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Hakeen v. Hussain [2003] ScotCS 77 (18 March 2003)

OUTER HOUSE, COURT OF SESSION
A876/01	OPINION OF LORD CLARKE in the cause SAIRA HAKEEM (Assisted Person) Pursuer; against KHALID HUSSAIN Defender:   ________________

 

 

Pursuer: Clarke; Balfour & Manson

Defender: Hayhow, Digby Brown

18 March 2003

INTRODUCTION

1. In this action the pursuer seeks a declarator to the effect that "a pretended marriage between the pursuer and defender at Stirling Registry Office on 22 June 1998, is null by reason of lack of consent to the marriage by the parties". The matter came before me for proof. The witnesses led on behalf of the pursuer were the pursuer herself, her mother, Mrs Akhtar Hakeem, Mr Tariq Chaudry and Mrs Jamila Chaudry, friends of the pursuer's family, and Mr Brian Gillespie, who is an immigration officer. The only witness led for the defence was the defender himself.
2. As the result of the evidence adduced at the proof, I found the following to be established.

FACTUAL BACKGROUND

3. The pursuer is now 21 years of age. She was born in Scotland. Her parents had come to Scotland from Pakistan. Her parents are now divorced. The pursuer is presently a full-time student at Glasgow Caledonian University. She lives with her mother at 50 Coldstream Drive, Glasgow. Both the pursuer and the defender are followers of the Muslim religion. The defender is now 29 years of age. He came to Scotland in or about February 1998 from Pakistan. He has an older brother who, in 1998, was living in Stirling with his wife and daughter. The defender came to stay with his brother. The purpose of the defender coming to Scotland was to obtain medical treatment for a problem which, at that time, he was having with his ear. He obtained a visa to remain in Scotland for six months for the purposes of obtaining medical treatment.
4. In or about March 1998, a friend of Mrs Jamila Chaudry, who is a friend of the pursuer's family, made contact with the pursuer's mother. The person in question was variously described by the witnesses in their evidence as Auntie Salima, Mrs Salima and Mrs Salima Iqhbal. This lady was acquainted with the defender's family in Scotland. She suggested to the pursuer's mother that the defender would make a suitable husband for the pursuer. At that time the pursuer was attending high school.
5. A meeting was arranged at which the pursuer's mother met with the defender's older brother and his wife, together with Mrs Chaudry and the woman known as Auntie Salima. On the basis of that meeting the pursuer's mother considered that the defender's family were good people and a further meeting was arranged so that the pursuer's mother could meet the defender. The pursuer's mother met the defender with his brother and his sister-in-law. Again Mrs Chaudry and Auntie Salima were present. As a result of the second meeting the pursuer's mother formed the view that the defender would make a suitable husband for the pursuer.
6. A further meeting was arranged which took place towards the end of May at the pursuer's home for the purpose of the defender meeting the pursuer. The defender attended at the pursuer's home with his brother, his sister-in-law and his niece. The pursuer's father was also in attendance together with Mr and Mrs Chaudry and Auntie Salima. The pursuer and the defender were introduced to each other in the following pre-arranged way. The pursuer was in her bedroom. The defender was invited by the pursuer's mother and Mrs Chaudry to go into the room. The pursuer's mother and Mrs Chaudry remained outside the bedroom, but close to its door. The couple had a little time together. At the proof a good deal of time was taken up with discussing exactly how long they were together, it being maintained on the pursuer's side that it was only a few minutes whereas on the defender's side it was contended that the couple were together for some 10 to 15 minutes. Ultimately I do not consider that the duration of that encounter, as opposed to its occurrence, really pertains to the decision I have to reach in this case. The pursuer already knew that her mother approved of the defender as a future husband for the pursuer. After the defender withdrew from the pursuer's bedroom the pursuer's father and mother asked her if she was happy at the prospect of having the defender as her husband. She said that she was quite happy to go along with her mother's wishes. I am satisfied that both the pursuer and the defender, at this stage, found each other to be attractive and that the prospect of being a married couple was something they contemplated without any difficulty.
7. Once it had been ascertained, by her family, that the pursuer had no objection to being married to the defender, the occasion turned into one in which the parties, in fact, became engaged to be married. It was clear from the evidence, that the defender's family and friends had come to the meeting, in the hope and expectation, that the pursuer would not object to being betrothed to the defender. They had brought with them an engagement ring for the pursuer together with clothes and shoes for her in accordance, apparently with their cultural customs. Nos. 7/1 of process is a book of photographs. Photographs 1-14 inclusive and 17 and 18 are photographs taken at the engagement party. They show the parties sitting side by side and a ring being placed on the pursuer's finger. The pursuer is also holding a flower which had been brought to her by the defender and in which the ring was contained. There are various other photographs showing the couple with members of their families and friends. Photograph 4 and photograph 18 show the engagement ring being placed on the pursuer's finger by Auntie Salima. At the engagement party there was discussion about the parties' future marriage. The pursuer and her mother did not wish the pursuer to live in Pakistan nor did they wish her education to be interrupted. She was, at that time, hoping to go to university. It was, however, appreciated that the defender would require to return to Pakistan on the expiry of his six months visa in or about August 1998, unless he could obtain an extension to the visa. One way of obtaining an extension to his visa would be if he were to satisfy the immigration authorities that he had married the pursuer and that they were living together as husband and wife. The pursuer, and her family, agreed that, in the circumstances, the parties should, in early course, go through a civil wedding ceremony. Thereafter the pursuer and the defender would not live together as husband and wife until they went through a religious ceremony, or ceremonies, whereby, according to the Muslim faith, they became husband and wife.
8. The foregoing agreed arrangements suited both parties for their own respective reasons. It would enable the pursuer to continue and complete her school education and to go to university in Glasgow. The defender would continue to live in Stirling with his family. He wanted to have some time either to obtain employment or set up a business to put himself in a more financially secure position.
9. The defender arranged for a marriage ceremony to take place on 22 June at the registry office in Stirling. Both the pursuer and her family on the one hand, and the defender and his family on the other regarded this as "a special occasion". The pursuer herself wore a special wedding dress. Her sisters acted as bridesmaids and wore special dresses. The occasion was videod and the video film of the ceremony was played at the proof. Photographs of the occasion were taken which are 7/3/1-36 of process and 7/1/15 of process. Both the video and the photographs present graphically an image of the occasion being a happy and special family occasion where those attending have taken particular care over their dress and where the attitudes struck were what one would see at any wedding ceremony. It is not disputed that the ceremony which the parties went through complied in all respects by the formalities prescribed by the Marriage (Scotland) Act 1977.
10. The proceedings at the registry office were followed by a party at the pursuer's family home. That party celebrated not only the event which had just taken place at the registry office, but also the fact that the pursuer's birthday had taken place some three days previously. The party was attended by not only the friends and family who had attended at the registry office ceremony but also others - about 20 persons in total. This party was videod and the video film shown at the proof. The pursuer's home had been decorated and as well as decorations referring to her birthday there were others with the words "happy wedding" written upon them. There were flowers made up to depict the initials of the couple's first names. The pursuer gave evidence that the decoration of the house had been done by friends of her. The pursuer knew at the time she went through the registry office proceedings that, according to the law of Scotland, persons who voluntarily went through that form of ceremony were regarded as being man and wife thereafter. The defender also knew this. So, too, did the pursuer's mother. The pursuer and the defender, of their own volition, went through the ceremony before the registrar in Stirling in that knowledge. The pursuer maintained, however, at the proof, in her evidence, that as far as she was concerned, the registry office ceremony was just like "a second engagement".
11. Both the pursuer and the defender after the registry office ceremony on 22 June 1998, wished and anticipated that, in due course, they would go through a religious ceremony or ceremonies which would mean that, in the eyes of their religion, they were man and wife. It was, in the first place, at the request of the pursuer and her mother that the religious ceremony was agreed to be postponed to the summer of 1999 to enable the pursuer to complete her school education.
12. Between June 1998 and June 1999 the pursuer continued to live with her mother at her mother's home in Glasgow and she continued to attend school. During that period the defender stayed with his brother and his family in Stirling. Both families, including the pursuer and the defender, met, however, regularly during that period for dinner and other social events. The pursuer maintained, in evidence, that during those occasions she was never left alone with the defender. The defender, in his evidence, maintained that there were occasions when they met unchaperoned.
13. After the ceremony on 22 June 1998, it was necessary for the defender to apply for an extension of stay in the United Kingdom. For this purpose the defender completed an application form (apparently with the assistance of a friend) which is No 6/4/2-9 of process. The application took the form of a document which required the applicant to answer a number of questions. The defender admitted, in evidence, that his reply to a number of the questions contained untruths. He signed the application on 21 July 1998. The replies which the defender gave to questions about how the parties had met were not correct. In response to a question which asked "When did you start living together?" The defender wrote "From 22 June 1998 when we married in Stirling". That was, as the defender accepted in his evidence, untrue. In reply to questions regarding the parties' home, the defender replied, "Home owned by my friend who provided us accommodation free of charge (confirmation letter is enclosed)". This was not true. Question 4.11 on the form was to the following effect. "Is your spouse working in the UK". To that the defender replied "Yes". He went on to state that the pursuer was earning approximately £500 per month. Once more he accepted in his evidence that these answers were untrue. On the last page of the form, the pursuer signed a declaration which was to the following effect.

