SIKANDER & VASHTI

[2017] FamCA 794

FAMILY COURT OF AUSTRALIA

SIKANDER & VASHTI [2017] FamCA 794

FAMILY LAW – NULLITY – where all of the evidence of the respondent might be described as bizarre, unusual or odd at the time of the marriage ceremony and for the four month periods at various times thereafter, the obligation on the applicant is a positive one to establish that the respondent on the balance of probabilities, on the relevant day, did not have the mental capacity to understand what she was doing.  Application fails on the basis of inability to establish that positive onus.

Family Law Act 1975 (Cth)

Marriage Act 1971 (Cth)

AK and NC (2004) FLC 93-178

APPLICANT: Mr Sikander

RESPONDENT: Ms Vashti

FILE NUMBER: MLC 6656 of 2017

DATE DELIVERED: 9 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 October 2017

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No Appearance

Orders

1. That the application filed 23 August 2017 and the application in a case filed 6 July 2017 are both dismissed.

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 Sikander & Vashti 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 6656  of 2017

Mr Sikander

Applicant

And

Ms Vashti

Respondent

REASONS FOR JUDGMENT

1. Mr Sikander (“the applicant”) filed an application in this court on 5 July 2017 seeking a decree of nullity of his marriage that took place in 2006 in India to Ms Vashti (“the respondent”).

2. Various attempts at serving the application and other documents upon the respondent can be seen through the affidavits of service filed by the applicant.

3. This matter was considered by a registrar who directed electronic service occur.

4. The applicant filed an affidavit on 27 September 2017 deposing to having sent the application, his affidavit and the court brochure by electronic means to the respondent at an email address which he said was that of the respondent.  He also sent other documents the same way on 8 September 2017 including a Notice to Admit Facts.

5. No response was received from the respondent but that has been the case throughout the proceedings.  The applicant says he does not know where the respondent is in India and that the only communication with her or about her has been between her father and his father but in circumstances where the respondent’s father sought out the applicant’s family members.  The respondent’s family seem to want the respondent to be left alone.  Unfortunately, that does not help the applicant resolve his dilemma.

6. The unusual nature of the application and the silence of the respondent enables me to draw an inference that she has the documents but has no desire to participate nor more importantly, to oppose his application.  That inference is strengthened by the evidence to which I turn below but unfortunately, absence of a “defence” does not assist.

7. Section 39 of the Family Law Act 1975 (Cth) (“the Act”) provides that a matrimonial cause may be instituted in this court. A matrimonial cause includes proceedings between the parties to a marriage or by the parties to a marriage, for a decree of nullity of that marriage (s 4).

8. Section 51 of the Act provides that an application for a decree of nullity must be based upon the ground that the marriage is void. That in turn requires the court to examine the Marriage Act.

9. The relevant statutory provision here is that the marriage will be void where the consent of the respondent was not a real consent if she was not mentally capable of understanding the nature and effect of the marriage ceremony (Marriage Act 1971 (Cth) s 23B(1)(d)(iii)).

10. That is the provision that the applicant relied upon in his application.

11. In his amended application filed on 23 August 2017, he included further provisions of s 23B of the Marriage Act on the basis of his assertion that the respondent was unable to provide real consent because she was mistaken as to the nature of the ceremony performed to which he added that the respondent acted under duress and fraud by her parents.

12. There is no evidence that would convince me to make findings in relation to duress or fraud.  The focus of these reasons is on whether there is sufficient evidence to justify an inference that on in 2016 in City B in India, the respondent was unable to provide consent to marry the applicant because she was mistaken as to the nature of the ceremony performed by virtue of being “mentally incapable” of understanding the nature and effect of the marriage ceremony.

13. That the respondent is not required to have a detailed and specific understanding of the legal consequences of marriage (see AK and NC (2004) FLC 93-178).

14. In AK and NC (supra) Chisholm J agreed with an article written by Dr Anthony Dickey that

    mere awareness of going through a marriage ceremony is not enough; a person must also understand the nature and effect of the ceremony involved. (see Family Law, 4^th edit, (2002) at 175).

15. Chisholm J went on to find that a valid consent involves either a general understanding of marriage and its consequences, or an understanding of the specific consequences of the marriage for the marriage whose consent is in issue.

16. Section 23B of the Marriage Act focuses on the consent on the day of the marriage and here, the applicant points to the behaviour of the respondent which he says enables a court to infer that the respondent was mentally ill to such a degree that she could not have understood the nature and effect of a marriage ceremony.

17. The facts of this marriage ceremony can only be seen through the evidence of the applicant because the respondent provided none.  This was a culturally arranged marriage and the applicant met the respondent in the last week of December 2015 when he was in India.  Subsequent to that meeting but prior to the wedding, the applicant’s unchallenged evidence is that the respondent refused to communicate with him.  When he did speak to her on the telephone, she barely said anything.  When he asked her about specific topics concerning their respective futures, the respondent did reply but indicated she had no opinion.  From that evidence, albeit a conclusion or opinion rather than a fact, I infer that at least prior to the marriage, there was communication between the applicant and the respondent such that at least she understood what he was talking about.  He said that when he pressed her for information, she broke down and cried.

18. When he tried subsequently to meet up with the respondent, he was refused access to her by her parents.  When he tried to throw an engagement party, the parents refused and instead, suggested that the marriage ceremony be undertaken more quickly.  That set the marriage ceremony for mid 2016.

19. The applicant arrived a week ahead but was still unable to meet the respondent privately.

20. The marriage was conducted according to Hindu wedding rites.

21. The applicant said that in part of the ceremonies, the respondent refused to engage such as the exchange of garlands and she was pulled aside and spoken to by her parents.  He thought that the respondent appeared disoriented and unable to follow simple instructions and needed constant guidance.  She appeared confused about which foot to put on a pedestal.  She also “struggled” to repeat “ritualistic vows, affirmation and consent” as had been narrated to her by the marriage celebrant.

22. The applicant described his attempts to converse with the respondent but he said those attempts were futile.  He said she just stood emotionless and staring straight ahead.

23. Thereafter, the respondent described what happened in their personal relationship including on the morning after the ceremony when she appeared unable to recognise him and was crying.  He said she was taken away to be comforted by her parents and he did not see her until during the day.

24. The applicant and the respondent remained together for four months after the wedding.  He said that at times she did not recognise him and started to violently attack him.  He said her words were slurred and the respondent never left the apartment.  She could not undertake day to day tasks and when food was ordered, she would contact her mother and ask what she should eat and that connection extended to what clothes she should wear.

25. The applicant described the respondent over this period of time as keeping to herself and staying aloof despite his endeavours to engage with her.  He described a number of medical ailments but he was unable to get her to attend a medical consultation.  The marriage could not be consummated.

26. In the last days together, the applicant said that the respondent told him that she had sustained “serious liver damage” from alcohol use during the time she had studied abroad.  That unusual statement indicates the respondent was knowledgeable, lucid, and possibly historically correct.  She also explained to him that she managed to complete her studies despite difficulties such as the death of her grandfather.  That does not sound like someone devoid of some understanding of what was going on around her.

27. On 25 August 2016, the respondent’s father took her away in the applicant’s absence.  He told the applicant’s parents that she would not return.

28. On 11 September 2016, the applicant met the respondent in the presence of her father who acknowledged that she had been suffering “mental health issues” from about two years before the marriage.  Her father then made a number of statements that on the day of the marriage, the respondent was “very heavily sedated”.  I am unaware of just what the medication was and whether it affected the capacity of the respondent to engage in the marriage ceremony or whether it had something to do with her mental state.

29. Since that meeting in September 2016, there have been three occasions where the respondent’s father contacted members of the applicant’s family.  Their statements do not assist to determine what the position of the respondent was on the day of the ceremony.

30. The applicant also relied on an affidavit of one of the Hindu priests who simply described the respondent as repeatedly asking what was going on and why she had to go up on stage.  He then said having watched all of this unfold:

    Having performed hindu marriage rituals for over a decade and a half now, I tend not to interfere in any of the family proceedings at any of these events.

31. The inference to be drawn from the priest’s evidence is that the whole arrangement was very unusual.  He obviously is not a medical person and as such, his evidence was of limited value as to the odd behaviour of the respondent.  I find it curious that notwithstanding his experience over ten years, and the bizarre behaviour that he was watching, he continued with the marriage ceremony according to Indian law.  At no stage did he say that it was his subjective belief that the applicant did not know that she was entering into a marriage arrangement.

32. After the respondent left, the applicant cleaned out the apartment and found what he described as a copy of her medical record – prescription from a psychiatrist.  It is dated 23 March 2016 so only one month prior to the marriage.  Reference is made in this document to a diagnosed psychosis incident in May 2014 and a subsequent attendance upon a psychiatrist in October 2014.  The “history” refers to the respondent having been admitted to hospital multiple times for intensive treatment although it does not say what.  Under the heading of “evaluation” this document indicates ongoing auditory and visual hallucinations together with persecutory delusions followed by depression.  Significantly, the document referred to the respondent having no recollection of incidents during periods when she was lucid and the psychiatrist assessed an impairment of short term memory and judgment.

33. From that document, the applicant asked me to infer that there was a history of psychiatric disorder and that as a consequence, the behaviour that he deposed to (as did the priest) about the wedding day was consistent with a psychiatric disorder such that the court could infer that the respondent was mentally incapable of making a decision about the consent to the marriage.  Having regard to its nature, I do not accept that the document can be admissible as to the truth of its contents but only that the respondent had been attending a psychiatrist in March 2016.  It cannot establish that on the date of the marriage, the respondent did not understand the nature of the ceremony or that she was mentally capable of understanding that ceremony particularly having regard to the evidence of the applicant that he was told in the presence of the respondent that she had been drugged on the day. 

34. To the extent that the psychiatrist’s statements or evaluation means anything, I would infer that there were lucid periods and I have no idea whether one of them was on the date of the wedding.  Accordingly, the document apparently initialled by the psychiatrist is of limited value.

35. It will be borne in mind that the applicant and the respondent stayed together four months after the marriage ceremony during which time whilst the applicant was at work, electronic text message communications occurred between them some of which were cryptic but these are dated a month after the ceremony. 

36. Curiously, the messaging system would suggest that the respondent can use electronic communication and at times appears confused.  But over a space of four months, these selected messages do little to assist me to find that the respondent suffered some form of mental illness on the relevant date.

37. On 25 July 2016, three months after the wedding, an electronic communication took place in which the respondent said:

    Dad said u wud be my caretaker.

38. The message is consistent with someone who is confused and may very well be mentally ill and ends with a statement by the respondent to a question by the applicant about whether she had married him in which she replied:

    No.

39. He then said that he was coming home but nothing is then said about what happened over the ensuing month until the respondent left the apartment permanently.

40. Returning then to the issue of the law, it will be apparent that for the marriage to be void, a finding must be made that the respondent’s consent was not a real one because either she was mistaken as to the nature of the ceremony performed or that she was mentally incapable of understanding the nature and effect of the marriage ceremony.  Whilst the behaviour described by the applicant and the priest is not just odd, it is bizarre, I have no other evidence that would enable me to make a finding that on the day of the marriage, the respondent was mistaken about the nature of the ceremony or that she was mentally incapable of understanding the nature and effect of the marriage ceremony.  Obviously, the proof of those issues must be decided on the balance of probabilities.

41. The evidence indicates that on selected days, the respondent seemed confused but she had also been prepared for the wedding day because she was wearing the customary dress.  The priest gave evidence about that and I do not know whether she understood what all that was about.  A perfectly logical explanation might be that she had been medicated but that does not necessarily establish that she did not have the mental capacity to consent to the ceremony.

42. Accordingly, it is not clear to what extent the respondent understood the legal consequences of marriage and absent some formal indication from her medical practitioner that on the relevant day in 2016, knowing what he knew, the respondent could not have had the mental capacity to understand what she was doing, it is not possible for the court to make a finding to satisfy the positive requirements of s 23B(1) of the Marriage Act.  It follows therefore that I am not satisfied on the balance of probabilities that she lacked that consent to marry and the application for nullity must fail.  That does not mean that with more appropriate evidence, the application might succeed.

I certify that the preceding Forty-Two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 October 2017.

Associate:  9 October 2017

Date: