Insights and inspiration
The Unmade Marriage
18 February 2016
The stories told in some cases can invite a reader to take them lightly...until you realise that these are the stories of real people, and real suffering.
This case involved an Indian woman. She came to Australia with two family members when she was 20 to visit her father, who was living here.
After a time she came back to India to live with an aunt and to finish her studies. She then met a man who told her that he was interested in her. They went out a few times but only as friends.
In 2014 she came back to Australia to attend university but later that year she and her family went back to India for a holiday. They had return tickets booked a month later.
While she and her family were in India, the man she had previously met and gone out with contacted her and invited to come to see some mutual friends. Surprise, surprise, the friends did not turn up. She said that he bought her food and drink but after she had them, she felt dizzy and confused.
Her evidence as to what followed is that he took her by cab to a house, she remained dizzy and confused, he put her to bed, then came into the bedroom and woke her up and told her she had to sign some papers he gave her.
At that point he showed her a gun he was holding. He threatened her and her family if she did not sign them. He said he knew where her family were staying. He also threatened to scar her face with acid if she did not sign. She did sign. She was then locked in the room.
The next day the man brought her food and drink but didn't allow her out of the room. Later he drove her to a building. One of the rooms was made up to look like a religious temple. He still had the gun with him. They went through some Hindu rituals and had photographs taken. They were given a marriage certificate. Both of them signed the marriage certificate.
After the ceremony the man took her back to the home, told her that they were now married and that she could not do anything. He sexually assaulted her. Despite her requests she was not allowed to contact her family. She thought of killing herself. Two days later she was given a mobile phone and told she could call her parents but because the man was standing next to her and she was still very scared, she did not tell her family about the circumstances of the marriage, just that she was married. While her family was also still in India, as was she, they did not know where she was.
The man's brother then took them both to another house where they stayed for two or three days without being given the opportunity to leave or to contact anybody. At this point the woman said that she felt that she was just trapped with no options whatsoever, especially having regard to the sexual assault and the marriage papers. She was deeply ashamed and frightened.
Later that month the woman's family returned to Australia as previously planned, without having been given any opportunity to see their daughter and sister, the newly "married" woman. She was rarely if ever left alone.
A few days after the family returned to Australia the woman had the chance to call her mother and told her the real story. They hatched a plan that finally enabled the woman to escape and get on a plane for Australia.
The woman then filed an application with the Australian court to annul the marriage on two separate grounds.
A marriage that takes place overseas is usually recognised in Australia. Those marriages are not lightly set aside. An Australian court needs clear evidence that the consent to marriage was not a real consent. If it was obtained by fraud, for example if one of the parties was utterly misled about the nature of the ceremony, then the consent was not a real consent. If there was mental incapacity affecting the abiltiy of a person to give a proper consent, then there was no consent.
In the circumstances outlined, the court had no real difficulty in finding that there was duress, and that therefore the woman did not give a real consent. The judge therefore annulled the marriage which means it is as though it never happened.
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