AAM v KG [2018] EWHC 283 (Fam)

[2018] EWHC 283 (Fam)Case No SN14N00963
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Friday, 12 th January 2018
Strand. London
Before
MR JUSTICE BAKERB E T W E E N:
Between
AAM ApplicantKG Respondent__________MS CHARLOTTE PROUDMAN (instructed by Londinium Solicitors) for Appellant.THE RESPONDENT appeared in person. for in personHearing Hearing date: 27 November 2017

J U D G M E N T (approved)

[1]This is an appeal by a husband against two orders made by HH Judge Sharpe sitting at Swansea, one dated 8th August 2016, by which he granted a decree of nullity, the second dated 27th January 2017, by which he refused to set the decree aside. Permission to appeal against both orders was granted by me on 7th June 2017. The hearing of the appeal was originally listed for 24th July 2017 but adjourned on the grounds of the respondent's ill-health, and re-listed for 4th October. On that occasion it regrettably had to be adjourned again for want of time and was re-listed for 27th November. The hearing duly took place on that date and at the conclusion of the hearing I reserved judgment.[2]The background to the case can be summarised as follows. The husband is from Bangladesh, the wife is from Poland. Both parties are Muslim and at all material times have lived in this country. On 27th March 2011, the parties went through an Islamic marriage conducted by an Imam at Swansea University. On 13th September 2011, they entered into a civil marriage at the Swansea Registry Office. In October 2012, the husband went to Bangladesh to visit his son. The wife's case is that she was unaware that the husband had a son at all before he left for Bangladesh, but while he was away she looked at his Facebook page and found photographs of him with a woman and child. It is her case that he told her about the existence of his son on returning from Bangladesh after that visit, but he said that he had a son, not that he was married to the mother. The wife's case is that she then began to suspect that he was not telling her the truth about that and that he was, in fact, married to another woman in Bangladesh.[3]Following this, the relationship broke down. A mediation session was arranged and conducted by the Imam who had married them. In addition to the parties and the Imam, present also were the wife's sister, her brother-in-law, and a friend of the wife's, hereinafter referred to as "M". What happened at the mediation session was a matter of dispute but in outline the parties' respective positions were as follows. The husband contended that the Imam spoke with him alone and during that conversation he informed the Imam that he had a son from a former relationship in Bangladesh. He denied saying that he had a wife in Bangladesh. The Imam's evidence was that the husband admitted to him that he had a wife and son in Bangladesh. The Imam and wife alleged that, after the private discussion between the Imam and the husband, the Imam informed everyone else in attendance that the husband was married in Bangladesh and only married the wife in order to obtain EU citizenship. The husband strongly denied that he said any such thing. The parties then separated following the mediation session and went through an Islamic divorce. It is the wife's case that she subsequently spoke by telephone to a woman in Bangladesh whom she claimed to be the husband's wife in that country. The telephone call lasted for about an hour and was taped, and the recording subsequently transcribed. The wife's case was that, according to the transcript, the person on the other end of the phone said she was married to the husband, she loved him and did not want to divorce him. She would never lose him because he was her husband and her baby's father.[4]On 15th September 2014, the wife filed a nullity petition. An amended petition was filed on 30th March 2015. The ground for seeking the nullity decree relied on was that at the time of marriage the husband was already lawfully married to someone else. On 12th August 2015, the husband filed an answer defending the petition on the basis that he was not married to someone else at the date of his marriage to the wife, and asserted that, although he had a son by another woman in Bangladesh, he had never been married to her.[5]On 5th October 2015, a district judge in Swansea Family Court gave case management directions, including a direction for the disclosure of the transcript of the telephone call referred to above, and also a direction that the parties should jointly make enquiries as to the identity of the appropriate marriage registration authority for the Tangail District for Bangladesh, and then jointly approach that authority to request disclosure of any records that exist of a marriage between the husband and a woman named SJ that district on or about 6th May 2007. It seems that the parties did not strictly comply with this direction but in the event the husband obtained documents on which he subsequently relied which purported to show that there was no marriage between him and a woman called SJ. One document came from the chairman of the Danya Union Prashad, the other from the nikkah registrar at the local registry office in that district.