In what is believed to be the first ruling of its kind in the UK, an Indian woman who had an arranged marriage with a mentally disabled British Sikh man has been warned that she faces life in prison if she were to sleep with her husband.
Justice Holman, sitting at the Court of Protection in Birmingham on Tuesday, said her husband lacked the capacity to consent to a sexual relationship.
"The fact that they are married to each other would be no defence. If she were to have any form of sexual intimacy with him, he would be the victim of a criminal act," he said in his ruling.
The woman, who cannot be named for legal reasons, had pleaded with the court not to annul her marriage to the man who is being cared for at a local authority home in the West Midlands.
Sandwell Metropolitan Borough Council had asked the court, which makes decisions on behalf of those deemed to lack capacity, to declare the marriage not recognised in England and Wales because the man lacked capacity to consent to the marriage.
However, the judge gave in to the woman's request and declined to annul the marriage, noting her wish to remain a wife and the pleasure her husband derived from her frequent visits to see him.
It is believed to be the first time that a British judge has allowed a marriage to continue despite finding that by law it never existed because the man lacked the capacity to consent to, or contract, a marriage.
Handing down his ruling, he expressed sympathy for the woman and emphasised that she was not responsible for the circumstances in which she found herself.
"Her position is a tragic one, which she bears with fortitude and dignity... Whilst marital sex and cohabitation are, of course, normal incidents of a normal marriage between people of normal capacity, neither is essential to a marriage," he said.
The court was told that the husband's mental disabilities dated back to babyhood and that he was unlikely to make any meaningful recovery.
His father, a leading figure in the British Sikh community who has since died, was the driving force behind the arranged marriage with a family in India, 'The Daily Telegraph' reported.
In 2009, the husband, now in his late 30s, was taken to Punjab by his parents.
The wife, some years his junior, was lame and the judge described them as two young people who "might otherwise have found it hard to marry".
The woman did not meet her husband before their wedding day and only realised that he was not like a normal person after the ceremony.
She said they had slept together on their wedding night and on a few occasions since.
"I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled," the judge stressed.
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