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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Gandhi v Patel & Ors [2001] EWHC Ch 473 (31 July 2001) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2001/473.html Cite as: [2001] EWHC Ch 473, [2002] 1 FLR 603 |
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CHANCERY DIVISION
B e f o r e :
____________________
| Hasmita Jawahar Gandhi |
Claimant |
|
-  v - |
||
| (1) Mangal Vijayalaxmi Patel (2) Meera Jadhav (3) Amar Arihant Jawahar Ghandi (4) Ashwini Jawahar Ghandi (5) Digna Jawahar Ghandi (A child by the Official Solicitor – her Litigation friend) (6) Viran Jawahar Ghandi (A child by the official Solicitor - his Litigation friend) |
Defendants |
____________________
E7 8EB.
Mr Thrower of Counsel instructed for the first to fourth Defendants by Meer Care & Desai of
London, W1Y 3HA.
Miss Rich of Counsel instructed by the Official Solicitor for the fifth and sixth Defendants
Hearing dates 29 June, 2-3 July and 20 July 2001.
____________________
VERSION OF JUDGMENT
Crown Copyright ©
HC 0002062
1. Abbreviations, dramatis personae, etc.
| Amar | Amar Gandhi, son of Jawahar and Meera. Third defendant. |
| Ashwini | Ashwini Gandhi, daughter of Jawahar and Meera. Fourth defendant. |
| Digna | Digna Gandhi, daughter of Jawahar and Hasmita. Fifth defendant, |
| Hanid, Mrs | Salma Hanid, a friend of Jawahar. |
| Hasmita | Hasmita Gandhi, alternatively Hasmita Chhatralia. The claimant. Mother of Digna and Viran. |
| Inheritance Act, The | The Inheritance (Provision for Family and Dependants) Act 1975. |
| Jawahar | Jawahar Gandhi, the deceased whose estate is in issue in this case. |
| Mangal | Mangal Patel. Sister of Jawahar, executrix of his will, and the first defendant. |
| Meera | Meera Gandhi, alternatively Meera Jadhav. Wife of Jawahar (separated from 1985), executrix of his will and the second defendant. |
| Stone, Mrs | Eleanor Stone, alternatively Eleanor Eke. Former employee and friend of Jawahar. |
| Subhash | Subhash Gandhi. Brother of Jawahar. |
| Viran | Viran Gandhi. Son of Jawahar and Hasmita. Sixth defendant. |
Overview
very little to her.
Viran, are Jawahar's children of whom Hasmita is the mother. They, like Amar and Ashwini, are beneficiaries under the will. They are infants, and are represented by the Official Solicitor as their litigation friend. Miss Rich of counsel appears for them.
Viran, oppose Hasmita's claim. They say that she does not fall to be treated as having been Jawahar's wife for the purposes of the Inheritance Act, and, even if she does, she should not receive any provision beyond the modest benefit which was provided for her in the will.
void marriage with the deceased'. Hasmita says that this provision applies to her, but I conclude that it does not, for two separate and independent reasons. First, the ceremony did not give rise to a `void marriage' at all, but rather to a relationship which, for purposes of English law, was no sort of marriage at all, valid or void. Second, if the ceremony did create a void marriage, Hasmita, on my evaluation of the evidence, did not enter into the void marriage in good faith.
The facts
very soon afterwards he was involved with a lady called Barbara Beck, who came from Liechtenstein. She returned to Liechtenstein for a period, but then came back to this country. She and Jawahar lived together at 9 Bouverie Gardens for about a year from late 1986. There was mention in the evidence of another mistress, who I believe was Welsh.
relationship. No-one else who observed them and gave evidence described it in that way. The thrust of the evidence was that it was nearly all downs and not many ups. They quarrelled constantly; Hasmita was hostile to Jawahar's children by Meera, Amar and Ashwini, and did not really want them in the house with her; there were instances of physical aggression between Jawahar and Hasmita, and the witnesses other than Hasmita all said that most of the
Viran.