[6]The matter came before His Honour Judge Sharpe for several directions appointments in January, March and June 2016, and was then listed for a full hearing on 8th August 2016. At the full hearing, the husband was represented by counsel, the wife represented herself. The judge heard oral evidence from the parties, the Imam and one of the three other persons who had been present at the mediation session. At the conclusion of the hearing, the judge granted the decree nisi of nullity, which was made absolute on 21st September 2016. Prior to the decree being made absolute, however, the husband applied under s.9 of the Matrimonial Causes Act 1973 for an order rescinding the decree. That application came before Judge Sharpe on 27th January 2017. At the conclusion of the hearing, the judge dismissed the application and ordered that the decree absolute made on 21st September 2016 was thereby effective and final.[7]On 28th February 2017, the husband filed a notice of appeal to the High Court against Judge Sharpe's order of 27th January 2017. On 16th March 2017 I made case management directions, including preparation of the transcript of the judgment of 27th January 2017 and directed that, on receipt of the documents, the application for permission to appeal should be referred to me or another judge to be considered on paper. On 12th May 2017, the application was considered on paper by Roberts J, who directed that the permission for appeal be listed for an oral hearing. That oral hearing took place before me on 7th June 2017. The husband was on that occasion represented by Ms Charlotte Proudman who had not appeared on his behalf in the court below but who has appeared at all subsequent hearings before me. In the course of the argument, it became clear that the proposed appeal was directed not only at the order of 27th January 2017 but also, and in fact more substantially, at the decree nisi itself prior to 8th August 2016. I concluded that the test for granting permission to appeal was satisfied and duly granted permission to appeal against both orders. I gave directions for the preparation of the appeal, including for a transcript of the full hearing before Judge Sharpe on 8th August 2016 including the judgment. I have already set out the unfortunate circumstances which led to the appeal hearing being adjourned on two occasions before it finally took place before me on 23rd November 2017.[8]Before turning to the grounds of the appeal, I should consider the two judgments delivered by Judge Sharpe on 8th August 2016 and 27th January 2017. In the first judgment the judge set out the background and the issue, namely whether, at the time of the parties' marriage, the husband was already married to the mother of his child in Bangladesh. He indicated that the issue was not whether the marriage should be brought to an end - the parties agreed that the relationship was over and had, as I have already said, undergone an Islamic divorce - but rather whether it should be declared void and a decree of nullity granted. The judge set out the relevant statutory provisions. He then turned to the evidence. He noted the responses that had been received from the authorities in Bangladesh stating that there was no record of any marriage between the husband and the woman named as the child's mother. He recorded the husband's contention that the absence of any record was a positive fact which confirmed his position and underlined that of the wife. The judge then considered the wife's evidence and noted that it came from three sources: her own evidence, the evidence of her friend present at the mediation session and the evidence of the Imam. In respect of the evidence of the wife's friend, M, the judge noted that she had been clearly intent on supporting the wife and concluded her statement had been prepared in the wife's presence. The judge said he was not greatly assisted by her evidence, partly because of its similarities to the other statements prepared on behalf of those present at the mediation - it was in fact in identical terms to those statements - but also because in her oral evidence the witness introduced an amount of detail which had not been included in her statement. He added, however: "This witness is able to confirm the fact of the meeting, of the involvement of the parties as well as the Imam, and that it was on this occasion that the husband acknowledged the existence of both the woman in Bangladesh and the child who he acknowledged to be his own. The witness gave evidence that the husband accepted that this lady was his wife".[9]The second witness the judge referred to in the judgment was the Imam himself. Of him, the judge said as follows:
"24. I was impressed by this witness. He struck me as being mature, thoughtful and considered in what he said. I was in no doubt that he was clearly attempting to be fair to all concerned. At one point during his evidence he was keen to point out that he considered himself to be a person of standing within the Muslim community and therefore that he would not have come to court today to give partial or biased evidence to assist either party. I took this to be a commitment on his part to be independent, given the importance that he attached to his position as a spiritual religious adviser in the Swansea area and also, in particular, in relation to the issues that he had sought to assist these parties with. 25. [The Imam] indicated that he had in fact made notes at the material time from which he had independently compiled his own statement. I was left with the impression that he was genuinely attempting to assist me by accurately recording and reporting what it was he had heard, the essential point being that he had heard [the husband] say, 'I do in fact have a wife and I married her in 2007 in Bangladesh'."
