Babar v Anis [2005] EWHC 1384 (Ch)

[2005] EWHC 1384 (Ch)Case No HC04C02572
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 July 2005
Before
RICHARD ARNOLD Q.C.
Between
SOHAIL BABARClaimantANIKA ANISDefendant
Elizabeth Ovey (instructed by Anthony Gold Solicitors) for ClaimantLuke Barnes (instructed by Raja & Co) for DefendantHearing Hearing dates: 20-23 June 2005
JudgmentRICHARD ARNOLD Q.C. :Introduction
[1]In this action the Claimant (“Mr Babar”) claims possession of a leasehold property known as Flat 19, Pearce House, Tilson Gardens, London SW2 4NJ (“the Flat”) and damages or mesne profits for alleged unlawful occupation and use of the Flat by the Defendant (“Ms Anis”). Ms Anis’ principal defence is one of promissory estoppel. In the alternative she contends that she was not given a reasonable period of notice to determine the licence pursuant to which she occupied the Flat. Ms Anis counterclaims for damages for deceit. Behind these legal claims lies an unfortunate dispute about an arranged marriage. In July 1999 Mr Babar and Ms Anis were married in a Nikah Nama ceremony in Karachi, Pakistan (“the Nikah”). Mr Babar says that this was a forced marriage, in the sense that he entered into it unwillingly as a result of family pressure. At that time Mr Babar was still married to his first wife, Iris Wenda Ramsamy (“Ms Ramsamy”), although they were separated and divorce proceedings were pending. Ms Anis claims that it was represented to her that Mr Babar was already divorced. Behind these allegations in turn lies a conflict between the culture and traditions of Pakistanis of the parties’ parents’ generation and the different attitudes and expectations of younger British citizens of Pakistani origin such as Mr Babar.[2]It has been agreed that at this stage only liability will be determined, with quantum to be determined subsequently if necessary.[3]I have been assisted in trying this case by a high degree of co-operation between counsel. On the other hand, the trial was lengthened and made more difficult than it need have been by late disclosure and evidence from both sides, but in particular Ms Anis. I shall return to this subject below.

The undisputed facts

[4]Mr Babar was born in Karachi, Pakistan in 1968. He is a British citizen. He came to the UK in 1984. It is now common ground that he has been domiciled in the UK since at least 1990 or 1991. He has a BA degree in accounting. He owns a garment printing business which trades under the name “Leisure Garments”.[5]On 22 June 1989 Mr Babar married Ms Ramsamy at Lambeth Register Office. In about August 1997 Mr Babar and Ms Ramsamy separated.[6]In about August 1997 Mr Babar was registered as the proprietor of a leasehold property known as 54 Wavertree Court, Streatham Hill, London SW2 4TN (“54 Wavertree Court”) which he purchased with the assistance of a mortgage from Halifax plc. On 12 September 1997 Ms Ramsamy was registered as the proprietor of the Flat, which she purchased with the assistance of a mortgage from Nationwide Building Society. From early 1998 Mr Babar occupied the Flat while Ms Ramsamy occupied 54 Wavertree Court in accordance with an amicable informal agreement between the two of them. Mr Babar paid the sums due under both mortgages.[7]On 2 March 1998 Ms Ramsamy petitioned for a divorce from Mr Babar. The divorce proceedings took some time to come to a conclusion. The reasons for this have not been explained, but it may have been because of the need to reach an agreement over the two properties.[8]In about February 1999 Mr Babar’s parents visited Ms Anis’ parents, who were long-standing and close friends of theirs. (Ms Anis’ father Muhammed Anis Ul Haque (“Mr Ul Haque”) gave evidence that he had been friends with Mr Babar’s father Inamul Haque (“Mr Haque”) since 1948.) It appears that during this visit it was agreed between the two sets of parents that Mr Babar and Ms Anis should marry each other.[9]In July 1999 Mr Babar visited his parents in Karachi. After a meeting between the parties and their respective parents on 8 July 1999, the Nikah took place on 10 July 1999. The Nikah was registered on 12 July 1999. What happened on 8 and 10 July 1999 is at the heart of the factual dispute in this case. It is important to note, however, that it is common ground that under the Muslim Family Laws Ordinance 1961 of Pakistan it is legally possible at least in certain circumstances for a man to have two wives.[10]On 29 July 1999 Mr Babar returned to the United Kingdom unaccompanied by Ms Anis. It is now common ground that the marriage had not been consummated by then and never was consummated.[11]On 7 March 2000 Ms Anis applied to the British Deputy High Commission (“the BDHC”) for clearance to enter the UK. There is a dispute as to what document or documents she submitted for this purpose. Furthermore, the subsequent progress of this application is somewhat unclear. It is common ground, however, that Ms Anis needed Mr Babar to provide various documents to support the application, that she asked him either directly by telephone or indirectly through family members to provide them and that Mr Babar was very reluctant and slow to provide them. It is also common ground that Mr Babar sent some documents before 7 March 2000 and sent further documents subsequently.[12]In July 2000 Mr Babar sent Ms Anis an anniversary card in which he wrote “Dear Anika Congratulations on our first anniversary. Hope to experience many more of the same Sohail xxxx”. At the same time Mr Babar’s brother-in-law’s sister arranged with his agreement, or at least acquiescence, for the delivery to Ms Anis of a cake and flowers.[13]On 1 September 2000 a decree nisi was made and on 14 December 2000 a decree absolute was made dissolving the marriage between Ms Ramsamy and Mr Babar.[14]In November 2000 Mr Babar’s father Mr Haque died. Mr Babar visited Pakistan for his funeral.[15]On 4 January 2001 Ms Ramsamy and Mr Babar signed a draft consent order in the following terms:
“UPON the joint application herein AND UPON the Petitioner [Ms Ramsamy] and Respondent [Mr Babar] acknowledging that the provisions referred to herein are accepted in full and final settlement of all claims the Petitioner and Respondent may have against each other for both capital and income or other property adjustment including claims arising under the Matrimonial Causes Act 1973 (as amended), the Married Women’s Property Act 1882 (as amended) or any claim which may arise under the Inheritance (Provision for Family and Dependants) Act 1975 SUBJECT to Decree Absolute AND BY CONSENT IT IS HEREBY ORDERED THAT:- 1. The Respondent do transfer to the Petitioner all his estate and interest in the matrimonial home at 54 Wavertree Court Wavertree Road Streatham London SW2 4TN when the current outstanding Legal Charge in favour of Halifax plc is paid off. However the Respondent shall remain in the property occupying and holding the property in trust for the Petitioner. 2. The Petitioner do transfer to the Respondent all his [sic] estate and interest in the matrimonial home at 19 Pearce House Tilson Gardens London SW2 4NJ when the current outstanding Legal Charge in favour of Nationwide Building Society is paid off. The Petitioner shall remain in the property occupying and holding the property in trust for the Respondent. 3. It is hereby directed that neither the Petitioner nor the Respondent shall be entitled to make any further application in relation to the marriage of the Petitioner and the Respondent for an Order under Section 23(i)(a) or (b) of the Matrimonial Causes Act 1973. 4. It is directed that neither party shall on the death of the other party be entitled to apply for an Order under Section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 and this Court declares it just to make this Order. 5. There shall be liberty to either party to apply for the purpose of carrying out the terms of this Order into effect. There shall be no order as for costs.”
SUBJECT to Decree Absolute AND BY CONSENT IT IS HEREBY ORDERED THAT:- There shall be no order as for costs.”

SUBJECT to Decree Absolute AND BY CONSENT IT IS HEREBY ORDERED THAT:-

[16]No order was actually made in these terms, however. Moreover, Mr Babar gave unchallenged evidence before me that the draft consent order does not set out accurately what had been agreed, which was that Ms Ramsamy would have the right to occupy 54 Wavertree Court and he would have the right to occupy the Flat pending completion of the transfers.[17]On 25 January 2001 Mr Babar wrote to Ms Anis enclosing a photocopy of the decree absolute “as required by the High Commission in Karachi”. In the letter Mr Babar said that he had only received the certificate recently “which was held up due to property reasons”. I take it that this is a reference to the delay in reaching agreement on the content of the draft consent order. He went on, “the property matter should also be resolved in a matter of few weeks”. I take this to be a reference to the carrying into effect of the draft consent order.[18]On 3 April 2001 the BDHC refused Ms Anis’ application. The reasons given by the entry clearance officer were as follows:
“You have applied for entry clearance to the UK as the spouse of a British citizen, Sohail Babar, but I am not satisfied that you and your spouse will be able adequately to maintain and accommodate yourselves adequately without recourse to public funds. I am not satisfied that you are married to a person who is present and settled in the UK. I have also considered your application as the fiancée of Sohail Babar, but in view of his failure to confirm his divorce from his first wife I am not satisfied that you are seeking leave to enter the United Kingdom for marriage.”
[19]Although the notice of refusal appears on its face to be a final decision and states that Ms Anis had a right of appeal, it seems that Ms Anis did not appeal but instead renewed her application.[20]On 30 August 2001 Mr Babar executed a sponsorship declaration in support of an application by Ms Anis for settlement in the UK. In this declaration, which was expressed to be made by virtue of the provisions of the Statutory Declaration Act 1835, Mr Babar stated so far as is material:
“Property: I am the leasehold owner of 54 Wavertree Court, Wavertree Road Streatham London SW2 4TN with two bedrooms where my former wife lives with my agreement and I in turn live at 19 Pearce House, Tilson Gardens, London SW2 4NT, a two bedrooms [sic] flat which is own [sic] by my former wife. It is by consent after when I got divorce [sic] that we both agreed to honour. The arrangement was that I will pay the mortgage for my property where she lives in turn she will pay the mortgage for the property where I live. I have enclosed a copy of the Consent Order. I can confirm myself that I am the only occupant and there is [sic] ample and adequate accommodation facilities are available for my wife to stay with me in the U.K. I AM SPONSORING THE FOLLOWING PERSON: Name Address Relationship How long & why Anika Anis … wife Settlement That I undertake to maintain and support the person being sponsored by me during her stay in the United Kingdom and to bear the costs of her passage. I also undertake to repatriate her at my cost, if and when necessary, and to bear all the costs of burial or cremation in the event of her death in the United Kingdom.”
I AM SPONSORING THE FOLLOWING PERSON: Name Address Relationship How long & why

