NAGRI & CHAPAL

[2012] FamCA 464

FAMILY COURT OF AUSTRALIA

NAGRI & CHAPAL [2012] FamCA 464

FAMILY LAW - NULLITY – Application by husband for a decree of nullity on the ground his consent was obtained under duress – Finding that the husband’s consent not a true full and informed consent, it was unduly influenced by matters of culture, religion, family loyalty and financial dependence – Application granted and decree absolute issued.

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

In the marriage of S (1980) FLC 90-820
Teves III & Campomayor (1995) FLC 92-578, 18 Fam LR 844

APPLICANT: Mr Nagri

RESPONDENT: Ms Chapal

FILE NUMBER: PAC 1783 of 2012

DATE DELIVERED: 1 June 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 1 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Battley

SOLICITOR FOR THE APPLICANT:

Mr Abboud

Michael Abboud & Co

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Mr Abboud

Michael Abboud & Co

Orders

1. That the marriage solemnised at Suburb A on … November 2011 between Mr Nagri and Ms Chapal is declared to be absolutely null and void.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nagri & Chapal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1783 of 2012

Mr Nagri

Applicant Husband

And

Ms Chapal

Respondent Wife

REASONS FOR JUDGMENT

Introduction

1. Before me for determination is an application brought by Mr Nagri, in which he seeks a decree of nullity in respect of his marriage to Ms Chapal. 

2. That marriage was solemnised at Suburb A on … November 2011. 

3. The Applicant says that he was subjected to duress at the time of that marriage, which induced him to enter into the marriage.  He asserts that the effect of that is that the marriage is void. 

4. The Respondent, who is before me today, and who has filed a Response and affidavit material, does not oppose the granting of the decree sought.  However, she makes it clear that she entered into the marriage as a willing participant, and that her consent was indeed a full and unqualified consent at the time the ceremony was undertaken.

Short History

1. A brief background to this matter is as follows:-

   ·The Applicant was born in March 1987 in India. 

   ·The Respondent was born in March 1986, also in India. 

   ·The Applicant came to Australia in 2008 with his mother.  At that time, he was financially supported by his uncle, Mr S, who posted a bond for him, and who has given him further financial assistance and employment since he has lived in Australia.

   ·It appears that in about August 2011, his uncle disclosed to the Applicant that he (the uncle) had found a girl who he thought the Applicant should marry. 

   ·As I understand it, the parties met on 11 September 2011. 

   ·It appears from the affidavit material of the parties and the supporting material that in September 2011, the uncle and the Applicant’s mother had reached a decision that a marriage would occur between the Applicant and the Respondent.

   ·The Applicant tried to tell his uncle in early October that he did not wish to be married to the Respondent, and that he was in love with somebody else. 

   ·His evidence is, and I accept, that his uncle told him at that stage it would be impossible that the marriage should not occur.  His uncle said that the marriage must proceed; that he (the uncle) had given his word and that arrangements had been made.

   ·On … October 2011, a cultural ceremony called a Roka was held, after which the parties attended upon a Registrar at the Suburb A Courthouse, signed the necessary documentation and the first available date for a ceremony of marriage in accordance with Australian law was fixed.  That date was the … of November 2011. 

   ·On that date (… November 2011), the parties went through a ceremony of marriage in civil form. 

   ·In December 2011, the Applicant confessed to the Respondent that he had married her under compulsion and out of a sense of duty to his family.  He was remorseful and apologised unreservedly to her.  He said that he had acted badly, and he asked for her forgiveness. 

   ·He refused, thereafter, to go through with a Hindu ceremony, which had been arranged. 

   ·He made it clear, to his mother particularly, that he had hurt the Respondent and that he would not go through with that ceremony. 

   That is a brief background to the matter.

The parties’ materials

1. The Applicant filed the following documents:-

   ·His Initiating Application filed 30 April 2012;

   ·His own affidavit sworn 12 April and filed 30 April 2012; 

   ·An affidavit of his mother, Ms N, sworn 12 April 2012 and filed 30 April 2012; and

   ·An affidavit of his uncle, Mr S, sworn 12 April 2012 and filed 30 April 2012.

2. The Respondent filed the following documents:-

   ·Her Response filed 30 April 2012;

   ·Her own affidavit sworn 12 April 2012 and filed 30 April 2012;

   ·An affidavit of her cousin, Ms B, sworn 12 April 2012 and filed 30 April 2012.

3. It is obvious that there is close similarity between the dates.  Indeed, all documents have been filed by the one firm of attorneys. 

4. In the circumstances of this case, I find that there is nothing untoward in that situation.  The Applicant has brought an application.  The Respondent has responded saying that she does not oppose the relief sought, but she makes it clear that her position at the time the marriage was entered into was a very different situation to that of the Applicant.

The evidence to be relied upon

1. I do not propose to set out the evidence in full.  The affidavits speak for themselves. 

2. Reading the affidavits, as they now stand, it is clear that the Applicant’s uncle has recognised and acknowledged that he played a very significant part in his nephew entering into the marriage.  I am satisfied that the uncle saw himself in a position of pater familias, or something very similar to that, in that he believed that he had authority, and almost absolute authority, over the Applicant. 

3. It was his (the uncle’s) wish that the marriage should go ahead.  Indeed, he was quite appalled when the Applicant suggested to him that the marriage might not go further.  He told his nephew that all the arrangements had been made.  He particularly made it clear that he (the uncle) would not go back on his word given to the Respondent’s family, that the marriage would take place.  It is to his credit that he is now prepared to acknowledge that his behaviour in this respect was such that it overbore the will of his nephew at the time the marriage was entered into. 