[10]The judge went on to record other aspects of the Imam's evidence, including the purpose of the mediation meeting. He continued at paras.27 to 30 of the judgment as follows:
"He [that is to say the Imam] indicated that in addition to the general discussion with both parties, which was observed by others who were present, that he had a private conversation with [the husband]. The Imam was clear to me that the husband confirmed to him, as well as then generally to everyone who was present, that he had in fact been married to the woman in Bangladesh, who was also the mother of his child"
. He went on to say: "28. When the husband gave his evidence, he said that the Imam had misunderstood what the husband had said due to the husband's own lack of fluency in English at that time. On this point it was the evidence of the Imam that he had no difficulty in understanding the husband, who did not appear to be in any difficulty in expressing himself in English. My own view on this point is that I thought the Imam was not only clear in what he was saying but, more importantly, that the husband had a clear understanding of English, which included being able to express himself in that language. I did not form the view that either the Imam nor the husband was operating under any disadvantage by speaking in English. 29. Even if that were the case, I formed the view that he was unlikely to have made such a fundamental error as to misunderstand what he had been told by the husband. In any event, he would have had the opportunity, on the evidence that was given by him, to have re-heard what the husband was saying, because he repeated what he had told the Imam in private to the assembled people who had not been present during the private meeting. If my clear impression was that the Imam would not have misunderstood the husband once, it is even clearer that he would not have misunderstood him twice. 30. My overall impression of the Imam was that he told the truth because he took that responsibility seriously. He had a reason for telling the truth by virtue of his position and standing but he had a secondary reason for telling the truth because he knew what the meeting was about, he was aware of what it concerned".[11]Next, the judge dealt with the wife's evidence. He noted that the wife could have spared herself a lot of trouble by agreeing to a divorce instead of a nullity but he added that he did not form the view that she had taken this course out of spite towards the husband. In particular, he was not persuaded that she had taken this course to make life difficult for the husband in terms of his visa. The judge recorded that he had been told by the husband in evidence that in the event of his spousal visa being withdrawn, his employers had assured him he would be able to obtain a different form of visa to allow him to remain in this country. The husband is apparently a highly skilled software engineer. The judge stated that, if he had thought that the wife had an ulterior purpose in petitioning for a nullity, it would affect his assessment of the parties' honesty, but he was satisfied the wife was an honest witness and noted that her evidence accorded with that of the Imam.[12]The judge reached a different conclusion concerning the husband's evidence. It was contradicted by that of the wife and the Imam. He found that the husband had failed to explain the reasons for his secrecy about his life in Bangladesh and for his failure to tell the wife that he had a child. The judge did not accept the husband's explanation that he was waiting for the right time and place to tell her about these matters. He found it far more likely that the husband had chosen not to mention it because it would lead to the discovery that he was married. The judge noted that the wife also had a child in Poland by a previous relationship, so there would be no difficulty in the husband telling her about his son if he was not in fact married to the boy's mother. The judge noted the husband's explanation of the fact that the woman in Bangladesh referred to herself as his wife, namely that she did so because of the stigma attaching to any woman in that culture having a child out of wedlock. The judge said that this would have been an honourable thing for the husband to allow, but concluded that if true, there would be no reason why he could not have explained that to the wife as opposed to concealing the existence of the child he loves and supports.[13]At para.35 of his judgment, the judge said: "In the absence of any logical explanation for his actions, I am driven to the conclusion that the husband did not want the wife to be aware of his life in Bangladesh and the only possible explanation for that is that he was already married when he purported to marry the wife in Swansea in 2011".[14]The judge therefore concluded that there had been a marriage in Bangladesh and that the husband had been married to a woman in Bangladesh at the time he went through the marriage with the wife in this country. He added this at paras.37 to 38:"37. My view of the evidence of the parties, both in their own and those who support them, is such that I am able to disregard the information from Bangladesh which suggests that there is no record of any marriage involving the husband in that country. In arriving at that view, I do not in any way disparage or undermine the legitimacy and the propriety of the records that I have from Bangladesh but I am satisfied by the evidence I have heard from all the witnesses before me that I should prefer their evidence and, where it conflicts with the evidence in the documentation, I should prefer the evidence that I have had the opportunity of hearing for myself today.38. I arrive, therefore, at the conclusion that I am satisfied on a balance of probabilities that on 13th September 2011 the husband was already married in Bangladesh when he went through a civil marriage ceremony in the United Kingdom, and on that basis the marriage that was pronounced by the Registrar in September at the Registry Office in Swansea was void by reason of one of the parties already having been married".