Sarvari and Atapati

[2017] FamCA 928

FAMILY COURT OF AUSTRALIA

SARVARI AND ATAPATI [2017] FamCA 928

FAMILY L:AW – NULLITY – where applicant is married under pressure to her uncle – where pressure applied by parents for cultural reasons – where court accepts lack of consent – application granted.

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

In the Marriage of S (1980) FLC 90-820
Scott v Sebright (1886) LR 12 PD 21
Tevers III & Campomayor (1995) FLC 92-578

APPLICANT: Ms Sarvari

RESPONDENT: Ms Atapati

FILE NUMBER: MLC 10808 of 2016

DATE DELIVERED: 6 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Foong

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

THE RESPONDENT: No appearance

Orders

1. That a decree of nullity is granted upon the application of the applicant and it is declared that the marriage solemnized in India on … 2015 is void.

2. That the amended application filed 9 June 2017 is otherwise dismissed.

3. That a copy of the order this day be served upon the respondent by post to the address of his mother in India.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10808 of 2016

Ms Sarvari

Applicant

And

Ms Atapati

Respondent

REASONS FOR JUDGMENT

1. This is an application under section 51 of the Family Law Act, for the Court declare that a marriage that took place in India, in 2015, was an nullity.  The applicant is the respondent’s niece.  The applicant’s mother is the respondent’s sister.  There is a substantial age difference between the husband (the respondent) and the wife (the applicant).  The ground relied upon in the application  is duress. 

2. The relevant provision of the law is found in section 23B(1)(d)(i) of the Marriage Act1961 (Cth). The facts of this case are very unusual, if not unique. There has been no appearance by or on behalf of the respondent and, as such, there is no contradictor. Conducting a case like this without a contradictor is very concerning, having regard to the serious nature with which the law treats marriage and, obviously, an application for an annulment of it.

3. To declare that a marriage is annulled is effectively to say that it never occurred.  The consequences not only in law, but in culture, are very significant.  This is one such case where the applicant’s culture is said to be such that it is important that there be no recognition of the marriage so that she can marry again.

4. This proceeding was commenced in 2016, and because of delays on the applicant’s part, it has only culminated in a final hearing today.  The gathering and preparation of the evidence has been difficult.  On a previous occasion, I made orders for substituted service, and there is now an affidavit before to me to indicate that the documents were served on the applicant’s grandmother, who is said to live near the respondent in India.  I have an acknowledgement of service by the grandmother and I now have evidence from the applicant’s mother indicating that she has had some communication with her brother (the respondent husband), but ultimately through the grandmother, indicating that he too wants “a cancellation” of the marriage, for cultural reasons.

5. I am satisfied, in the circumstances, that it is appropriate to proceed on the basis that there is no opposition to the application, but that does not necessarily mean that the Court should simply grant it on a default basis.  The facts in this case are very concerning. 

6. The parties have an Indian cultural background.  In 2015, the applicant, with her parents, went to India.  The applicant that she thought that she was going to India for a holiday, to visit family.  Two days prior to what became the marriage ceremony, the applicant was told by her parents that they had arranged a marriage, which was to occur in two days’ time.  Perhaps, in Australia, we should be grateful that such an event could not easily occur, because of the relevant notice provisions.

7. Another unusual feature is that the proposed husband was her uncle, or her mother’s brother.  That has compounded the confusion here.  Having been told that she was to be married in two days’ time, the applicant protested.  She said she was not interested in marriage to the uncle, and she did not have any desire to marry him in particular.  Having told her parents that she did not want to marry the uncle, she said that her mother told her that it would be difficult for her to marry anyone else, as no one else would come forward to marry her.  That statement has to be seen in the context of some very recent evidence as to the applicant’s psychological state, both then and now. 

8. The applicant said that her mother told her that she had to marry her uncle, because he was more mature than she was and that he would look after her.  She said she continued to protest and her mother then threatened to stop eating unless she married the uncle.  The applicant said that her mother told her that she would leave the family and never return.  These particular facts went on for a day, and the applicant described her own concern for her parents’ health.  Her father has been diagnosed with bipolar disorder and was not mentally well when this was all taking place.  He told the applicant that she needed to marry the uncle, his brother-in-law, because it was a stressful time for the family and the applicant needed a husband to look after her, and her uncle to be of help to the family.

