Sharma v Raval, 2016 ABQB 404

Court of Queen’s Bench of Alberta Citation: Sharma v Raval, 2016 ABQB 404 Date: 20160718 Docket: 1001 04160 Registry: Calgary Between: Lokesh K. Sharma and C. Shekhar Sharma Plaintiffs - and - Swasti Raval, Manish Raval, Sunjiv Raval and Jitesh Joshi Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.L.

Hunt McDonald _______________________________________________________ Positions of the Plaintiffs [ 1 ] Lokesh Sharma and Shekhar Sharma (“the Plaintiffs”) claim damages on the basis of fraudulent misrepresentation against the four Defendants, Swasti Raval, Manish Raval, Sunjiv Raval and Jitesh Joshi (the “Defendants”). The Plaintiffs allege that the Defendants made false statements to Lokesh Sharma and his family about Swasti Raval’s marital status and the relationship between her and the other Defendants, Manish, Sunjiv and Jitesh.

[ 2 ] The Plaintiff, Shekhar Sharma, passed away in May of 2010. Accordingly, the Plaintiff Lokesh Sharma was appointed as his litigation representative to conduct the litigation on behalf of his brother. [ 3 ] Lokesh states that he comes from a traditional Hindu family and that he would neither make a proposal to Swasti nor marry her had he known that she had previously been married. [ 4 ] Further, Lokesh denies not only knowing that Swasti and Manish were husband and wife, but also knowing that the two children, AR and SR, were their children.

Lokesh says he was told that Manish was the father of the two boys and that Manish’s wife had died in childbirth. As well, Lokesh says Swasti told him she had lost both her parents as they had died in a car accident. [ 5 ] The Plaintiff, Lokesh Sharma, alleges he and his family acted on the false statements that the three male Defendants made relating to their relationship to Swasti. Lokesh says he was told that Manish and Sunjiv were her brothers and Jitesh was her cousin.

Accordingly the male Defendants’ statements are alleged to have caused the Plaintiffs to plan, pay for, and carry out a traditional Hindu religious wedding ceremony in India on October 5, 2008 between Lokesh Sharma and Swasti Raval. [ 6 ] Lokesh testified that he and his brother Shekhar paid some expenses for the wedding while still in Canada prior to the couple’s departure for India on August 28, 2008.

After arriving in India, the Plaintiffs planned, paid for and carried out a traditional Hindu religious wedding ceremony in India on October 5, 2008. [ 7 ] Accordingly, the Plaintiffs claim the following from the Defendants: a) $30,000 damages for fraudulent misrepresentation of the various relationships;

b) damages for assault and battery, psychological loss and suffering;

c) damages for instigation of a false report to the police that Lokesh was harassing Swasti,; and

d) repayment of $30,000 to the Plaintiffs for expenses connected to the wedding between the Plaintiff, Lokesh, and the Defendant, Swasti, in India, including Swasti’s return transportation from India to Calgary;

e) the return of jewelry purchased by the Plaintiffs and given in good faith as traditional wedding gifts to Swasti in the approximate amount of $5,000 or damages in lieu thereof;

f) costs on a solicitor-client basis; and g) $10,000 in punitive or exemplary damages and any other relief that the court may deem fit. Position of the Defendants [ 8 ] Swasti Raval admits that she was married to Manish Raval and that they have two sons. They received a divorce on September 25, 2008. In addition, she admits that she was married in a traditional Hindu religious ceremony to Lokesh Sharma in India on October 5, 2008.

She denies all of the other Plaintiffs’ allegations, including any fraudulent misrepresentations, and asks that the Plaintiffs’ claim be dismissed with costs. [ 9 ] The Defendant, Manish Raval, admits that he is the ex-husband of the Defendant, Swasti Raval, but denies that they lived together as common-law husband and wife since their separation and divorce. [ 10 ] Sunjiv Raval admits only that he is the brother of Manish Raval; and denies making any representations as to his relationship with Swasti. [ 11 ] The Defendant, Jitesh Joshi, admits only that he is the cousin of the Defendants, Sunjiv Raval and Manish Raval.

He also denies making any representations as to his relationship with Swasti. [ 12 ] All the male defendants ask that the Plaintiffs’ claim be dismissed with costs. Background [ 13 ] Lokesh Sharma and Swasti Raval were married in Pathankot, the Punjab region of India on October 5, 2008. Both parties resided in Calgary, Alberta prior to their traditional Hindu wedding which took place in India. [ 14 ] Lokesh Sharma was born in the Punjab area of India and Swasti Raval was born in Tanzania.