[15]The second judgement, dated 27th January 2017, begins with a summary of the case and his earlier decision. It seems that the judge did not have a transcript of his earlier judgment but recalled the case and the reasons for his decision, referring in particular to the very positive impression which the Imam had made. In passing, I observe that it seems sensible that any party seeking to invite a court to revisit or rescind a decree under s.9 of the Matrimonial Causes Act should, as a matter of course, obtain a transcript of the earlier judgment and perhaps also the whole hearing on the first occasion before. That did not happen here, although it does not seem to me ultimately to have a bearing on my decision on this appeal.[16]The judge went on in his second judgment to make a number of further comments about his earlier decision. He observed, as I have said, that he had formed a very positive impression of the Imam, describing it as strong evidence which he should not disregard. He noted that it contrasted with the documentary evidence produced by the husband. He observed that, at the hearing in August 2016, the burden of proof had been on the wife as the person asserting a fact or contention on which she relied, saying in terms, "It is not a case of the husband having to prove a negative" - in other words, that he had not had to disprove the wife's assertion he was married.[17]His judgment proceeded with this passage: "For the purpose of determining the central factual issue, I had to consider all of the evidence then available, including the oral evidence of the parties and the respective witnesses. I found the petitioner to be an honest witness who was straightforward in her dealings and whose suspicions concerning the respondent and his former life in Bangladesh appeared to solidify and have foundation as she had direct communication with the individual in question there and became more aware of information the respondent had deliberately chosen to keep secret from her and I could see no malevolent or disguised reason for her to choose the litigation route to a dissolution which she had. In relation to the documentary evidence relied upon by the respondent, what I had to weigh in determining and making the decision that I did, was the extent to which I accepted the absence of evidence of a marriage in Bangladesh as opposed to the evidence of the Imam and the conversation he had had with the husband. The lack of any record of an official marriage in Bangladesh is a strong starting point and a strong indicator that I should not have found that the nullity petition was proved. However, I considered that I could not treat the absence of a record of marriage in the district in question, even with the use of an apparent official and unique identification number, as proof that the respondent was not married. To do so would have equated the presence of an absence in the record as amounting to a positive fact of sufficient cogency to enable a specific conclusion to be inferred. In addition, I was particularly impressed with the evidence of the Imam".[18]For the hearing in January 2017, the husband had produced additional documentary evidence from the Electoral Commission Secretariat of Bangladesh purporting to confirm that he had never been married. The judge recorded the points made by the wife concerning the document, for example, differences of spelling within the document. The judge observed that he did not think these issues fully addressed the point, adding that the case was not going to be decided solely by a spelling mistake or inconsistencies in a document.[19]He then went on to explain the reason for refusing the application to set the decree: "26. Nothing has been put before me today to cause me to change the view I had of the quality of the evidence provided on the previous occasion. What has been put before me is some further information which may or may not have been obtainable prior to August 2016 which goes effectively to the same point but which provides a further layer to it, that is seeking to establish by the absence of a record of a marriage ceremony having been registered that there was never a marriage. 27. I reject that evidence for the following reasons:(a) Although I indicated that the case would not be decided by the manner in which the respondent's name had been misspelt on the documentation now provided, I do take note of the inconsistencies which appear in the documentation. Those papers do not give me the impression of authenticity but give me the impression of having been created for a purpose other than as part of an official record. Whilst I do not go as far as to say that a deliberate deception is being attempted, I am wary of placing the weight on these documents which the respondent would have me do.