on behalf of the husband that: i) 15 September 1993 was within 6 weeks of the decree nisi; ii) 26 October 1993 would, on the face of it, not have allowed the necessary 3 month delay between decree and remarriage. She accepted on behalf of the husband that the appeal must be allowed. The court’s initial view was that the proper outcome was to substitute a declaration to the effect that any marriage which took place on 15 December 1993 was invalid.

[27]Mrs Small has persuaded the court that this would not be the proper outcome and that the matter should be remitted for rehearing.

[28]The judge at first instance had the benefit of evidence from a single joint expert, Ms Uzma Mooeen of the Asian Legal Advice Service. Ms Mooeen had joint instructions to report on the legality of the marriage, to advise on all aspects Pakistani Law and to confirm whether the marriage would constitute a valid and legal marriage in Pakistan, in particular in relation to the requirements for and the validity of the marriage in the absence of registration.

[29]Ms Mooeen was not instructed to address the issue of the Iddah in her written material, although she did deal with it in her oral testimony. The court has not had the benefit of a transcript of her evidence and relies for its content on the judge’s summary in her judgment (para 23):

“In her oral evidence she confirmed that brides must observe three months from the date of the decree of nullity before marrying again validly. This is called the Iddah in Sharia Law. She says that if the decree nullity was made on 15th September 1993 then the marriage could have gone ahead on the 15th December 1993 and to have been valid there would have to have been a three month gap.”

[30]Mrs Small submits that there was an important deficit in the evidence of the expert as there was no examination as to whether, notwithstanding that the English decree absolute seems to make it clear that a party may only be married following decree absolute of nullity (with no seeming differentiation being made as to whether the marriage was void or voidable), it may be that such a distinction is made under Sharia Law. If that is the case (and the disputed marriage in fact took place) she submits that the fact that the wife’s marriage to Mr A was void may mean that under Sharia Law the wife was at all times free to marry Mr Choudhry, regardless of the date of decree absolute. This would mean that regardless of the requirements of Iddah the marriage as between this husband and the wife was valid.

[31]This is undoubtedly a matter which should have been explored at trial. All the parties knew that the wife’s marriage to Mr A was being dissolved by way of nullity rather than divorce and it was an established fact that the ground relied upon in the nullity petition was that the Mr A remained married when he contracted the marriage with the wife. It is apparent that Ms Mooeen was not asked whether the fact that the marriage was void (rather than voidable) had any impact upon the necessity for the Iddah. Ms Mooeen simply said, and it was unchallenged by the parties, that there had to be a period of three months from the date of the decree “of nullity” before a woman could validly marry.

[32]The validity and recognition of marriage is a matter of public policy and of considerable importance having significant consequences for the parties and for the parties’ children. Dependant upon how the births of the children were registered, the parental rights of the husband may be affected, further the manner in which property owned by the parties is distributed following the breakdown of the relationship is determined by whether or not there is a divorce. In the present case the validity or otherwise of the marriage will determine whether the parties’ assets are divided in accordance with the discretionary jurisdiction applying to a marriage by virtue of the Matrimonial Causes Act 1973 or, by an examination of property and trust law pursuant to Trust of Land and Appointment of Trustees Act 1996 (TOLATA)

[33]It is therefore with the utmost reluctance that we have concluded that the matter must be remitted to the Family Court for rehearing.

[34]We too have been overwhelmed by quantities of new documentation including what is said to be a marriage certificate relating to the alleged “marriage” of the 15 December 1993. That marriage certificate is met by the filing of the wife (without leave) of a report from a handwriting expert who has examined the signatures on the certificate. It will be for the judge dealing with the matter to case manage the case as he or she thinks fit. For our part, however, we would anticipate that Ms Mooeen would be reinstructed on a single joint basis with a fresh letter of instruction which does not necessarily limit itself to the point raised today but, in an effort finally to bring this matter to a conclusion, will deal also with any other outstanding issues, for example the validity of the wife’s first marriage to Mr A.

[35]In all the circumstances therefore we will allow the appeal and remit it to the Family Court to be listed in the first instance in front of the Designated Family Judge for urgent directions. The DFJ will either retain the case for his or herself or alternatively, allocate the case to another judge, who should not be the same judge that conducted the first trial.

[36]It should be made clear that in focussing on the legal validity of the alleged marriage by reference to the date of decree absolute, we have not found it necessary to examine in detail the fresh evidence and make no comment upon it, neither have we found it necessary to consider the other criticisms the wife makes of the judge’s judgment. That fact should not be taken as an indication that this court is in any way limiting the issues to be retried to the discrete issue of expert opinion. The scope of the fresh enquiry is entirely a matter for the trial judge in the exercise of his or her case management powers.

Dame Janet Smith:

[37]I agree.

Lord Justice Patten:

[38]I also agree