Papinder Kaur Atwal v Manjit Singh Amrit [2014] eKLR

Civil Appeal 299 of 2009 | Kenya Law Reports 2014 Page 1 of 8.

REBUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: MARAGA, MUSINGA & OUKO, JJ.A.)
CIVIL APPEAL NO. 299 OF 2009
BETWEEN
PAPINDER KAUR ATWAL...........................................APPELLANT
VERSUS
MANJIT SINGH AMRIT............................................RESPONDENT
(Being an appeal against the J udgment and Decree of the High Court of
Kenya
at Nairobi (Onyancha, J .) dated and delivered at Nairobi on 3
rd
J uly, 2009
in
H.C.C.C. No. 122 of 2006)
****************
JUDGMENT OF THE COURT
1. This appeal arises from the judgment of Onyancha, J. in Matrimonial Cause No. 122 of
2006. In that matter the respondent, (who was the petitioner), had filed a petition seeking
nullification of the marriage between himself and the appellant.
2. In the petition, the respondent stated that on 25
th
September, 1995 he got married to the
appellant at a Sikh Temple in Southhall, London. However, at the time of the marriage and
unknown to him, an earlier marriage between the appellant and one Inderjit Singh Purewal
which had been solemnized on 4
th
January, 1986 was still subsisting. The appellant and the
respondent have one child, who we shall refer to as A.S.A., born on 18
th
June, 1996.
3. The respondent further stated that there was no divorce, annulment, or determination of
non-existence of the marriage between the appellant and the said Inderjit Singh Purewal at the
time of the marriage between him and the appellant and that the appellant instituted divorce
proceedings between herself and her former husband in the Coventry County Court in 1997,
Papinder Kaur Atwal v Manjit Singh Amrit [2014] eKLR
Civil Appeal 299 of 2009 | Kenya Law Reports 2014 Page 2 of 8.
being case number 97D00197. The decree nisi in the said case was issued on 3
rd
June 1998
and the decree absolute was issued on 16
th
July, 1998.
4. In view of the foregoing, the respondent added, his consent to the marriage between him
and the appellant was obtained by deception and/or fraud. He therefore urged the High Court
to annul the marriage between him and the appellant.
5. The appellant filed an answer to the petition as well as a cross-petition. She admitted that
on 25
th
September, 1995 she got married to the respondent as stated in the petition. She
further conceded that earlier, on 4
th
January, 1986, she had married Inderjit Singh Purewal at
the Registrars Office in the Metropolitan District of Coventry, in the United Kingdom.
However, she denied that the said marriage was still subsisting as at 25
th
September, 1995
when she got married to the respondent. She contended that the marriage to the said Inderjit
Singh Purewal was an arranged one, courtesy of her parents, when she was only 17 years of
age. Further, that the said marriage was never consummated by virtue of her refusal to do so;
that she ran away from her husband the same day of the wedding ceremony back to her
fathers house. The said marriage was therefore voidable by virtue of non-consummation of
the same, she argued.
6. Regarding the proceedings for annulment of the earlier marriage, the appellant stated that
the same were instituted in 1986 but the proceedings never went beyond the stage of
acknowledgment of service. That notwithstanding, she conceded, the court issued a decree
nisi and decree absolute as stated by the respondent.
7. The appellant denied that the respondents consent to marry her was obtained by
misrepresentation of her status, or that at that time she was lawfully married to the said
Inderjit Singh Purewal and thus lacked capacity to contract another civil marriage. She
alleged that the respondent was made fully aware of all details relating to her previous
marriage well before they got married.
8. In her cross-petition, the appellant stated that she continued to live with the respondent as
husband and wife, both during and after the dissolution of her previous marriage for a period
of over eight (8) years. Out of that cohabitation they had one child. Consequently, the
respondent was estopped from seeking prayers for annulment of their marriage, she added.
That notwithstanding, the appellant contended, the marriage between her and the respondent
had broken down irretrievably because the respondent had been cruel to her. She set out the
particulars of cruelty and urged the court to dismiss the respondents petition for nullification
of their marriage and instead issue a declaration that by virtue of their long cohabitation there
was a valid marriage between them and then proceed to dissolve it on the ground of cruelty.