Anika Anis … wife Settlement

[21]In September 2001 Qamar Uddin (“Mr Uddin”) travelled from London to Karachi and took various documents from Mr Babar to Ms Anis with him. These included the sponsorship declaration and a certified copy of Mr Babar’s passport dated 30 August 2001.[22]On 19 September 2001 Ms Anis submitted further documents to the BDHC in connection with her application for clearance to enter the UK. Again there is a dispute as to what document or documents she submitted at this point. On 11 January 2002 Ms Anis wrote a letter to the BDHC asking for her application to be considered. On 22 January 2002 the BDHC wrote to Ms Anis requesting her to come to the office and to bring her passport with her.[23]On 28 January 2002 Ms Anis was granted UK entry clearance valid until 28 January 2003. The entry clearance type was stated to be “visa marriage” and the clearance was endorsed “no work or recourse to public funds”. It is clear from a Home Office guidance document exhibited by Mr Babar to his witness statement dated 8 March 2005 (which I shall refer to as his second statement) that this type of entry clearance is one given to a fiancé(e) to enable him or her to enter this country for the purposes of marrying his or her intended. A letter from the Immigration & Nationality Directorate of the Home Office to Ms Anis’ immigration solicitors dated May 2003 confirms that Ms Anis was admitted to the UK “not on the basis of marriage, but as a fiancée, prior to formalising the relationship under United Kingdom law”.[24]On 6 February 2002 Ms Anis arrived in the UK. Ms Anis gave evidence in cross-examination which I accept that on her arrival she was told that she had to marry Mr Babar under English law within 6 months. Ms Anis was met at the airport by Mr Babar and taken to the Flat which she began to occupy with Mr Babar. Various details of the events of 6 February 2002 and of the parties’ relationship while they were both in occupation of the Flat are disputed, but it is common ground that it soon became apparent to Ms Anis that the marriage was not a success. It is also common ground that at least from about March 2002 onwards Mr Babar frequently slept elsewhere.[25]In May 2002 Ms Anis’ father Mr Ul Haque came to the UK to visit her and stayed in the Flat. There is a dispute as to what was said during a discussion between Mr Babar and Mr Ul Haque at the end of his visit which I will consider below.[26]On 11 June 2002 the Home Office endorsed Ms Anis’ passport with leave to remain until 5 February 2003 on condition that she supported herself without recourse to public funds, thereby permitting her to work in the UK. Later that month she obtained a job.[27]On 19 July 2002 Ms Ramsamy was registered as the proprietor of 54 Wavertree Court, the mortgage having been paid off.[28]At some point Ms Anis arranged an appointment for the parties at Lambeth Register Office on 8 or 9 August 2002, but Mr Babar did not attend this appointment. On 11 August 2002 Mr Babar left the Flat and left Ms Anis a note informing her of this. There is a dispute as to what happened on 10 August 2002 which I will consider below.[29]On 27 August 2002 Ms Ramsamy wrote to Ms Anis requesting her to vacate the Flat within 14 days of receipt of the letter failing which possession proceedings would be taken against her. The letter is marked “By Recorded Delivery”. On 10 September 2002 Ms Ramsamy wrote again to Ms Anis referring to her previous letter as containing clear instructions to Ms Anis to vacate the Flat and asking Ms Anis not to call at her (Ms Ramsamy’s) home address.[30]Between the dates of these two letters Mr Babar wrote to the Immigration & Nationality Directorate of the Home Office. Although this letter is dated 5 July 2001, the copy retained by Mr Babar had stapled to it a Royal Mail special delivery receipt stamped 5 September 2002. Mr Babar gave unchallenged evidence which I accept that this was the date on which the letter was actually sent. In this letter Mr Babar stated:
“FORCED MARRIAGE I am a British citizen currently engaged in business in London. During 1999, whilst holidaying in Pakistan, I was forced to enter into an arranged marriage. In fact, only an Islamic marriage ceremony was conducted and there no other marriage festivities took place because I had persistently refused to accept my ‘presumed wife’. I returned to the UK one week after the marriage ceremony had taken place without consummating the marriage. Upon my arrival, I was persistently approached by my parents and ‘so called in laws’, via the telephone and mail, to send details in support of an application for a settlement visa in respect of my ‘presumed wife’. I had then deliberately deferred matters hoping that parents of both parties would consider terminating the marriage. This did not happen and finally I was compelled to send the documentation in support of the visa application, which was granted in January 2002. I had made no direct contact with the British High Commission in the preceding two-year period. Moreover, I did not want my ‘presumed wife’ to join me in the UK. Upon my arrival in the UK, relatives had, once again, forced me to attend the airport to collect her to take her to my home. I persistently refused to consummate the marriage and made separate day-to-day living arrangements. Approximately two months after her arrival my ‘presumed wife’ insisted that we register the marriage claiming that the British High Commission in Karachi had issued a visa on the grounds that she was my fiancée and that we register the marriage. I refused to attend that registration appointment. Now my ‘presumed wife’ has accepted that I have no interest in either her or the force [sic] marriage. Moreover, she demands that I co-operate with her and the Home Office, in order, that she gets the indefinite stay granted, which she says is all she wants out of this marriage. I do not have an intention to make an illegitimate claim to the Home Office by making false statements in support of her application. I am also concerned that other illegal acts or breach in law may occur, diminishing my name as a good standing member of society. I do not wish to be party to any illegitimate application made to the Home Office on my behalf and now seek your advice and assistance regarding the above matter. Please do not hesitate to contact me, should you need further clarification.”
Please do not hesitate to contact me, should you need further clarification.”[31]On 27 September 2002 Mr Babar executed a Talaq Nama (Islamic divorce) (“the Talaq”) on a form supplied by the Islamic Shari’a Council (“the Council”) and registered the Talaq with the Council. On the same date the Council issued a divorce certificate certifying that the marriage between Mr Babar and Ms Anis was dissolved.

