Singh v Singh

Consent is fundamental to the validity of a marriage. Duress requires proof that a party’s will was overborne by genuine and reasonably held fear of an immediate threat to life, limb or liberty, rather than pressure arising from parental authority, social expectations or religious custom. A change of mind after the ceremony does not retrospectively remove consent. Invincible repugnance is a form of incapacity to consummate with the particular spouse, requiring physical, psychiatric or sexual aversion. Mere unwillingness or refusal to have intercourse is insufficient.

A Sikh woman appealed against the dismissal by the county court judge at Birmingham of her petition for a decree of nullity. She had married before a registrar without having previously met the intended husband. After the ceremony, she refused to proceed with the proposed Sikh religious ceremony and declined sexual intercourse because she disliked him and no longer wished to marry him.

She alleged that parental pressure and adherence to Sikh custom meant that she had not consented, or alternatively that she was incapable of consummating the marriage because of invincible repugnance. The central issues were whether the marriage was vitiated by duress or absence of consent, and whether the evidence established invincible repugnance.

1. Disposition. The Court of Appeal unanimously dismissed the appeal and upheld the county court judge’s decision on both grounds.
2. Consent and duress. Lord Justice Karminski delivered the first judgment. The court accepted that consent is an essential element of marriage and that absence of consent makes the marriage a nullity ab initio. The principles stated in H v H [1954] P 258 and Szechter (orse. Karsov) v Szechter [1971] 2 WLR 170 were treated as correct. Duress requires proof that the party’s will was overborne by genuine and reasonably held fear caused by an immediate threat to life, limb or liberty, for which the party was not responsible, so that the reality of consent to ordinary wedlock was destroyed.
3. Application to the facts. The wife understood that she was attending a marriage ceremony and went through it. Respect for her parents, obedience to family wishes and adherence to Sikh custom established reluctance or obligation, but no fear, immediate danger or overborne will. Her later change of mind and refusal to continue with the religious ceremony did not establish absence of consent at the time of the civil marriage.
4. Invincible repugnance. Invincible repugnance means incapacity quoad the particular spouse. The evidence showed no physical, psychiatric or sexual aversion of that kind. The wife’s refusal arose from unwillingness to remain married to the respondent and was insufficient to establish the ground of nullity.
5. Additional observations. Lord Justice Davies noted that Matrimonial Causes Act 1965, section 9(1)(a), made a marriage voidable for the respondent’s wilful refusal to consummate, but the wife could not rely on her own wilful refusal. Lord Justice Megaw considered it undesirable, without express consent and a proper evidential foundation, for a judge to call an interpreter as a witness about custom. No objection or possible prejudice was raised, so the point did not affect the appeal.

1. Court of Appeal: the appeal was unanimously dismissed. The county court judge’s dismissal of the wife’s petition was upheld.
2. County Court at Birmingham: dismissed the wife’s petition for a decree of nullity.