Regina v Bham: CCA 1965

A Mohammedan leader of a Muslim religious sect was charged with and convicted of the offence of solemnising a marriage other than in a licensed building. The service had been a Nichan in a private house, performed in accordance with Islamic law and would have created a potentially polygamous marriage.
Held: The Court allowed the defendant’s appeal against his conviction. He had never intended to effect an English marriage, nor had purported to do so. The Court described his counsel’s submissions as correct that:
‘ . . the Marriage Act 1949 . . is dealing throughout with marriages as known to and permitted by English domestic law . . It does not seem to the court that the provisions of the Act have any relevance or application to a ceremony which is not and does not purport to be a marriage of the kind that is allowed by English domestic law. That this was a ceremony under the Islamic law admits of no doubt . . but unless the ‘marriage’ purporting to be solemnised under Islamic law is also a marriage of the kind allowed by English law, it is not a marriage with which the Marriage Act 1949 is concerned . . What, in our judgment, was contemplated by this Act and its predecessors in dealing with marriage and its solemnisation and that to which alone it applies was the performing in England of a ceremony in a form known to and recognised by our law as capable of producing, when there performed, a valid marriage. For the Act to have any application to the ceremony, in our judgment, [it] must at least be one which will prima facie confer the status of husband and wife on the two persons.’
Thompson J stated that: ‘for the Act to have any application, the ceremony in our judgment . . must be at least one which will prima facie confer the status of husband and wife on the two persons’. As this was not the case, the conviction could not stand.

Judges:

Thompson J

Citations:

[1966] 1 QB 159

Statutes:

Marriage Act 1949

Jurisdiction:

England and Wales

Cited by:

CitedHer Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 17 October 2022; Ref: scu.648164