Procedural history and subsequent developments

[32]On 11 October 2002 Ms Ramsamy issued a claim for possession of the Flat against Ms Anis in Wandsworth County Court. Ms Ramsamy acted in person with the support of Mr Babar and with assistance provided by Dr Michael Pelling of the organisation Fathers For Families enlisted by Mr Babar. Ms Anis obtained legal aid and was represented by solicitors and counsel. Ms Anis served a Defence and Counterclaim in which she pleaded inter alia that(i) Ms Ramsamy held the Flat on trust for Mr Babar,(ii) that she had married Mr Babar on 10 July 1997 (sic) and at his invitation had occupied the Flat with him as their matrimonial home after coming to this country in early 2002 and(iii) that Mr Babar had divorced her under Shari’a law on 27 September 2002. She counterclaimed inter alia for a declaration that she was entitled to occupy the flat pending resolution of any ancillary relief proceedings between herself and Mr Babar. Ms Ramsamy served a Reply and Defence to Counterclaim in which she pleaded inter alia that (i) Mr Babar was still married to Ms Ramsamy when he married Ms Anis on 10 July 1999, (ii) accordingly the marriage was void under English by virtue of section 11(b) and (d) of the Matrimonial Causes Act 1973 and (iii) therefore Ms Anis had no matrimonial home rights. Ms Ramsamy, Mr Babar and Ms Anis each made witness statements in these proceedings.[33]The claim came before Miss Recorder Bazley on 30 January 2003. At the hearing the parties agreed that it should be tried on submissions i.e. on the papers and without cross-examination to resolve disputed questions of fact. In her judgment the learned Recorder held that the effect of the draft consent order signed by Ms Ramsamy and Mr Babar and their subsequent conduct was that Mr Babar occupied the flat as beneficiary under a trust for sale, the terms of the trust having been varied by agreement so as to permit him to occupy the premises. She also held that, although the documents before her suggested that the marriage between Mr Babar and Ms Anis might well be void, she had to proceed on the basis that Ms Anis was validly married to Mr Babar since(i) there was an issue as to whether or not Mr Babar was domiciled in the UK at the time of his marriage to Ms Ramsamy,(ii) she had no jurisdiction to pronounce on the validity of the marriage, such jurisdiction being reserved to the High Court,(iii) no proceedings had been brought to annul the marriage,(iv) no declaration as to the validity of the marriage had been made and(v) Mr Babar was not a party to the proceedings. She therefore held that Ms Anis occupied the property as her matrimonial home and was not a trespasser. Accordingly she dismissed the claim. She also dismissed the counterclaim although her reasons are not apparent from the transcript of her judgment. Ms Ramsamy appealed and instructed solicitors and counsel for the purposes of the appeal.[34]On or about 14 February 2003 Ms Anis applied to the Secretary of State for exceptional leave to remain in the United Kingdom. That application was refused in May 2003. I understand that Ms Anis has appealed against that refusal.[35]On 16 July 2003 the Court of Appeal allowed Ms Ramsamy’s appeal against the order of Miss Recorder Bazley: Ramsamy v Babar [2003] EWCA Civ 1253, [2005] 1 FLR 113. The Court apparently agreed with the Recorder that Mr Babar had occupied the Flat as the beneficiary under a trust, the terms of the trust having been varied by consent so as to permit him to occupy the Flat. The Court held, however, that it could not simply be assumed that Ms Anis was validly married to Mr Babar, and that that issue had to be investigated and determined in order to determine whether section 30 of the Family Law Act 1996 (dealing with “matrimonial home rights”) was engaged. Thorpe LJ observed at [8] that there was also a factual issue “as to whether the marriage has ever been consummated and whether the parties have ever cohabited as husband and wife”.[36]Shortly after this judgment Mr Babar commenced proceedings to annul the marriage to Ms Anis. On 2 December 2003 a decree nisi and on 15 January 2004 a decree absolute of nullity was made.[37]On 19 July 2004 the possession proceedings were transferred to the Chancery Division of the High Court.[38]On 24 August 2004 Ms Ramsamy and Mr Babar executed a transfer of the Flat in favour of Mr Babar. On 25 August 2004 Mr Babar was registered as the proprietor of the Flat. On 27 September 2004 Ms Ramsamy and Mr Babar executed a deed of assignment assigning the claim for possession and damages from Ms Ramsamy to Mr Babar.[39]On 15 October 2004 District Judge Segal made a “clean break” consent order in the divorce proceedings between Ms Ramsamy and Mr Babar which included the following recital and undertakings by Mr Babar:
“AND UPON the Parties agreeing that the Undertaking given by the Respondent and the Order herein are fair and reasonable taking into account the following matters: (i) The terms of the draft consent order signed by the Parties on 4 January 2001 on legal advice … which draft order was never made an order of the Court (and is now superseded by the making of the Consent Order herein as the final conclusive Order of the Court) but with which the Parties have in substance largely complied; (ii) The fact that the Respondent did follow the draft order to the extent of paying off the mortgage on and transferring on 19 July 2002 all his estate and interest in 54 Wavertree Court, Wavertree Road, Streatham, London SW2 4TN … to the Petitioner who is the registered owner thereof; (iii) The fact that the Petitioner did follow the draft order to the extent of transferring on 25 August 2004 all her estate and interest in 19 Pearce House, Tilson Gardens, London SW2 4NJ …, but subject to the existing Mortgage, to the Respondent who is the registered owner thereof … AND UPON THE RESPONDENT UNDERTAKING TO THE COURT: (1) To pay all the Mortgage instalments in respect of the Mortgage on 19 Pearce House, Tilson Gardens, London SW2 4NJ … in favour of Nationwide Building Society (registered charge dated 21 August 1997) as they fall due and to repay the Mortgage capital in full at or before the end of the Mortgage term, that is to say 21 August 2012; (2) To indemnify the Petitioner at all times in respect of all her obligations and covenants under the said Mortgage and to at all time until the Mortgage is discharged keep the Property comprehensively insured and properly maintained and in sound repair including structural repair and pay the property taxes and other outgoings on the Property and not sell the property…”

AND UPON THE RESPONDENT UNDERTAKING TO THE COURT:

[40]On 27 September 2004 Mr Babar applied for an order in these proceedings substituting Mr Babar as claimant in place of Ms Ramsamy and giving case management directions. On 22 November 2004 Deputy Master Hoffmann made the order sought by consent. Pursuant to that order fresh statements of case were served, disclosure was given and witness statements exchanged. At this stage and until relatively recently Mr Babar acted in person assisted once again by Dr Pelling, although counsel was instructed to settle a Reply and Defence to Counterclaim and Part 18 Request, while Ms Anis continued to be represented by the same solicitors but different counsel. Shortly before trial Mr Babar instructed new solicitors and counsel.

Matters not in issue

[41]There is no longer any issue as to the respective rights of Ms Ramsamy and Mr Babar to the Flat. Nor is it any longer contended by Ms Anis that she had matrimonial home rights under section 30 of the Family Law Act 1996. Accordingly it is accepted by Ms Anis that Mr Babar is entitled to possession of the Flat unless Ms Anis establishes her defence of promissory estoppel alternatively her defence of want of reasonable notice.[42]Although it is not a matter I am concerned with, I think it worth recording that in his witness statement dated 3 January 2003 (which I shall refer to as his first statement) Mr Babar stated that he felt that what had happened to Ms Anis was very unfortunate and that he was willing to pay her passage back to Pakistan and to make some short term financial provision for her. Before me counsel for Mr Babar pointed out that, once the marriage was annulled, Ms Anis could have applied for relief under sections 23-26 of the Matrimonial Causes Act 1973. I was informed that no such application had been made and no explanation advanced as to why not. Counsel for Ms Anis did not dispute that no application had been made and offered no explanation as to why not.

The Defence and Counterclaim: promissory estoppel and deceit

[43]The factual basis for Ms Anis’ defence of promissory estoppel and her counterclaim for deceit is pleaded in her present Defence and Counterclaim in the following terms:
“13. In order to induce the Defendant to undergo a formal ceremony of marriage with the Claimant in Pakistan on 10 July 1999, the Claimant represented to the Defendant that he was free to marry and wished to enter into a valid marriage with her by his conduct and by signing in her presence a declaration stating that he had no existing wife. He further represented to her that she would join him in the U.K. in due course. 14. Induced by and acting upon the representation, the Defendant went through the formal ceremony of marriage in the belief that she would thereby enter into a marriage with the Claimant valid in both Pakistan and the U.K. 15. In fact the representation was false, in that the Claimant’s decree of divorce from [Ms Ramsamy] was not made absolute until 14 December 2000. The Claimant made the representation fraudulently in that he knew it was untrue or was reckless, not caring whether it was true or false. 16. Relying on the representation that the religious ceremony was valid and/or relying on a further representation that [the Claimant] would formalize the marriage under English law, the Defendant accepted the Claimant’s invitation to come to the U.K. 17. By inter alia a statutory declaration made on 30 August 2001 the Claimant undertook to maintain, support and accommodate the Defendant during her stay in the U.K., in support of the Defendant’s application to come to the U.K. as his wife. 18. The Defendant acted to her detriment by giving up her accommodation in Pakistan to come to the U.K.; giving up her unmarried status; waiting from July 1999 until February 2002 in Pakistan while documents were provided by the Claimant and immigration formalities observed. 19. On 06 February 2002 the Defendant arrived in the U.K. The Claimant met her at the airport, took her straight to the Flat, gave her a key and represented by his words and conduct that it was to be their matrimonial home. The parties shared a bed every night for one month or more, and then on some nights, until their final separation on 11 August 2002. 20. On 10 August 2002 the Claimant informed the Defendant that he was not accepting her mentally as his wife. However, he told her that she could continue to live in the Flat for as long as she liked, as a friend.”
[44]Two points should be noted about this statement of case. First, although paragraph 13 pleads a representation by conduct that Mr Babar was free to marry and wished to enter into a valid marriage (under English law, as is implicit from paragraph 14), it is clear from Ms Anis’ subsequent pleadings and evidence that what she actually relies upon is an express oral representation by Mr Babar and/or his parents on his behalf that Mr Babar was divorced at the time of the Nikah. Secondly, although paragraph 16 pleads a further representation that Mr Babar would formalise the marriage under English law, it is clear from Ms Anis’ subsequent pleadings and evidence that it is not alleged that an express representation to that effect was made; at most, what is alleged is an implied representation.[45]Mr Babar denies that any such representations were made. He also disputes that he represented to Ms Anis that the Flat was to be their matrimonial home or that she could stay there as long as she liked. Furthermore, Counsel for Mr Babar submits that these facts would not establish a defence of promissory estoppel to Mr Babar’s claim for possession of the Flat even if established.

The principal factual issues

[46]Counsel agreed that the principal factual issues which I have to resolve are as follows.[47]First, were Ms Anis’ parents (and through them, Ms Anis) led to believe either(a) by the statements and conduct of Mr Babar’s parents or(b) by the statements and conduct of Mr Babar that Mr Babar’s first marriage had been dissolved when he and Ms Anis underwent the Nikah on 10 July 1999?[48]Secondly, whether or not Ms Anis initially believed that Mr Babar’s first marriage had been dissolved at the time of the Nikah, did Ms Anis believe, after receiving a copy of the decree absolute on about 25 January 2001 (at which time, if no earlier, she learnt that the marriage had not been dissolved), that the marriage entered into on 10 July 1999 would be recognised as a valid marriage in the United Kingdom?[49]Thirdly, when Ms Anis telephoned Mr Babar on 5 February 2002 to inform him that she would be arriving in the United Kingdom on 6 February 2002, did he ask her not to come?[50]Fourthly, apart from the question of consummation, did Mr Babar and Ms Anis in other respects live as husband and wife after Ms Anis’ arrival in the United Kingdom until Mr Babar left the Flat on 11 August 2002?[51]Fifthly, did Mr Babar, by statements or conduct, make any representation to Ms Anis about her right to occupy the Flat during the period between her arrival in the United Kingdom and 11 August 2002? If so, what representation?[52]Sixthly, what occurred between the parties or either of them and Ms Anis’ father Mr Ul Haque during his visit to the United Kingdom in May 2002?[53]Seventhly, did Mr Babar say to Ms Anis on or about 10August 2002 that she could stay in the Flat as long as she liked?