(b) This is amplified by the fact that these documents are being produced now rather than at the original hearing. I would have expected their production at the outset of the case rather than at the last. 28. There is still before me no evidence to support the contention offered by the respondent that he has sought to assist the mother of his child in Bangladesh by allowing her to pose as his wife for her benefit. I can understand why the lady may not wish to take any step to reveal the fact of her unmarried status in Bangladesh but there will be no reason for her not to support the respondent in his proceedings in this country and provide a statement clarifying her own position. This is particularly so when on her case the respondent has acted in an honourable way towards her and sought to assist her. 29. I am left with the clear impression that the evidence heard previously as to the fact of a marriage in Bangladesh, coupled with the absence of any evidence from the lady in question, when added to the apparent lack of authenticity of the documents now being put forward, causes me to conclude that the respondent was married whilst living in Bangladesh and for reasons which remain known only to himself decided to make no mention of this fact when making the arrangement which he did with the petitioner to marry in Scotland shortly after they met".[20]For the presentation of the appeal, Ms Proudman filed amended grounds and an amended skeleton argument. I gave her permission to rely on those documents. It seemed to me to be important that the husband's case should be presented in a way that fully set out his case. I am satisfied that no injustice has resulted to the wife in the light of these amendments.[21]I shall go through the grounds and arguments in the order in which they were presented by Ms Proudman. The first ground is that in the judgment of 8th August 2017 the judge made what is described as a serious procedural irregularity in failing to acknowledge the existence of another witness, a Ms K, who gave oral evidence on behalf of the husband at the hearing. A transcript of the hearing has now been produced and it is indeed the case that Ms K gave evidence. The husband had filed a statement from her dated 24th February 2016. Ms K is, or was at the time of the hearing, the husband's current partner. Her witness statement said nothing of direct relevance on the issues before the judge, save that she alleged that she had been a friend of the wife from back home, meaning Poland, and after discovering their relationship, the wife had harassed them to such an extent that they had had to move. At the end of the wife's case in the hearing, the judge inquired in the usual way whether that was her case, i.e. the evidence on which she relied. The wife, who was, of course, acting in person, raised the matter of a text conversation between her and Ms K which she had produced and translated from Polish. It was said by the wife that in the course of the text conversation, Ms K had said, "He's still in touch with his wife", meaning his wife in Bangladesh. The judge raised the matter with the husband's then counsel, who told him that Ms K was in the building, that he was not sure he was planning to call her, that if the court wanted to hear from her, he would be more than happy to call her, but she would confirm her witness statement.[22]After the husband had given his evidence, his counsel raised again the question of Ms K, observing that he did not think her evidence went to the heart of the matter. The judge agreed, observing that the question whether the text conversation had taken place was not what he described as "the clear evidence which confirmed the marriage". In the event, Ms K was called briefly. She confirmed that the text conversation had taken place. She said that she and the husband had been constantly threatened by the wife about going to the police, but in the text conversation she had been trying to get information about what the wife was planning. Counsel asked her whether what she had said in the text message was true, i.e. about having a wife in Bangladesh. Ms K said no, that he had a son but not a wife. In the course of her evidence, the judge asked her questions and drew attention to the words, "I think he's still in touch with his wife" in the text. Ms K said that this was a little bit silly of her but she was scared. When she was texting, the husband had in fact been present with her. The conversation had been an attempt to try to get information out of the wife about what she was doing.[23]The judge did not refer to her evidence at all in his judgment of 8th August 2016. On behalf of the husband, Ms Proudman submits that this was a serious omission. In particular, she relies on the judge's failure to refer to the fact that Ms K had said in the course of her oral evidence that the husband was not married to the woman in Bangladesh. She submitted that it was unclear what, if any, weight the judge had attached to it, and that the omission is not corrected by the fact that, in the text message, Ms K had referred to his wife, i.e. the woman in Bangladesh. I agree that this is an omission. Judge Sharpe does not refer to Ms K's evidence at all. Looking at this aspect of the evidence, however, it does not seem to me that it is a significant or material omission. The witness had not said anything in her witness statement to indicate that the husband had ever said that he was not married to the woman in Bangladesh. The evidence on which Ms Proudman now seeks to rely only came out in passing at the end of the questions put by the husband's then counsel. The focus of the questions put to her by counsel and the judge was the text conversation in which she had said words to indicate that he did have a wife in Bangladesh. It is plain that, in the circumstances, the judge decided that her contradictory evidence did not carry weight either way, although it would have been better if he had referred to it. I remind myself that this was an ex tempore judgment. I do not consider this omission by itself to be material.