Sunday, 20 February 2011

Human rights: 1; Tradition: 0. Arranged Indian marriage equalled nullity

Applications for nullity of marriage in Australia are extremely rare. An applicant has to show that their will was overborne at the time of the wedding to such an extent that they could not exercise their own free will, or that they did not know that the ceremony was in fact that of marriage. Most of the time when an application for nullity is considered, it is easier to make application for divorce. In my 20 odd years of practice as a Brisbane family lawyer, I have never advised a client to make a nullity application: no one has met the tough criteria.

In the recent Family Court case of Kreet and Sampir, the wife was forced by her Indian parents into an arranged marriage and was able to obtain a nullity of the marriage.

When she was 16, the wife lived with her Indian parents in Sydney. She met an Indian man, Mr U, online. Mr U lived in Melbourne. Her parents objected to Mr U because they considered that he was the wrong caste. The wife kept the relationship going in secrecy.

When she was 17, the wife was told by her parents that at 18 they would be taking her back to India to marry a suitor. Her uncle was currently sorting through the suitors.

On finishing Grade 12, the wife left Sydney and went to live with Mr U in Melbourne. She hadn't told her parents. She had to convince police that she was safe and well after her parents reported her missing.

Soon after, mum and dad visited the wife in Melbourne and told her that she could marry Mr U. The following day the wife went through an engagement ceremony with him.

The wife returned to Sydney to be with her parents. Her parents tried to get her to break off the relationship. When that didn't work, her dad called Mr U and threatened to kidnap and rape his mother and sisters. Her dad also punched and slapped her.

The wife again ran away. Her parents again reported the wife as missing. Again she told police she was fine and well.

The parents then tricked the wife into going to India with them. They promised her and Mr U that if she came back to India with them that they would organise a proper wedding with Mr U there.

On her arrival in India, the wife's real nightmare began. Her parents took her passport, and told her that she was to marry the husband. She was then introduced to the husband. The wife was banned from calling Mr U. The wife's dad threatened her that if she did not marry the husband, her dad would kidnap and rape Mr U's mother and sisters. Her parents made plain to the wife that she could not return to Australia unless she married the husband. She then did so.

After they married, the husband and wife lived with his parents in India.  The husband assaulted her because she refused to be intimate.

The wife returned to Australia with her parents after having sponsored the husband to come to Australia. Shortly after returning, the wife left her parents for Mr U and withdrew the sponsorship. The husband was still in India. She also obtained an indefinite apprehended violence order against her dad.

Justice Cronin declared that the marriage was void, saying:

Cultural practices are sensitive issues but in respect of this application, the law to be applied is that of Australia. If a cultural practice relating to a marriage gives rise to the overbearing of a mind and will so that it is not a true consent, the cultural practice must give way. Arranged marriages such as would appear to have been the parents’ intent, must not carry with them lack of consent.

I am satisfied that the parents adopted a position which may have been based upon a cultural practice which is unacceptable to Australian law.

I am satisfied that the wife’s physical state at the time of the ceremony was such that she was physically and mentally overborne. Her consent was not real because it was obtained by duress.

4 comments:

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