UK Judges Ruling and Bangladesh Marriage Law

August 17, 2012

A judge in UK has said the arranged marriage of a UK woman of Bangladeshi origin, who is disabled and has severe learning difficulties, should be annulled.

Mrs Justice Parker ruled that the woman clearly lacked the mental capacity to consent to marriage that took place in Bangladesh and that therefore it should be a “nullity” in England.

The woman, whose identity is not being made public, is unable to perform basic daily tasks and has learning difficulties which are described as very significant.

In 2003, the woman’s parents arranged for her to marry a cousin in Bangladesh who was subsequently given permission to come and live with her in the UK.

The parents argued that they were trying to give their daughter security by finding her a husband, and that annulling the marriage would bring shame on their family. The judge rejected the family’s argument that the marriage was in the woman’s best interests.

Police intervened when the marriage came to the attention of the local authorities.

The ruling comes as the authorities in the UK are taking steps to tackle a rise in the number of forced marriages involving people with learning disabilities.

The legal effect of this ruling highlights a conflict of law between Bangladeshi Law and that of the law of England & Wales. Although this particular marriage was identified as a “forced marriage” on the assumption that the disabled party was not able to form a consent and was forced to give consent, it also means that many of the marriages that take place in Bangladesh could be annulled in such situations if one of the party to the marriage turns out to have a learning difficulty at a later stage. Such learning difficulties can be said to have prevented the party to have formed a valid consent.

For example, in Bangladesh, at a traditional family wedding, where a  woman says “kobul” in front of two witnesses, very rarely is her status of mind noticed by the witnesses or the Kazi. The usual scenario is that she is asked to say “kobul” after having read part of the “kabin” and she simply repeats that word.

As long as the witnesses can confirm that they heard the bride say “kobul”, usually in a very low shy tone, the deal is done. “Amin” is pronounced by the Kazi. There is therefore no interview as is the case in the UK where there is a Registrar who has booked in advance to marry a couple would often interview the couple.

The outcome of this decision by Mrs Justice Parker will result in many marriages from Bangladesh and other countries being treated as annulled where a party appears to have learning difficulty. The UK forced Marriage Unit which has a presence in Bangladesh through the Foreign Office and British High Commission Dhaka could also consider these traditional marriages as “forced marriages” even where the claim of the parents are that it was done for the welfare of the bride, as was in this above scenario.