Viran - she went to Somerset House and made enquiries about Jawahar's marital status. She says that it was only when she did that that she learned that Jawahar had never been divorced from Meera, so that he cannot have been married to herself. She was asked if she could remember what had caused her to make the enquiry at Somerset House, and she answered that she could not. On her behalf Mr Pickering says that her act in making the enquiry confirms that at the time of the Hindu ceremony she believed that Jawahar was divorced from Meera. Counsel for the defendants submit that the visit to Somerset House was at least as consistent with Hasmita having known at the time of the ceremony that Jawahar and Meera were not divorced, but having been told by him that there was to be a divorce. On this hypothesis she, knowing that she was going to have another child, went to Somerset House to find out for certain whether Jawahar was divorced yet or not.
visit to Somerset House, relations between the two of them deteriorated yet further. There appear to have been something like four occasions when the police were called to the house by one or the other of them because of alleged violence by the other. It was not long before court proceedings of one sort or another were going on between them. In 1996 Hasmita commenced a County Court application against Jawahar under the Domestic Violence and Matrimonial Proceedings Act 1976. Jawahar opposed the application, and there were bitter affidavits by each of them, accusing the other of being the true perpetrator of violence in the relationship. The matter did not go to the length of a contested hearing. It was resolved by each giving undertakings not to molest the other, but it was symptomatic of what at that time clearly were a most unhappy home and relationship. The documents include several solicitors' letters complaining of breaches by either Jawahar or Hasmita of the undertakings.
Viran, and she was seeking an order from the court for Jawahar to transfer to her on their behalf one of the properties which he owned, 36 Brentmead Gardens. I assume that she had in mind that, if the order was obtained, she would move out of 9 Bouverie Gardens and live with her children at 36 Brentmead Gardens. It is of some interest to observe that the application form, signed by Hasmita using the surname Chhatralia, not Gandhi, contained this statement: The parties are not married and although they reside at the same address they no longer live together as husband and wife. Quite hostile correspondence between solicitors followed, until it was overtaken by events concerning Jawahar's health.
V. Patel and Amar Gandhi to take charge of my office 34 Brentmead Gardens and my home 9 Bouverie Gardens upon my admittance to hospital or my death. Under no circumstances Miss Hasmita Chhatralia be allowed to enter no. 34 Brentmead Gardens or to take possession of my car (Jaguar XJS). I am not sure of the date of this document. I have noted on my copy that it was written just before Jawahar went into hospital in August 1996, but I do not remember how I was told that, or who by.
Viran (44 Brentmead Gardens) that Hasmita was to be allowed to live there until her death, remarriage or cohabitation. That was the only mention of Hasmita in the will. He left his residuary estate to the four children in equal shares at age 30. The will did not deal with 9 Bouverie Gardens. That house was owned by Jawahar and Mangal as joint tenants, and on his death his severable but unsevered share would accrue to her under the law of joint tenancy.
vacate the property. She is now entitled to live at 44 Brentmead Gardens under the terms of the will. She says that that is where she is living, with Digna and Viran. There is a dispute about whether she is really living there, or whether she is rather living in East London with a man with whom the defendants allege that she is having an affair. She strenuously denies that she is doing anything of the sort, and I am not going to go into that matter any further.
.,
The Inheritance Act
(4) For the purposes of this Act any reference to a wife or husband shall be treated as including a reference to a person who in good faith entered into a
Hasmita's case is that, by the Hindu ceremony on 10 October 1989, (1) she entered into a
Various other matters are mentioned, and I ought to mention two of them. One is the conduct of the applicant (section 3(1)(g)), and the other is the likely provision which an applicant (if a wife or
husband) would reasonably have expected if the deceased had not died but instead the marriage had been terminated by divorce. This could be important. In the nature of things many applications under the Inheritance Act are made in cases where the deceased was a husband who, at the time of his will, felt alienated from and hostile towards his wife. If he had survived and they had been divorced, my understanding is that the divorce court would not usually have been deterred from making a financial order in favour of the wife on the ground that the husband was hostile towards her. It might, however, be different if the wife's conduct towards her husband had been particularly bad.
