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SS v MSS [2017] EWHC 1016 (Fam)

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Fact finding judgment arising from contact proceedings where the UK husband separated from his Pakistani wife from an arranged marriage and then left her and their son in Pakistan without a passport.

  • No. FD16P00354

    Neutral Citation Number: [2017] EWHC 1016 (fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Monday, 3rd April 2017

    Before:

    MR JUSTICE HOLMAN

    (sitting throughout in public)

    - - - - - - - - - - - - - - - - - - - -

    B E T W E E N :

    SS (Applicant)

    - and -

    MSS (Respondent)

    - - - - - - - - - - - - - - - - - - -

    Transcribed by BEVERLEY F. NUNNERY & CO.

    (a trading name of Opus 2 International Limited)

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    - - - - - - - - - - - - - - - - - - - -

    MISS RUTH KIRBY (instructed by Dawson Cornwell) appeared on behalf of the applicant.

    THE RESPONDENT appeared in person.

    - - - - - - - - - - - - - - - - - - - -

    J U D G M E N T

    MR JUSTICE HOLMAN:

    1 This has been a so-called fact finding hearing. The context and live issue now is the nature and extent of contact between the father and the parties' son, now aged two and three quarters.

    2 At times, the hearing seemed more like an old fashioned and destructive defended divorce of the kind which became obsolete about forty-five years ago.

    3 Where facts are disputed, I apply the ordinary civil standard of the balance of probability.

    4 I heard extensive oral evidence from each of the wife/mother (whom I will call "the wife") and the husband/father (whom I will call "the husband"). I also heard oral evidence by video link from Pakistan from the wife's own father, all his evidence being given in Urdu and translated by an interpreter in the court room here.

    5 My assessment of the wife and husband respectively is as follows. The wife gave her evidence clearly and with appropriate affect. Her answers were fair and balanced, and she is weighed down with sorrow that her marriage was so unsuccessful and broke down. Although the husband disputes or denies many aspects of her evidence, she was not demonstrated by objective or independent evidence to have been untruthful on any significant point or issue. The wife is an educated person with a degree of BSc from a university in Pakistan, and she is intelligent. But she is less highly educated and less highly intelligent than the husband.

    6 I found the husband, who is an English GP, to be highly intelligent and highly articulate. He is, however, rigid in his attitude to his Muslim religion and in his expectations of a wife. As so often when a party acts in person, I gained particular insight not only from the evidence which the husband gave, but from the manner of his questioning of the wife and his conduct during the hearing generally.

    7 I say at once that the husband is impeccably mannered and could not have been more respectful of, nor indeed charming and engaging with me, the court. But he put long, forceful and argumentative questions to the wife and betrayed obvious frustration, if not anger, with her towards the end of his questioning last week. I very rapidly and clearly saw his relentless and unyielding pressure upon her, even in the setting of a court room and even when they are fully divorced. He admits that, during the course of last year, he lied to both the Foreign and Commonwealth Office and the police with regard to the whereabouts of the passports and other identity documents of the wife and their son.

    8 I find the essential facts to be as follows. Both parties are Muslims of Pakistani descent. They are, through their respective paternal lines, first cousins once removed in that the husband's late father (who died in 1996) was the brother of the wife's father's father.

    9 The husband is now aged thirty-six. He is British and was brought up in England within a Muslim family and the Muslim culture. He, and most of his close family, all live in the same street in the Midlands. He is, as I have mentioned, qualified as a GP and practises as a GP, although at the moment he claims to be so stressed by the breakdown of his marriage and these proceedings that he is only working on two days a week plus some ad hoc locum and night duty work. He agrees that there is ample work available for him to work a full working week, or indeed seven days a week, if he so chose.

    10 The wife is now aged twenty-six. She is a citizen of Pakistan, but not of the United Kingdom. She was born and brought up in Pakistan and had never left that country until she came to England nine months after the marriage.

    11 In August 2009, the husband and his family travelled to Pakistan for the marriage there of one of his brothers and one of his sisters, who were marrying in some form of joint ceremony.

    12 While they were there, there were discussions between the husband's mother (his father being already dead) and the wife's father with regard to a marriage between the parties. At that time the husband and wife, who did not previously know each other, did briefly meet. At that time, the wife was aged about eighteen. She had previously been severely injured in a road accident which had left her paralysed for many months, but from which she had made a significant recovery.

    13 A marriage was arranged between the parties by their parents, although both parties stress that they entered into the marriage voluntarily and of their own free will, and with high hopes that it would be a happy and fulfilling one. They became formally engaged in 2011, but did not meet at that time.

    14 After the brief meeting in August 2009 they communicated with each other by telephone, but did not meet again until the actual celebration of their marriage in Pakistan in late December 2012. The husband then returned within a few days to England and the wife remained in Pakistan.

    15 Later, in January 2013, the husband returned for two weeks to Pakistan during which, as I understood it, the marriage was consummated. The husband returned to England again.

    16 The wife, herself, travelled to England in October 2013. She was then aged twenty-two. She had never left Pakistan before. She was able to enter the United Kingdom on a spousal visa as the wife of a British citizen. They began to live together in a house, which the husband had recently bought further down the same road in which his mother and several of his siblings and their families live. Their only child was born in July 2014. He is British and, of course, can enter and leave the United Kingdom without restriction.

    17 In October 2015, the parties moved from living in their own house (viz the husband's house) to living in the house of the husband's mother in the same road.

    18 On 24th April 2016, the parties with their son travelled to Pakistan. The wife says, and I accept, that she was only told about this trip shortly beforehand. The husband told her that he had business to attend to there, where he was considering establishing a medical business. The parties spent the day of 24th April 2016 together in a hotel in Rawalpindi.

    19 It is common ground that there was an argument between them. The wife's uncle was called and came and collected the wife and their son and took them to her parents' home in Islamabad, about one to one and a half hours from the hotel. The husband said he would come there the next day after his business meeting.

    20 The following morning the wife telephoned the husband and asked when he would be coming. He said within about one or two hours. In fact the husband did not go to the wife's parents' house, but instead flew back to England that day. He took with him the passports and other identity documents of both the wife and the child. He left her with no or negligible money.

    21 The wife tried to obtain the return of the passports and identity documents through the Foreign and Commonwealth Office. The husband admits that, in early May 2016, he lied to the Foreign and Commonwealth Office and said that he did not have them. He says that he did so because he was angry with the wife because, during the argument in the hotel in Rawalpindi, she had refused to agree to apologise to his family for, he alleged, not being respectful to them. She had declined to apologise saying that she had done no wrong.

    22 On 14th June 2016, the husband obtained an Islamic divorce by talaq from the wife in an Islamic tribunal in Birmingham.

    23 On 1st July 2016 the wife commenced wardship proceedings here in England in which she sought and obtained orders for the return of her and the child's passports and identity documents so they could return to England. The husband admits that he lied to the police when, on behalf of the Tipstaff, they sought the passports and identity documents. He said he did not have them. He was arrested on the authority of the Tipstaff and taken into custody. Later that day, the passports were produced and he was released.

    24 However, the wife remained stranded in Pakistan because she now needed to obtain a new visa to enter the United Kingdom which took both time and money which she did not have. Eventually, the wife obtained a visa to enter for six months valid from 30th November 2016 to 30th May 2017. She and the child travelled here in December 2016.

    25 Meanwhile, the husband had commenced proceedings for an English civil divorce and a decree was made absolute on 30th January 2017. This has the consequence that the wife is no longer his spouse and it will be a matter entirely for the discretion of the Secretary of State for the Home Department, which I do not seek to influence in the slightest, whether she decides to permit the wife to remain here after 30th May 2017 and, if so, for how long.

    26 The husband accepts that the son must continue to live with the wife, as his primary carer, making his primary home with her. The husband accepts that, if the Secretary of State for the Home Department requires the wife to leave the United Kingdom so that she inevitably returns to Pakistan, the child must and will go with her to live with her there.

    27 It became very clear indeed from the evidence and assertions of the husband that, although (as he said this morning) both parties entered into the marriage with high hopes on both sides, he rapidly became very disillusioned and, frankly, very disappointed in the attributes of the woman with whom he had been arranged to marry. He gave me the following list of complaints.

    28 The main and overarching complaint is her lack of strict religious adherence to, he says, the tenets and requirements of Islam. He agrees that he is strict in his own observance. She is less strict, but he could not tolerate her lack of strict observance. He complains that, although she was brought up in Pakistan, she turned out to be less strict than he had expected.

    29 Over and above all else, he complains bitterly that she was not strict or punctilious in her reading of the Koran and in saying prayers five times a day, starting at 6am. The wife says that she did read the Koran and did say prayers, although she admits that she was often too tired to say the early morning prayer.

    30 A further aspect of her lack of strict religious adherence about which the husband strongly complains is that she did not, he says, keep herself clean. By this, he means that she did not sufficiently often and sufficiently scrupulously shave her pubic and underarm hairs. He says that this is of less gravity than not saying her prayers five times a day at the correct times, but is nevertheless grave.

    31 The wife says that she did shave herself every three days or so. The husband says that that was not good enough for his strict Muslim requirements and that he wished her to shave every day or day and a half, and often had to remind her to do so.

    32 These two complaints, that she was not punctilious in her prayers, and not scrupulous about shaving, were and are the husband's most bitter complaints and the reasons why he was so disappointed in her as his wife.

    33 Other, but from his point of view lesser, complaints are the following. First, the husband complains that, prior to the marriage, the wife's family misled him by not warning him that, he says, she retains some residual restriction or disability in the mobility of the left side of her body following the paralysis.