She further prayed that all the property held solely by the respondent and/or jointly by both
the respondent and other members of the extended family, the respondents share thereof be
declared as matrimonial property and half share of the same be awarded to her. She also
urged the court to make provision for future financial support of their child.
9. Before the commencement of the hearing before the High Court, the parties through their
respective advocates agreed that the issues for determination were as follows:
Papinder Kaur Atwal v Manjit Singh Amrit [2014] eKLR
Civil Appeal 299 of 2009 | Kenya Law Reports 2014 Page 3 of 8.
a) Whether the appellant had capacity to contract a legal
marriage on 16
th
September, 1995.
b) Whether the respondent was at the time aware of the
appellants status.
c) Whether there was a valid marriage between the appellant
and the respondent; and
d) Whether a valid marriage can be presumed from the facts
and circumstances pleaded in the cross petition.
The parties agreed by consent to file written submissions and let the Court determine the
aforesaid issues on those submissions. As such, no oral evidence was adduced.
10. In his judgment, the trial Judge held, inter alia:
That Hindu marriages in Kenya are governed by the Hindu Marriage and Divorce Act as read with
the Matrimonial Causes Act.
That on 25
th
September, 1995 when the parties contracted a ceremony of marriage the appellants
former husband, Inderjit Singh Purewal, was alive and the appellants marriage to him had not been
lawfully terminated and consequently she lacked legal capacity to marry the respondent.
That Hindu marriages, like other statutory marriages in Kenya and England, are monogamous.
The legal consequences arising from the above is that the purported marriage between the parties
herein was not only illegal and void but a nullity and therefore liable for nullification.
As at 25
th
September, 1995 the respondent was not aware of the appellants marital status and its
consequences of his intended marriage to her.
The appellants failure to inform the respondent of her earlier marriage amounted to fraudulent
misrepresentation but even if the respondent was aware of the appellants marital status before
contracting marriage with her, that would not in law have salvaged the subsequent marriage as it was
contrary to statutory provisions and was therefore null and void and against public policy, both in
England and Kenya.
That in the foregoing circumstances the long cohabitation between the parties could not give rise
to a presumption of marriage between the two as that would amount to aiding a party who had entered
into a contract that is immoral and also contrary to public policy.
11. The trial court declared the marriage entered into between the appellant and the
respondent on 25
th
September, 1995 null and void and nullified it under Section 11 (1) (a) of
the Hindu Marriage and Divorce Act, Cap 157 Laws of Kenya. The court also dismissed
the appellants prayer for dissolution of the purported marriage between the parties.
12. Being dissatisfied with the said judgment, the appellant preferred an appeal to this Court
and raised 13 grounds which were grouped into four main clusters.
13. Firstly, Mr. Amutallah, the appellants learned counsel, argued that the trial Judge erred
in law in making a wrong choice of the applicable law. It was contended that the appellant,
being a British national with a tourist visa in Kenya, celebrated the marriage with the
Papinder Kaur Atwal v Manjit Singh Amrit [2014] eKLR
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appellant in London and it was therefore wrong for the trial Judge to hold that the marriage
was governed by the Kenyan Hindu Marriage and Divorce Act. Counsel submitted that the
applicable law was the Marriage Act of England. He cited the case De Reneville v. De
Reneville (1948) 1 ER 56 in support of that argument. In that case the wife was born in
England and was residing in England but the husband, a French man, was domiciled in France
and had resided there at all material times. The marriage had taken place in Paris in 1935 and
until 1939, except for a few months, the parties had resided together in France. The court
held, inter alia, that since the husband was domiciled and at all material times resident in
France, the fact that the wife was resident in England when the petition was filed was not
sufficient to confer jurisdiction on the English Courts.
14. Secondly, the appellants counsel submitted that the parties alleged marriage on 25
th