Did the Hindu wedding ceremony give rise to a `void marriage'?
very recent case decided by Hughes J, which I will describe below) I have reached the conclusion that my initial impression was wrong. The Hindu ceremony did not give rise to a `void marriage'. Rather it created something which was not a marriage of any kind at all, not even a marriage which was void. It might be described as a non-marriage rather than a void marriage. To draw a distinction between a non-marriage and a void marriage may seem artificial and elusive to the unitiated - a class which until very recently included myself - but I am now convinced that the distinction exists, and that the relationship between Jawahar and Hasmita brought about by the Hindu ceremony fell into the category of non- marriages rather than void marriages.
void marriages, and her assistance to me was most valuable.
validity of a marriage conducted in an overseas jurisdiction if the ceremony complies with the requirements of that jurisdiction, even if they would not have complied with the nearest equivalent requirements which apply under the law of England.
void marriage' it was not inventing a new concept. Many sections of the Marriage Act 1949 state that something which would otherwise have been a marriage shall be void. For example, section 2 provides: A marriage solemnised between persons either of whom is under the age of sixteen shall be void. Section 49 provides : If any persons knowingly and wilfully intermarry under the provisions of this Part of this Act ...[and any of a list of formal requirements specified in seven subparagraphs (a) to (g) is not complied with] ... the marriage shall be void. The section is expressed in terms of the purported intermarriage creating a marriage which is void, rather than not beginning to be a marriage in the first place.
void on the following grounds only; that is to say ... There then follow four paragraphs, of which I briefly mention two. Paragraph (a) covers a marriage which is not a valid marriage under the Marriage Acts 1949 to 1970, thus covering among other provisions section 49 of the 1949 Act (referred to in the previous paragraph). Paragraph (b) covers the case where `at the time of the marriage either party was already lawfully married'. Section 11 can be important in conventional matrimonial proceedings, because where it applies a decree of nullity can be granted, and that gives to the court the power, particularly under sections 23 and 24 of the Matrimonial Causes Act 1973, to make financial provision orders or property adjustment orders between the parties. The court has no such power if the parties were never married, so that they cannot be divorced, and if they were not parties to a void marriage, so that the court cannot pronounce a decree of nullity either. A straightforward example is a couple who cohabit without ever getting married or attempting to get married. If their relationship breaks up neither of them can apply to the divorce court for the other to be ordered to make some financial provision or a property adjustment.
void marriage and what I have called a non marriage is recognised in the authorities. For example, in Gereis v Yagoub [1997] 1 FLR 854 at 857, His Honour Judge Aglionby, sitting in the Family Division, recorded the following submission of counsel, which he clearly
accepted as correct: `... it is important to draw a distinction between a void marriage and something which is no marriage at all'. The distinction is obviously important in this case, because if Jawahar and Hasmita were parties, not to a void marriage, but to no marriage at all, Hasmita's claim under the Inheritance Act cannot succeed. In Gereis v Yagoub the couple took part in a Christian ceremony of marriage in a Coptic Orthodox church. Few, if any, of the formal requirements of section 49 of the Marriage Act 1949 were complied with. The judge held that it was a void marriage, not a non-marriage, and granted a decree of nullity, thus opening the door for the wife to claim financial provision. In the present case Mr Pickering relies heavily on Gereis v Yagoub, which he says ought to govern my decision about the nature of the relationship between Jawahar and Hasmita. If the case stood alone I might have accepted the submission, but it does not stand alone, and I need to examine a few others.
v Bham [1966] 1 QB 159, the point arose in the context of a criminal prosecution for an alleged offence against a section of the Marriage Act 1949. It is an offence if a person `solemnises a marriage' otherwise than in a building where marriages may lawfully be solemnised. Thus the section overlaps with section 49, which among other matters regulates where non -Church of England marriages may lawfully be conducted. The defendant was the leader of a Muslim sect in Gloucester, England. He performed in a private house a ceremony of nichan, a potentially polygamous marriage in accordance with Islamic law. The ceremony was not capable of creating something recognised as a marriage under English law. He was charged with the offence and convicted. However, he appealed and his appeal was allowed by the Court of Criminal Appeal.
void marriage as contrasted with a non-marriage (or some other expression to the same effect), but, as it appears to me, the judgment focussed on the concept that certain ceremonies did not begin to create marriages recognised as such by English law, and did not purport to do so. The decision of the Court of Criminal Appeal proceeded on that basis, and was equivalent to a holding that the nichan ceremony gave rise to what I have termed, for the purposes of this judgment, a non-marriage. Judge Aglionby referred to the Bham case in his judgment in Gereis v Yagoub, but he does not seem to me to have indicated how his own decision could be squared with the reasoning of the Court of Criminal Appeal. For my part I doubt that it can.