The witnesses

[54]In order to resolve these factual issues I must resolve a number of conflicts of evidence between the witnesses. I shall therefore describe each of the witnesses and give my assessment of them.

Mr Babar

[55]I have set out Mr Babar’s details in paragraph 3 above. In assessing his evidence I have borne in mind that Mr Babar had the advantages of a good education, speaking English well and having been in this country for over 20 years. Even so, Mr Babar struck me as a generally reliable witness. His second statement was consistent with his first statement. For the most part his answers to questions in cross-examination were direct, clear and careful. He was clear as to the limits of his knowledge, distinguishing between things he knew to be the case from his own experience and things that he believed to be the case from what others had told him. He frankly accepted a number of matters which might be seen as unfavourable to him. Overall his evidence hung together well and told a story which I found plausible.[56]Counsel for Ms Anis did not feel able to submit that Mr Babar was an untruthful witness in general, and indeed did not challenge significant parts of his evidence. He nevertheless submitted that on the key factual issues the evidence of Ms Anis and her father Mr Ul Haque was to be preferred to that of Mr Babar. The principal foundation for that submission was that, as counsel submitted, Mr Babar had shown himself prepared to make false statements in official documents. The bases for this submission were the contents of the Nikah certificate, a form completed by Mr Babar on behalf of Ms Anis in support of her application for entry clearance (“the Settlement Form”) and the sponsorship declaration.[57]I will deal with the Nikah below. For reasons that I shall explain, it does not support counsel’s submission.[58]So far as the Settlement Form is concerned, counsel relied upon the following questions and answers:
“B19. If you are applying on the basis of marriage to the sponsor: (a) (i) What was the date of your marriage to the sponsor? [blank] (ii) Where did you marry the sponsor? Karachi If you are applying as a fiancé or fiancée, what is the proposed date of your marriage? N/A B21. Has the sponsor ever been married before? YES If YES, give name(s) and state whereabouts of his/her [his crossed through] former/current [current crossed through] spouse(s) IRIS WENDA, 54 WAVERTREE COURT, WAVERTREE RD, STREATHAM, LONDON SW2”

B21. Has the sponsor ever been married before? YES

[59]Counsel contended that the answer to question B19 was false because the Nikah was not valid due to the fact that Mr Babar was still married to Ms Ramsamy. I was satisfied with Mr Babar’s answer, however, which was to the effect that he believed that the Nikah was valid under Islamic law in Pakistan and that, although he suspected that it would probably not be valid under English law, he did not know this for certain since he did not know what the law was.[60]Counsel contended that the answer to question B21 was false because, at the date the Settlement Form was filled in by Mr Babar, Ms Ramsamy was still his current spouse. For the reasons given below I have concluded that the Settlement Form dates from after the decree absolute, and so the basis for this submission falls away. In any event, however, I was again satisfied with Mr Babar’s answer, which was that he was careless in answering the question. In his defence it may be pointed out that, even if the answer was literally incorrect, in early 2000 he was separated from Ms Ramsamy, the divorce was pending and it was only a matter of time before it came through.[61]More generally in relation to both points, Mr Babar’s evidence was that he was under considerable family pressure to send documents to support Ms Anis’ application for entry clearance. It was also his evidence that he regretted giving in to this pressure.[62]As to the sponsorship declaration, counsel relied upon the fact that Mr Babar twice described Ms Anis as his “wife”. Again I was satisfied with Mr Babar’s answer, which was to the same effect as his answer in relation in question B19. Again Mr Babar said he was under considerable pressure.[63]I would add that Mr Babar’s evidence on these points is supported by the letter set out in paragraph 30 above. Although this letter was written after Mr Babar had left the Flat and after the first notice to quit, it was written well before Ms Anis had raised her defence of promissory estoppel and her counterclaim for deceit. That letter was evidently prompted by Mr Babar’s concern at the immigration situation and his desire to ensure that his statements were not used by Ms Anis to mislead the authorities. It was not suggested to Mr Babar that he was trying to get Ms Anis deported.

Mr Ather

[64]Syed Ather Uddin Ahmed is a computer engineer and a business associate and friend of Mr Babar. Only one aspect of his written evidence was challenged, but he maintained it under cross-examination. Mr Ather gave his evidence straightforwardly and I see no reason not to accept it, particularly since it was corroborated by Mr Uddin.

Mr Uddin

[65]Mr Uddin is a pensioner living in the UK, a respected elder in Mr Babar’s community and a friend of Mr Babar’s family. Again only one aspect of his written evidence was challenged, but he maintained it under cross-examination. Mr Uddin gave his evidence straightforwardly and I see no reason not to accept it, particularly since it was corroborated by Mr Ather.

Mr Samad

[66]Sabir Samad is a friend of Mr Babar’s and his brother-in-law. (He is married to Mr Babar’s sister Farah, who did not give evidence.) Only two aspects of his written evidence were challenged, but he maintained them under cross-examination. Mr Samad gave his evidence straightforwardly and I see no reason not to accept it, particularly since it was corroborated in part by Mr Babar.

Ms Anis

[67]Ms Anis was born in Karachi in 1971. In assessing her evidence I have made allowance for the facts that (so far as I am aware) she had not had the educational advantages that Mr Babar had had, that her command of English was not as good as that of Mr Babar (although for the most part she was able to give evidence in English without assistance from an interpreter) and that she has only been in this country since February 2002. I have borne in mind that she has good reason to feel angry and upset at what has happened to her. I have also taken into account the fact that giving evidence was a distressing experience for her since she was required to discuss things which most people would be uncomfortable giving evidence about and which a woman of her cultural background might be expected to find even more sensitive.[68]Nevertheless, while making full allowance for all these factors, I am entirely satisfied that Ms Anis was not a reliable witness. There are a considerable number of reasons for this. It would be wearisome to attempt to list all of them, but I will give the main ones: i) Ms Anis’ original Defence and Counterclaim in the Wandsworth County Court, which appears to have been verified by a statement of truth signed on her behalf, did not raise the allegations upon which she now relies. On the contrary, she pleaded in paragraph 8:
“On the 27th September 2002 Mr Sohail Babar divorced the Defendant under Shari’a law. The divorce will become final in about two months’ time. No provisions for financial settlement have been made.” ii) Ms Anis’ witness statement of January 2003 (which I shall refer to as her first statement) contained a number of significant inaccuracies. In paragraph 2 she stated that at the time of her marriage Mr Babar informed her that he was now divorced. Subsequently Ms Anis abandoned this allegation and advanced a different case (see further below). In paragraph 4 she stated that she submitted the sponsorship declaration to the BDHC in February 2000 or at any rate before 3 April 2001, which is not possible since it is dated 30 August 2001. In paragraph 6 she stated that she submitted the decree absolute and consent order to the BDHC on 19 September 2001. In cross-examination Ms Anis said she submitted it on 3 April 2001, and as discussed below it is clear that other documents were submitted on 19 September 2001. Perhaps most seriously, in paragraph 8 she stated that “I lived together with Mr Babar as husband and wife until the 11th August 2002”
. It is clear from the judgment of the Court of Appeal that at that time Ms Anis’ own lawyers understood her to mean what most people would understand this statement to mean, namely that the parties were in a sexual relationship, and Ms Anis admitted she was present in court during the earlier hearings when that case was advanced on her behalf. I was not persuaded by Ms Anis’ attempts in cross-examination to say that she meant something else. In paragraph 9 Ms Anis said that “It was only after Mr Babar had left [on 11 August 2002] that it came to my attention that he had told me so many lies. Mr Babar was still married to the Claimant at the time of his marriage to me. His decree absolute was only granted on 14th December 2000 whereas we were married on the 10th July 1999.” This statement was insupportable even on the face of the first statement since as noted above the same statement refers to her having the decree absolute in 2001. In paragraph 11 Ms Anis stated “It also comes to light that he [Mr Babar] does not own 54 Wavertree Court either despite what it is written in the consent order.” While it is true that by the date of the statement Mr Babar had transferred 54 Wavertree Court to Ms Ramsamy, that was precisely in accordance with the draft consent order. I was not impressed by Ms Anis’ claim in cross-examination that this sentence contained a typing mistake. In paragraph 12 Ms Anis claimed a beneficial interest in the Flat. No such claim is now made. iii) Ms Anis’ first statement contains no mention of an allegation which now forms an important part of her case, namely that on 10 August 2002 Mr Babar told her that she could stay in the Flat for as long as she liked. iv) Paragraph 9 of Ms Anis’ Defence and Counterclaim in this Division, which is verified by a statement of truth signed by her, denies that she entered the U.K. on a fiancée visa and avers that she entered it on a marriage visa. This is simply wrong. v) Ms Anis’ second statement also contained a number of significant inaccuracies. In paragraph 8 Ms Anis stated that Mr Babar had signed the Nikah certificate in her presence, but in cross-examination she accepted that this was incorrect. In paragraph 21 Ms Anis stated that at the time of her entry into the UK she genuinely believed that she was Mr Babar’s wife due to the grant of the visa on 28 January 2002; and in paragraph 22 she specifically stated that the visa was a spouse’s visa and not a fiancée’s visa. As stated above, this is simply wrong. In paragraph 23 Ms Anis stated that she did not know why the parties had not consummated the marriage and it was not for her to ask the Claimant why. This is wrong on either side’s account. In paragraph 28 Ms Anis stated that the appointment at Lambeth Registry Office was to register the marriage i.e. the Nikah. It is clear, however, that it was an appointment to undergo an English marriage (or at least to arrange one). This might be forgiven as sloppy use of language (compare Mr Babar’s letter of September 2002) were it not for paragraph 22, from which is clear that this is not what Ms Anis meant. In addition her evidence in this statement about the timing of the submission of the sponsorship declaration was erroneous for the reasons discussed below. vi) Neither of Ms Anis’ statements referred to the anniversary card and an associated document which were only disclosed at trial and then relied upon to support a new claim that Mr Babar had encouraged Ms Anis to believe that she was validly married to him in July 2000. vii) In cross-examination Ms Anis made a number of new allegations which had not previously been made in her written evidence or pleadings and which had not been put to Mr Babar or his witnesses. I will mention two in particular. First, she alleged that Mr Babar had tried to consummate the marriage on her first night in the UK but had been unable to. Secondly, she alleged that an assured shorthold tenancy agreement between Mr Babar and Mr Ather 5 February 2001, which it appears she had been sent the original of to support her application for entry clearance, was a fake or at least that she had been told that it was a fake by the entry clearance officer on 3 April 2001. I am satisfied that both of these allegations were false. viii) In cross-examination Ms Anis frequently failed to answer questions directly or clearly, instead launching into long and rapidly-delivered mini-speeches that dealt with points that she wanted to get across rather than the points counsel was asking her about. Furthermore, her answers were inconsistent. For example, at one point in her cross-examination she said she was very upset when she saw the decree absolute because it showed that Mr Babar had lied about being divorced, but later said she didn’t have a problem whether he was divorced or not divorced and later still accepted that she was pleased to see the decree absolute because it would facilitate the application for entry clearance. ix) Ms Anis was unable to explain why the date of the decree absolute was a problem given that polygamy is legally permissible in Pakistan and that at the time of the Nikah Mr Babar’s first marriage had broken down, Ms Ramsamy was living apart from him and divorce proceedings were pending. She later stated that she would not agree to be a second wife, but failed to distinguish between the position of a second wife where the first wife is separated from and divorcing the husband and the position of a second wife where the first wife is present and has senior status in the matrimonial home: two very different things. x) As I shall explain in more detail below, Ms Anis only revealed during cross-examination the important fact that the Nikah had been recorded on video.

Mr Ul Haque

[69]In assessing Mr Ul Haque’s evidence I have made allowance for the facts that (so far as I am aware) he had not had the educational advantages that Mr Babar had had, that his command of English was even less good than that of his daughter (although he able to and did gain assistance from an interpreter when necessary) and that he is not as familiar with this country as his daughter, let alone Mr Babar. I have also borne in mind that he clearly feels angry and upset at what has happened to his daughter.[70]Again, however, while making full allowance for these factors, I am quite satisfied that Mr Ul Haque was not a reliable witness. My main reasons are as follows: i) In an affidavit sworn on 20 July 2004 Mr Ul Haque stated that at the time of the Nikah he was not aware that Mr Babar was already married. He also stated that Mr Babar’s “parents/family member” had concealed his first marriage. By contrast, in his witness statement dated 8 March 2005 he stated that Mr Babar had told him and his wife in the presence of Mr Babar’s own parents on 8 July 1999 that Mr Babar had been married before but was now divorced. In oral evidence in chief Mr Ul Haque said that Mr Babar’s parents had told him and his wife that Mr Babar was divorced in February 1999, and went so far as to say that Mr Babar’s father Mr Haque had said words to the effect of “he is divorced and I am his certificate”. When challenged on the affidavit in cross-examination, Mr Ul Haque said that by “parents” he had not meant to include Mr Haque. ii) In his oral evidence, although not in his written evidence, Mr Ul Haque claimed that Mr Haque had been so upset when he discovered that his son Mr Babar was divorced (which he did when Mr Ul Haque told him that Ms Anis had been refused entry clearance on 3 April 2001 and that that was why) that Mr Haque had left home and stayed with him for 15 days and did not return home before dying. Mr Ul Haque also claimed that Mr Haque had told him that Mr Haque was embarrassed that his son Mr Babar had lied to him. I am satisfied that this story is almost complete fiction, since Mr Haque died in November 2000. The only foundation for it is that, prior to his death, Mr Haque had gone to live with his brother (Mr Babar’s uncle) as a result of a dispute with his other sons (Mr Babar’s brothers). When challenged on this point in cross-examination, Mr Ul Haque tried to suggest that Ms Anis had been refused entry clearance in 2000, a novel claim for which there is not a shred of support anywhere else in the evidence. iii) Mr Ul Haque was asked in cross-examination why, if Mr Babar was undergoing a divorce at the time of the Nikah, it mattered that the decree had not yet been made. To begin with he did not answer the question, but when pressed he said “It was the Home Office requirement” and agreed that he had found that out when Ms Anis applied for entry clearance. I regard this as a revealing answer and the truth of the matter. It stands in sharp contrast to Mr Ul Haque’s written evidence that the reason why it was important that Mr Babar be divorced was that Mr Ul Haque and his wife regarded monogamy as a strict condition for the marriage. iv) Mr Ul Haque’s evidence about the Nikah ceremony was inaccurate as I shall explain below.

Other witnesses

[71]In addition to the witnesses who gave oral evidence I received written evidence under hearsay notices from Mrs Shista Inam (Mr Babar’s mother) and Dr Tehmina Siddiqi (Mr Babar’s other sister). While I have treated this evidence with caution bearing in mind that it was not tested in cross-examination, I have also borne in mind that it would have been open to Ms Anis to apply for cross-examination of these witnesses via video link to Pakistan pursuant to CPR r. 33.4 (see Polanski v Conde Nast Publications Ltd [2005] UKHL 10, [2005] EMLR 14). I also received brief hearsay evidence from Ms Ramsamy which did not bear on any of the issues I have to decide.[72]I did not receive any evidence from Rabia Naheed, Ms Anis’ mother. No explanation was given for this.

Conclusion

[73]Where there is a conflict between the evidence of Mr Babar and his supporting witnesses and the evidence of Ms Anis and Mr Ul Haque, I have no hesitation in preferring the former.

