The respondent disputed all of this saying:
When faced with evidence of the petitioner’s passport confirming her travel dates, he was forced to concede that she may have visited Pakistan. The Judge commented, 'In alleging fraud, a party sets himself a steep evidential hill to climb'. It was one of the many points to which the Judge referred in relation to veracity of the respondent’s comments and his credibility as a witness.
- the telephone proxy marriage on 15 August never took place;
- there was no ceremony of any kind on 28 August 2003;
- the petitioner had not visited the ‘WH’ property in Pakistan;
- the 2003 marriage deed was a forgery (though it bore his signature and his thumb print).
The respondent strongly disputed that the petitioner had attended ‘WH’ in 2003, saying it had been rented out and providing the lease. After seeking permission, to which objections were raised by the respondent, the petitioner was granted permission to introduce into evidence two photographs which showed the parties outside WH. The respondent was unable to reconcile his previous answers.
The Judge noted that the two potential witnesses to the 2003 ceremony were not contacted by the respondent and said 'it is, in my judgment, still further evidence of the Respondent’s obfuscation and his willingness to say anything that he thinks will suit his case'.
Mr Justice Francis further noted that even though the respondent had leave under a previous order made by District Judge Robinson to make a Part 25 application under FPR 2010 (to apply for a single joint expert to deal with the allegation of the veracity of the marriage deed dated August 2003), he failed to do so.
The Judge found:
In response to the assertion made by the respondent that the petitioner was engaged in a sophisticated and devious plan involving fraudulent documents being produced as evidence of a marriage contract between the parties, the judge found the petitioner to be a 'straightforward and unsophisticated woman with whom fraud of this magnitude and sophistication seems to be rather unlikely'.
- he preferred the evidence of the petitioner over that of the respondent;
- the telephone conversation on 15 August 2003 had taken place;
- the ceremony on 28 August 2003 had taken place;
- the marriage deed was signed in the presence of witnesses on that occasion;
- the petitioner honestly believed that the respondent was divorced from his first wife and that, with effect from August 2003, she was lawfully married to the respondent.
Referring to the expert report of Professor Werner Menski of SOAS (School of African and Oriental Studies), the Judge noted that by the time the expert had come to give his evidence, the parties had largely been able to agree his reports - the Nikah of August 2003 was not registered, and the respondent was still married to his first wife and had not secured her consent for a polygamous marriage.
Therefore, due to these failures, the marriage was not registered according to the civil law of Pakistan and so was not capable of recognition as a valid marriage under English law. Counsel on behalf of the respondent severely criticised the petitioner for making a number of amendments; the Judge was satisfied that pleadings had to change as facts unfolded, eg divorce to nullity.
The Judge then went on to consider a number of authorities starting with a case of Rampal v Rampal (No 2)  2 FLR 1179 – a bigamist’s claim for financial relief by way of nullity was allowed.
Counsel for the respondent placed heavy reliance on the decision of Mr Justice Holman in Dukali v Lamrani  EWHC 1748 in which Holman J stated:
'… under English Law, a ceremony or event, which may have the characteristics or appearance of a marriage, may create a valid marriage, or a void marriage (that is, one which is capable of founding a decree of nullity under s 11 MCA 1973), or a "non-existent marriage" or simply a "non-marriage".'
The Judge referred to the comments made by Justice Bodey in Hudson v Leigh EWHC 1306 (Fam) wherein Bodey J stated:
'Questionable ceremonies should I think be addressed on a case by case basis taking account of a number of factors, including where the key participants, and especially the officiating official, believed, intended and understood that the ceremony would give rise to the status of lawful marriage under English Law.'
The Judge found that although the ceremony carried out in August 2003 did not give rise to a valid marriage, the fact that the parties intended and believed that this was a valid ceremony of marriage was highly material when deciding this on a case by case basis. Therefore, he concluded that he was completely satisfied that the petitioner was entitled to the decree of nullity.
This case may appear at first reading to set a precedent for unregistered nikahs in the UK to be dissolved by way of nullity, thus paving the way for claims for financial remedy. However, it is clear the 1999 nikah was a ‘red herring’. Unregistered nikah marriages conducted in the UK are still ‘non-marriages’ and do not give rise to any financial relief. The nullity decree rests and falls on the Pakistan marriage of 2003, which was held to be voidable. This builds on the judgment of Moylan J in Asaad v Kurter  EWHC 3852 (Fam), in which an unregistered Syriac Orthodox marriage was held to be voidable and the wife could bring a claim for financial relief under English law.