Gereis v Yagoub was briefly mentioned by Robert Walker LJ in Chief Administrative Officer v Bath [2000] 1 FLR 8 at 22. His Lordship merely said that the court of which he was a member did not hear any submissions about the case, and `I prefer to express no view on it except to note that some reliance seems to have been placed on the Christian character of the ceremony (at a Coptic Orthodox church not registered for marriages).' This suggests to me that the Lord Justice may have felt some doubts about the decision in Gereis v Yagoub. In the Bath case itself there had been a Sikh marriage ceremony in England. The parties were held to have been married, but the decision (at least in the reasoning of two of the three members of the court) was based, not on the ceremony, but on there being no evidence to rebut the presumption that a couple are presumed to have been lawfully married at some time if they have cohabited, with the reputation of being husband and wife, for a long time. There is no room for that presumption to apply in the present case. If the Hindu ceremony of 10 October 1989 did not make Jawahar and Hasmita husband and wife for purposes of English law (which it certainly did not, though the question remains of whether the ceremony gave rise to a non-marriage or a void marriage), there is no doubt that nothing else can have made them husband and wife under English law.
v Jagger (1999, unreported). The couple, who were media celebrities, had taken part some years before in a Hindu marriage ceremony in Indonesia, with which nation they had no particular connection. There was evidence that the requirements of Indonesian law for the creation of a valid marriage were not complied with, so that they were not married under the law of the jurisdiction where the ceremony took place. Connell J pronounced a decree of nullity in the English court. Mr Pickering seeks to place reliance on this
case as showing that the Hindu ceremony between Jawahar and Hasmita created a
v A-M [2001] 2 FLR 6. In my view the case resolves the question which I have to decide. At least it resolves it unless I am prepared not to follow what Hughes J has decided, which I am not. I mention in passing that the report shows that Hall v Jagger was cited to the judge. I assume that he did not think it relevant, since he did not mention it in his judgment.
void marriage either, so the court had no jurisdiction to grant a decree of nullity: the ceremony created a non-marriage rather than a void marriage. The importance of the issues raised by the husband was, I assume, that, if the English court had jurisdiction either in divorce or in nullity, it had power to make an order for financial provision in favour of the wife, but if it took the view that there had only ever been a non-marriage it had no power to make any such order.
v Bath, supra) could rely on the presumption of marriage which arises from extended cohabitation and the reputation of being man and wife: the husband had not produced the strong and weighty evidence which would be required to rebut the presumption. The importance of the case for my purposes, however, rests not on that part of the decision, but on what the learned judge said about whether the Islamic ceremony of 1980 created anything which could be regarded as a marriage, even if a void marriage, for purposes of English law. He held that it did not. The relevant part of his judgment is towards the end, at pages 23 and 24. I will not reproduce it in full, though it is all relevant and it all repays careful study. I will, however, pick out certain particularly important extracts.
void on the following grounds only...' Thus, as it seems to me, the question which the judge formulated could equally accurately be stated in teens of what is and what is not a `void marriage' when contracted in England and Wales. He continued: `Plainly it is not every event to which somebody seeks to apply the label `marriage' which is within the section, leading to a decree of nullity and the open door to all forms of ancillary relief.' Counsel for the wife submitted that `although it may be difficult to lay down in advance when an event is a `marriage' for the purposes of s. 11 and when it is not, the event presently in question, with its attendant ceremony, can safely be said to be within that expression.' The judge immediately indicated that he had difficulties with the submission: `If, however, it is, the same would no doubt apply to all manner of self-devised rituals intended to be binding in conscience by those forsaking the civil forms of marriage, as well as to `marriages' according to foreign religions, and to any other ceremonies which make no attempt to be English marriages within the Marriage Acts.' In the present case the Hindu ceremony between Jawahar and Hasmita purported to be a marriage according to a foreign religion, and it made no attempt to be an English marriage within the Marriage Acts.