The events of early July 1999

[74]In considering what happened in July 1999 it is significant that Mr Babar gave unchallenged evidence, which was corroborated by a number of other witnesses and supported by various subsequent events as to which there is now no dispute, that he was reluctant to enter into the marriage and only did so as result of pressure from his family, and in particular his father, who had a very strong personality.[75]Mr Babar’s evidence was that, when he arrived in Pakistan in July 1999, he discovered that his parents had agreed with Ms Anis’ parents that he should marry Ms Anis. Despite the fact that he had not met Ms Anis and had not been consulted, it was a “done deal”. He did not know when the deal was done. It appears from the evidence of Ms Anis and Mr Ul Haque that this agreement had been reached during the visit of Mr Babar’s parents to Ms Anis’ parents in February 1999. The evidence of Mrs Inam is consistent with this.[76]Mr Babar’s evidence was that, as one might expect, his parents were aware that he was separated from Ms Ramsamy and that a divorce was pending but had not yet come through. It was also his evidence that he did not participate in the discussions during which the marriage was arranged, which were conducted exclusively between the respective parents, but that he was told by his mother that the facts regarding his marital status had been disclosed to Ms Anis’ parents by his father. This evidence is corroborated by Mrs Inam. Mrs Siddiqi says that by the time of the marriage Mr Babar’s marital status was common knowledge among the two families.[77]On 8 July 1999 Mr Babar and his parents visited Ms Anis’ parents. There were discussions between the respective parents about such matters as where the Nikah should be held and who should be invited.[78]At the end of the meeting Mr Babar was invited to meet Ms Anis in another room. It is common ground that Ms Anis asked him “Do you wish to marry me?” and that he replied “My name is Sohail and that’s all I know and that’s all I have to say”. I accept Mr Babar’s evidence that by this reply he was making his reluctance to enter into the marriage plain.[79]Ms Anis’ case is that during this period a representation was made that Mr Babar was already divorced. As to who made this representation and when, her case has changed over time and remains slightly unclear. Leaving aside the Nikah itself, which I shall consider below, Ms Anis has made the following allegations: i) As discussed above, in paragraph 2 of her first statement Ms Anis stated that “At the time of our marriage, Mr Babar informed me that he had been married once before however he was now divorce [sic]. His parents also confirmed that he was divorced…” ii) As discussed above, in paragraph 13 of her Defence and Counterclaim in this Division Ms Anis pleaded a representation that Mr Babar “was free to marry and wished to enter into a valid marriage” made by conduct. iii) In a response to request 13 of Mr Babar’s Part 18 Request which was verified by a statement of truth signed by herself, Ms Anis alleged that on 8 July 1999 Mr Babar “solemnly assured [Ms Anis’] parents that he had divorced his first wife in accordance with English law”. iv) In paragraph 12 of a Part 20 Reply which was verified by a statement of truth signed by herself, Ms Anis alleged that Mr Babar “represented before, during and after the Nikah that he was divorced”. v) In paragraph 4 of her second statement Ms Anis stated that her parents had told her after Mr Babar’s parents’ visit in February 1999 that Mr Babar’s parents had told them that Mr Babar was divorced. In paragraphs 5 and 6 of the same statement Ms Anis stated that Mr Babar had himself told her parents that he was divorced on 8 July 1999 (she did not say how she knew this, but it is implicit that she was saying that her parents had told her). vi) Both of the allegations made in Ms Anis’ second statement were put to Mr Babar in cross-examination, with the refinement in the case of the first allegation that it was Mr Babar’s father who made the statement in question. vii) It was unclear from Ms Anis’ oral evidence whether she was saying that her parents were told that Mr Babar was divorced by Mr Babar himself or by Mr Babar’s parents or both.[80]As I have explained above, Mr Ul Haque’s evidence on this point also changed over time. His evidence in cross-examination appeared to be that Mr Babar’s parents (specifically his father) had said that Mr Babar was divorced in February 1999 and that Mr Babar had said the same thing on 8 July 1999.[81]It is no longer suggested that Mr Babar told Ms Anis herself that he was divorced. Mr Babar was clear that he had not told Ms Anis’ parents that he was divorced on 8 July 1999, and indeed that the subject had not been discussed in his presence on that occasion. I accept this evidence.[82]I am not satisfied that any such representation was made by Mr Babar’s parents, and specifically by his father, either during the discussions in February 1999 or on 8 July 1999. I will give my reasons after dealing with the Nikah.[83]The Nikah took place on 10 July 1999. During the course of the ceremony a certificate was signed by the parties and their respective parents as well as by the Qazi who conducted the ceremony. There is an important factual dispute regarding the completion of this certificate. The certificate includes 21 questions to be answered, beginning with the details of the area where the ceremony is held (question 1) and the names and addresses of the bridegroom and his father (question 2). Question 21 reads:
“Whether the bridegroom has any existing wife, and, if so, whether he has secured the permission of the Arbitration Council under the Muslim Family Laws Ordinance, 1961, to contract another marriage:”
The space for answering this question is crossed through with a diagonal pen stroke, as are the spaces for answering a number of other questions.[84]Mr Babar’s evidence was that he did not complete any part of the certificate except where he signed, that he was not asked about question 21 before or during the ceremony and that he did not read the certificate before signing it. By contrast, the evidence of Mr Ul Haque was that first Ms Anis signed the certificate, then the Qazi asked Mr Babar all the questions on the certificate in turn and wrote down his replies and finally Mr Babar and the witnesses signed. Ms Anis corroborated the first part of this story and adopted the remainder, although she stated she was not present while the questions were being asked of Mr Babar.[85]I am satisfied that Mr Babar’s account is correct and that of Mr Ul Haque and Ms Anis is not, for the following reasons.[86]During the course of her cross-examination Ms Anis mentioned that the Nikah had been recorded on video. This fact had not been mentioned in her statements (nor that of Mr Ul Haque). Nor had the video been disclosed. It transpired that a DVD of the video was in Ms Anis’ possession, and this was disclosed after the completion of the main evidence. I have viewed the relevant section of the DVD several times. In addition, evidence was given as to its contents by Sana Gilani, an interpreter who had sat in court throughout the case (and so was familiar with the issues) and who had assisted Ms Anis and Mr Ul Haque with their evidence. It does not appear from inspection of the DVD, taken together with the evidence of Ms Gilani, that the Qazi goes through the form with Mr Babar asking him all the questions in turn. Instead the certificate is signed by all parties before the Qazi asks Mr Babar any questions, after which the Qazi asks Mr Babar three times whether he wishes to marry Ms Anis and whether he has £1100 to pay Ms Anis as dowry, and each time Mr Babar says “I agree”. After this the Qazi says a prayer or blessing and that completes the ceremony. It is fair to say that the DVD may not be a complete record and that some of the dialogue is inaudible because music has been dubbed onto the soundtrack, but what is visible and audible strongly suggests that the Qazi did not ask Mr Babar each of the questions on the certificate.[87]It appeared to me from the DVD that each party or witness had signed three or four sheets of paper. I therefore called for the original document disclosed by Ms Anis and inspected it. It transpired that the Nikah certificate is in quadruplicate, that is to say, it consists of four copies. Two copies are in Urdu and two are in English. Ms Anis was able to produce originals of one Urdu copy and one English copy, and I was told that each party receives two copies at the end of the ceremony. It further transpired that both English copies had been disclosed in these proceedings. Comparison of the two English copies showed that, although identical in content, they are different documents. That is to say, one is not a photocopy or carbon copy of the other: each has been separately filled in. I infer that the same is true of the two Urdu copies. These facts again strongly suggest that the Qazi did not go through each of the questions with Mr Babar in turn during the ceremony, since that would have involved writing the answers down four times in two different languages, which would be a very slow and cumbersome process.[88]I conclude from the evidence discussed in the preceding two paragraphs that the Qazi did not go through the questions on the certificate with Mr Babar filling in the answers as they went. Instead, the certificate was completed by an unknown person at a different time, either before or after the ceremony. On balance I consider that it was probably completed after the ceremony, since it appears from the DVD (although the picture quality is not good) that the certificate is blank apart from the signatures. Furthermore, Mr Babar’s evidence that he did not read the certificate before signing it is supported by the DVD.[89]My interpretation of the certificate is that the diagonal line through the space for answering question 21 signifies “not applicable”. Even on the basis that Mr Babar did not read the certificate before signing it and that the certificate was filled in after (or possibly before) the ceremony not during it, this remains the high point of Ms Anis’ case. It is clear that someone believed that question 21 was not applicable in Mr Babar’s case. Why did that someone believe this?[90]Ms Anis’ case, of course, is that the explanation is that there was a representation, if not by Mr Babar himself, then by his parents, that he was divorced. I consider it more likely that question 21 was thought not to be applicable because it was known that Mr Babar was separated from Ms Ramsamy and a divorce was pending. I reach this conclusion for the following reasons.[91]First, for the reasons given above I do not consider Ms Anis and Mr Ul Haque to be reliable witnesses and I prefer the evidence of Mr Babar and his supporting witnesses. I have summarised this evidence above.[92]Secondly, no cogent reason has been advanced as to why Mr Babar or his father should lie to Ms Anis’ parents. When pressed on this question in his closing speech, counsel for Ms Anis’ ultimate answer was to submit that Mr Babar lied to his father while his father was the unwitting transmitter of the lie to Ms Anis’ parents, and that Mr Babar’s reason for lying to his parents was a desire to please them, knowing that they wanted him to marry Ms Anis. I do not consider this plausible. I do not believe that Mr Babar would lie about his marital status to his own parents. Moreover, given that he was unwilling to marry Ms Anis, he had no incentive to do or say anything which would make that more likely. On the contrary, he had every reason to be open about his marital status both to his own parents and to Ms Anis’ parents if that would frustrate or delay the marriage. In this connection it is significant that, given that the divorce was pending, the only effect of Mr Babar lying about his marital status would be to advance the date of the marriage; it would not make possible a marriage which was otherwise not possible.[93]Thirdly, it was put to Mr Babar in cross-examination that what was required under Pakistani law in order for a man to take a second wife was either permission from the first wife or a decision of the arbitration council. It seems to me that the initiation of divorce proceedings by Ms Ramsamy might well have been taken to signify her consent to Mr Babar marrying again. In saying this, I do not overlook Mr Babar’s evidence that he did not think that Ms Ramsamy would have given him permission. This typically frank evidence of Mr Babar was directed to a hypothetical question, not at what actually happened.[94]Fourthly, I consider that the explanation of the events of July 1999 advanced by Mr Babar is likely to be correct. This is that Ms Anis’ parents were perfectly well aware of Mr Babar’s marital status, but were keen to take advantage of the opportunity presented by the impending divorce for their daughter to marry a British husband with its consequent advantages, and in particular the opportunity to come to the UK; and that both sets of parents were keen to capitalise on Mr Babar’s presence in Pakistan in July 1999 by getting the Nikah performed. In my view this explanation is supported by what happened subsequently. I would add that it may also be the case that both sets of parents were hopeful that in due course Mr Babar would accept the responsibilities imposed on him under the arranged marriage, and in particular that he would take any steps necessary to regularise the marriage under English law.[95]Mr Babar was asked in cross-examination whether he would still have signed the Nikah certificate if he had known it contained a false statement regarding his marital status. After some pressing, he accepted that he would have done so. This again was frank of Mr Babar, but it does not affect my conclusion that no false representation was made by him or on his behalf.[96]Before moving on to subsequent events, I should deal with one final point. I am prepared to accept that, by going through the Nikah, Mr Babar impliedly represented to Ms Anis that he wished to enter into a marriage which was valid under the law of Pakistan. It does not follow, however, that he also represented to Ms Anis that he wished to enter into a marriage which was valid under English law or was free to do so.

After the Nikah

[97]Mr Babar gave unchallenged evidence that, after the Nikah, not only was the marriage not consummated, but also the ceremonies which traditionally follow a Nikah, namely a Walima or dining party and the passing of the bride to the groom’s household, did not occur. This is yet further confirmation that Mr Babar was a reluctant participant in the marriage and made his reluctance plain.