Both had emigrated to Canada years previously and met in Calgary, Alberta. [ 15 ] Shekhar Sharma was the older brother of Lokesh Sharma. He attended the wedding and in fact paid for much of the expense associated with the wedding of Lokesh and Swasti. [ 16 ] Shekhar passed away in May, 2010 in Calgary. His brother, Lokesh, is acting as his litigation representative in these proceedings. [ 17 ] The other Defendants in these proceedings are Manish Raval, ex-husband of Swasti Raval, his brother, Sunjiv Raval and Jitesh Joshi who is the cousin of Manish and Sunjiv.

[ 18 ] All the parties speak Hindi and English. In addition, the Plaintiffs, Lokesh and Shekhar Sharma speak Punjabi. As well, all four Defendants speak Gujarati. [ 19 ] Before the wedding, Swasti Raval lived in a house on Ashworth Road in Calgary, Alberta with her husband Manish Raval and their two children, AR and SR. They divorced just prior to Swasti’s marriage to Lokesh. [ 20 ] Lokesh’s sister, Suman Sharma, a resident of Calgary, Alberta, was engaged to be married in India on October 1, 2008.

The Sharma family resident in Calgary (Shekhar, his wife Seema and their three children, his brother Lokesh, his sister Suman and their mother Tripura Devi Sharma) travelled to India for Suman’s marriage to Jaswant Sharma. [ 21 ] The groom, Jaswant Sharma was resident in Adial, India. He moved to Calgary, Alberta sometime subsequent to his marriage to Suman Sharma. [ 22 ] Suman Sharma married Jaswant Sharma on October 1, 2008 in Pathankot, India at the Venus Resort.

Their wedding reception was held the subsequent day at Adial, which is the bridegroom’s hometown located approximately 28 kilometers from Pathankot. [ 23 ] Lokesh Sharma and Swasti Raval were married on October 5, 2008 at the Venus Resort in Pathankot. Their reception was also held at the Venus Resort. [ 24 ] After Lokesh and Swasti’s marriage ceremony, they remained in Pathankot, India and stayed with Lokesh’s mother in a house occupied by the Sharma family. [ 25 ] Immediately following the wedding, Lokesh Sharma became sick with typhoid and was prescribed complete bed rest by the doctor he consulted.

Evidence of Lokesh Sharma [ 26 ] Lokesh is 34 years old and was born in India. He testified that in 2003, he emigrated to Calgary with his mother and sister. They were sponsored by his brother and sister-in-law Shekhar and Seema Sharma. [ 27 ] He works for CP Rail. He testified that on Sundays he hosts a Punjabi radio program on 94.7 FM. He claims he first spoke to Swasti Raval when she called into his radio program requesting a song. They first met in person in 2007. [ 28 ] He testified that after speaking over the phone, they formed a relationship. He said Swasti would sometimes call him about 40 times a day.

He testified that she wanted him to loan her money for books for her nursing course. [ 29 ] He says he gave her money and after meeting many times, they fell in love. During his testimony he claimed to have met Swasti only three or four times before their marriage, but upon cross-examination he agreed that it had been at least eight times. He testified he comes from a traditional Hindu family in which marriages are arranged by the family.

In his case, he testified that Swasti proposed to him. [ 30 ] Lokesh testified that when he first met Swasti, he was told by her that she was living with her two brothers, Manish and Sunjiv Raval and her cousin Jitesh Joshi. [ 31 ] She told him that there was conflict with her brothers and cousin. She said her family was harassing her. [ 32 ] Lokesh testified that he went to the Ashworth Road house and met Swasti's children. He says that Swasti told him that Manish’s two sons, AR and SR, also lived at the house.

She told Lokesh that Manish’s wife had died in childbirth. [ 33 ] He said eventually Swasti’s family conflict resolved and her family came to learn that he and Swasti planned to get married. [ 34 ] His family first met Swasti at the Namskar Restaurant on 16 th Avenue in Calgary in May 2008. Shekhar had met her previously. [ 35 ] They met at Namskar Restaurant to plan the wedding. He said Shekhar, his sister Suman, his mother Tripura Devi, Swasti, Manish and his two sons, his brother Sunjiv and his cousin Jitesh were all in attendance.

Originally he says that the wedding was planned for Calgary, but a few days later his brother Shekhar received a call from Manish insisting that the wedding take place in India. [ 36 ] Lokesh’s entire family was planning to travel to India in August in 2008 in order to prepare for his sister Suman Sharma’s wedding to Jaswant Sharma planned for October 1, 2008. [ 37 ] Lokesh testified that his brother Shekhar paid for Swasti’s airplane fare to travel to India as she indicated she had no money.