"I confirm that I am the wife of the applicant. I declare that we are still married, that we are living together as husband and wife and intend to do so permanently. I am aware that it is an offence under the Immigration Act 1971 to make to a person acting in the execution of the Act a statement or representation which the maker knows to be false or does not believe to be true."

Insofar as, in that declaration, the pursuer said that she and the defender were living together as husband and wife it was untrue. In examination-in-chief the pursuer said that she signed the declaration "because at the end of the day my purposes were to marry him and to stay with him so I didn't have no reason not to sign it". Attached to the application form is a manuscript letter 6/5 of process. It bears to have been signed by the defender on 31 July 1998. The defender said, in evidence, that it was in fact written, on his behalf, by a friend, Mr Asjad. It is in the following terms:

"As you required the documents prove financial support in section of the application. I have enclosed bank statements of M Asjad.

I also want to inform you that my wife Saira has bought her own business which she'll take up in first week of Sep. 98. Then I won't require anybody else's help. Any further requirement will be submitted with due respect."

The defender accepted, in his evidence, that the statement about the pursuer having bought her own business was untrue.

14. The application form was sent off to the Home Office accompanied by photographs of the parties' wedding ceremony on 22 June and their marriage certificate. I should say that, in her evidence, the pursuer was to the effect that she had gone to Edinburgh with the defender to complete this application which was done before a lady in an office there. The defender, however, contradicted this and said that the visit to Edinburgh actually occurred in October 1999 when he applied for permanent residence. On this matter I prefer the evidence of the defender. The application for extension of leave was granted by letter from the Immigration and Nationality Directorate, dated 16 October 1998. It is 6/6/1 of process. It granted the defender an extension of an initial period of twelve months, provided certain conditions were fulfilled. The letter also stated,

"You may apply for the time limit attached to your stay to be removed from shortly before your stay expires.... For the application to be granted, we will need to be satisfied that your marriage has not ended and that you and your spouse both still intend living permanently with each other as husband and wife. If you provide a statement to this effect, signed by you both, this will assist us in considering your application.... If, when you make your further application, you are no longer living with your spouse, your continued stay in this country (including the question of continuing in employment or in business) will normally be subject to your qualifying for further leave in some other capacity under the Immigration Rules. You should therefore explain your current circumstances and make an application accordingly."

That extension of the defender's leave was clearly given on the basis of false information provided by both the defender and the pursuer. I am satisfied that in giving the false information that the defender gave, and in giving the false declaration which the pursuer gave, both parties were both motivated by the wish to present the best possible case for the defender remaining in Scotland and that was because, at least in part, they both wished, in due course, to live permanently as husband and wife and to do so in Scotland.