[24]The second ground of appeal is that the judge was responsible for what Ms Proudman again describes as a serious procedural irregularity in failing to refer to the fact that two witnesses - the wife's sister and brother-in-law, who had been present at the mediation session - had made statements but did not attend court, without explanation. Ms Proudman submits that the judge should have drawn an adverse inference from their failure to attend or, at least, should have considered doing so. Ms Proudman accepts, as is clear from the transcript, that the judge was not asked to draw such an inference. I do not regard this as an irregularity. The witnesses did not attend and the judge evidently decided not to take their evidence into account. In my judgment, it cannot be said that he was wrong to take this course.[25]The third ground relied on is that the judge failed to mention in his judgment of 8th August that the burden was on the wife to prove that the husband was married, and made an error of law in putting the burden of proof on the husband in both judgments to prove that he was not married. She relies on a passage in the first judgment in which the judge referred to the absence of any legitimate explanation for his actions. Ms Proudman says that it is not incumbent upon the husband to provide a legitimate explanation. I agree, but the fact that the judge referred to it, and relied on the absence of a legitimate explanation, is, in my mind, uncontroversial. He was entitled to take into account the absence of such an explanation for the husband's actions. The judge did so in the context of the other evidence. In doing so, he was not, in my judgment, shifting the burden of proof. The husband's then counsel referred to the burden of proof during his cross-examination of the wife. If there was any doubt that the judge had applied the burden of proof correctly, it is dispelled by the second judgment of 27th January in which, as quoted above, he explicitly referred to the fact that the burden of proof had been on the wife at the earlier hearing.[26]In her skeleton argument, Ms Proudman also cites the fact that the judge failed to refer to the fact that the wife had not complied with the district judge's direction about making enquiries of independent bodies in Bangladesh. In my judgment, this does not provide any additional support for her argument that the judge failed to apply the burden of proof correctly. In her skeleton argument in support of this ground, Ms Proudman also argued that the judge misunderstood the whole issue of the secrecy and the reason for the husband not telling his wife about the situation in Bangladesh. Ms Proudman submitted that the shame of having a child out of wedlock would be a good reason for not mentioning it. She relies on the Imam's comment in evidence that it was very shocking and very hard for the husband to tell the wife. It is plain from the transcript of evidence, however, that the Imam was at that point referring to how hard it was going to be for the husband to tell the wife at the mediation meeting that he was married to a woman in Bangladesh, not that he had a child out of wedlock. Ms Proudman makes submissions concerning the stigma and dishonour attached to having a child out of wedlock, which was not put in evidence before the judge. He had to decide the case on the evidence before him. I do not think he can be criticised for the view he came to on these issues. It was within his discretion.[27]The fourth ground is that the judge was wrong to disregard the evidence from Bangladesh that there was no registration of a marriage between the husband and the mother of his child without providing cogent reasons. It is also contended that he was wrong not to consider the relevant law from Bangladesh in either judgment. In her skeleton argument and oral submissions, Ms Proudman relied in particular on the use of the word "disregard" in para.37 of the judgment quoted above, saying, in effect, that in view of the other evidence, including the oral evidence, he was able to disregard the documents from Bangladesh. This is not perhaps the best choice of words but many ex tempore judgments, including, may I say, judgments of this court, contain words or phrases which could have been better expressed if the judgment had been reserved. Later in the same paragraph, the judge puts it in a rather more appropriate way, saying that he preferred the evidence of witnesses who gave oral evidence over the documents. That is something he was, in my judgment, entitled to do. I do not accept that he disregarded the documents altogether. He clearly took them into account.[28]Ms Proudman also submits that the August 2016 judgment was deficient because it failed to consider Bangladeshi law. As she conceded in argument, however, there was no expert evidence about Bangladeshi law before the judge and the only reference to Bangladeshi law was apparently an Act dating from 1886, back to the days of the Raj. Ms Proudman alleges that this was not the current law, which I accept. She wished to refer to the current Bangladeshi law but conceded that, without expert evidence, such an application was difficult to sustain.