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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Gandhi v Patel & Ors [2001] EWHC Ch 473 (31 July 2001) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2001/473.html Cite as: [2002] 1 FLR 603, [2001] EWHC Ch 473

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		31 July 2001

HC 0002062

1. Abbreviations, dramatis personae, etc.

Amar	Amar Gandhi, son of Jawahar and Meera. Third defendant.
Ashwini	Ashwini Gandhi, daughter of Jawahar and Meera. Fourth defendant.
Digna	Digna Gandhi, daughter of Jawahar and Hasmita. Fifth defendant,
Hanid, Mrs	Salma Hanid, a friend of Jawahar.
Hasmita	Hasmita Gandhi, alternatively Hasmita Chhatralia. The claimant. Mother of Digna and Viran.
Inheritance Act, The	The Inheritance (Provision for Family and Dependants) Act 1975.
Jawahar	Jawahar Gandhi, the deceased whose estate is in issue in this case.
Mangal	Mangal Patel. Sister of Jawahar, executrix of his will, and the first defendant.
Meera	Meera Gandhi, alternatively Meera Jadhav. Wife of Jawahar (separated from 1985), executrix of his will and the second defendant.
Stone, Mrs	Eleanor Stone, alternatively Eleanor Eke. Former employee and friend of Jawahar.
Subhash	Subhash Gandhi. Brother of Jawahar.
Viran	Viran Gandhi. Son of Jawahar and Hasmita. Sixth defendant.

Overview

1. Jawahar was a prosperous Indian astrologer who lived in this country. He died in early 1998. He was not legally married to Hasmita, but in 1989 they undertook a ceremony of Hindu marriage in London. They lived in the same house from then until Jawahar went into hospital two and a half months before his death. Hasmita is the mother of two of Jawahar's children. Jawahar's will left very little to her.
2. In this case Hasmita claims that for the purposes of the Inheritance Act she falls to be treated as having been the wife of Jawahar. She says that his will did not make reasonable financial provision for her, and she claims an order under the Act awarding her some provision out of the estate. Mr Pickering of counsel appears for her. The first two defendants, Mangal and Meera, are Jawahar's personal representatives and are sued in their capacities as such. The third and fourth defendants, Amar and Ashwini, are Jawahar's children of whom Meera is the mother. They are beneficiaries under the will. The first to fourth defendants are jointly represented by Mr Thrower of counsel. The fifth and sixth defendants, Digna and Viran, are Jawahar's children of whom Hasmita is the mother. They, like Amar and Ashwini, are beneficiaries under the will. They are infants, and are represented by the Official Solicitor as their litigation friend. Miss Rich of counsel appears for them.
3. All six defendants, including Digna and Viran, oppose Hasmita's claim. They say that she does not fall to be treated as having been Jawahar's wife for the purposes of the Inheritance Act, and, even if she does, she should not receive any provision beyond the modest benefit which was provided for her in the will.
4. The first and major issue for me to determine is whether Hasmita is or is not to be treated as having been Jawahar's wife for the purposes of the Act. She bases her claim in this respect on the ceremony of Hindu marriage in 1989. The Act provides that a `wife' includes `a person who in good faith entered into a void marriage with the deceased'. Hasmita says that this provision applies to her, but I conclude that it does not, for two separate and independent reasons. First, the ceremony did not give rise to a `void marriage' at all, but rather to a relationship which, for purposes of English law, was no sort of marriage at all, valid or void. Second, if the ceremony did create a void marriage, Hasmita, on my evaluation of the evidence, did not enter into the void marriage in good faith.
5. For those reasons Hasmita's claim fails in principle. Had it succeeded in principle I would have considered that the will did not make reasonable financial provision for her, but I might have scaled down what would have been a reasonable provision on account of allegations of unsatisfactory conduct by her in her relationship with Jawahar.

