Monday, 11 June 2012

Bigamy and Pervez Choudhry

Obviously I don't want to waste much sympathy on ex-councillor Pervez Choudhry of Slough but his plea of guilty to bigamy may eventually be challenged on several matters of fact.

Mr Choudhry is said to be preparing an appeal although he pleaded guilty to bigamy when advised that his second wedding was a marriage for the purposes of criminal law.  This would be a chance for the Court of Appeal to revisit this antique area of law which has public policy implications. The police and CPS and UKBA (who sometimes come across it in connection with other immigration crimes)  need a bigamy charging checklist to work from but the CPS website lists only cases.  

The reporting of the current case has been cloudy and the latest summaries don't help much.
Judge Ian Grainger told him:
‘ Bigamy is in no sense a private matter. The rule . . . is a simple one – one spouse at a time. ‘Whatever cultural roots that rule may have, there’s practical wisdom in that rule.’
Practical wisdom it may be, but the judge is wrong about it being a rule. Polygamy is recognised in Pakistan so contracting a marriage there is not barred merely because a marriage exists elsewhere. While it can't be contracted here, it is recognised here - much to the annoyance of people who think you should not be able to claim benefits for multiple wives .  

This area of law is more complicated than it looks. 

The BBC pointed out  as far back as 2000 that one of the complaints which immigrant women have is finding that their husbands can contract second marriages 'back home' and there is nothing they can do about it.
The police say there is little they can do. Colin Cramphorn from the Association of Chief Police Officers says he finds cases like Sameera's disturbing, but he believes that politicians need to clarify the law.
"Clearly those communities that have a tradition which allows polygamous marriage have a point of view and they are keen to have that point of view taken into account and recognised as part of a multi-cultural society," says Mr Cramphorn.
"But of course if the law is equivocal, as it currently is, then that prevents all of us achieving the kind of clarity that would no doubt be helpful in the longer term."
The law produces inconsistent results in that Pervez Choudhry could be charged with bigamy whereas other men doing exactly the same thing could not, but it is not as equivocal as Colin Cramphorn claimed. There is law under there, albeit ancient and groaning under the strain of changes.

The situation in Pakistan is less clear.  A quick google of the searches going on recently shows that everyone else is also hoping the Wiki on marriage law in Pakistan will be updated. At time of writing it looks like the Nikah, the religious part of the wedding in Muslim-majority Pakistan, is separate from the civil registration of a marriage, which is approximately the same as here but the religious marriage may have a legal status in Islam. The civil registration should be a matter of discoverable fact; the dispute, however, hinges on whether the nikah should be regarded as a valid marriage or a personal contract here.

It doesn't help that in this example Choudhry kept changing his story as to which of his weddings didn't count for legal purposes here and obviously felt guilty. Faced with the beautiful GP, Dr Zabina Shahian, who appeared to be crazy about him...well, who wouldn't have been flattered and suddenly seen themselves as Mr Rochester in their own feverish Bronte romance?

The following attempts to sort out the poorly-reported facts, to point out what needs to be verified, and explain how we got in this muddle.

Legal background 
The first thing to note is that bigamy applies differentially to nationals and non-nationals.  The lead case is old:  Reg v Topping 1856. This was decided based on earlier statutes which were consolidated slightly later in the Offences Against The Person Act 1861 (OAPA1861), which is why the statute references are younger than the lead case.  

Mr Topping had two wives, one in Scotland, one in England.  It was held to be bigamy. In the Age of Empire  the law on bigamy traveled with the British subject, binding him where ever he was and making that law available to the local judiciary to try a British citizen. He couldn't appeal to local law. Once he was married, that's it, he was married and couldn't contract a second elsewhere without the end of the first one.  We could then get on to arguing about whether it was a marriage for the purposes of the act, or who was a subject of Her Majesty, or what constitutes evidence of the end of a marriage but the main thing here is:  s.57 of the OAPA still applies to subjects of Her Majesty.

The  Offences Against the Person Act 1861 

Section 57 states: (my emphasis)

57 Bigamy. Offence may be dealt with where offender shall be apprehended. Not to extend to second marriages, &c. herein stated.

Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty 
The act clarifies that non-nationals are not bound by this act, which is just as well as nobody wants to arrest visiting polygamous royalty - although it will apply in certain circumstances if they contract a marriage here.
that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of Her Majesty,
As outlined in the sentencing appeal by Philip Stark in 2007,  Mr Stark  - a US citizen - was prosecuted for bigamy here.  Mr Stark had married his first wife in Southend and begun divorce proceedings some years later. He reached the nisi stage but did not finalise the divorce.  He then married his second wife in Basingstoke.  This meant that the first marriage had not been properly ended and he could be prosecuted for bigamy, to which he pleaded guilty.  

It is important to note that as he was not British, he could have contracted both marriages in a jurisdiction which admits polygamous marriage and been outside the scope of this legislation (but not perhaps his home state's.)  There can also be an argument that so long as the second marriage was "elsewhere than in England and Ireland" then he would also have been proof against prosecution for bigamy here.  However, that is an argument for another day. 

The Dispute 
Pervez Choudhry married Hameda Daulat in 1986, possibly here but it could have been in Pakistan. In December 2010 he married Dr Zabina Shahian, a GP from Birmingham, in Pakistan. He gave her to understand he was divorced, but he was not (although this may also be disputed).  It is assumed that Mr Choudhry is a British Citizen or else considerations in the Stark case above, apply.

Whether both of those are marriages for the purpose of the prosecution is the key point. If either one of them is not legally recognised, the charge of bigamy cannot be brought. The status of the marriages is one of legal fact to be verified inside the appropriate legal system.

The following is my best guess. To make out the charge of bigamy there are four elements:

1) He (or she) has to be a British subject bound by OAPA which could be shown by his birth certificate or naturalisation. Alternatively,  s.57 applies to non-nationals who contract valid marriages here, but this is more complex question and presumably not at issue in this case.  There is an element of mens rea; OAPA provided defences such as when people thought dead turned up a decade later. The defendant has to know they are misrepresenting themselves as free to marry which entails a measure of deception.

2) The first wedding has to be recognised as a marriage, which in this case means registered in the normal way here or perhaps by civil registration in Pakistan. A nikah - a religious declaration - may not be enough, whether here or there.   This is the debated point and it is by no means clear.  However, both countries have systems of civil registration of religious ceremonies, so at least that much could be verified.

3)  The first marriage, if legally established, has not been ended by divorce or other valid declaration of nullity.  It follows that Separation is not enough. A decree nisi is not enough. The divorce or other instrument has to be completed. 

4) The second marriage must also be legally recognised; a nikah, a witnessed contract, may not be not enough. Again, this is the point of dispute: Dr Shahian appears to have applied for a ruling from Pakistan that a nikah is a recognised marriage in Pakistan; however the reports do not make it clear if the assertion is that there is an accompanying civil registration. I believe the question is not whether a nikah is recognised there, but whether it ought to be recognised here. That is a matter of public policy, not to be decided on individual hardship. Up till now the belief has been that a non-registered marriage contract is not recognized in British law.

The foregoing shows that there is plenty of room for dispute and confusion. The police and CPS need clarification of when a possible charge of bigamy exists. There could probably be many more prosecutions if there was a will to bring the cases. 

Whether a nikah should be regarded as a valid marriage is a delicate political question which impinges on the definition of marriage across the society.   Currently there are thought to be a number of men contracting nikah-only marriages believing that this will mean they are regarded as cohabitees, not married, and thus outside the scope of UK marriage law for the purposes of property on separation or inheritance. 

Shaista Gohir is the head of the UK's Muslim Women's Network. She says:
''If a couple has a nikah in a Muslim country then the marriage IS recognised under UK law. But many do not realise that this is NOT the case if the nikah is conducted in this country,''
At the moment there is a vague feeling that bigamy laws do not apply to Muslims, which is why it was so difficult for both women to persuade the authorities to bring the case. But being of a particular religion doesn't normally exempt a citizen from the law. The issue here is citizenship and what will be recognised as a marriage for the purposes of bigamy, marriage law, divorce law, family law and inheritance.

Above all, a law which is based on wording nearly 200 years old, from the age when sailing to Australia took three months, is due a review.

A useful review of the cases to date occurs incidentally to a British Virgin Islands case discussing sentences for the various contexts of bigamy, but this is not a complete review.

1 comment:

Anonymous said...

Hi, I just came across your site. I've got a friend whose husband is asking her to accept a second wife. They legally married in Pakistan and live in the UK and the husband wishes to "marry" another woman in a Nikah ceremony. Would he be considered bigamous if he didn't register the Nikah