v Bham, supra. He was satisfied that the reasoning must apply to the case before him. He then referred to the formalities required by section 25 (for Church of England marriages) and section 49 of the Marriage Act 1949, and continued: `But unless a marriage purports to be of the kind contemplated by the Marriage Acts, it is not, I hold, a marriage for the purposes of s. 11 of the Matrimonial Causes Act 1973.' I repeat that, given the wording of section 11, this is a holding that it is not a void marriage for the purposes of the section. The judge next referred to Gereis v Yagoub, saying that it was an example of a case where the question of whether a ceremony did or did not purport to be a marriage of the kind contemplated by the Marriage Acts was a fine one. He may have had doubts about the decision in Gereis v Yagoub: he said that the decision may have been `a merciful one'. He said that, as regards the ceremony in the case before him, it was clear that it `did not begin to purport to be a marriage according to the Marriage Acts, with or without fatal defects.' The same is certainly true of the ceremony conducted between Jawahar and Hasmita.
valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity.' The second of those two points means that it was not a void marriage.
v A-M is decisive in this case. I accept that the decision on this point was strictly obiter, given the judge's view that, although the wife could not rely on the 1980 ceremony as being a marriage which was void under section 47 of the Marriage Act, she could rely on the presumption of marriage from long cohabitation and reputation. However, the point had clearly been argued comprehensively. The judge reserved his judgment. He dealt with the point fully and carefully. In those circumstances I would certainly think it right that I should follow his decision. In any case I respectfully find his reasoning convincing. It is true that, as Mr Pickering reminds me, Hughes J was concerned with the concept of a void marriage in the context of section 11 of the Matrimonial Causes Act 1973, whereas I am concerned with the concept in the different context of section 25(4) of the Inheritance Act. However, a void marriage surely means the same thing in both contexts. If the ceremony between Jawahar and Hasmita was not the celebration of a marriage which was void within the meaning of section 11, then in my opinion Hasmita, whether she was in good faith or not, did not `enter into a void marriage with' Jawahar within the meaning of section 25(4).
The 'in good faith' requirement
void marriage with Jawahar, it would still be necessary for her to establish that she entered into it `in good faith': the Inheritance Act section 25(4). The defendants submit that she did not, and I accept their submission.
void marriage being entered into in good faith originated in a report of the Law Commission in 1969, of which the primary focus was on the abolition of common law actions for breach of promise of marriage. The Commission made a consequential recommendation that the ability of a widow to make a claim for provision under the Inheritance Act which was then in force (an Act of 1938) should be extended so as to apply also to `a person who had in good faith entered into a void marriage with the deceased'. The Commission wrote: `In deciding whether a claimant had entered into a marriage in good faith we think a subjective test should be applied, and that the court should have regard to whether there was an honest belief in the validity of the marriage.'
void marriage, did she honestly believe at the time that she was entering into a valid marriage? I cannot be sure about it, but on the basis of the evidence and taking what I hope is a realistic view of the circumstances as a whole, I conclude that the answer, on a balance of probabilities, is: no. There were two quite separate reasons why the ceremony did not create a valid marriage. One was that the formal requirements of English law for a valid marriage were not complied with. The other was that Jawahar was already married to Meera and had not been divorced from her. I am doubtful about Hasmita's case as regards the first of those two points, and I think that the scales come down fairly clearly against her as regards the second.
void marriage. If, contrary to my view, it could, it would probably be enough for Hasmita to establish that she was in good faith in wanting to join with Jawahar in a Hindu marriage, it being irrelevant whether she did or did not have any ideas about whether, when she did that, she would also be joining in something which was a marriage for purposes of English law.
void: Jawahar was still married to Meera. Did Hasmita know that? If she did it is accepted that she did not enter into the Hindu ceremony in good faith. (Hindu marriages, I believe, are monogamous.) It is accepted that she knew that Jawahar had been married to Meera. It is also accepted that there was a time when she knew that, although he had spoken about getting divorced, he was not divorced yet. Her evidence is that at the time of the Hindu ceremony she did not know that he was still not divorced; on the contrary, she believed that by then he was divorced. I am not sure whether she says that Jawahar positively told her that he was already divorced by then, or whether it is rather that she assumed that he must have been. As I recall there were instances of it being put in both ways in the evidence. On the whole, however, I think that her case is that Jawahar had told her that he was divorced, and that he lied to her when he did that. Mr Bhatt's recollection is that, when he had a meeting with the couple to arrange for the ceremony, Jawahar said that he was divorced, and that Hasmita was there to hear him say it.