Ms Anis’ application for entry clearance in March 2000

[98]As noted above, it is common ground that following Mr Babar’s return to the UK he was pressed to send documents to Ms Anis to enable her to obtain entry clearance to the UK, but he was slow to do so. It is also common ground that Ms Anis submitted an application for entry clearance to the BDHC on 7 March 2000. There is a dispute, however, about which documents were sent by Mr Babar to Ms Anis and submitted by Ms Anis to the BDHC when. It is common ground that these included two application forms headed “Application for United Kingdom entry clearance IM2A” (“the Entry Form”) and “APPLICATION FOR SETTLEMENT FORM IM2B” (“the Settlement Form”). Although Ms Anis signed both forms, she did not date either document (at least on the copies disclosed in these proceedings, which I take to be photocopies retained by her). Counsel for Ms Anis contends that she submitted both documents on 7 March 2000, and therefore Mr Babar must have sent her both before then. Counsel for Mr Babar contends that she submitted the Entry Form on 7 March 2000 and the Settlement Form on 19 September 2001, and therefore Mr Babar did not send the Settlement Form until some time in 2001.[99]It seems clear that, if Ms Anis made her application correctly, she would have submitted both forms on 7 March 2000. This is because question 1 on the Entry Form was completed by ticking a box marked “Settlement as: spouse/fiancé(e)/other relative” which is followed by an italicised instruction “Please also complete form IM2B”. Furthermore, the Settlement Form includes the instructions “Questions 1-17 on form IM2A must also be completed” and “TO BE SUBMITTED WITH FORM IM2A”.[100]Furthermore, Ms Anis’ evidence in her second statement was that this is what she did. In paragraph 13 Ms Anis stated that in February 2000 she submitted “my application to the British High Commission for entry clearance to the UK as a spouse of a British citizen together with the relevant fee. A copy of the same is at Pages 2-8 [of exhibit AA1].” The index to exhibit AA1 to the statement describes pages 2-8 as “Application for Entry Clearance as a Spouse of British Citizen”. The document at pages 2-3 is the Settlement Form while the document at pages 5-8 is the Entry Form. At page 4 is a “consular visa receipt” dated 7 March 2000 (which shows that that is the correct date and not February 2000).[101]Still further, Mr Babar stated in paragraph 15 of his second statement that he filled in a “visa application form” for Ms Anis in about late 1999. In cross-examination Mr Babar accepted that he had filled in the Settlement Form on behalf of Ms Anis.[102]Despite these matters, there are good reasons for thinking that this is not what actually happened.[103]First, while it is clear from Mr Babar’s evidence that he filled in a form on behalf of Ms Anis in early 2000, it is not clear that this was the Settlement Form. It is at least possible that this was the Entry Form, which it appears was also filled in by him. It was put to Mr Babar in cross-examination that the Settlement Form was completed and submitted to the BDHC in early 2000. His evidence was that he did not know the date, although it might have been then. It was also put to Mr Babar that this was confirmed by a letter he sent Ms Anis sometime in early 2000, but he repeated several times that he was not sure when he filled in the Settlement Form. Subsequently, he said that he thought that he must have filled in the Settlement Form after getting the decree absolute.[104]Secondly, if Mr Babar filled in both forms on the same occasion, it would seem strange that he gave different dates for when he became settled in the UK: in the Entry Form this is given as 1991 while in the Settlement Form it is given as 1990. This suggests that he filled in the forms on different occasions. This is supported by his evidence in paragraphs 16 and 17 of his second statement that, after his return to the UK following his visit to Pakistan in November 2000, he was pressurised to send “further visa application documents” and did provide further documents in 2001.[105]Thirdly, there is the mystery over the events on 3 April 2001. Ms Anis’ evidence was that she attended the BDHC for interview on 3 April 2001 taking various documents with her including a copy of the decree absolute, that she was given the notice of refusal on the same day, and that the officer threw her documents on the floor because they were copies, said that her husband was making a fool of her by giving her copies and told her that she could either appeal or renew her application by submitting original documents. I find this evidence difficult to accept for a number of reasons: i) for the reasons explained above I do not consider Ms Anis to be a reliable witness; ii) Ms Anis’ second statement indicated that she submitted copies of all the documents required, including the sponsorship declaration, by 3 April 2001 and subsequently submitted the originals (compare paragraphs 13, 14, 16 and 17 with paragraph 19), but this cannot be correct because the sponsorship declaration is dated 30 August 2001 as is the attested copy of Mr Babar’s passport; iii) Ms Anis’ evidence was that she went to the BDHC on 5 May 2000 to find out what documents were required and the document she was handed on this occasion clearly states that “ORIGINAL” documents are required to be produced at interview while a leaflet entitled “British Visa Requirements” issued by the Foreign & Commonwealth Office which was also disclosed by Ms Anis clearly states that original documents should not be sent but may be required at interview; iv) I find it difficult to believe that an officer of the BDHC would have behaved in the manner alleged; and v) the reasons given for refusal are more consistent with a failure by Ms Anis to provide all the evidence required such as a sponsorship declaration (to show that the spouses could maintain themselves) and the decree absolute (to confirm Mr Babar’s divorce).[106]Fourthly, Ms Anis disclosed a copy of the Settlement Form bearing an annotation reading “application submitted on 19 Sept 2001”. There is no evidence as to who made this annotation, but I infer that it was made by Ms Anis’ solicitors on her instructions. As I have said, despite this, counsel for Ms Anis cross-examined Mr Babar on the footing that the Settlement Form was filled in and submitted to the BDHC in early 2000. Ms Anis did not confirm in evidence that the annotation was incorrect, however.[107]Fifthly, Ms Anis’ letter to the BDHC dated 11 January 2002 begins “I SUBMITTED MY DOCUMENTS ON 19TH SEPT 2001 FOR PERMANENT SETTLEMENT IN UK”. On its face this strongly suggests that she submitted the Settlement Form and supporting documents on that date. Furthermore, the date corresponds to the date annotated on the Settlement Form. In paragraph 20 of her second statement Ms Anis confirmed that she attended the BDHC on that date to submit various documents.[108]It is relevant to consider who bears the burden of proof on this issue. In my judgment it is Ms Anis. This is because she relies upon the Settlement Form having been completed in early 2000 as founding part of her attack on the credit of Mr Babar. She is also in a better position to prove the relevant sequence of events. In reaching my conclusion I have taken the evidence of the witnesses into account, but I have placed most weight on the documentary evidence and in particular Ms Anis’ letter dated 11 January 2002.[109]In my judgment Ms Anis has not proved that the Settlement Form was completed in early 2000. On the contrary, I consider it more likely that it was completed by Mr Babar in late August 2001. In my view the most probable explanation of the sequence of events is that Ms Anis initially applied for entry clearance in March 2000, but failed to submit all the documents required. Either she failed to submit a Form IM2B at all or she submitted a different one. Furthermore other documents were missing. This may well be because Mr Babar had not supplied all the documents required. After the refusal on 3 April 2001, Ms Anis renewed her application. The Settlement Form and supporting documents including the sponsorship declaration and attested passport copy were brought to Pakistan by Mr Uddin in September 2001 and submitted on 19 September 2001.

The anniversary card and presents sent by Mr Babar in July 2000

[110]Mr Babar’s evidence, which I accept, was that he sent the anniversary card and presents in July 2000 as a result of pressure from the two families. I suspect that at least part of the reason they were requested and sent was to provide evidence which might be useful to Ms Anis in dealing with the immigration authorities. In his letter to Ms Anis in early 2000 Mr Babar told her to take correspondence between the two of them to her interview with the BDHC.

Receipt by Ms Anis of the decree absolute in January 2001

[111]It is common ground that, from the time she received a copy of decree absolute at about the end of January 2001, Ms Anis was aware of the date of the decree absolute and hence aware that Mr Babar had still been married to Ms Ramsamy at the time of the Nikah. Thus she was aware of this before she came to the United Kingdom and before she started to occupy the Flat.

An undated letter

[112]Ms Anis disclosed an undated letter from Mr Babar to herself and her family in which Mr Babar wrote inter alia:
“Pl. find the forms together with this letter. I appreciate the anxiety and to an extent anger expressed as a result of this delay. Having said that, I am of the opinion that people or relatives around misinterpret or even pass on false information (especially in Pakistan) which inevitably results in misunderstandings. However, as explained before, I have no commitment to anyone else whatsoever (as suspected) besides my family, and I have what was seen and observed by your Mamoo [Ms Anis’ uncle] or what I had informed you before. I had never and shalln’t let my integrity be questioned or dented. There are opinions which are always debatable and very subjective, where facts invariably remain as they are. All facts were disclosed and they stand as they were to this date. … May I reassure you that I am doing my very best for Anika to be here in comfort….”
[113]Mr Babar was cross-examined on the footing that this letter was sent in December 2001. He said that he could not recall when it was sent. Counsel for Mr Babar submitted that it could have been sent in early 2000. I consider that it is probable that the letter was sent by hand via Mr Uddin in September 2001, for two reasons.[114]The first is what is said in the first paragraph of the letter. This makes it plain that the letter accompanied some forms. While it could refer to forms being sent by post, I think it more likely that it refers to forms being sent by hand. It also refers to anger as a result of the delay. While this could refer to the delay from the end of July 1999 to the end of February 2000, I think it more likely that it refers to the delay from the end of July 1999 to late August 2001.[115]The second reason is the reference to facts being disclosed. Mr Babar’s evidence was that this was a reference to his marital status. This suggests that the letter post-dates the sending of the decree absolute in 2001 and the refusal of entry clearance in April 2001. It is likely that there were recriminations as result of Ms Anis being refused entry clearance, and that Mr Babar was defending himself.