The facts

6. Jawahar was bom in India in 1948. At some time he moved to England. The evidence does not record when, but my impression is that he lived for most of his life in this country. His father died here, and his brother and sister (Subhash and Mangal) live here, so I imagine that the whole family moved from India to England quite early in Jawahar's life. The probate declaration completed in consequence of his death stated that he was domiciled in England and Wales.
7. At a date which I do not know precisely he was married to Meera. They had two children, Amar and Ashwini, who were born in 1977 and 1980.
8. Jawahar was a professional astrologer, as his father had been before him. I imagine, but do not know, that the bulk of his clients were members of the Indian community who lived in this country. I infer from the evidence that he was successful. He certainly seems to have been quite prosperous, although how prosperous is a matter of dispute in the case. By the time of his death he owned, or was part owner of, five houses. Four of them were in Brentmead Gardens, London NW10, one of which was his consulting rooms. He lived in the fifth house, 9 Bouverie Gardens in Harrow.
9. In early 1985 he separated from his wife, Meera. She left him to live with another man. Jawahar and Meera appear to have remained on good terms, and he named her as an executrix of his will, which he made in 1997. He was never divorced from her. As will appear, whether or not Hasmita always knew that Jawahar was never divorced from Meera is a hotly disputed issue in the case.
10. He appears to have been something of a ladies' man. At the time of his separation from Meera or very soon afterwards he was involved with a lady called Barbara Beck, who came from Liechtenstein. She returned to Liechtenstein for a period, but then came back to this country. She and Jawahar lived together at 9 Bouverie Gardens for about a year from late 1986. There was mention in the evidence of another mistress, who I believe was Welsh.
11. .In 1985 Jawahar met Hasmita. She was 19 at the time. She was of an Indian family, but had been educated in this country. She first met Jawahar when she consulted him on an astrological matter. They obviously liked each other at that stage. For a time she worked for him as a secretary; but within a year or so a sexually intimate relationship developed between them.
12. Hasmita's case is that at quite an early stage in their relationship they agreed to get married. She says that Jawahar had told her back in 1985 that he was getting divorced from Meera, and that by 1989, if not earlier, she believed that Jawahar and Meera were divorced. This is hotly disputed by the respondents, who say that Hasmita was fully aware at all times that Jawahar was not divorced from Meera.
13. Hasmita says that one of Jawahar's houses, 9 Bouverie Gardens in Harrow, was chosen by him and her jointly to provide a home for the married life which they were planning to live together. I find this hard to accept. 9 Bouverie Gardens was purchased in May 1985, but Hasmita did not live there until July 1989. For about a year Jawahar lived there with Barbara Beck. I take this from a witness statement made by Barbara Beck in other proceedings - the `possession proceedings' to which I will refer later. Further, 9 Bouverie Gardens was bought by Jawahar and his sister, Mangal, as joint tenants, with Mangal providing part of the purchase price. Mangal certainly does not accept that Hasmita had a role in choosing the property, or that it was bought as somewhere where Hasmita and Jawahar would live together.
14. However all of that may be, in time Hasmita did move into 9 Bouverie Gardens. She did so on 14 July 1989. She was probably pregnant at the time. Her daughter Digna was born on 8 March 1990, and a normal gestation period would imply that Digna was conceived in early to mid June 1989. Whether Hasmita already knew that she was pregnant when she moved into 9 Bouverie Gardens in mid July 1989 is another question, and there is a dispute about it. She says that she did not know. The defendants say that she did. I do not think that this is as important as the parties seem to think it is, and I refrain from attempting to make a finding about it:
15. On 10 October 1989 there occurred an event of critical importance in the case. Hasmita and Jawahar participated in a Hindu marriage ceremony. It took place in an Indian restaurant in London. I have been shown photographs from which it is clear that the ceremony was carried out in considerable style. It was conducted by Mr Bhatt, a Brahmin priest, and I accept that everything was done in full compliance with the requirements and traditions of Hinduism. Mr Bhatt gave evidence and confirmed that that was so. He also said that he had met Jawahar and Hasmita before the day of the ceremony, and that Jawahar had said that he was divorced from his previous wife. We now know that that was untrue. There is a major dispute about whether Hasmita knew at the time that it was untrue. However, while everything was done in accordance with the requirements of the Hindu religion, no effort was made to comply in any respect with what the law of England requires to create a lawful marriage in this country. Mr Bhatt confirmed this also. He said that he was only concerned with the rituals and requirements of his own faith, and was not affected at all by whatever the requirements of English law might have been.
16. The evidence indicates that from an early stage after the Hindu ceremony Jawahar and Hasmita had a stormy and troubled relationship. Hasmita said that they had ups and downs, but she loved him; when they quarrelled they were always reconciled afterwards, and they had a normal married

relationship. No-one else who observed them and gave evidence described it in that way. The thrust of the evidence was that it was nearly all downs and not many ups. They quarrelled constantly; Hasmita was hostile to Jawahar's children by Meera, Amar and Ashwini, and did not really want them in the house with her; there were instances of physical aggression between Jawahar and Hasmita, and the witnesses other than Hasmita all said that most of the violence came from Hasmita. The witnesses included Mangal (in my opinion a transparently honest witness), Mrs Hanid, who was a close friend of Jawahar (also in my opinion an impressive and honest witness), Mrs Eleanor Stone (or Eleanor Eke), and Jawahar's eldest child, Amar (who is now in his twenties). Mrs Stone looked after the two older children for some years, and also did some secretarial work for Jawahar. She was a most forceful witness. She painted a picture of Hasmita as an aggressive and violent person who did not look after her `husband' properly, particularly in the last few years when he was in failing health.

17. Nevertheless, Hasmita and Jawahar continued to live together in 9 Bouverie Gardens, and as well as having their daughter Digna, which obviously was a bond between them, on 29 October 1994 they had a son, Viran.
18. At some time in 1994 - I think probably when Hasmita was pregnant with Viran - she went to Somerset House and made enquiries about Jawahar's marital status. She says that it was only when she did that that she learned that Jawahar had never been divorced from Meera, so that he cannot have been married to herself. She was asked if she could remember what had caused her to make the enquiry at Somerset House, and she answered that she could not. On her behalf Mr Pickering says that her act in making the enquiry confirms that at the time of the Hindu ceremony she believed that Jawahar was divorced from Meera. Counsel for the defendants submit that the visit to Somerset House was at least as consistent with Hasmita having known at the time of the ceremony that Jawahar and Meera were not divorced, but having been told by him that there was to be a divorce. On this hypothesis she, knowing that she was going to have another child, went to Somerset House to find out for certain whether Jawahar was divorced yet or not.
19. One thing that does seem to be agreed is that, after Hasmita's visit to Somerset House, relations between the two of them deteriorated yet further. There appear to have been something like four occasions when the police were called to the house by one or the other of them because of alleged violence by the other. It was not long before court proceedings of one sort or another were going on between them. In 1996 Hasmita commenced a County Court application against Jawahar under the Domestic Violence and Matrimonial Proceedings Act 1976. Jawahar opposed the application, and there were bitter affidavits by each of them, accusing the other of being the true perpetrator of violence in the relationship. The matter did not go to the length of a contested hearing. It was resolved by each giving undertakings not to molest the other, but it was symptomatic of what at that time clearly were a most unhappy home and relationship. The documents include several solicitors' letters complaining of breaches by either Jawahar or Hasmita of the undertakings.
20. It appears from the evidence that at some time Jawahar and Hasmita, though continuing to live in the same house, lived separate lives rather than living in the conventional manner of husband and wife. A witness statement by Amar says that this started in 1996. Hasmita's evidence is to the contrary, but I regret to say that I do not believe her.
21. In August 1997 Hasmita commenced proceedings against Jawahar under the Children Act 1989. She did so on behalf of her children, Digna and Viran, and she was seeking an order from the court for Jawahar to transfer to her on their behalf one of the properties which he owned, 36 Brentmead Gardens. I assume that she had in mind that, if the order was obtained, she would move out of 9 Bouverie Gardens and live with her children at 36 Brentmead Gardens. It is of some interest to observe that the application form, signed by Hasmita using the surname Chhatralia, not Gandhi, contained this statement: The parties are not married and although they reside at the same address they no longer live together as husband and wife. Quite hostile correspondence between solicitors followed, until it was overtaken by events concerning Jawahar's health.
22. Jawahar's health had been poor and deteriorating for at least two years. He was frequently in and out of hospital. The documents include a manuscript note from Jawahar, countersigned by witnesses, which reads as follows: I Jawahar Gandhi, hereby authorise Mrs Meera Gandhi, Mrs Mangal V. Patel and Amar Gandhi to take charge of my office 34 Brentmead Gardens and my home 9 Bouverie Gardens upon my admittance to hospital or my death. Under no circumstances Miss Hasmita Chhatralia be allowed to enter no. 34 Brentmead Gardens or to take possession of my car (Jaguar XJS). I am not sure of the date of this document. I have noted on my copy that it was written just before Jawahar went into hospital in August 1996, but I do not remember how I was told that, or who by.
23. On 11 June 1997 Jawahar made a will. There is nothing specific to indicate that he was motivated to do this by fears about his declining health, but I think it likely that he was. He appointed Mangal and Meera his executrices and trustees. He left three legacies: £20,000 to Mangal, £10,000 to Barbara Beck, and £5,000 to Eleanor Eke (Stone). He left the four houses which he owned other than 9 Bouverie Gardens (all of which were in Brentmead Gardens) to his four children at age 25, with a proviso in the case of the house which he left to Viran (44 Brentmead Gardens) that Hasmita was to be allowed to live there until her death, remarriage or cohabitation. That was the only mention of Hasmita in the will. He left his residuary estate to the four children in equal shares at age 30. The will did not deal with 9 Bouverie Gardens. That house was owned by Jawahar and Mangal as joint tenants, and on his death his severable but unsevered share would accrue to her under the law of joint tenancy.
24. On 21 November 1997 Jawahar went back into hospital. He never came out. He died on 8 February 1998. The causes of death were certified as bronchopneumonia and chronic obstructive airways disease. He had been a heavy smoker for most of his life.
25. Hasmita was still living in 9 Bouverie Gardens. The property passed into the sole ownership of Mangal by survivorship. She wished Hasmita to leave. Hasmita declined to leave, and Mangal commenced possession proceedings against her in the County Court. These were the proceedings in which Barbara Beck gave evidence. In February 1999 the judge decided in favour of Mangal, and Hasmita was required to vacate the property. She is now entitled to live at 44 Brentmead Gardens under the terms of the will. She says that that is where she is living, with Digna and Viran. There is a dispute about whether she is really living there, or whether she is rather living in East London with a man with whom the defendants allege that she is having an affair. She strenuously denies that she is doing anything of the sort, and I am not going to go into that matter any further.
26. All that Jawahar's will left to Hasmita was a right to live at 44 Brentmead Gardens for life or until remarriage or cohabitation. In May 1998 her solicitors commenced correspondence with the solicitors for Mangal and Meera (the persons nominated in Jawahar's will to be his personal representatives) about a possible claim for further provision under the Inheritance Act. She obtained legal aid to make a claim in June 1998, but the present claim was not commenced until 4 April 2000. She could not initiate the claim until Mangal and Meera had obtained a grant of probate of Jawahar's will, which they did not do until 22 November 1999. She alleges that they delayed in order to frustrate her claim. Mangal and Meera deny that they did that. I do not think that it matters now whether they did or not, since they certainly obtained probate eventually, and the present case has been duly commenced.

.,

The Inheritance Act

27. The Inheritance Act was enacted in 1975 to replace the Inheritance (Family Provision) Act 1938. The Act provides in section 1(1) that, where a deceased dies domiciled in England and Wales and is survived by any person in one or more of six specified categories, `that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will ... is not such as to make reasonable financial provision for the applicant'. (I have omitted references to intestacy.) One of the specified categories of potential applicants is: `(a) the wife or husband of the deceased'. Hasmita's claim is based on the proposition that she is to be regarded for the purposes of the Inheritance Act as the wife of Jawahar. She was not in fact his wife, both because he was never divorced from Meera and because in any event the Hindu wedding ceremony, conducted as it was in this country, would not have been recognised by English law as giving rise to a lawful marriage. However, section 25(4) contains an expansionary deeming provision which is of fundamental importance in this case:

(4) For the purposes of this Act any reference to a wife or husband shall be treated as including a reference to a person who in good faith entered into a void marriage with the deceased unless [one of two exceptions, both irrelevant in this case applies].

Hasmita's case is that, by the Hindu ceremony on 10 October 1989, (1) she entered into a void marriage with Jawahar, and (2) she did so in good faith. I shall examine the correctness or otherwise of those two contentions in subsequent parts of this judgment.