4. The Applicant’s mother also takes some responsibility for encouraging her son to undertake the ceremony. 

5. The Respondent’s material points out that she was also in a position, even though she does not rely on this, where others made the decision for her as to what would happen in respect of this marriage. 

The law to be applied

1. I turn to the law to be applied. Section 4(1)(a) of the Family Law Act 1975 (Cth) as amended (“the Family Law Act”) relevantly provides “proceedings between the parties to a marriage, or by the parties to a marriage, for: ... (ii) a decree of nullity of marriage” is a matrimonial cause. Thus, I am satisfied that the Court has jurisdiction to hear and entertain this application.

2. Section 51 of the Family Law Act, as amended, is in these terms:-

   An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.

3. I turn then to the Marriage Act 1961 (Cth) as amended (“the Marriage Act”).  Section 23B(1) of that Act is relevantly in these terms:-

   (1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

   ...

   (d) the consent of either of the parties is not a real consent because:

   (i)       it was obtained by duress or fraud;

   The date referred to in the section is the 7 April 1986.  Clearly, the section then applies to this marriage.

4. I make this observation. It is clear that the Marriage Act requires only that the consent of one of the parties is subject to either fraud or duress. It does not require that both parties were under such an impediment at the time of the celebration of the marriage.

5. It was not suggested on behalf of the Applicant that any part of the Applicant’s claim for relief was founded upon fraud.  So far as I am concerned then, the test for me is this:- Am I satisfied at the time the Applicant entered into the marriage, and underwent a ceremony of marriage with the Respondent, that his consent was not a real consent because it had been obtained by duress?

6. The leading authorities in respect of duress in relation to these matters appear to be two Single Judge authorities.  The first of those, in point of time, is In the marriage of S[1], a judgment of the late Watson S J.  In that matter, His Honour was dealing with a marriage of a teenage girl whose parents had, his Honour found, acted so as to impose duress upon her to enter into a marriage.  His Honour looked carefully at what duress meant in the present day.  His Honour found that the older definitions of duress, which had established some form of force or fear was required to establish duress, no longer had application, or at least has lessened to a very significant degree. 

   [1] (1980) FLC 90-820

7. At page 75,177, His Honour said “(t)he law has tended to see duress as a form of oppressiveness evidenced by constraint or threat of violence.”

8. His Honour went on to say that the addition of constraint or threat of violence appears to be a legal gloss.  At pages 75,177 to 75,178, His Honour said:-

   When the ordinary man says he is acting under duress it is usually the element of oppression that is uppermost in his mind, not necessarily the form of that oppression be it constraint, threat or otherwise.  It is the effect of the oppression on his mind that should be the operative factor, not the form of such oppression.

9. His Honour then made some reference to the submissions made to him, and went on to say:-

   In the present case the applicant was not threatened nor was she in any danger.  She was a victim of family loyalty and concern, below the age of majority and on her evidence unable to initiate advice from outside her family.  She went on with the wedding not because of terror but because of love, not because of physical threat to herself but because of concern for her younger sister’s.  She was caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and culture that demanded filial obedience.  If she had “no consenting will” it was because these matters were operative – not threats, violence, imprisonment or physical constraint.

10. Later, at page 75,179, His Honour said:-

    The emphasis on terror or fear in some of the judgments seems unnecessarily limiting.  A sense of mental oppression can be generated by causes other than fear of terror.  If there are circumstances which taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage that consent is vitiated by duress and is not a real consent.  This is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.

11. Those comments, and indeed, His Honour’s findings were adopted in a later case of Teves III & Campomayor[2], again a single Judge decision of Lindenmayer J.  With respect to both their Honours, I do as Lindenmayer J did, and adopt the comments of Watson S J. 

    [2] (1995) FLC 92-578, 18 Fam LR 844

Discussion

1. The similarity of the facts in In the marriage of S (supra) and this present case is clear.  One thing that could be seen as a difference between that matter and the present case is the difference in the age of the parties.  The young lady in In the marriage of S (supra) was less than 18 years of age.  The husband in this case was 25 years of age at the time of marriage. 

2. However, I am satisfied that in this case, because of the relationship between the Applicant and his uncle, the Applicant was, at the time of the marriage, the subject of strong feelings of family loyalty.  I am satisfied that he accepted his uncle as standing in loco parentis.  He was subject to religious and cultural beliefs.  He believed that his situation was one where his uncle was entitled to demand his obedience. 

3. I am satisfied that those are the matters that I should focus on.  I am satisfied, in the circumstances of this case, that the operation of those factors, and to a lesser extent, but to my mind still of significance, the economic dependence of the Applicant upon his uncle - in the sense that his uncle had sponsored him, posted a bond to assist him and was giving him employment - are such that, when taken together, meant the Applicant’s will was overborne to the extent that he was not acting of his own free will.

4. I am satisfied that the Applicant acted under, and was subject to, duress imposed upon him at the time of the ceremony of marriage.  Thus, his consent to the marriage was not a true full and informed consent.  I am therefore satisfied that the ground for relief is made out. 

5. I will pronounce a decree of nullity of marriage.  In the circumstances, this is a decree that becomes absolute forthwith, rather than requiring the necessity of being pronounced initially as a decree nisi, with a required period of time elapsing before it becomes absolute.

6. The order that I then make is set out at the forefront of these reasons for Judgment.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 1 June 2012.

Legal Associate:      

Date:    21 June 2012