September, 1995 was not valid at all for the following reasons:
(i) The place of marriage, that is, the Sikh Temple, was not a
registered one under the Marriage Act. He cited Section 76 (1)
of the Marriage Act of England.
(ii) There were no witnesses to the alleged marriage. The
priest who conducted the ceremony issued a mere document
entitled:
TO WHOM IT MAY CONCERN
This is to confirm that the religious wedding of Mr. Manjit
Singh Amrit and Papinder Kaur Atwal was solemnized on 25
th

September, 1995. The wedding ceremony was performed by
Mr. Satwinder Singh Sarl and Pati.
The said document should not have been recognized as proper evidence of a marriage, the
appellants counsel added.
15. It was further submitted that the trial court should have concluded that there was a
presumption of marriage due to the long period of cohabitation between the parties herein.
The trial Judge was also faulted for determining the matter entirely on pleadings, affidavits
and written submissions, totally excluding oral evidence. The procedure was prejudicial to
the appellant in light of the factual issues that had been raised, counsel stated. He urged the
court to allow the appeal.
16. In response, Mr. Oduol, learned counsel representing the respondent, submitted that a
party is bound by its pleadings, affidavits and submissions. He stated that there were several
material facts that had been admitted by the appellant which did not require proof by the
respondent, for example, the fact that as at 25
th
September, 1995 when the parties got married
the appellants earlier marriage had not been dissolved.
17. Regarding the divorce proceedings in the Coventry County Court between the appellant
and her first husband, Mr. Oduol submitted that the case was premised on the appellants
contention that the two had lived apart for a period of five years, the issue of non-
consummation of the marriage was not raised in that matter.
Papinder Kaur Atwal v Manjit Singh Amrit [2014] eKLR
Civil Appeal 299 of 2009 | Kenya Law Reports 2014 Page 5 of 8.
18. The respondents counsel supported the High Court finding that the appellant had no
capacity to contract the second marriage when the first one was still subsisting. He added that
the long cohabitation could not give rise to a presumption of marriage in the circumstances
aforesaid. Regarding the suitable law, Mr. Oduol submitted that under Section 13 of Kenyan
Matrimonial Causes Act, a husband or a wife may present a petition praying that their
marriage be declared null and void. The trial Judge was right in holding that the applicable
law was the Kenyan Hindu Marriage and Divorce Act and not the Marriage Act of England as
both parties were residing in Kenya.
19. We will now proceed to determine the main issues that were raised in this appeal.
THE APPLICABLE LAW
20. The applicable law is the law of the country where parties are domiciled at the time of
institution of a suit. In this case the parties were admittedly resident and domiciled in Kenya
at the time of filing the petition that gave rise to this appeal. And as the parties are both
Hindu, we concur with the trial Judge their marriage was governed by the Kenyan Hindu
Marriage and Divorce Act as read with the Kenyan Matrimonial Causes Act and not the
Marriage Act of England. Both Sections 13 and 14 of the Matrimonial Causes Act permit a
party to a marriage to seek a decree to nullify the same. The grounds for seeking such a
decree include such as were pleaded by the respondent herein. Further, Section 11 (1) (a) of
the Hindu Marriage and Divorce Act provides that a party to a marriage contract may seek
nullification of the marriage if either party had a spouse living at the time of marriage and the
marriage with such spouse was still subsisting. This was the case between the appellant and
Inderjit Singh Purewal when she purported to get married to the respondent. That was
admitted by the appellant in her reply to the petition.
B) WHETHER THE APPELLANT HAD CAPACITY TO
CONTRACT A LEGAL MARRIAGE ON 25
TH
SEPTEMBER,
1995
21. In her answer to the petition, the appellant admitted that she was married to Inderjit
Singh Purewal on 4
th
January, 1986, the only qualification she added was that it was an
arranged marriage when she was 17 years old and that it was not consummated. Under the
English Law, the lower age limit for a party to a marriage is 16 years.
22. Family Law by Bromley, chapter 3 at page 32, on the issue of capacity as a prerequisite
to a valid marriage contract states as follows:
In order that a person domiciled in England should have capacity
to contract a valid marriage, the following conditions must be
satisfied:

a. neither party must be already married;
b. both parties must be over the age of 16;
c. ..
Papinder Kaur Atwal v Manjit Singh Amrit [2014] eKLR
Civil Appeal 299 of 2009 | Kenya Law Reports 2014 Page 6 of 8.
d. ..

23. As at 25
th
September, 1995 when the appellant married the respondent her first marriage
was still subsisting. The first marriage had not been annulled and neither had Inderjit Singh
Purewal died. The appellant commenced divorce proceedings in 1997, almost two years after
she had undergone another marriage ceremony with the respondent. We therefore find that
the appellant had no legal capacity to marry the respondent.
C) WHETHER THERE WAS A VALID MARRIAGE BETWEEN THE
APPELLANT AND THE RESPONDENT
24. It is not right for the appellant to argue that the first marriage never existed in law
because it had not been consummated. If indeed the marriage had not been consummated as
alleged, that could only have been a ground for seeking a declaration that the same was void
before the appellant could purport to marry the respondent. The act of seeking a divorce in
the Coventry County Court was itself an admission on the part of the appellant that indeed
there existed a valid marriage between her and Inderjit Singh Purewal. And that is why the
decree absolute was issued on 16
th
July, 1998.
25. The learned trial Judge was correct in holding that the appellant had no capacity to
contract a subsequent marriage to the respondent. It was not necessary for the trial court to
interrogate the validity of the document headed TO WHOM IT MAY CONCERN to
determine whether it was sufficient evidence that the appellant and the respondent got married
on 25
th
September, 1995 at a Sikh Temple in London. That is a fact that had been specifically
pleaded by the respondent in his petition and expressly admitted by the appellant in her
answer to the petition. We agree with Mr. Oduol that parties are bound by their pleadings,
affidavits and submissions.
26. Although the appellants counsel submitted that the Sikh Temple in Southhall London
was not a registered place where a marriage could be conducted, there was no evidence to that
effect.
27. Regarding the procedure that was adopted by parties in conducting the trial before the
High Court, we have already pointed out that the parties through their respective advocates
chose to have the matter determined by way of affidavit evidence and written submissions.
Consequently, the appellant is estopped from complaining that the trial Judge should have
called for viva voce evidence.
D) WHETHER PRESUMPTION OF MARRIAGE CAN BE INFERRED
FROM THE PARTIES COHABITATION.
28. That the appellant and the respondent cohabited since 25
th
September, 1995 when they
purportedly contracted the second marriage until sometimes in June 2006 is not denied. It is
also a fact that they have a child together. However, the trial court held that the said marriage
was null and void, bigamous and contrary to public policy and this Court has upheld that
position. The respondent contended that it was only in June 2006 that he came across the
Papinder Kaur Atwal v Manjit Singh Amrit [2014] eKLR
Civil Appeal 299 of 2009 | Kenya Law Reports 2014 Page 7 of 8.
decree nisi and decree absolute of the marriage that had been celebrated between the appellant
and her first husband on 4
th
January, 1986.
29. In declining to make an order for presumption of marriage as sought by the appellant in
the cross-petition, the trial Judge held that the marriage entered into between the appellant and
the respondent on 25
th
September, 1995 was the one that subsisted until the respondent filed
the petition for nullification of the marriage. He further held that there was no evidence that
the said marriage ended after grant of the decree absolute in 1998 to enable the parties to be
presumed as married on the basis of their long cohabitation. We are satisfied that was the
right holding in law. As stated earlier, whether the respondent became aware of the earlier
marriage in 2006 or earlier is immaterial, as long as his marriage to the appellant as at 25
th

September, 1995 was null and void because the first one had not been dissolved.
30. But for the fact that the marriage between the appellant and respondent was illegal, there
would have been no difficulty in holding that the long period of cohabitation gave rise to a
presumption of marriage. In HORTENSIAH WANJIKU YAWE vs PUBLIC TRUSTEE,
Civil Appeal No. 13 of 1976, Mustafa, JA. held that:
Long cohabitation as man and wife gives rise to a presumption of
marriage in favour of the appellant. Only cogent evidence can rebut
such a presumption.
In this case, the factor that negates the presumption of marriage inspite of the long
cohabitation is that that cohabitation was premised on the assumption that there was a valid
marriage in existence, which was not the case.
31. Lastly, it was alleged that the trial Judge was biased against the appellant. The
appellants counsel referred the court to various parts of the judgment which, according to
him, from the manner in which the trial Judge expressed himself showed that he became
personally involved in the dispute and seemed to favour the respondent. However, counsel
did not allege that the trial Judge exhibited any bias or mistreatment of the appellant in the
cause of the trial. Having carefully perused the impugned judgment, we do not find any
scintilla of evidence that may support the appellants contention that the trial Judge was
biased against her. In our view, the trial Judge rendered a well considered judgment in
temperate judicial language and the appellants accusation against him is without merit.
32. In conclusion, we dismiss this appeal as lacking in merit. Each party shall bear its own
costs of the appeal.
Dated and Delivered at Nairobi this 7
th
day of February, 2014.

D.K. MARAGA
.............................
JUDGE OF APPEAL

D.K. MUSINGA
Papinder Kaur Atwal v Manjit Singh Amrit [2014] eKLR
Civil Appeal 299 of 2009 | Kenya Law Reports 2014 Page 8 of 8.
............................
JUDGE OF APPEAL

W. OUKO
.............................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR
/dkm





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