In a case called Sahibalzubaidi v. Bahjat, the court grappled with whether to annul the marriage between a woman and a man based on an unusual ground, namely “fraud”. The woman claimed that in order to induce her to marry him, the man and committed fraud against her and her father, by misrepresenting that he had good character when he did not.
The man and woman were merely passing acquaintances while attending the University of Malaysia at the same time. As a devout Muslim, she could not date or have an in-depth conversation with him in that environment. However, when she returned to Canada to join her family, they continued to exchange emails and over time this led to a discussion of marriage. To her, “the most important thing in a potential husband was and is that he be honest, kind, moral and upright character and share my religious values which involve respecting me as his wife”, as she later told the court.
The man proposed to the woman by e-mail. She accepted – subject to her father giving his consent, especially since she was his only daughter. The father interviewed the man and his parents, and they gave him their assurances that the man possessed the character and qualities of a suitable husband for the woman.
The father approved the marriage, which took place in the customary manner involving both a civil ritual and a religious one. During that ceremony, the man promised to keep the woman safe, respect her, and take care of all aspects of her life. He also directly promised the woman’s father that he would keep her safe and respect her. The imam, who performed the marriage ceremony, told the man that if he tried to hurt the woman, she would have the right to make the marriage fasid, which means to have it annulled.
The court described the woman’s evidence as to what happened soon after:[The woman] deposes that upon his arrival in Canada, [the man’s] true character emerged, and had she known this she would have never agreed to marry him. [The man] breached his promise to keep her safe and respect her. … [T]he woman states:
He began to assault her, once even dragging her onto the front lawn of her parents’ house where everyone could see, which was a particularly debasing and humiliating act against someone of the [woman’s] cultural and religious background. The [man] threatened her and had her call his parents in Iraq to ascertain that, indeed, he had shot his father and broken his mother’s arm. The [woman] confirmed these facts with members of the [man’s] family, other than his mother and his father. He also implied that should she ever disobey him, a similar fate would await the [woman]. He would repeat the same complaint or instruction to her, not simply ad nauseum, but literally a hundred times a day in succession. He refuses to recognize that he has any kind of personality disorder and will not under any circumstances obtain professional help in order to deal with it.
In light of these developments, the woman asserted that both the man and his parents deceived her and her father. She asked the court to conclude that these facts were tantamount to fraud, which could form the basis for annulling the marriage entirely.
The court noted that fraud does not usually vitiate a marriage, unless it induces an “operative” mistake, for example, one relating to a party’s identity, or a mistake in understanding that the ceremony that is taking place is a legal marriage.
The mistaken identity factor that could justify an annulment might arise if, for example, party A is induced to marry B, believing that she is marrying C. Here, there was no such deception as to the man’s identity per se; the misrepresentations as to his character or personality traits did not fall within the traditional category of fraud.
The court accordingly rejected the woman’s annulment argument on this ground (although it did agree to annul the marriage on one of the other grounds she raised, namely non-consummation, and failure to comply with certain religious requirements).
For the full text of the decision, see: