RM v. AY

FCMC 2226/2021

[2023] HKFC 59

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 2226 OF 2021

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EXTEMPORE DECISION
( Nullity )

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1.  This is an ex-tempore decision for the trial of the Petitioner Wife (“W”) for her petition for nullity on the ground of lack of consent to a marriage which took place on 30 May 2020.

2.  The background and procedural history of this case has been set out in detail in her counsel’s submission and will be briefly stated here.

3.  Respondent Husband (“H”) is absent from these proceedings, and had only participated one time in May 2021 when he wrote to W’s lawyers objecting to her application claiming that this court has no jurisdiction.

Background

4.  W is age 22 and is Pakistani, she came to HK at age 3 and has lived here in public housing with her parents and siblings since then. She also claims to be domiciled in HK. She studied in the University of Hong Kong and is now in full time employment here.

5.  Her family travels to Pakistan once every few years, and in a recent trip in March 2020, she was told to marry her paternal first cousin on her arrival. It is her case that despite her resolute objections, she was subject to a lot of pressure and difficult conversations with her father and relatives in Pakistan. Finally on 29 May 2020, under physical abuse and violence inflicted upon her by her father with a cane, she succumbed to her pain and eventually conceded to marrying H unwillingly and in fear of further physical harm. W did produce photos of her injuries from his father’s beating which is in evidence. A Pakistani marriage ceremony was conducted on 30 May 2020.

6.  W also said that H is fully aware of the physical assault from her father and that she did not consent to the marriage.

7.  The marriage was not consummated.

8.  She returned to Hong Kong in July 2020, H has no right of abode in Hong Kong, and remains in Pakistan.

Procedural History

9.  On obtaining legal aid in February 2021, she initiated three proceedings.

10.  FCMP 58/2021 on 16 March 2021 for a non-molestation order under S.3A of the Domestic and Cohabitation Relationships Violence Ordinance (“DCRVO”) (Cap.189) against her father; which came about by his physical assault on her when he demanded that she married her cousin. Her father said in opposition that W was beaten by H and that he did not know about the assault. Upon the father agreeing to give an undertaking, this court adjourned this Summons sine die with liberty to restore on 6 May 2021. The undertaking given by her father dated 6 July 2021 covers (1) non-molestation and (2) not to thwart her Petition.

11.  FCMP 42/2021 on 18 February 2021 seeking leave to file a Petition for nullity in the absence of the Pakistani marriage certificate. Leave was granted by HHJ Melloy on 26 February 2021 with W’s undertaking to produce a certified copy of Pakistani Marriage Certificate (“Nikkah Nama”) as soon as possible.

12.  On 7 January 2022 by her Summons, W sought discovery for the Nikkah Nama from H, DDJ Barnes gave Order on 8 February 2022 for H to provide a certified copy. W then sought to be released from her undertaking via her Summons dated 29 April 2022. This matter then came before me at a hearing on 22 November 2022. Submission was made which will not be elaborated in this decision; suffice to say that it has become clear to this court that with the subsequent information and development of this matter, that it would not be possible for her to obtain the Nikkah Nama.

13.  On that day I made an Unless Order for H to produce the Nikkah Nama within 42 days, failing which W shall be released from her undertaking made in the Order of HHJ Melloy on 26 February 2021. He has failed to do so. With the non-compliance of the H to my order, W is accordingly released from her undertaking.

14.  FCMC 2226/2021: W filed her Petition on 17 March 2021, based on Nullity for lack of consent to the marriage. In June 2021, HHJ Melloy directed that there was to be a preliminary issue to consider whether the marriage is polygamous. At the hearing on 13 January 2022, and with the information provided in a Pakistani expert report, she declared that the marriage was monogamous and for the Petition to continue.

Service

15.  W’s lawyers took advice to ensure papers in these proceedings are served in accordance with the law of Pakistan. With this advice, the divorce papers were served on H on 15 April 2021. This advice is contained in an affirmation from a paralegal of the W’s lawyers dated 2 July 2021.

16.  W’s solicitors received a letter from H dated 11 May 2021 to their office email and to a Whatsapp number. This letter started with “I refer to your letter dated 15 April 2021 delivered at my Pakistan’s residential address by courier post”.

17.  Inter alia, therein he claims:

“…

3. …even if Nullity degree is granted to the Petitioner, it will have NO effect on our marriage and she will be remain my legal wedded wife as per Sharia rules.

4. That it is out of jurisdiction to have the Nullify degree in Hong Kong’s Court of Law where Islamic Sharia Law is NOT recognized”

...

If she does not return to me at my residing address in Pakistan by end of this month 31 May 2021, I may prefer to go for 2^nd marriage at any time without notifying her as it is my legal right permitted / granted by Islamic Sharia law.”

18.  By this, it is clear to me that (1) he did receive documents in these proceedings sent to him by courier, and (2) he is fully aware that these Nullity proceeding is in progress.

19.  It is also clear to me that he has chosen not participate in these proceedings. There is no Form 4, and he has not complied with the Orders made on 1 September 2021 for evidence regarding the preliminary issue; 2 February 2022 with regard to the Order to produce certified copy of the Nikkah Nama; and the Unless Order made on 22 November 2022.

The Law

20.  The application is pursuant to MCO section 20(2)(c), where a marriage shall be voidable if found that either party to the marriage did not validly consent to it as a consequence of duress.

21.  Section 20(3) requires that the Petitioner did not conduct herself in relation to the R to lead him to believe that she would not do so; and that it would not be unjust to the R.

22.  Section 20(4) requires that the proceedings be instituted within 3 years from the date of the marriage.

23.  W’s counsel refers me to the case of Mir v Mir [2012] 1 HKLRD (not a matrimonial law case) at §§59 and 60, which defines duress as “pressure illegitimately exerted”, and in the case of X v A [2021] EWFC 118 which states that the alleged threat or action must constitutes “coercion of the will so as to vitiate consent”; and such as to “destroy the reality of consent and overbears the will of the individual”. These cases confirm the principles set down in the case of Hirani v Hirani [1983] 4 FLR 232(CA).

24.  At the trial, Counsel also refers me to the case of P v R (Forced Marriage: Annulment: Procedure) [2003] FLR. As submitted, this was a case involving a marriage in Pakistan under quite similar circumstances to the present facts, and where Omrod LJ, having quoted from Hirani v Hirani, states that “… it is as clear a case as one would want of the overbearing of the will of the petitioner and thus invalidating or vitiating her consent.”

Discussion

25.  At the hearing today, W adopts her various affidavits in support of her Petition and those from FCMP 42/2021 and FCMP58/2021 as her evidence in chief.

26.  I ask her to describe to me in her own words what happened on 29 May 2020, the recollection must have been a difficult one as she recounts the events in tears. I accept W’s evidence and I find her credible, she has described her father as religious and conservative, militant and forbidding, and exercises strict discipline on his children; and apparently there has been history of his exerting physical punishment on his other children. I accept that her father has exerted physical violence on her as she has described, the photos she attached to her DCRVO application attest to this. I also accept that her fear has pervaded from the time when this assault took place, around 11 pm on 29 May 2020 until the time of the wedding the following morning on 30 May 2020.

27.  I also accept that she has lived in fear of continuous violence from her father. She has moved out from her home she lived with her family to an undisclosed address since she took out her various Summons, and has remained living by herself to this day.

28.  W has supplemented in court her evidence that on the day of the marriage, she has denied taking photos with H; the photos she produced that she took with her relatives showed a very unhappy bride. She also said in Court that she did not have any contact with H since her return to HK in July 2021.

29.  I see no apparent injustice to H. Furthermore, he is ready to move on to take a second wife according to his May 2021 letter.

30.  The Summons was taken out within a year from the marriage in compliance with MCO S.20(4).

31.  H has not filed anything in opposition despite given opportunities do so.

32.  Based on the evidence before this Court, I find that her will was overborne by genuine and reasonably held fear of physical harm, and her agreement to the marriage was overshadowed by this fear so as to “destroy the reality of her consent”. I therefore make a Decree Nisi of nullity, and the marriage shall be annulled when the decree is made absolute.

Cost

33.  I make no order as to cost, there shall be certificate for counsel, and legal aid taxation for the Petitioner.

34.  I also make a s. 18 Declaration.