15. As previously noted, it had been intended that the parties would go through a religious ceremony some time shortly after the pursuer completed her school education in June 1999. When that time came, however, the defender's elder brother had returned to Pakistan, for what turned out to be a protracted visit. The defender was unwilling to go through a religious ceremony without his brother being present. He was also relying, to some extent at least, on financial assistance from his brother being made available to provide for the cost of celebrating the religious marriage. The pursuer and her mother were, at that time, willing to go along with delay in the religious ceremony taking place. I am satisfied that, at that time, it remained the intention of both parties to live as husband and wife, after they had gone through a religious ceremony.
16. The defender's visa was, however, due to expire in October 1999. The defender and the pursuer attended at the office of the Council of British Pakistanis (Scotland) in Edinburgh for the purpose of obtaining assistance in the making of an application for the defender to obtain indefinite leave to remain in the United Kingdom. Number 6/7 of process is a letter dated 12 October 1999 from a Mrs Rashida Saeed, project worker with the Council of British Pakistanis (Scotland). It is addressed to the Immigration and Nationality Directorate. It states that the letter is written on behalf of the defender who was applying for his indefinite leave to remain in the United Kingdom. It refers to 21 enclosed documents which were being forwarded with the letter. These documents included a completed form, SET (M), for indefinite leave to remain in the UK and a full driving licence for the pursuer. The application form itself is No 6/8/1-9 of process. In Note 4 of the application form it is stated

"You must provide documentary evidence showing that your marriage subsists such as a formal document showing that you and your spouse live together. For example, we would normally accept that your marriage subsists if you provide five items of correspondence addressed to you and your spouse during the past year from the following sources if they clearly show that you live together at the same address".

In relation to that request there were sent to the Immigration Authority, on behalf of the defender, five British Telecom Bills addressed to the pursuer as Mrs Hussain and two electricity bills addressed to the parties as a couple. These documents were not produced in process. The pursuer in evidence said she knew nothing of these documents. At the end of the form at 6/8/8 there is a declaration in the same terms as was given by the pursuer on 6/4/9 of process to the effect that the parties were still married, were living together as husband and wife and intended to do so permanently. The declaration on 6/8/8 bears to be signed by the pursuer and is dated 8/10/99. In her evidence the pursuer denied that she had signed that declaration. The defender, on the other hand, in his evidence, claimed that the pursuer had signed that declaration. He also said that the form was completed before the representative of the Council of British Pakistanis in Edinburgh, in the presence of the pursuer, and that the representative asked the pursuer to read over its contents and to sign it. I am satisfied that, although in her evidence the pursuer thought she had attended the Council offices in Edinburgh in relation to the other application for leave to remain, she was wrong about that and that she did attend at the Edinburgh office for the purpose of the completion of the detailed application by the defender for permanent leave to remain in the United Kingdom, in October 1999. I am furthermore satisfied that she was in full support of that application, assuming, even then, that the couple would in due course be living together permanently as husband and wife, and, for that reason, I think it was more probable that she signed the declaration than she did not. It was established, in evidence, that the defender had registered the pursuer with his doctor in Stirling and that information was provided in support of his application. The pursuer, however, continued to have her own doctor in Glasgow at that time. As noted previously, in support of the application for permanent leave to remain in the United Kingdom, there was submitted a driving licence for the pursuer. The evidence was that the pursuer had passed her driving test in September 1999. It was, however, the defender who applied for her driving licence to be issued. The pursuer, in her evidence, expressed some disapproval of the defender having done this without her knowledge. The defender explained, however, that to obtain the driving licence he required to send to the relevant department, the pursuer's driving test pass certificate, a photograph of her and her birth certificate. The pursuer maintained that her mother must have given these documents to the defender. I am satisfied that it does not really matter who gave the defender the documents in question. They were given to him, voluntarily, either by the pursuer or her mother, in the knowledge that he was to use them for the purpose of obtaining the pursuer's driving licence. Moreover, the pursuer gave evidence that she had voluntarily given her passport and national insurance card to the defender for use in the support of his application.

17. The defender's brother was still in Pakistan in December 1999. The defender continued to visit the pursuer and her family. When the subject of the religious ceremony was raised the defender suggested that it should be postponed again until the outcome of his application for permanent leave to remain in the United Kingdom was known and until his brother had returned from Pakistan. His mother was also ill in Pakistan at that time and he wished her to recover before the religious ceremony took place. There was also the possibility of his visiting his mother in Pakistan. These reasons for postponing, further, the religious ceremony did not satisfy the pursuer's mother who was now anxious that the ceremony be performed, since members of her community were beginning to talk about the delay. I am satisfied that for these reasons the pursuer's mother and the pursuer herself were exerting some pressure on the defender to say when the religious ceremony would now take place. By letter dated 17 February 2000, 6/11/1 of process, the defender was informed by the Immigration and Nationality Directorate that he was entitled to remain indefinitely in the United Kingdom. When the pursuer and her mother learned of this, the pursuer's mother said to the defender that there was now no obstacle in the way of the couple having a religious ceremony and asked the defender to urge that his brother return from Pakistan for that purpose. The defender, however, continued to express reluctance to have the religious ceremony until his mother's health improved. The pursuer's mother was extremely displeased by this reaction by the defender. She contacted the defender's sister-in-law who informed her that she thought that the defender now had a Scottish girlfriend. This information merely served to increase the pursuer's mother's anger at the defender's attitude and behaviour.
18. The pursuer's mother phoned the defender when he was at work. She was extremely angry. She said that she was going to take steps to have the defender's visa cancelled so that he would be sent back to Pakistan. The pursuer herself came on the phone and expressed her displeasure in no uncertain manner. The defender gave evidence to the effect that as a result of the way in which the pursuer and her mother had spoken to him on the telephone he no longer wished to go through with the religious ceremony. In the meantime, the pursuer's mother had informed Mrs Chaudry of what had happened. Mrs Chaudry and her husband went to see the defender in Stirling. They asked why he was not going ahead with the religious ceremony. At first he said that the reason was because he wanted to go and visit his ill mother in Pakistan and to see his family there. Eventually, however, he said he did not want to go ahead with a religious ceremony. The defender said, in his evidence, that he told Mr and Mrs Chaudry that he wanted a divorce. Neither Mr nor Mrs Chaudry gave evidence to that effect. Mrs Chaudry gave evidence to the effect that she put it to the defender that he had only gone through the registry office ceremony to get a visa and that he had agreed with that suggestion and had told her to tell the pursuer's family to do whatever they wanted to do. Mr Chaudry, however, in cross-examination said the defender did not assent to the proposition that he had gone through the registry office ceremony simply to get a visa and had simply said something like "take it any way you wish". The defender's position in evidence was also that he did not at any stage agree with Mrs Chaudry that he had gone through the registry office procedure simply to get a visa. On this matter I preferred the evidence of Mr Chaudry and the defender to that of Mrs Chaudry. The defender, in his evidence, explained that he did have a female Scottish acquaintance, whom he had met in July 1999 when he and the lady were working together with Sky Television. He denied that he had any relationship with this woman beyond a friendship although he accepted that he stayed over, from time to time, at the lady's house. Both the pursuer and her mother were clearly hurt by the defender's attitude and considered him to have been guilty of a deep breach of trust. In about June/July 2000 the pursuer went to the Immigration Department office at Glasgow Airport. She saw a Miss Wilson there and subsequently in March 2001 saw Mr Brian Gillespie, who gave evidence at the proof. The pursuer told these persons some of what had happened between herself and the defender and, in particular, informed them that they had never lived together as husband and wife and alleged that the defender had gone through the registry office ceremony simply for the purpose of obtaining a visa. Mr Gillespie, who is an immigration officer, spoke to the pursuer having given his colleague a written statement. This witness was taken through the applications made by the defender for leave to remain in the United Kingdom and the supporting declarations. He was, in evidence, to the effect that if, contrary to what had been said in these documents it was subsequently discovered that the parties had not lived together as man and wife then the defender's right to remain in this country might have to be terminated unless he was able to qualify for remaining on for some other reason. Mr Gillespie said that his department wished to interview the defender and depending on the outcome of that interview the defender might require to leave the country.
19. I am entirely satisfied, on the evidence, that both the pursuer and the defender, as at 22 June 1998 considered that to be married validly in the eyes of their religion, they required to go through certain ceremonies prescribed by the Muslim religion known as a "nikkah" and a "rushkati". I am satisfied that they and their families did not consider it appropriate that they should live together as man and wife, and have sexual relations, until those proceedings were gone through. Furthermore, I am entirely satisfied, that until at least June or July 1999, both the defender and the pursuer planned to go through the religious ceremonies.
20. Insofar as it is material to the matters I have to decide, I should add my impressions of the witnesses were as follows. The pursuer I consider to be a very intelligent and sophisticated young woman. It was my impression that she came to give her evidence with the very definite intention of providing no answer that would in any way put a question mark over her basic proposition which was that she did not regard the registry office proceedings as a marriage. She and her mother are clearly extremely hurt, and feel abused that the defender did not ultimately go through with the religious ceremony and live with the pursuer as her husband. They both consider that divorce is not an appropriate way to resolve matters because in their religious community this might, perhaps, make it more difficult for the pursuer to obtain another husband. In my view, the evidence of the pursuer and her mother was influenced by these considerations so that, for example, they sought to describe the proceedings at the registry office as simply a "second engagement" and the pursuer's mother denied that the pursuer had obtained a wedding dress for those ceremonies. Mr and Mrs Chaudry I found to be, on the whole, credible and reliable though both of them were clearly affected by the fact that Mrs Chaudry had, in a sense, brokered the proposed marriage and had been let down by the defender. As to what happened on the day they met with the defender in February 2002, where their evidence is at odds, I preferred the evidence of Mr Chaudry who gave it in a fairly straightforward manner and seemed to be less emotionally affected by the defender's conduct than his wife. I found the witness Mr Gillespie credible and reliable in relation to the matters to which he spoke. The defender himself frankly admitted his various deceptions in making applications for leave to remain in the United Kingdom but I am satisfied that the pursuer, herself, was a party to those deceptions. Both the parties wished the defender to be allowed to remain in the United Kingdom. That would have allowed them to live here as husband and wife. While I have to approach the defender's evidence with some care, given his track record for deception, I did form the view that on the essentials of the matters to which he spoke, in evidence, he was telling the truth. In particular, and most importantly, I believed his evidence to the effect that he was attracted by the pursuer, as soon as he met her, that he wished to be her husband, that he was initially willing to undergo a religious ceremony, accordingly to Muslim rites and to live with the pursuer as husband and wife.

PURSUER'S SUBMISSIONS

21. Counsel for the pursuer began her submissions by saying that the basis of marriage was true consent. If there was no consent of either party to the marriage ceremony which took place on 22 June 1998, that was enough to allow the pursuer to have the declarator she sought. It was a pretended marriage, a sham and should be declared null. I was referred by counsel to the case of Orlandi v Castelli 1961 SC 113. In that case the Lord Ordinary, Lord Cameron, allowed a pursuer a proof before answer on averments which were to the following effect. The pursuer averred that her Italian fiancé had come to stay with her in Scotland. After three months his residence permit expired, but he wished to remain longer. One way of seeking to prolong his stay was for the parties to marry each other. The parties went through a registry office ceremony for that purpose. The parties were both Roman Catholics and they did not regard the civil ceremony as a marriage. After the ceremony they did not cohabit nor did they have sexual relations. The pursuer sought a declarator of nullity of marriage. The defender did not defend the action. The Lord Advocate, however, entered appearance in the public interest and lodged defences. After a review of the authorities, including the institutional writers, Lord Cameron was of the view, at page 120 that the law on the matter was, perhaps, best summarised in Fraser on Husband and Wife, Vol. I, p.435 where it is stated as follows:

"The essential in every marriage is the consent of the parties to its constitution. This may be directly given, or inferred from circumstances. That whether the marriage is regular or clandestine; whether by a clergyman after due proclamation of banns, or by consent de praesenti without such formality; whether inferred from promise cum copula or co-habitation with habit and repute - there must be consent freely and voluntarily given; it must be serious, and with the intention to enter into marriage; otherwise the proceedings of the parties, though outwardly formal, is held wholly ineffectual in law to constitute the contract. The consent alleged may be a sham or a pretence, or it may be inefficacious, as having been extorted by force; or it may be tainted by error or fraud; and thus an apparently formal marriage may be set aside as a nullity."

Lord Cameron, having cited those passages continued:

"In my opinion, this is the correct view of the matter, and where it can be established that there has been no true matrimonial consent, and that the ceremony was only designed as a sham or as an antecedent to true marriage, it is competent to found upon that absence of consent for the purpose of setting aside a marriage regularly celebrated."

His Lordship concluded, at page 121 therefore, that

"...the pursuer is well-founded in contending that, if she is able to demonstrate by sufficient evidence that there was no real consent to marriage on the part of herself and the defender Castelli, she would be entitled to the remedy which she seeks."

It is to be noted that in Orlandi the pursuer was offering to prove that neither had consented to marriage. Counsel for the pursuer then referred me to the case of Akram v Akram 1979 SLT (Notes) 87. In that case a man and a woman had gone through a ceremony of marriage in a registry office. The woman subsequently raised an action for declarator that the marriage was null on the ground that "no matrimonial consent was exchanged by the parties." The woman, although of Pakistani origin, and a Muslim, had been domiciled in Scotland for many years. The man was also a Pakistani and a Muslim. He had been resident in Scotland for only a period of weeks or months at the time of the ceremony and shortly thereafter he went to Holland. The man was a cousin of the woman and the woman's parents had arranged the wedding. The woman had tried unsuccessfully to dissuade her parents from insisting upon the ceremony and had decided to go through with it only because she did not consider that it bound her, since her religion did not recognise any form of marriage other than a religious ceremony in accordance with Muslim custom. The defender did not defend the action. The Lord Ordinary, Lord Dunpark, noted that the pursuer supplied two motives for her participation in the civil ceremony viz:

"(1) to comply with her parents' wishes, and (2) to enable the defender to remain longer than three months in Scotland, the implication being that she wanted further time to decide whether or not to marry the defender by religious ceremony according to Moslem custom."

In the course of his opinion Lord Dunpark referred to the position of Lord Cameron in Orlandi and said that he agreed with Lord Cameron's view of the law on the matter. His Lordship then continued, at p. 88, as follows:

"To constitute marriage there must be consent voluntarily and seriously given to enter into marriage. If it be proved that such consent was not given, an apparently formal marriage, as this one was, may be annulled (see Fraser, Husband and Wife, Vol. I at p. 435). In Clive & Wilson, Husband and Wife, at p. 61, it is stated that a unilateral mental reservation will have no effect. It seems reasonable that a pursuer should be barred personali exceptione from founding on his or her own uncommunicated reservation, where it is not proved that the defender, also withheld true consent to marriage..."

His Lordship reached the view, however, that while the defender had not given evidence, it was a reasonable inference from the evidence which was led that the defender's motive in participating in the civil ceremony was to enable him to apply for an extended residential permit in order to give the pursuer time to decide whether or not to be married by religious ceremony according to their faith. His Lordship therefore concluded that neither party accepted the civil ceremony as conferring upon them the status of married persons and that the consent which they interchanged at the ceremony was not true consent to marriage. His Lordship reached this conclusion with conspicuous reluctance but nevertheless said that, on the facts found by him, he had no option but to grant declarator of nullity. He had ordered that the proceedings be intimated to the Lord Advocate who had elected not to intervene (though he had, done so in Orlandi). Lord Dunpark was of the opinion that if it had been established that the only motive for the parties entering into the ceremony was to enable the defender to obtain a residential permit, it would have been contra bonos mores to grant decree of nullity as in such a case there would have been a fraud on the immigration authorities. His Lordship thought that the principles of personal bar might be prayed in aid in such a case to prevent a pursuer obtaining a decree of nullity in circumstances like those before him if the only motive had been to obtain residential status. His Lordship had found, on the evidence, that there was another reason for the parties having entered into the registry office ceremony, namely, that the pursuer wanted to comply with her parents' wishes and to give her time to decide whether to go ahead with the religious ceremony or not. Even then, it is apparent that his Lordship was left with a distinct feeling of discomfort about granting the decree. He said this, at p. 89:

"That still leaves the vexed question of whether it is right to allow parties, who have voluntarily participated in a civil ceremony of marriage provided by Scots law in the full knowledge of its legal effect, to have that ceremony declared null and void on the ground that their religious faith did not recognise a civil ceremony. In presenting themselves to a marriage registrar for marriage when they do not intend marriage, they are deceiving the registrar and abusing the law. I have found that the law permits itself to be abused in this way, and I cannot change it. It must be for Parliament to decide whether this abuse should be made a statutory offence or whether legislation should preclude parties from challenging the legal effect of any formal ceremony of marriage on the ground that they knowingly but tacitly withheld their true consent to marriage."

22. In his opinion, in Akram, Lord Dunpark had referred to the earlier case of Mahmud v Mahmud 1977 SLT (Notes) 17, a case upon which the pursuer in the present case also relied. In Mahmud a man and a woman had gone through a registry office ceremony of marriage. Both parties were Pakistanis and Moslems. The man was a cousin of the pursuer. The man had come from Pakistan on a three month visa. The defender's parents contacted the pursuer's parents and suggested that the parties should be married. The defender came and lived with the pursuer's parents but he never saw or spoke to the pursuer, prior to the ceremony of marriage being gone through by them. On the day after the ceremony the defender left for London. He subsequently contacted the pursuer's parents and asked to have the pursuer's passport and other documents relating to her British nationality, together with her marriage certificate. He said he required these documents in order to obtain permission to remain longer in the United Kingdom. The pursuer's father provided him with these documents. A week later he contacted the pursuer's father and said he wanted no further contact with the pursuer or her family. The defender could not thereafter be traced by the pursuer's family. On those findings, the Lord Ordinary, Lord Kincraig, applying the law as set out in Orlandi said as follows at p. 18:

"I am satisfied on the evidence adduced in this case that the pursuer, because of her religious beliefs, did not truly consent to be married to the defender when she went through the ceremony before the registrar. Both parties conducted themselves before the ceremony in accordance with the religious customs of the faith to which they both belonged, applying to persons about to be married, and it was clearly understood between them that in due course they would participate in a religious ceremony before they would be regarded as man and wife. The pursuer believed that she would not be truly married until there had been a religious ceremony conducted in accordance with the tenets of the Moslem faith. Her appearance before the registrar was solely to comply with the formalities of Scots law as to the constitution of marriage in Scotland, and her consent was given before the registrar in that belief. She did not agree to be married by that procedure."

His Lordship, accordingly, granted decree of nullity. Counsel for the pursuer, before me, relied on the cases of Orlandi, Mahmud and Akram, to support what she contended was the pursuer's position in the present case, namely that both parties and their families did not recognise the civil ceremony as conferring upon the couple the status of husband and wife and for that status to be conferred it was necessary for them to go through the religious ceremonies prescribed by the Muslim faith to which I have already referred. The ceremony at the registry office was regarded simply as another engagement. Counsel for the pursuer accepted that the pursuer had freely agreed to marry the defender but only at a religious ceremony. At the ceremony in the Stirling Registry Office, neither party consented to be married by that means. The pursuer had been willing to go through these procedures to facilitate the defender's visa application. The registry office ceremony was simply an antecedent to a true marriage. The pursuer regarded the civil ceremony as a betrothal and it was legitimate in the sense that she did intend, and she believed that the defender believed that a religious ceremony would take place in or about the summer of 1999. While the position was that the pursuer's mother would have preferred for the religious ceremony to have taken place shortly after the registry office ceremony, the pursuer had considered it preferable that it be postponed until after she left school. Counsel referred me to the recent decision of Lord McEwan in the case of Sohrab v Khan (2002) SCLR 663. In that case the parties who were also Muslims, had gone through a registry office ceremony. The Lord Ordinary, however, held on the facts that the pursuer had been coerced to enter into marriage. His Lordship also found that certain of the necessary requirements under the Marriage (Scotland) Act 1997 had not been complied with and, in those circumstances, his Lordship granted decree of nullity. Counsel for the pursuer referred me to this case principally, however, for the description given by Lord McEwan of certain of the ceremonies which, according to the Muslim religion are, apparently, by required to be performed before a couple are regarded as being man and wife in the eyes of that religion. Counsel for the pursuer did accept that at the time of the engagement of the parties, the pursuer and the defender, in the present case, had matrimonial intentions. But she maintained that since it was established that both parties were Muslims, who adhered to the religious tenets of that faith, neither party would consider themselves to be married, without going through ceremonies in accordance with the rites prescribed by the Muslim religion. Counsel for the pursuer accepted that, on the evidence, at the time of the civil ceremony, and for some time thereafter, the defender intended that the pursuer be his wife and that a religious ceremony would be gone through for that purpose some time in the future. The evidence was, overwhelmingly, to the effect that the pursuer herself did not regard the ceremony at the registry office as being a wedding which had the effect making the parties man and wife. While at times in his evidence the defender seemed to be suggesting that he accepted that the registry office ceremony did have that effect, the Court should hold that he, being a Muslim, did not consider the ceremony as having such an effect and that the sole purpose of going through with the civil ceremony was to safeguard his visa position. The Court should regard the defender as being incredible when he said, as he did, that he regarded himself as married after the civil ceremony. The defender was a proven liar and he made the various false statements he had made in support of his immigration application. The defender was defending the present proceedings simply in an attempt to maintain his immigration status.

DEFENDER'S SUBMISSIONS

23. In reply counsel for the defender, invited me to sustain the defender's first two pleas-in-law. They are to the following effect:

"1. The marriage between the parties not having been entered into without the consent of the defender, declarator should not be pronounced as concluded for.

2. The marriage between the parties not having been entered to without the consent of the parties, declarator should not be pronounced as first concluded for."

The defender has a plea, No 5, which is to the following effect:

"Separatim, esto the parties' marriage was entered into as a means of securing the defender's visa entitling him to remain in the United Kingdom, which is denied, the pursuer being a party to that deception is personally barred from founding thereon and the action should be dismissed."

Counsel for the defender invited me to sustain that plea, in the event, that I was not prepared to sustain either of the first two pleas-in-law for the defender.

24. Counsel for the defender submitted that the question that the action raised was this - was consent given by the parties, at the ceremony on 22 June 1998, that they should be regarded as husband and wife according to the law? Counsel referred me to the authorities referred to by Lord Cameron in his opinion in Orlandi. In particular counsel referred to a passage from More's Edition of Stairs Notes p. XIII, cited by Lord Cameron at p. 118 of his opinion which is to the following effect:

"The consent necessary to establish the relation of marriage must be interchanged freely and deliberately, and for the purpose of creating this relation. No force or fraud must be employed to extort the consent, and there must be clear evidence that the parties intended to marry each other. Hence the most formal acknowledgement of marriage, even though made in facie ecclesiae, will be of no avail, if it shall appear that such was not the true intention of the parties. It may be difficult, and often impossible, to show that the parties did not mean to be bound by what they have apparently done; and they will not be permitted lightly to disclaim their own solemn and deliberate proceedings; but still there is no form or ceremony which affords such conclusive evidence of marriage, as to make it incompetent to show that marriage was not intended by the parties. Such evidence should be received with jealousy, and sifted with rigour; but it is nevertheless competent. Accordingly, the most explicit oral or written declarations of marriage, and even the celebration of marriage, by a clergyman, have been disregarded, when other circumstances had shewn that the parties did not intend to bind themselves by marriage".

Counsel for the defender submitted that where there are ulterior purposes for a marriage ceremony being gone through by parties, there is still a valid marriage as long as the parties intended to create the legal relationship of husband and wife. If there were a number of reasons for the parties going through the ceremony and one of those reasons was an intention to create the legal relationship of husband and wife this was sufficient. As authority for the proposition that an ulterior motive for entering into a marriage will not, by itself, allow the Court to declare the marriage a nullity, counsel referred to what was said by Lord Sands in the case of McLeod v Adams 1920 1 SLT 229 at 231. Counsel, furthermore, submitted that a person who had his or her own reservations or conditions in mind at the time he or she entered a marriage ceremony, could not later, seek to have the marriage annulled on the basis that his or her expectation or conditions have not been fulfilled. In this connection counsel referred me to the case of MacDougall v Chitnavis 1937 SC 390. In that case a Scots woman had gone through a form of marriage which was valid according to the law of Scotland. The man was a Hindu. The woman subsequently sought a declarator of nullity, firstly on the ground that there had been no consensus in idem in respect that she had contracted on the basis that the marriage would give her the status, in India, of a lawful wife, whereas the defender had known that it would not do so. She also contended that she was entitled to declarator on the ground that the defender by the law of his Indian domicile, had not been capable of contracting a valid marriage outside Hinduism. The evidence established that the defender was under a religious disability whereby he was prohibited from marrying outside Hinduism while he remained a Hindu himself. The Court dismissed the action on the basis that there had been a deliberate exchange of consent to be husband and wife. At p. 402 Lord President Normand said this:

"If two parties, each with the requisite capacity, enter into a marriage in Scotland, that can only be on the footing that they intend to enter a marriage which confers on the woman the status of a lawful wife. There have been cases where the parties go through a form in which they ostensibly exchange consent to marriage although in fact they have no intention to marry, and it has been held on the evidence that the form of consent was merely a jest without obligatory force. But that is not the kind of case with which we are dealing. There is no question that here both the parties seriously intended marriage."

His Lordship referred to the evidence in that case which had established that the parties had lived as husband and wife in Scotland, had had a child and had gone to India as husband and wife to make a home there. All of this, in his Lordship's opinion, negatived the idea that the consent was given by either of them in form only but not in fact. His Lordship concluded by saying:

"If the parties seriously intended marriage, it is, apart from questions of capacity, impossible to hold that the marriage is null from absence of consent."