28. Where the court considers that the conditions of section 1 are satisfied, section 2 gives to it wide powers to make orders in favour of the applicant, including an order for the payment of a lump sum out of the estate. Section 9 provides that, if the deceased held an interest in any property as a joint tenant, the court may direct that his severable but unsevered share is to be treated as if it had been part of the estate. If Hasmita's claim succeeded in this case section 9 could be important, because Jawahar was a joint tenant of 9 Bouverie Gardens, and his interest in that property accrued to Mangal by survivorship. The same applied to his interest in a joint bank account which he and Mangal had in Dubai. Therefore the size of the estate out of which an order in favour of Hasmita might be made could be enlarged by including Jawahar's half interests in 9 Bouverie Gardens and in the Dubai bank account.
29. Section 3 gives guidance as to the matters to which the court is to have regard in determining whether the will made reasonable provision for the applicant (here for Hasmita). They include the obvious matters such as the financial resources and needs of the applicant on the one hand and the other beneficiaries of the estate on the other, and the size and nature of the deceased's estate. Various other matters are mentioned, and I ought to mention two of them. One is the conduct of the applicant (section 3(1)(g)), and the other is the likely provision which an applicant (if a wife or
     
    

husband) would reasonably have expected if the deceased had not died but instead the marriage had been terminated by divorce. This could be important. In the nature of things many applications under the Inheritance Act are made in cases where the deceased was a husband who, at the time of his will, felt alienated from and hostile towards his wife. If he had survived and they had been divorced, my understanding is that the divorce court would not usually have been deterred from making a financial order in favour of the wife on the ground that the husband was hostile towards her. It might, however, be different if the wife's conduct towards her husband had been particularly bad.

Did the Hindu wedding ceremony give rise to a `void marriage'?

30. My initial impression, before I became sufficiently acquainted with the law relating to marriage and with the authorities, was that the answer to this question was likely to be: yes. I think that Mr Pickering, who appeared for Hasmita, originally assumed that that was the answer. However, in the light of submissions which I have received and of the authorities (especially a very recent case decided by Hughes J, which I will describe below) I have reached the conclusion that my initial impression was wrong. The Hindu ceremony did not give rise to a `void marriage'. Rather it created something which was not a marriage of any kind at all, not even a marriage which was void. It might be described as a non-marriage rather than a void marriage. To draw a distinction between a non-marriage and a void marriage may seem artificial and elusive to the unitiated - a class which until very recently included myself - but I am now convinced that the distinction exists, and that the relationship between Jawahar and Hasmita brought about by the Hindu ceremony fell into the category of non-marriages rather than void marriages.
31. Before I move on to examine the law I should pay tribute to the guidance which, in an area of the law with which I was unfamiliar, I received from counsel, in the first instance from Miss Rich. She drew attention to the distinction between non-marriages and void marriages, and her assistance to me was most valuable.
32. .1 start with the basic proposition of private international law that whether a ceremony is effective to create the status of marriage between the participants depends, so far as formal requirements are concerned, on the law of the state in which the ceremony takes place. Thus English law recognises the validity of a marriage conducted in an overseas jurisdiction if the ceremony complies with the requirements of that jurisdiction, even if they would not have complied with the nearest equivalent requirements which apply under the law of England.
33. The other side of the coin is that if a ceremony which takes place in England is to create a relationship which English law will recognise as a marriage, it must comply with the formal requirements of English law. Those requirements are mostly contained in the Marriage Act 1949. They cover such matters as the place at which the ceremony may take place, the necessity for some form of advance notice (like banns), registration, and the persons by whom marriage ceremonies may be conducted. If a man and a woman whose families originated abroad take part in this country in a ceremony which, by the traditions of their own community, would or might give rise to a lawful marriage, but the ceremony does not comply with the Marriage Act 1949, they are not married in the eyes of English law. The relevance of this proposition to Jawahar and Hasmita will be obvious. It may be that, if the ceremony of 10 October 1989 had taken place in India (and if Jawahar had been divorced from Meera), they would have been lawfully married under the law of India. That may not have been so, because Indian law may have requirements as to registration and similar matters which would not have been observed. But even if it would have been so under Indian law, the actual ceremony took place in England, not in India. The ceremony failed in multiple respects to comply with the formal requirements of the Marriage Act, and therefore it was incapable of creating a marriage recognised as such under English law.
34. The next point to make is that, when section 25(4) of the Inheritance Act used the expression `a void marriage' it was not inventing a new concept. Many sections of the Marriage Act 1949 state that something which would otherwise have been a marriage shall be void. For example, section 2 provides: A marriage solemnised between persons either of whom is under the age of sixteen shall be void. Section 49 provides : If any persons knowingly and wilfully intermarry under the provisions of this Part of this Act ...[and any of a list of formal requirements specified in seven subparagraphs (a) to (g) is not complied with] ... the marriage shall be void. The section is expressed in terms of the purported intermarriage creating a marriage which is void, rather than not beginning to be a marriage in the first place.
35. The matter is further covered by section 11 of the Matrimonial Causes Act 1973. Following the cross-heading Nullity the section provides: A marriage celebrated after 31 July 1971 shall be void on the following grounds only; that is to say ... There then follow four paragraphs, of which I briefly mention two. Paragraph (a) covers a marriage which is not a valid marriage under the Marriage Acts 1949 to 1970, thus covering among other provisions section 49 of the 1949 Act (referred to in the previous paragraph). Paragraph (b) covers the case where `at the time of the marriage either party was already lawfully married'. Section 11 can be important in conventional matrimonial proceedings, because where it applies a decree of nullity can be granted, and that gives to the court the power, particularly under sections 23 and 24 of the Matrimonial Causes Act 1973, to make financial provision orders or property adjustment orders between the parties. The court has no such power if the parties were never married, so that they cannot be divorced, and if they were not parties to a void marriage, so that the court cannot pronounce a decree of nullity either. A straightforward example is a couple who cohabit without ever getting married or attempting to get married. If their relationship breaks up neither of them can apply to the divorce court for the other to be ordered to make some financial provision or a property adjustment.
36. The distinction between a void marriage and what I have called a non marriage is recognised in the authorities. For example, in Gereis v Yagoub [1997] 1 FLR 854 at 857, His Honour Judge Aglionby, sitting in the Family Division, recorded the following submission of counsel, which he clearly