[29]Turning to the January judgment, Ms Proudman submits that the judge contradicted himself when dealing with the documentary evidence, saying at one point that the case was not going to be determined by inconsistencies in the documents but then at a later point taking note of them and concluding that he should be wary of placing weight on the documents. Reading the January judgment carefully, however, and again remembering that it was an ex tempore judgment, it is plain that the judge did not determine the matter purely on the basis of spelling errors in the documents, but did have concerns about the authenticity, which he took into account in carrying out the necessary balancing exercise. Ms Proudman accepts that, at the hearing of the application in January, the burden of proof was on the husband but submits that the husband had discharged it. She submitted that the judge failed to give reasons for his conclusion about the authenticity. He acknowledged that there was no record of the marriage but failed to place any weight on that fact. In my judgment, however, the judge's explanation in the passage in his judgment quoted above does provide a more than adequate explanation for his conclusion and his balancing of issues in the documents and oral evidence.[30]Ground five of the husband's appeal, as amended by Ms Proudman, is that the judge was wrong in his judgment of 8th August 2016 to attach weight to the Imam's evidence. He had decided not to attach weight to the evidence of the first witness, the wife's friend M, partly because her statement was couched in exactly the same terms as other witnesses' statements and partly because she then added substantially to her account when she gave oral evidence. Ms Proudman submits that the same criticism applied to the Imam's evidence.[31]The assessment of the evidence of a witness is classically a matter for the trial judge. An appeal court is not in a position to carry out the same evaluation. The key reason why the judge accepted the Imam's evidence is clearly set out in the passages from his judgment cited above. I note that he did not deal with the fact that the Imam's witness statement is drafted in the same terms as those of the other witnesses. Other judges might have dealt with that point, but I do not think that his failure to mention it materially underlines his careful assessment of the Imam's evidence, which plainly featured prominently in his ultimate decision. The similarities between aspects of the evidence of the Imam and M did not oblige the judge to attach the same weight to each. He had to consider all of the evidence. In her written submissions, Ms Proudman also drew attention to two points in the transcript where the wife interrupted the Imam's evidence and appeared to prompt him in his answers. I had considered the transcript of these points and I do not think that they have any bearing on the reliability of the Imam's evidence.[32]The sixth ground of appeal relied on is that the judge was wrong to state in the judgment that the husband had admitted being married in Bangladesh, both privately to the Imam, and publicly to others at the mediation session. The judge relied on the fact, as he found it, that the husband had repeated to everyone at the mediation session what he had said privately to the Imam. The Imam's evidence on this occasion is set out in the transcript:
"He said it to me in private and he said it as well, I think, in front of the witness. Yes. I'm not sure about the - but he said about the photographs to me in private but the marriage he said in front of - I’m sure the marriage he said in front of everybody"
. I did not see any, or any significant, inconsistencies in the Iman’s evidence.[33]Ground seven relied on by Ms Proudman is that the judge was wrong in thinking the husband's case was that the Imam had misunderstood the husband's explanation because the husband did not understand English. The husband's case was simply that he never said he was already married in Bangladesh, not that the Iman had misunderstood him. The relevant passage in the transcript of the husband’s evidence is as follows, questioned by the judge:
"[Question]: You said you had a conversation with the Imam in March 2013? [Answer]: Yes. [Question]: He said that as well as there being a meeting at which everyone was present, there is also a more private meeting where he just spoke privately with you; is that correct? [Answer}: Yes. [Question]: He also said that on that occasion you had indicated that you had a wife as well as a son. [Answer]: Probably he misunderstood me because. [Question]: No, he seemed fairly clear. He was confident that your English was good enough for him to understand. That is what his evidence was, so he does not think he misunderstood you. [Answer]: Well, that was probably my mistake, a slip of the tongue or something. I say that, 'Could be my wife' or something. [Question]: Right. But you understand that there is a difference between saying, 'I have a child' and, 'I have a child by a woman to whom I'm married'. That is not a slip of the tongue, that is actually adding another element into the conversation. [Answer]: Well, actually, I never say that I have a wife but I say, 'Mother of my son'."