Counsel for the defender pointed out that Lord Dunpark of the case of Akram at p. 88 also opined that unilateral mental reservations will not justify declarator of nullity. In Clive on Husband and Wife at para. 07.053, p. 90 the proposition is stated thus:

"A party to a marriage who leads the other party to believe that a valid marriage is being entered into will not be allowed to plead that he or she tacitly withheld matrimonial consent."

The three cases relied upon by the pursuer, Orlandi, Akram and Mahmud were all cases where it was either averred or proved that neither party had consented to be married by the ceremony in question. Moreover counsel for the defender submitted, it was clear that the main question in Orlandi was whether a formal regular marriage was ever open to challenge. In the case of Mahmud, in addition it was clear that there was an element of coercion imposed on the woman and the defender had left the day after the ceremony and had never been seen since. That was a very strong case, on its facts, that neither party, in going through the ceremony had had the slightest intention that it should or would have the result that they would be regarded as man and wife.

25. Counsel for the defender stressed that the evidential burden on the pursuer was very high indeed, in a case like the present, when the parties had gone through a regular form of marriage. As Lord Sands had said in McLeod at p.231,

"Marriage is a consensual contract implying mutual consent by the contracting parties to enter into the matrimonial estate. Such consent on the part of both parties will usually be presumed from compliance by both parties with the formal requirements."

That dictum was in line with what Lord Cameron said in Orlandi at p. 177. In Clive on Husband and Wife at 07.047 at p. 89, the point is made that,

"Given the presumption in favour of the validity of a regular marriage and the presumption that the parties intend the normal and natural consequences of their acts, it would take very convincing and unequivocal evidence to justify any other conclusion."

Counsel for the defenders submitted that, in any event, in the circumstances of the present case, if the Court were to accept the pursuer's position that the civil ceremony had been gone through with the intention of both parties that it was only a means to obtain an extended visa for the defender, the Court should hold that the pursuer was personally barred by her own conduct from seeking declarator of nullity of marriage. That would be to follow the approach advocated by Lord Dunpark in the case of Akram at p. 88. The Court should not contemplate granting a decree of nullity relieving the pursuer from the consequences of her own fraud. Counsel stressed, inter alia, the following aspects of the evidence. There was no doubt that both families considered that the pursuer and the defender made a very suitable match. The pursuer was a highly intelligent young woman brought up and educated in Scotland and she was fully aware of the consequences, in law, of the civil ceremony she went through. She was willing to undergo a religious ceremony according to Muslim rites under the civil ceremony. She was willing and indeed wanted to become the defender's wife. There was an engagement party when the parties were introduced. Considerable effort was put by both parties into marking the significance of the ceremony on 22 June 1998. The pursuer wore a special wedding dress. Wedding rings were exchanged. The whole ceremony was videod. There was a celebration at the pursuer's home after the ceremony which showed that the parties did not regard the ceremony as being a sham. The pursuer fully accepted, in her evidence, that she knew what the consequences of entering such a ceremony were in the law of Scotland. After the ceremony the parties kept in regular contact. There were regular visits between both families with the parties present. The pursuer and/or her mother provided the defender with documents relating to the pursuer to enable him to support his application for permanent residence in the United Kingdom.

26. As to the defender's position he gave evidence that he found the pursuer attractive. He liked her family. He wanted to be married to her because she was the right age for him. The fact that the defender lied in completing the forms in relation to his applications for extended leave to remain in the United Kingdom, did not show that he lied in the witness box about the parties consenting to be man and wife. He wanted to remain in the United Kingdom, in part, because he wished to remain here with the pursuer as his wife. It was accepted that the parties had never cohabited and that their relationship was not consummated. That might have been a very significant factor in another case. But in this case the marriage was an arranged one. The pursuer was a young woman, still at school. The arrangements made by the families related not simply to the marriage but as to what would happen after it. It was considered appropriate that the pursuer should continue living at home with her mother to complete her school education, while the defender would remain in Stirling seeking to earn money to support the pursuer and himself. It was significant when considering the defender's position that Mr and Mrs Chaudry, said in evidence that the defender had appeared to them quite genuine in his wish to be the pursuer's husband and that they had found it hard to believe that, in due course, he refused to go ahead with the religious ceremony.
27. As to the breakdown of the relationship, counsel for the defender invited me to hold that, on the evidence, what had happened was that the delay in a religious ceremony taking place became socially difficult and indeed unacceptable to the pursuer's mother and, to some extent, to the pursuer herself. The pursuer, her mother and their friends, Mr and Mrs Chaudry, put an ultimatum to the defender which, in the event, he was not prepared to accept. The real reason for the pursuer bringing the present action was that she did not wish to seek a divorce.
28. In summary, counsel for the defender contended that, on the evidence, it was established that there had been mutual consent given by both parties at the time of the registry office ceremony. Even if no true consent was given by the pursuer, any reservation on her part was never communicated to the defender at the ceremony or indeed afterwards and, according to authority, such a reservation could not be founded upon by her to have the marriage declared a nullity. She was, in any event, personally barred from seeking the declarator if, as was contended on her behalf, the only reason the ceremony was gone through was to obtain the defender's visa. Again, if there had been an ulterior purpose on the part of the defender in entering the marriage, on the evidence, he also wished to enter a marriage with the pursuer. On the whole matter the pursuer had not discharged the evidential burden on her that the marriage was a mere "sham".

PARTIES' SUBMISSIONS REGARDING PERSONAL BAR

29. In reply, counsel for the pursuer objected strenuously to the defender seeking to make a case based on personal bar, notwithstanding he had a plea-in-law which remained standing in support of such a case. She referred me to the fact that this was a defended family action for the purposes of the Rules of Court. R.C. 49.33(2) provides that "The Court shall, fourteen days after the date on which defences were lodged or a Minute by a person on whom intimation has been made... was lodged, pronounce an interlocutor allowing the parties a proof of their respective averments." R.C. 49.33(4) provides "Not earlier than 28 days after the allowance of proof, the Court may, on cause shown, withdraw the allowance of proof and appoint the action to the Procedure Roll". Counsel for the pursuer also drew my attention to Rule of Court 28.1 which deals with hearings on the procedure roll. That was when preliminary pleas should be dealt with. Counsel for the pursuer submitted that, since the defender had not sought to have the present case appointed to the procedure roll, he had either waived his plea as to personal bar or it had fallen automatically. In reply to this submission counsel for the defender contended that a proof had been allowed in this case with all pleas remaining and that the plea to personal bar was one which was normally disposed of in any event only after enquiry. There could be no implication that the plea which had not been disposed of by the Court had automatically fallen. In any event even if the plea had not been taken by the defender set out in the defender's pleadings the Court might itself ex proprio motu, following the approach suggested by Lord Dunpark in Akram, refuse to grant the declarator.