accepted as correct: `... it is important to draw a distinction between a void marriage and something which is no marriage at all'. The distinction is obviously important in this case, because if Jawahar and Hasmita were parties, not to a void marriage, but to no marriage at all, Hasmita's claim under the Inheritance Act cannot succeed. In Gereis v Yagoub the couple took part in a Christian ceremony of marriage in a Coptic Orthodox church. Few, if any, of the formal requirements of section 49 of the Marriage Act 1949 were complied with. The judge held that it was a void marriage, not a non-marriage, and granted a decree of nullity, thus opening the door for the wife to claim financial provision. In the present case Mr Pickering relies heavily on Gereis v Yagoub, which he says ought to govern my decision about the nature of the relationship between Jawahar and Hasmita. If the case stood alone I might have accepted the submission, but it does not stand alone, and I need to examine a few others.

37. .In R v Bham [1966] 1 QB 159, the point arose in the context of a criminal prosecution for an alleged offence against a section of the Marriage Act 1949. It is an offence if a person `solemnises a marriage' otherwise than in a building where marriages may lawfully be solemnised. Thus the section overlaps with section 49, which among other matters regulates where non-Church of England marriages may lawfully be conducted. The defendant was the leader of a Muslim sect in Gloucester, England. He performed in a private house a ceremony of nichan, a potentially polygamous marriage in accordance with Islamic law. The ceremony was not capable of creating something recognised as a marriage under English law. He was charged with the offence and convicted. However, he appealed and his appeal was allowed by the Court of Criminal Appeal.
38. The ground of the decision to allow the appeal was essentially that, when the 1949 Act referred to solemnising a marriage, it meant solemnising something which was prima facie capable of being a marriage under English law. The relationship created by the ceremony of nichan was not so capable. The court did not use the terminology of a void marriage as contrasted with a non-marriage (or some other expression to the same effect), but, as it appears to me, the judgment focussed on the concept that certain ceremonies did not begin to create marriages recognised as such by English law, and did not purport to do so. The decision of the Court of Criminal Appeal proceeded on that basis, and was equivalent to a holding that the nichan ceremony gave rise to what I have termed, for the purposes of this judgment, a non-marriage. Judge Aglionby referred to the Bham case in his judgment in Gereis v Yagoub, but he does not seem to me to have indicated how his own decision could be squared with the reasoning of the Court of Criminal Appeal. For my part I doubt that it can.
39. Gereis v Yagoub was briefly mentioned by Robert Walker LJ in Chief Administrative Officer v Bath [2000] 1 FLR 8 at 22. His Lordship merely said that the court of which he was a member did not hear any submissions about the case, and `I prefer to express no view on it except to note that some reliance seems to have been placed on the Christian character of the ceremony (at a Coptic Orthodox church not registered for marriages).' This suggests to me that the Lord Justice may have felt some doubts about the decision in Gereis v Yagoub. In the Bath case itself there had been a Sikh marriage ceremony in England. The parties were held to have been married, but the decision (at least in the reasoning of two of the three members of the court) was based, not on the ceremony, but on there being no evidence to rebut the presumption that a couple are presumed to have been lawfully married at some time if they have cohabited, with the reputation of being husband and wife, for a long time. There is no room for that presumption to apply in the present case. If the Hindu ceremony of 10 October 1989 did not make Jawahar and Hasmita husband and wife for purposes of English law (which it certainly did not, though the question remains of whether the ceremony gave rise to a non-marriage or a void marriage), there is no doubt that nothing else can have made them husband and wife under English law.
40. Next I should refer to the decision of Connell J in Hall v Jagger (1999, unreported). The couple, who were media celebrities, had taken part some years before in a Hindu marriage ceremony in Indonesia, with which nation they had no particular connection. There was evidence that the requirements of Indonesian law for the creation of a valid marriage were not complied with, so that they were not married under the law of the jurisdiction where the ceremony took place. Connell J pronounced a decree of nullity in the English court. Mr Pickering seeks to place reliance on this
     
    

case as showing that the Hindu ceremony between Jawahar and Hasmita created a void marriage, not a non-marriage. In my judgment, however, the case will not bear the weight which Mr Pickering seeks to place upon it. It was not concerned at all with the legal effects, or absence of legal effects, of a ceremony which took place in England. There is nothing to indicate that the judge was invited to consider the question of whether the distinction between a void marriage and a non-marriage could have any application or relevance, and he did not address the distinction at all in his judgment. The judgment does not indicate for what purpose the decree of nullity was required. It does, however, give the impression that, by the time that the widely publicised split between Miss Hall and Mr Jagger found its way to the court, the matter had been agreed, and that both parties desired the judge to pronounce the decree of nullity which he did pronounce. I do not derive any assistance from the case for the question which I have to decide here.