Viran was born, Jawahar had mentioned to me that Hasmita had found out that he was not legally divorced [from] Meera his first wife, and that Hasmita was deeply upset about it.' This supports Hasmita's case to an extent, but it is hardly conclusive, and in my view it is overwhelmed by the evidence to the opposite effect.
violence proceedings which were in progress in 1996. In an affidavit of 30 October 1996 he deposed as follows: `In fact the Applicant and I initially decided to live together for a year before we made any decisions regarding marriage. It then transpired that she fell pregnant and after discussion with my family members, we decided that the appropriate thing to do was to go through a Hindu ceremony of marriage and in due course go through the civil ceremony of marriage after my divorce was obtained.' A little later he rather clouds the clarity of this by saying the following: `It appears that during this time [earlier in 1994], the Applicant realised that I was still in fact married to Meera Gandhi. I refer to paragraph 2 of her Affidavit in which she states that she discovered only in 1994 that I was still married to Meera Gandhi. I did not go through with the Registry Marriage with her as her behaviour shortly after our Hindu marriage caused me great concern about whether or not I should in fact register our marriage as originally intended.' I accept that it is not totally clear, but I consider that, taking the two passages together, the effect of what Jawahar is saying is this. At the time of the Hindu marriage he and Hasmita knew that they could not have a Registry Office marriage because he was still not divorced from Meera. They intended to have a Registry Office marriage when he got divorced, but never carried the intention out because he, Jawahar, went off the idea. He never told her that he had not gone through with his divorce from Meera, and she found that out in 1994.
Viran, tendered Meera for cross-examination. Mr Pickering did not suggest to her that she had procured other witnesses to lie - most properly not putting that suggestion, since, as I assume, Mr Pickering had no evidence to support it.
very recently discovered that Jawahar was now refusing to go through with a promise which he had made to her years ago, that he would marry her in proper lawful form.
version of what happened before the Hindu ceremony in October 1989. Jawahar plainly knew that he was not divorced from Meera, and, as the evidence of Mrs Hanid and Mrs Stone establishes, he did not try to pretend to other people that he was. (He did pretend about it to Mr Bhatt, but there was an obvious reason for that: if Jawahar had told Mr Bhatt the truth, Mr Bhatt would not have been willing to officiate at the ceremony.) Why should Jawahar lie to Hasmita about it, especially when it must have been very likely that she would find out about his lie anyway?
very hard to accept that some things said by Hasmita can have been true. I will not elaborate on this, but I will give two examples. One is her improbable evidence, which I referred to in paragraph 14 above, that in 1985 she and Jawahar together chose 9 Bouverie Gardens as a future home for themselves once they were married. The other is this. In her particulars of claim, supported by a statement of truth, she says that, after difficulties in the relationship between her and Jawahar, in about mid to late 1997 they were reconciled, that after the reconciliation she cleaned and cooked for him, and that she resumed a normal physical relationship with him. In a witness statement she says that they were able to sort out their difficulties. `Indeed, we became reconciled and soon re-started a normal loving and physical relationship.' There is a mass of evidence that these statements cannot possibly have been true. Further, in August 1997 she had made her application to the court for a property transfer to her on behalf of her children. She made the statement which I have quoted in paragraph 22 above, that she and Jawahar no longer lived together as husband and wife. This sort of thing has to make me very slow to accept her evidence generally.
void marriage with Jawahar, she did not do so in good faith. Her claim would fail on that ground as well.
Reasonable provision; conduct
view on the questions which I have considered so far, I would have had to decide whether the provision made for Hasmita in Jawahar's will was a reasonable financial provision for her. Leaving questions of conduct aside for the moment I would have concluded that it was not. All that she received under the will was a right to live in the house left to Viran (44 Brentmead Gardens) for life or until remarriage or cohabitation. I do not think that that would have been reasonable for someone with whom Jawahar, a prosperous man, had lived, to outward appearances as a husband with his wife, for the last nine years of his life, and someone furthermore who had borne him two children.
views which I have formed on the prior issues, and all that I am going to say about it is that there were aspects of the evidence which I found disturbing. I do not rule out the possibility that, if I had needed to consider the matter, I might have reduced the provision which I would otherwise have thought it right to make for Hasmita.
Conclusion