The sponsorship declaration

[116]Mr Babar accepted in cross-examination that in the sponsorship declaration he had undertaken to the Home Office to maintain, support and accommodate Ms Anis during her stay in the UK. Mr Babar also said, however, that, while he did not want Ms Anis to come to the UK, she was determined to come; that he hoped that, if she did come, she would understand and come to accept that the marriage had been forced upon him; and that he did not believe that he would continue to be obliged to maintain, support and accommodate Ms Anis after the expiry of her visa. I accept this evidence.

The grant of entry clearance in January 2002

[117]Although both applications for entry clearance were made on the basis that Ms Anis was Mr Babar’s wife, it is clear that the BDHC appreciated that the marriage was not valid under English law and therefore granted clearance on the basis that Ms Anis was Mr Babar’s fiancée and wished to come to the UK to marry him.

Ms Anis’ arrival in the UK in February 2002

[118]After she had obtained entry clearance, Ms Anis purchased an airplane ticket to London. On 5 February 20000 she telephoned Mr Babar to tell him that she would be arriving the next day and to ask him to meet her at the airport. Mr Samad was with Mr Babar when she called. Mr Babar’s evidence, which was corroborated by Mr Samad, was that he told Ms Anis not to come, but she insisted. Ms Anis claimed that he told her not to come without the documents which he had sent her, but I do not accept this account of the conversation.[119]Ms Anis gave evidence that she entered the UK believing that she had the legal status of Mr Babar’s wife due to the Nikah even though she was aware by then that Mr Babar had not been divorced from Ms Ramsamy at the date of the Nikah. This evidence is difficult to reconcile with other evidence, including her own evidence that she was told by the immigration authorities on arrival in the UK that she should marry Mr Babar under English law within 6 months, unless Ms Anis’ belief related to her status under Pakistani law rather than under English law. I consider that, while Ms Anis may have believed that she had a valid marriage under Pakistani law, at least from the date of the refusal of entry clearance on 3 April 2001 she was aware that it was probably not valid under English law.[120]Mr Babar’s evidence, which was again corroborated by Mr Samad, was that on 6 February 2000 he was so reluctant to have anything to do with Ms Anis that he asked Mr Samad to meet her first. He then joined them and drove them to the Flat, but did not converse with Ms Anis during the journey. After their arrival, he again did not converse with Ms Anis. Mr Babar’s evidence, which was corroborated by Mr Uddin, was that he then took Ms Anis to Mr Uddin’s place and only collected her from there when Mr Uddin telephoned him late in the evening. Ms Anis did not really dispute this account, which I accept as correct.

The parties’ relationship after 6 February 2002

[121]The Flat has two bedrooms. Mr Babar’s evidence was that he allocated Ms Anis a different bedroom to his own and that they never shared a bed. Ms Anis’ evidence was that they did share a bed, at least for the first month or so. I prefer Mr Babar’s evidence.[122]I am satisfied that Mr Babar and Ms Anis never lived together as husband and wife in any conceivable sense of that expression. In fact they were simply two strangers sharing the same accommodation. Ms Anis no doubt hoped that Mr Babar would honour the responsibilities imposed on him under the Nikah and make the marriage a reality, but that did not happen.[123]Furthermore, I am satisfied that Mr Babar never made any representation to Ms Anis about her right to occupy the Flat at any time between 6 February and 10 August 2002 other than a representation by conduct that Ms Anis had permission to stay there for the time being. I also satisfied that Ms Anis never believed that she had any right to occupy the Flat specifically, as opposed to a belief that as a wife under Shari’a law she had a right to live wherever her husband lived.

The discussion in March 2002

[124]Mr Babar’s evidence was that in March 2002 he informed Ms Anis that he was not accepting her mentally as a wife. Ms Anis accepted that he had said this, although she dated it to April 2002. Mr Babar’s evidence was that Ms Anis replied to the effect that she knew that Mr Babar had been forced into the marriage; that, when he said that it might better if he divorced her by Talaq, she asked him not to; and that she then asked for his help in obtaining a permanent visa to stay in the UK and asked him to marry her under English law for that purpose, but he refused. I accept this evidence. Ms Anis’ evidence was that Mr Babar told her that he was impotent. I do not accept this.

Events in May-June 2002

[125]In May 2002 Mr Ul Haque came to visit his daughter. It was clear to him that the marriage was not a success. It is common ground that there was a discussion between Mr Ul Haque and Mr Babar about the situation shortly before Mr Ul Haque left. It is also common ground that Mr Ul Haque suggested that Ms Anis should return to Pakistan and that Mr Babar said that if she did he would help them to set up a business. Mr Babar’s evidence was that Mr Ul Haque asked Mr Babar to help Ms Anis obtain an indefinite visa to remain in the UK upon which she would walk away from his life; Mr Ul Haque disputed this. Mr Ul Haque’s evidence was that Mr Babar said that he was impotent and offered Mr Ul Haque a large sum of money to take her back; Mr Babar disputed this. I prefer Mr Babar’s evidence.[126]It is common ground that around this time Ms Anis started looking for employment. To that end she got her visa altered as related above and opened a bank account.

The events of 10 August 2002

[127]Ms Anis’ evidence was that, after Mr Babar failed to attend Lambeth Register Office, there was a row between Mr Babar and herself on 10 August 2002 during the course of which Mr Babar threw a mobile phone at her which broke. Mr Babar disputed this. I am not satisfied that Mr Babar threw a mobile phone, but I am inclined to believe that there was an argument, since it is probable that something precipitated Mr Babar’s departure on 11 August 2002.[128]Ms Anis’ evidence was that during this argument Mr Babar said she could stay in the Flat for as long as she liked. Mr Babar denied this. I prefer Mr Babar’s evidence.

The discussion in October 2002

[129]Mr Ather’s and Mr Uddin’s evidence was that in October 2002 Mr Uddin and Ms Anis went to Mr Ather’s home. This was the first time that Mr Ather had met Ms Anis. Mr Uddin said to Mr Ather that there was a dispute between Mr Babar and Ms Anis and asked Mr Ather if he would assist in trying to resolve the matter. Ms Anis asked Mr Ather to tell Mr Babar that she would vacate the Flat if Mr Babar assisted her to obtain an indefinite visa to remain in the UK. Ms Anis disputed this account. I prefer the evidence of Mr Ather and Mr Uddin.

Promissory estoppel

[130]It follows from the foregoing that, except for one point, Ms Anis has not established the factual basis for her defence of promissory estoppel. The exception is the sponsorship declaration, in which Mr Babar undertook to the Home Office to maintain, support and accommodate Ms Anis during her stay in the UK. I did not understand counsel for Ms Anis to contend that the sponsorship declaration on its own was sufficient to found a defence of promissory estoppel. It is therefore unnecessary for me to express any view on whether that defence would have been legally well founded if the full factual basis alleged had been made out.

Deceit

[131]It also follows that Ms Anis had not established the factual basis for her counterclaim for deceit. It is therefore unnecessary for me to express any view on whether she would have been entitled to more than nominal damages if the factual basis had been made out.

Notice

[132]It is common ground that, absent any promissory estoppel, Ms Anis occupied the Flat as a bare licensee and that the licence was terminable upon reasonable notice. In her letter dated 27 August 2002 Ms Ramsamy gave Ms Anis 14 days’ notice to quit the Flat, but it is clear from Minister of Health v Belotti [1944] KB 298 that, even if this period was too short, the termination will have been effective provided that a reasonable time elapsed between service of the notice and commencement of the proceedings. Proceedings were commenced on 11 October 2002, 44 days after the letter dated 27 August 2002 is deemed to have been served. Mr Babar contends that this was sufficient notice, and relies upon the fact that the normal period of notice in a possession order is 28 days. Ms Anis contends that this was insufficient notice and that she should have been given a minimum of two months’ notice.[133]It appears from Minister of Health v Belotti that the key question is whether the period in question is sufficient for a person in the circumstances of Ms Anis to find other accommodation. I bear in mind that Ms Anis was to some extent a stranger in this country, but there is no evidence that Ms Anis was in financial difficulties or had no one to turn to for assistance, even assuming that Mr Babar would not have assisted her (although I believe that he would have). On the contrary, she was in employment and had a bank account. Furthermore, at around this time she was able to turn to Mr Uddin for advice, and he recommended that she consult solicitors, which she did. There is no evidence that she made any effort to find alternative accommodation. The reason why Ms Anis did not move out of the Flat was not because she could not find (or afford) alternative accommodation, but because she wanted to remain in the Flat and use her occupation of it as a bargaining counter in trying to persuade Mr Babar to support her application for leave to remain in the UK. In my judgment the period which elapsed between the arrival of the letter dated 27 August 2002 and the commencement of proceedings was sufficient for Ms Anis to have found alternative accommodation had she been minded to do so.

Conclusion

[134]The claim succeeds and the counterclaim is dismissed. I will hear counsel as to the order to be made in the light of this judgment if it cannot be agreed.