Three senior appeal judges have refused to recognise an “over the telephone” Muslim marriage between an autistic British man and a woman in Bangladesh — even though the union is valid according to sharia or Islamic law.

The 26-year-old man, domiciled in England and identified only as IC, does not function above the level of a three-year-old and is said to be highly suggestible and vulnerable.

His parents, originating from Bangladesh but resident in England for many years, arranged for him to be married by telephone link to a bride chosen by them in Bangladesh with a view to his new wife, referred to as NK, obtaining a visa and joining him in this country.

The marriage was valid under sharia and the law of Bangladesh and, according to Islamic law, had taken place in Bangladesh.

Lawyers for the parents argued that it should therefore be recognised in English law.

Giving judgment in a case brought by Westminster Social and Community Services Department, which provides care for the man, the Court of Appeal said IC was unable to give valid consent to marriage under English law.

He lacked the capacity to marry and consent to sexual intercourse.

In some previous cases, the courts had recognised foreign marriages on the basis that the law which applied was either that of the intended matrimonial home or the country to which the marriage had the greater connection.

The appeal judges said that, were either of these tests to be applied in this case, the relevant law would still be English law, under which IC’s marriage could not be recognised due to his incapacity.

IC’s future welfare will be decided by a High Court judge later this year.

IC and NK have never met and are unlikely ever to meet. A court order prevents contact.

The judges refused the parents permission to appeal to the House of Lords.

Lord Justice Thorpe, sitting with Lord Justice Wall and Lady Justice Hallett, said the local authority had been supporting and protecting IC since the age of four. He received home care five mornings a week before attending a day centre, plus a high level of respite care.

“The role of marriage in the life of one so handicapped is inconceivable in our society, and as a matter of law marriage is precluded,” the judge said.

The Muslim ceremony took place in September 2006.

The judge said the marriage arranged by IC’s parents was “potentially highly injurious”.

IC lacked the capacity to understand the introduction of NK into his life, which would be “likely to destroy his equilibrium or destabilise his emotional state”, he said.

“Were IC’s parents to permit or encourage sexual intercourse between IC and NK, NK would be guilty of the crime of rape under the Sexual Offences Act.

“Their engineering of the telephonic marriage is potentially if not actually abusive of IC. It is the duty of the court to protect IC from that potential abuse.”

Lord Justice Wall pointed out that, in Bangladeshi culture and Islamic principles of welfare, the marriage was a means of protecting IC and ensuring he was properly cared for within the family when his parents were no longer able to do so.

By contrast, to the mind of an English lawyer such a marriage was exploitative and abusive.

The judge held that the marriage was “sufficiently offensive to the conscience of the English court that it should refuse to recognise it and should refuse to give effect to the law of Bangladesh and sharia”.

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