41. Finally I come to the most recent decision, which is that of Hughes J in A-M v A-M [2001] 2 FLR 6. In my view the case resolves the question which I have to decide. At least it resolves it unless I am prepared not to follow what Hughes J has decided, which I am not. I mention in passing that the report shows that Hall v Jagger was cited to the judge. I assume that he did not think it relevant, since he did not mention it in his judgment.
42. The putative husband and wife were Muslims, having been bom in Iraq and Syria respectively. In 1980 they went through a ceremony of marriage in a flat in London. The ceremony was conducted by an Islamic mufti from a London mosque, and it was intended by all (in particular by the husband, the wife, and the mufti) to be a formal marriage by Islamic process. Twenty years later the marriage had broken down and the wife commenced divorce proceedings in the English court. The husband argued that the court had no jurisdiction to grant a decree either of divorce or of nullity. His reasons were (1) that the parties were not married in the eyes of English law, so the court had no jurisdiction to grant a divorce, and (2) that they were not parties to a void marriage either, so the court had no jurisdiction to grant a decree of nullity: the ceremony created a non-marriage rather than a void marriage. The importance of the issues raised by the husband was, I assume, that, if the English court had jurisdiction either in divorce or in nullity, it had power to make an order for financial provision in favour of the wife, but if it took the view that there had only ever been a non-marriage it had no power to make any such order.
43. Hughes J held that he had jurisdiction in divorce, because the wife (like the wife in Chief Administrative Officer v Bath, supra) could rely on the presumption of marriage which arises from extended cohabitation and the reputation of being man and wife: the husband had not produced the strong and weighty evidence which would be required to rebut the presumption. The importance of the case for my purposes, however, rests not on that part of the decision, but on what the learned judge said about whether the Islamic ceremony of 1980 created anything which could be regarded as a marriage, even if a void marriage, for purposes of English law. He held that it did not. The relevant part of his judgment is towards the end, at pages 23 and 24. I will not reproduce it in full, though it is all relevant and it all repays careful study. I will, however, pick out certain particularly important extracts.
44. At page 23 Hughes J says: `. . . the question which arises is what is and what is not a `marriage', when contracted in England and Wales, for the purposes of s.11.' Section 11 of the Matrimonial Causes Act 1973, which I have already quoted, begins: `A marriage celebrated after 31 July 1971 shall be void on the following grounds only...' Thus, as it seems to me, the question which the judge formulated could equally accurately be stated in teens of what is and what is not a `void marriage' when contracted in England and Wales. He continued: `Plainly it is not every event to which somebody seeks to apply the label `marriage' which is within the section, leading to a decree of nullity and the open door to all forms of ancillary relief.' Counsel for the wife submitted that `although it may be difficult to lay down in advance when an event is a `marriage' for the purposes of s. 11 and when it is not, the event presently in question, with its attendant ceremony, can safely be said to be within that expression.' The judge immediately indicated that he had difficulties with the submission: `If, however, it is, the same would no doubt apply to all manner of self-devised rituals intended to be binding in conscience by those forsaking the civil forms of marriage, as well as to `marriages' according to foreign religions, and to any other ceremonies which make no attempt to be English marriages within the Marriage Acts.' In the present case the Hindu ceremony between Jawahar and Hasmita purported to be a marriage according to a foreign religion, and it made no attempt to be an English marriage within the Marriage Acts.
45. Hughes J next examined the decision in R v Bham, supra. He was satisfied that the reasoning must apply to the case before him. He then referred to the formalities required by section 25 (for Church of England marriages) and section 49 of the Marriage Act 1949, and continued: `But unless a marriage purports to be of the kind contemplated by the Marriage Acts, it is not, I hold, a marriage for the purposes of s. 11 of the Matrimonial Causes Act 1973.' I repeat that, given the wording of section 11, this is a holding that it is not a void marriage for the purposes of the section. The judge next referred to Gereis v Yagoub, saying that it was an example of a case where the question of whether a ceremony did or did not purport to be a marriage of the kind contemplated by the Marriage Acts was a fine one. He may have had doubts about the decision in Gereis v Yagoub: he said that the decision may have been `a merciful one'. He said that, as regards the ceremony in the case before him, it was clear that it `did not begin to purport to be a marriage according to the Marriage Acts, with or without fatal defects.' The same is certainly true of the ceremony conducted between Jawahar and Hasmita.
46. His conclusion on this issue was: `It follows that I hold that the 1980 ceremony is neither a valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity.' The second of those two points means that it was not a void marriage.
47. In my judgment the decision of Hughes J in A-M v A-M is decisive in this case. I accept that the decision on this point was strictly obiter, given the judge's view that, although the wife could not rely on the 1980 ceremony as being a marriage which was void under section 47 of the Marriage Act, she could rely on the presumption of marriage from long cohabitation and reputation. However, the point had clearly been argued comprehensively. The judge reserved his judgment. He dealt with the point fully and carefully. In those circumstances I would certainly think it right that I should follow his decision. In any case I respectfully find his reasoning convincing. It is true that, as Mr Pickering reminds me, Hughes J was concerned with the concept of a void marriage in the context of section 11 of the Matrimonial Causes Act 1973, whereas I am concerned with the concept in the different context of section 25(4) of the Inheritance Act. However, a void marriage surely means the same thing in both contexts. If the ceremony between Jawahar and Hasmita was not the celebration of a marriage which was void within the meaning of section 11, then in my opinion Hasmita, whether she was in good faith or not, did not `enter into a void marriage with' Jawahar within the meaning of section 25(4).
48. It follows that Hasmita cannot fall to be treated for the purposes of the Inheritance Act as a wife of Jawahar. Given that her claim for provision under the Act is put solely on the basis that she does fall to be treated as a wife, her claim must fail.
49. That would be sufficient to dispose of this case, but I will go on and say something (perhaps a little less than I otherwise would have said) about whether Hasmita meets the `good faith' requirement. I shall also make some brief observations about whether Jawahar's will failed to make reasonable provision for her, and about the allegations concerning her conduct.