DECISION

30. The law that governs this case is, in my judgment, concisely and accurately stated by Clive on Husband and Wife at pp. 07.047 at p. 88-89, after the author has reviewed the authorities in the following terms,

"It is clear from these cases that a purported marriage, even if it is a regular marriage, is void if the parties both regard it as an empty formality and do not consent to become husband and wife. The limitations of this rule should be noted, because there is a danger of two misinterpretations. Firstly it is not the case that a marriage for an ulterior purpose is void. Everything turns on the distinction between an intention to assume the legal relationship of husband and wife and an intention not to get married at all. If the parties intended to get married - to become legally husband and wife - and freely consented to get married, then they will be married, even if their marriage was for a limited purpose and they had no intention of living together or assuming the normal social roles of husband and wife. If they intended not to get married at all, but merely to go through an empty ceremony, they will not be married. It follows that if they intended to get married for a limited purpose, and then get divorced, they will be married, whereas if they intended to go through an empty ritual, an outward form of marriage, and then get a declarator of nullity, they will not be married. Whether parties to a sham marriage will draw this distinction clearly in their minds may be doubted, but it is the crucial distinction. Secondly, it is not the case that a civil marriage is void merely because the parties to it do not regard it as having any religious significance. Such a rule would render null a great many civil marriages, and would be totally unjustifiable. The religious view which parties have of a marriage ceremony is legally immaterial."

That passage, in my opinion, clearly identifies the real question which has to be addressed and answered in a case like the present and, furthermore, exposes the non sequitur and misconception that bedevilled the pursuer's case. The non sequitur and misconception is as follows - when a man and woman enter a regular marriage but do not, because of their religious beliefs, consider themselves to be married in the eyes of their god, or according to their religion, until they undergo another ceremony of a religious character, the regular marriage is void and has no legal effect. The regular form of civil marriage in compliance with provisions of the Marriage (Scotland) Act 1977, provides for parties, who follow the procedures there prescribed to be regarded, according to the law of Scotland, as husband and wife, with all the legal consequences that flow from that. It has nothing to say about the religious significance, or otherwise, of the parties' relationship.

31. The evidence, in the present case, overwhelmingly demonstrated, what I have already indicated, namely that, as at 22 June 1998, both the pursuer and the defender wished to be man and wife. Moreover they wanted to be so held, from that date, according to the law of Scotland. That is why they went through the ceremony in question. That is why they and their relatives and friends marked its significance, in the various ways I have described. I have no doubt, at all, that the pursuer and her mother, for their sincerely held religious beliefs, did not regard that ceremony as the equivalent of a religious marriage. I have no difficulty in accepting their evidence that, as far as their religion was concerned, it was not a valid marriage, but sitting as a judge in a secular court what I have to decide is whether or not it was a valid civil marriage. To answer that question I have to ask myself whether the pursuer and the defender on 22 June 1998, at the ceremony in Stirling, intended to be married for the purposes of the civil law. On the facts of this case, as I have found them, that question has to be answered in the affirmative. I am, accordingly, unable to find that the marriage was, as it is described in the declarators sought, "a pretended marriage", nor can I hold that it was void.
32. This case is different from the position which obtained in the cases of Orlandi, Mahmud and Akram. In none of those cases was there a contradictor in the shape of the other party to the marriage. In Orlandi the Lord Advocate entered the process for the public interest. In Orlandi the Court was concerned primarily with a question of competency. In Mahmud and Akram the essential fact found was that neither party had any matrimonial intention when they went through the ceremony, or indeed, at any other time. In relation to the cases of Mahmud and Akram, Clive on Husband and Wife at pp. 07.047 at p. 89 says this,

"Both these cases, however, proceeded on the finding that in fact the parties did not consent to be married at all. It should not be assumed that the same finding of fact would necessarily be made in other cases involving parties with a religious contempt for civil marriage. The evidence in such cases might well lead to the conclusion that the parties intended to be married for the purposes of the civil law even if they did not regard themselves as married for religious purposes. Indeed, given the presumption in favour of the validity of a regular marriage and the presumption that the parties intend the normal and natural consequences of their acts, it would take very convincing and unequivocal evidence to justify any other conclusion."

In the light of the findings that I have made in this case there is no question of the pursuer having led the defender to believe that a valid marriage was being entered into while she was not communicating to him a mental reservation she herself had about its validity. Had that been the position, then, for the reasons advanced by counsel for the defender the pursuer would not, in any event, have been entitled, in my opinion, to have the marriage declared void. Because of the factual position that I have found established in this case, it is not necessary for me to decide the case on the basis of personal bar as discussed by Lord Dunpark in the case of Akram. I note that the Lord Advocate in the case of Orlandi took a plea of personal bar and that the Lord Ordinary in allowing a proof before answer allowed that plea to stand. Had it been necessary, for the disposal of this case, for me to reach a decision on the defender's plea as to personal bar, I would have considered that it was open to him to argue it, notwithstanding that a procedure roll hearing had not been sought in this case. The plea of personal bar remained standing and had not been repelled by the Court. It is common-place that such a plea cannot be properly considered until there is an enquiry into the relevant facts (as was the position in Orlandi). As to whether it could ever appropriately be applied in a case like the present I need not, of course, decide. I note, however, the reservations expressed by Clive on Husband and Wife at pp. 07.050 at p. 89 about its operation in cases of so called "sham" marriages. I note, furthermore, that Clive observes at pp. 07.051 that in other jurisdictions, Courts have refused to declare such marriages null when parties have gone through the marriage ceremony for the sole purpose of regularising their immigration status. Clive also refers to the Scottish Law Commission's recommended reforms in this respect which are contained in their report on Family Law (Scot. Law Com. No. 135, 1992) at pp. 8.20. It is, perhaps, a moot point as to whether the reforms suggested in that report would technically speaking, require legislation rather than development and application of existing principles by the Court. While I have, on the evidence in this case, not found that the marriage was, in any sense, a "sham", I think it can be said that the existing law on sham marriages, insofar as it is based on cases like Akram and Mahmud which were relied upon in this case, might be said to be unsatisfactory for the reasons advanced by Clive at pp. 07.052.

33. For all the reasons given above, I shall sustain the defender's second plea-in-law and dismiss the action.