    34 As to that, the wife says, first, that she has no real residual disability. She walks without a limp; she can raise and move her left arm around freely; and her limbs are not withered or in any visual way deformed. Second, she says, as he agrees, that all her medical records and x-rays were made available to him and, being a doctor, he was well placed to interpret them himself.

    35 The next complaint is that the wife does not cook very well. As to that, she says that she is competent at cooking Asian food and dishes. She agrees that when she came to England she discovered that the husband prefers European food, such as pizzas and pasta, and that she struggled to cook such food well, having no previous experience of doing so.

    36 Finally, the husband bitterly complains that the wife turned out to be less highly educated than he was led by her or her family to believe. It is not in issue that she had gained the degree of BSc from a university in Pakistan and that, until she came to England, she was studying for an MSc there. He says that the wife or her family told him that her educational qualifications were sufficient for her to embark upon medical training as a doctor, which she said she wished to do.

    37 After she came here, an application was made to the National Academic Recognition Information Centre ("NARIC") for recognition and equivalence of her qualifications in Pakistan, and they were rated as the equivalent overall of a grade or grades C at A Level, too low to study as a doctor. So the husband bitterly complains that he was misled into marrying someone less well educated and qualified than he had thought.

    38 Those being the complaints of the husband about the wife, and the relentless and pressurising manner of his questioning of her being as I have already described, I unhesitatingly accept the evidence of the wife as to the manner in which she was treated by the husband and his family during the marriage.

    39 She says that, when she moved to England, both the husband and his family soon became distant towards her and unkind and belittling towards her. She was described as ill-mannered and arrogant. If she missed an early morning prayer, the husband was angry with her and would not talk to her all day.

    40 She was never allowed to have a bank account or a bank card. When they went shopping for food and other necessities, the husband always paid. The only access she had to cash was small amounts of loose change which he left in boxes in the house. I accept her evidence that he told her that when she started acting like a doctor's wife, he would give her the standard of living of a doctor's wife.

    41 I am satisfied that because she was not regarded as a dutiful and observant Muslim wife, the wife was not treated with any respect or esteem; but was belittled and treated with emotional unkindness, although I stress that there is no allegation of any physically abusive act of any kind at all.

    42 This unkindness came to a head in January 2016 when, I am satisfied, the husband removed from the wife the mobile phone which he owned but had previously provided for her use. This had the effect that she could no longer telephone her family in Pakistan.

    43 I am quite satisfied that, by his actions on and after 25th and 26th April 2016, the husband cruelly stranded the wife with their child in Pakistan. He repeatedly cavilled at the use of the word "abandoned" during the course of the hearing and evidence, but he did agree that by his actions he had left her "stuck" in Pakistan. To my mind there is, in the context of this case, no material distinction between the words "abandoned" or "stuck".

    44 As a result of his actions in leaving the wife and the child in Pakistan and returning himself to England with her and the child's passports and other identity documents, the husband deliberately created a situation in which she could not leave Pakistan and return here. He did so because he was completely dissatisfied with the marriage, for the reasons I have described, and wanted her out of his life. That emerges very clearly from the two choices which the husband gave to her in an email sent on 29th May 2016 (C117). I accept the husband's point that this email is only one of several, but, nevertheless, he wrote:

    "You have a choice to make because we can keep talking about these things and, by the way you are writing, you still think that you haven't done any wrong and you aren't sorry. So the two choices are:

    (1) I will come and get [the son] and you stay with your family and learn from your mother about etiquettes of living with a family and I won't give you a talaq. When you are ready, you can call me and I will come to Pakistan and live with you and see for myself if you have changed and if I am happy then I will bring you back to England.

    (2) If you don't agree to the above choice, I will bring the divorce papers with me and we will go through the hard way.

    If you are a good wife and mother, you know which one to choose."

    45 Where the husband referred in that email to "etiquettes", he meant such matters as strict religious observance and scrupulously keeping herself clean in the way I have described.

    46 The husband said in his evidence that, although that email was written in anger, he still believes the two choices he gave her were reasonable because they were a response to her behaviours viz to the matters of which he has complained. In my view, they were not reasonable. They were threatening and cruel.

    47 I agree with the final submission of Miss Ruth Kirby, who appears on behalf of the wife this morning, that the husband sought to leave the wife stuck in Pakistan. He does not want her to be here because, in his view, she was a disappointment to him as a wife and does not deserve to be here. In the process, he placed a higher priority upon that than upon maintaining his relationship with his son whom, by his own actions, he could not, and did not, see between April 2016 and December 2016.

    48 Since the mother and child returned from Pakistan contact has been regulated by court order and has, to date, been by Skype or similar electronic means.

    49 Those are the facts of this case. At a future hearing, and informed by further enquiries by the CAFCASS officer, the court will decide upon the impact of those facts upon the father's application for contact.


Published: 04/05/2017

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