9. When I examined the evidence of the applicant’s mother and father, it was apparent that they were both concerned that their daughter had to have someone to look after her as they got older, but not much sense can be drawn from that, because the applicant’s uncle is around the same age as her parents.  The applicant said that having heard all of these things from her parents, she contemplated suicide, thinking that that was the only way out of the arranged marriage.  She was concerned that if she did not comply with her mother’s wish, she would be disowned by her parents and, to ensure that her mother would begin eating again, she agreed to the marriage.  She was conscious, she said, that if she refused to marry her uncle, she would also have nowhere to live.  Again, in the context of the unusual evidence here, that makes some sense.

10. As a result of an adjournment of the proceedings, the applicant obtained a report from Dr B, who is a clinical neuropsychologist in private practice.  Dr B set out her extensive qualifications and experience.  Because of the nature of these proceedings, it is unnecessary for me to go through those save to say that I accept her expertise and, in particular, her observations and opinion, which are underpinned by the tests that she set out in her report. 

11. Dr B thought that the applicant had various difficulties, although her assessment would perhaps best be described as being one not accepted by the applicant herself.  In Dr B’s mind, the applicant’s performances of all of the relevant indices meant that she fell below her biological age with language and visual-motor skills.  They were equivalent to those of a typical four year old, with reasoning abilities at a five year old level, memory and conceptual thinking of a six year old, and social intelligence at a seven year old level.  That too, is corroborated by what I observed in the witness box.

12. The confusing situation is that the applicant completed secondary schooling in Australia, and appears to have done reasonably well.  She went on to start a childcare course but did not proceed with it.  On any view, therefore, the person whose interests were under pressure in 2015, was a young woman who Dr B would describe as “childlike”.  One wonders why, on the assumption that the applicant’s mother knew of the sorts of things that Dr B found, she would press her daughter to marry.  Be that as it may, having satisfied myself that those things occurred.  I accept the evidence that the applicant’s pressured her to marry when she was childlike.

13. The law, in relation to duress, is not necessarily settled.  As far back as 1886 in Scott v Sebright (1886) LR 12 PD 21, Butt J remarked:

    Whenever, from natural weakness of intellect, or from fear, whether reasonably entertained or not, either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage, yielding to a more serious danger.

    That particular observation has been considered by a number of authorities since the commencement of the Family Law Act, and what appears to be a stringent test has been ameliorated to some extent.  However, in this particular case, the observations of Butt J resonate.  Counsel referred me to the decision of Watson J, In theMarriage of S (1980) FLC 90-820. The only significance in that particular authority is that Watson J observed:

    A person caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture that demanded filial observance ---

    indicated if she had no consenting will, it was because those matters were operative, not threats of violence, imprisonment or physical restraint.

14. Watson J said that one had to look at all of the circumstances taken together, to see whether a conclusion could be drawn that, because of oppression, a particular person had not exercised a voluntary consent to the marriage and, if that was the case, then the consent was vitiated by duress, as not being a real consent.  Lindenmayer J, in the Marriage of Tevers III & Campomayor (1995) FLC 92-578, said:

    It would be wrong to say that pressure can only amount to duress if it would have the necessary effect on an ordinary person.

    In other words, the Court has to look at the peculiar circumstances of the case, bizarre as they may be, and unique as they may be, and see whether or not the consent that is required for the marriage to be lawful was vitiated by some form of oppression, to the point where the applicant’s mind was overwhelmed and there was no desire to go through the marriage at all.

15. I accept the unusual circumstances faced by the applicant, who is childlike in the eyes of a neuropsychologist.  Her mother wanted to ensure that she was married for cultural or financial protection, and took the step of placing the sort of pressure that Watson J was considering, in the Marriage of S (supra).  I accept that when the applicant’s mother said that she would leave the family and stop eating, she put the applicant in a position where she could no longer live within that family construct.   I find that this was a culture where filial obedience was demanded. 

16. I am satisfied that the consent to the marriage, in 2015, was not a genuine consent, on the basis that the will of the applicant was overborne by the pressure of her mother and her father. 

17. In the circumstances, there will be a declaration annulling the marriage, celebrated and committed in 2015.  The amended application, filed on 9 June 2017, is otherwise dismissed.  There be a further order that the order this day be served on the respondent, by post, to the address of his mother in India.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 November 2017

Associate: 

Date:  16 November 2017