Till Scottish law do us part: Cameron Fyfe explains how Asians forced into marriage now have a way out

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The Independent Online
WHEN Nasreen Akmal walked into my Glasgow office nearly three years ago, to inquire if it was possible for the courts to make null her marriage, neither she nor I had any idea of the repercussions her question would one day have. Yet Nasreen's case was the catalyst for a precedent set in the Scottish Court of Session last week which will have far- reaching consequences for the future of arranged marriages among the Asian community in the UK.

The decision by Lord Prosser last week to annul the arranged marriage of Shahid Mahmood, on the grounds that he was pressurised into it against his will, was the third in a trio of cases to come before the Court of Session over the past few months. The first was Nasreen's, in October 1992, when Lord Coulsfield decided that the Scottish courts could interfere with an arranged marriage which took place in Pakistan, and granted her an annulment on the ground that she was only 14 years of age at the time of her Pakistani marriage.

In January 1993, Lord Sutherland heard what we call a 'debate' - an airing of legal issues and principles - in the case of Shamshad Mahmood (no relation to Shahid). The judge determined that the Scottish courts could under Scottish law make null a marriage when one party had been forced into it against his or her will. A final hearing in Shamshad Mahmood's case has been delayed by her husband's determination to oppose the action and her case has now been overtaken by that of Shahid Mahmood.

The circumstances surrounding Shahid Mahmood's marriage were bizarre, but by no means exceptional, in my experience. He had been emotionally blackmailed into entering the marriage. In particular, his family told him that his mother, who was unwell at the time, might well die from stress if he did not go through with it.

At the time of the marriage he was living with and had plans to marry another woman with whom he had had a child. The arranged marriage itself, from the ceremony to the separation, lasted approximately 15 minutes. Afterwards, Mr Mahmood went back to his work.

In another case on my books, the client was subjected to three months of continual pressure from her family to marry her cousin. She pleaded with them not to make her go through with the marriage, but they insisted. Her husband left for London on his own immediately after the wedding ceremony and she has not seen him since.

Another client was about to marry his girlfriend in Scotland when his family flew him off to Pakistan and forced him to marry his cousin there. The pressure from the client's family was severe and included a threat to have him framed for a very serious, imprisonable offence. Once he returned to Scotland he did in fact marry his girlfriend, so he now has two wives. To make matters more complicated, his second wife - whom he married in Britain - has been shipped off to Pakistan to marry her cousin against her will.

Many Asian clients have told me that they have several friends and relatives who were awaiting the first successful annulment case before proceeding with their own. It seems likely, therefore, that many who find themselves trapped in such loveless marriages will regard an action for annulment as an escape route from them, and there may now be a flood of such cases through the courts.

However, Lord Prosser's decision does not mean that any party to an arranged marriage can go to court and have that marriage annulled. It is necessary to show that force (physical or psychological) was applied to vitiate the consent of one of the parties to the marriage. Accordingly, if a couple entered into an arranged marriage quite freely and it later broke down, for whatever reason, neither would be entitled to a decree of annulment.

It is likely that the case will have repercussions in England. The Scots law of marriage is fairly similar, and although Lord Prosser's decision will not be regarded as a precedent in England, it will certainly be persuasive. Indeed, in the earlier case of Shamshad Mahmood we had relied fairly heavily on English law in persuading Lord Sutherland that annulment on the ground of coercion was competent in Scotland. It may well also be that other countries with a system of law not dissimilar to that in Scotland may be influenced by the three precedents set in the Court of Session.

As well as the many local radio stations which telephoned me to talk about the judgment, several solicitors called, especially from the Birmingham and Wolverhampton areas, indicating that they have clients who now intend to proceed to court.

In Glasgow the response to the decision has been mixed. For me, one of the most unusual aspects of the case was that many members of the local Asian community thought Mr Mahmood was wrong to bring an action for annulment (though how such an arrangement to marry could be condoned at all is difficult to fathom). They were also highly critical of the court's interference in their culture and traditions. But younger-generation Asians have welcomed Mr Mahmood's victory. Many of these young men and women have became westernised, and their sense of democracy urges them to rebel against a tradition that takes away their right to marry whom they choose.

There can be little doubt that the Court of Session's decisions have created a serious threat to the future of arranged marriages in the UK, and to that extent they have undermined Asian traditions in this sphere. In particular, parents will be less keen to force a child into a marriage if they know that the child can later have the marriage rescinded.

In any case, as time goes on and the younger generation of Asians becomes the older generation, the concept of the arranged marriage in the UK may well drift into disuse. If it does, then Mr Mahmood's case will be seen as the start of that process.

The author is a partner in Ross Harper solicitors, Glasgow, and solicitor for Shahid Mahmood.

(Photograph omitted)

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