So it is clear from the transcript that it was actually the husband who introduced the suggestion that the Imam had misunderstood him, and in those circumstances, the judge was entitled to deal with it in his judgment in the way that he did.[34]In ground eight, Ms Proudman contends that the judge failed to explain why the Iman’s evidence was preferred to the documentary evidence, and failed to address the submission by the husband that the Imam had supported the wife. With respect to Ms Proudman, this ground has no merit whatsoever. Given that his first judgment was relatively short, Judge Sharpe had set out in considerable detail his analysis of the Imam's evidence and why he accepted it. In my judgment, the judge was entitled to take the view at the second hearing that there was no significant new information which required him to revisit his assessment of the Imam's evidence or the weight he attached to it.[35]In ground nine it is said the judge relied heavily on the transcript of the telephone call between the wife and the woman who purported to be the mother of the husband's child in the judgment of 27th January 2017 but did not rely on it in the earlier judgment of 8th August 2016. That is said to be a significant inconsistency. In addition, Ms Proudman submits that the judge was wrong to attach any weight to the call, because(a) it was not established that the woman on the other end was in fact the mother of the husband's child,(b) it was clear from the transcript that she does not speak English fluently, and(c) the call was plainly an attempted entrapment on behalf of the wife. Furthermore, it is submitted that the judge failed to take into account the husband's explanation that an unmarried mother in Bangladesh would claim to be married because of the fear of social stigma. The judge did not refer to the telephone call at all in the first ex tempore judgment. In his second judgment, where it must be remembered he did not have a transcript of his first judgment, he alluded to it briefly, saying, as quoted above, when describing the wife as an honest witness, that her suspicions "appeared to solidify and have foundations as she had direct communications with the individual in question".[36]Reading the two judgments, however, I do not get the impression that the judge attached any, or any significant, weight to the telephone call at all. The crucial evidence, as he explained, was that provided by the Imam. Ms Proudman draws attention to the fact that in the second judgment the judge relied on the fact that no statement had been filed on behalf of the husband from the child’s mother. She submits that it was unfair to the husband to draw that inference without giving him notice. I am not persuaded there is any unfairness in the way the judge dealt with that issue and I conclude that he was entitled to draw that inference.[37]Finally, in ground ten, Ms Proudman submits that the judge was wrong to conclude that the wife had no improper motive or axe to grind when she elected to bring a nullity petition rather than a petition of divorce. She submits that, as a result of the decree, the husband's immigration status under which he has indefinite leave to remain is likely to be rescinded. As I have already remarked, assessment of witnesses is within the province of a trial judge and it is difficult for an appellate court to interfere. I do not see any basis in this case for interfering with Judge Sharpe's assessment of the witnesses in this case.[38]Looking at all the grounds of appeal separately and collectively, I have reached the clear conclusion that the husband has not demonstrated that the judge's decision was wrong, either on 8th August 2016 or on 27th January 2017, or that there was a material procedural irregularity. The reasons he gave in his ex tempore judgments satisfy the requirement of explaining his decisions to the parties. I disagree with Ms Proudman's concluding observation in her written submissions that he made findings with little care for providing adequate and detailed reasons. I find that the reasons he gave are manifestly sufficient to explain the decision that he reached. The appeal against orders of 8th August 2016 and 27th January 2017 are therefore dismissed. Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BFTel: 020 7831 5627 Fax: 020 7831 7737 civil@opus2.digital