The 'in good faith' requirement

50. If, contrary to what I have concluded so far, Hasmita did enter into a void marriage with Jawahar, it would still be necessary for her to establish that she entered into it `in good faith': the Inheritance Act section 25(4). The defendants submit that she did not, and I accept their submission.
51. The concept of a void marriage being entered into in good faith originated in a report of the Law Commission in 1969, of which the primary focus was on the abolition of common law actions for breach of promise of marriage. The Commission made a consequential recommendation that the ability of a widow to make a claim for provision under the Inheritance Act which was then in force (an Act of 1938) should be extended so as to apply also to `a person who had in good faith entered into a void marriage with the deceased'. The Commission wrote: `In deciding whether a claimant had entered into a marriage in good faith we think a subjective test should be applied, and that the court should have regard to whether there was an honest belief in the validity of the marriage.'
52. I agree with that approach. The question, therefore, is this. On the assumption that Hasmita, by the Hindu ceremony, entered into a void marriage, did she honestly believe at the time that she was entering into a valid marriage? I cannot be sure about it, but on the basis of the evidence and taking what I hope is a realistic view of the circumstances as a whole, I conclude that the answer, on a balance of probabilities, is: no. There were two quite separate reasons why the ceremony did not create a valid marriage. One was that the formal requirements of English law for a valid marriage were not complied with. The other was that Jawahar was already married to Meera and had not been divorced from her. I am doubtful about Hasmita's case as regards the first of those two points, and I think that the scales come down fairly clearly against her as regards the second.
53. On the first point the question is, or at least may be: did she in good faith consider that the Hindu ceremony was by itself all that was required to bring about a lawful marriage in this country? The ceremony was conducted in a restaurant by Mr Bhatt, who was a devout Brahmin priest but had no official status under the institutions of this country. There was no attendance by a registrar or any other official. There was no record made in any legally recognised register of marriages. Hasmita said that none of that meant anything to her. All that she knew was that she was getting married according to the traditions of her own community. I have to say that I am sceptical about this. Of course Hasmita was a Hindu girl who had been brought up in a Hindu family. Nevertheless, she had grown up in this country and had been educated in English schools. She was, I think, 23 years old in 1989. She is clearly intelligent. I would not have expected her to know much about what was required if she wanted to be married in this country, but I would have expected her to know, or at least to think it likely, that there would be some legal formalities to be observed.
54. Perhaps, however, I ought to add that, on analysis, this particular question overlaps with the question which I have already considered, of whether the Hindu ceremony could have been sufficient in itself to amount to a void marriage. If, contrary to my view, it could, it would probably be enough for Hasmita to establish that she was in good faith in wanting to join with Jawahar in a Hindu marriage, it being irrelevant whether she did or did not have any ideas about whether, when she did that, she would also be joining in something which was a marriage for purposes of English law.
55. The more important question on the `good faith' issue goes to the second of the two reasons why the `marriage' (if it was one at all, rather than a non-marriage) was void: Jawahar was still married to Meera. Did Hasmita know that? If she did it is accepted that she did not enter into the Hindu ceremony in good faith. (Hindu marriages, I believe, are monogamous.) It is accepted that she knew that Jawahar had been married to Meera. It is also accepted that there was a time when she knew that, although he had spoken about getting divorced, he was not divorced yet. Her evidence is that at the time of the Hindu ceremony she did not know that he was still not divorced; on the contrary, she believed that by then he was divorced. I am not sure whether she says that Jawahar positively told her that he was already divorced by then, or whether it is rather that she assumed that he must have been. As I recall there were instances of it being put in both ways in the evidence. On the whole, however, I think that her case is that Jawahar had told her that he was divorced, and that he lied to her when he did that. Mr Bhatt's recollection is that, when he had a meeting with the couple to arrange for the ceremony, Jawahar said that he was divorced, and that Hasmita was there to hear him say it.
56. Apart from Hasmita's own evidence that Jawahar lyingly told her that he was divorced there is not much material to support her case. It is, I think, not disputed that she went to Somerset House in 1994, and that on that occasion she learned that Jawahar was not divorced. As I have said at an earlier point, Mr Pickering contends that that shows that previously she had believed that he was divorced. That might be so, but another possible explanation is that, although she had known that he was still married in 1989 when the ceremony took place, she had expected him to get divorced at some time after that, and went to Somerset House to find out for certain whether or not he had done so yet. Jawahar's brother, Subhash, gave evidence for Hasmita. His witness statement includes this sentence: `However, after their second child Viran was born, Jawahar had mentioned to me that Hasmita had found out that he was not legally divorced [from] Meera his first wife, and that Hasmita was deeply upset about it.' This supports Hasmita's case to an extent, but it is hardly conclusive, and in my view it is overwhelmed by the evidence to the opposite effect.
57. The case for the defendants is that Hasmita was fully aware at the time of the Hindu ceremony that Jawahar was still married to Meera. The explanation for the ceremony is suggested to have been that Hasmita was pregnant (and certainly knew that she was by October 1989, whether or not she already knew it when she moved into 9 Bouverie Gardens in July 1989). Her pregnancy would soon start to show, and, whether Jawahar and Hasmita wished to have the comfort of the ceremony or not, their parents' generation certainly would.
58. The evidence for the defendants includes statements made by Jawahar himself in the domestic violence proceedings which were in progress in 1996. In an affidavit of 30 October 1996 he deposed as follows: `In fact the Applicant and I initially decided to live together for a year before we made any decisions regarding marriage. It then transpired that she fell pregnant and after discussion with my family members, we decided that the appropriate thing to do was to go through a Hindu ceremony of marriage and in due course go through the civil ceremony of marriage after my divorce was obtained.' A little later he rather clouds the clarity of this by saying the following: `It appears that during this time [earlier in 1994], the Applicant realised that I was still in fact married to Meera Gandhi. I refer to paragraph 2 of her Affidavit in which she states that she discovered only in 1994 that I was still married to Meera Gandhi. I did not go through with the Registry Marriage with her as her behaviour shortly after our Hindu marriage caused me great concern about whether or not I should in fact register our marriage as originally intended.' I accept that it is not totally clear, but I consider that, taking the two passages together, the effect of what Jawahar is saying is this. At the time of the Hindu marriage he and Hasmita knew that they could not have a Registry Office marriage because he was still not divorced from Meera. They intended to have a Registry Office marriage when he got divorced, but never carried the intention out because he, Jawahar, went off the idea. He never told her that he had not gone through with his divorce from Meera, and she found that out in 1994.
59. There is also powerful evidence from witnesses who gave their evidence before me. The most important ones are Salma Hanid and Eleanor Stone (Eke). Mrs Hanid was a close friend of Jawahar. Mrs Stone was employed to help with the children and to do some secretarial work for Jawahar. I think that she also became a good friend of the family. Each of them was frequently in the company of the family, as is confirmed by photographs which Mangal produced in the course of her evidence. Each of them said that Jawahar, in conversations with anybody, made no secret of the fact that Meera was still his wife, and frequently referred to her explicitly as such. Each of them said that they were present on occasions when Jawahar said such things in the hearing of Hasmita. Everybody in the family or everyone close to the family always knew that Jawahar and Meera were still married, and Hasmita knew it just like everyone else. I cannot see any reason why I should not accept this evidence, and Mr Pickering was clearly placed in difficulties by it. When it was put to Hasmita she said that Mrs Hanid and Mrs Stone were lying (a common allegation in her evidence about many things said by other people), and that they had been put up to it by Meera. Mr Thrower, counsel for the defendants other than Digna and Viran, tendered Meera for cross-examination. Mr Pickering did not suggest to her that she had procured other witnesses to lie - most properly not putting that suggestion, since, as I assume, Mr Pickering had no evidence to support it.
60. There is also a manuscript note made by a police officer of what Hasrnita had said to him on an occasion in 1995 when he had been called to the house. It is not completely unequivocal on this point, but on the whole seems to me to be consistent with Hasmita having very recently discovered that Jawahar was now refusing to go through with a promise which he had made to her years ago, that he would marry her in proper lawful form.
61. Another factor is the improbability, as it seems to me, of Hasmita's version of what happened before the Hindu ceremony in October 1989. Jawahar plainly knew that he was not divorced from Meera, and, as the evidence of Mrs Hanid and Mrs Stone establishes, he did not try to pretend to other people that he was. (He did pretend about it to Mr Bhatt, but there was an obvious reason for that: if Jawahar had told Mr Bhatt the truth, Mr Bhatt would not have been willing to officiate at the ceremony.) Why should Jawahar lie to Hasmita about it, especially when it must have been very likely that she would find out about his lie anyway?
62. I will briefly mention in passing that there were other respects in which I find it very hard to accept that some things said by Hasmita can have been true. I will not elaborate on this, but I will give two examples. One is her improbable evidence, which I referred to in paragraph 14 above, that in 1985 she and Jawahar together chose 9 Bouverie Gardens as a future home for themselves once they were married. The other is this. In her particulars of claim, supported by a statement of truth, she says that, after difficulties in the relationship between her and Jawahar, in about mid to late 1997 they were reconciled, that after the reconciliation she cleaned and cooked for him, and that she resumed a normal physical relationship with him. In a witness statement she says that they were able to sort out their difficulties. `Indeed, we became reconciled and soon re-started a normal loving and physical relationship.' There is a mass of evidence that these statements cannot possibly have been true. Further, in August 1997 she had made her application to the court for a property transfer to her on behalf of her children. She made the statement which I have quoted in paragraph 22 above, that she and Jawahar no longer lived together as husband and wife. This sort of thing has to make me very slow to accept her evidence generally.
63. My conclusion on this matter has to be that, if the Hindu ceremony did mean that Hasmita entered into a void marriage with Jawahar, she did not do so in good faith. Her claim would fail on that ground as well.

Reasonable provision; conduct

64. If I had taken a different view on the questions which I have considered so far, I would have had to decide whether the provision made for Hasmita in Jawahar's will was a reasonable financial provision for her. Leaving questions of conduct aside for the moment I would have concluded that it was not. All that she received under the will was a right to live in the house left to Viran (44 Brentmead Gardens) for life or until remarriage or cohabitation. I do not think that that would have been reasonable for someone with whom Jawahar, a prosperous man, had lived, to outward appearances as a husband with his wife, for the last nine years of his life, and someone furthermore who had borne him two children.
65. There have, however, been submissions that Hasmita's conduct towards Jawahar was so unsatisfactory that it should reduce what would otherwise have been a reasonable financial provision for her. This is a part of the case which could be particularly hurtful and unpleasant. It does not arise on the views which I have formed on the prior issues, and all that I am going to say about it is that there were aspects of the evidence which I found disturbing. I do not rule out the possibility that, if I had needed to consider the matter, I might have reduced the provision which I would otherwise have thought it right to make for Hasmita.

Conclusion

66. For the reasons which I have explained in this judgment, Hasmita's claim for provision under the Inheritance Act fails.