This was at a Tim Hortons subsequent to the Namskar restaurant meeting. [ 38 ] Lokesh testified that it was Shekhar who first suggested that if the wanted a traditional wedding, they should get married in India. Shekhar allegedly said "it will be more fun." Lokesh said to Swasti "If you love me – can we do wedding in India?" She agreed.

Upon cross-examination, he asserted that he wanted the wedding in India because that was what Swasti's family wanted. [ 39 ] Lokesh Sharma testified that prior to going to India his mother and sister took Swasti shopping in Calgary to buy her gold jewellery and clothes for a wedding gift prior to their marriage in India. [ 40 ] Lokesh said that his sister Suman and his mother Tripura Devi purchased expensive jewellery as engagement presents for Swasti before their departure from Calgary, and then upon arriving in Delhi they purchased gold jewellery for the wedding for Swasti.

Lokesh testified that Shekhar paid for the jewellery purchased both in Calgary and in Delhi. [ 41 ] Once they arrived in New Delhi from their flight from Canada, Lokesh testified that he, his mother and sister took Swasti to Jogson’s Jewellery Store in New Delhi to buy gold jewellery for their wedding.

In addition, he testified that silk clothing was purchased as well for Swasti. [ 42 ] In addition, Lokesh testified his family paid for their traditional Hindu wedding to which approximately 250 people were invited. [ 43 ] Costs claimed by the Plaintiffs in respect of the wedding include the cost to hire vehicles, the cost of a photographer to do both pictures and videos of the wedding, the golden jewellery purchased from Jogson’s Jewellers including gold earrings, nose pins, bangles and necklaces, clothing purchased for Swasti including Indian suits and saris, the cost of catering, the cost of fireworks, the cost of both lighting and the DJ, the cost of hiring a marching band and the cost of hiring the Venus Resort where the wedding ceremony and reception was held. [ 44 ] Lokesh testified that the marriage was consummated. [ 45 ] Right after the wedding, Lokesh became very ill with typhoid and was bed-ridden. [ 46 ] Lokesh was still very sick with typhoid on November 25, 2008.

Swasti said she would go out to the shops to get Lokesh some juice. He insisted that Swasti not leave the house as there were servants who could be sent. His mother had just departed from the Sharma home for a family funeral out of town. [ 47 ] He says Swasti left the house (without permission) when he was in the shower. When he finished his shower, Swasti was missing. She never returned home.

Lokesh testified he and his family immediately started searching for her. [ 48 ] Shortly afterwards, he testified he started receiving text messages from Swasti saying she had been kidnapped by people that she understood Lokesh had sent to take her away. She begged Lokesh to come and collect her. She told him she had been kidnapped, raped by two guards, she was on speed and had no clothes or food, and that they were threatening to sell her in Bombay. [ 49 ] Lokesh filed a missing person report relating to Swasti with the police in Pathankot.

He testified the police told him not to go and collect Swasti as they surmised that he might be kidnapped as well and held for ransom. [ 50 ] Lokesh also testified that when Swasti went missing from the Sharma home in Pathankot, approximately $11,000 worth of cash as well as gold jewellery, which were kept in a locked box in his mother’s bedroom, went missing as well. Lokesh said Swasti knew where the money and jewellery were kept. [ 51 ] She was missing from the Sharma home in Pathankot until December 3, 2008.

Lokesh testified Swasti frantically kept sending him messages wanting him to come and free her from the men who she alleged had kidnapped her. [ 52 ] While Swasti was missing, Lokesh was advised by the Pathankot police that their investigation had found that she had been married to Manish. He denies ever knowing that she had been married before. [ 53 ] Swasti eventually returned by train on December 3, 2008 and Lokesh picked her up at the train station.

On December 8, 2008 he took her to a magistrate to swear an Affidavit so that he could remove the missing person report which he filed with the police. [ 54 ] He testified that Swasti told him that she, Manish, Sunjiv, and Jitesh had planned her disappearance. [ 55 ] In cross-examination Lokesh denied that he ever met Swasti’s mother, Urmila Ramanuj, who Swasti testified was present at their families’ meeting at the Namskar Restaurant on May 17, 2008 in Calgary. [ 56 ] His version of events was that he did not know that Swasti was previously married prior to going to India, or that she had two sons.

He also testified that they had rarely been together and had never had any sexual relationship prior to their wedding in India. He did agree that he and Swasti had consummated their marriage prior to Swasti running away. [ 57 ] After returning to Calgary Lokesh testified that he received a phone call from Swasti indicating she wanted to meet; promising “we will give you the jewellery and the money back. Come to our house. We know what we did – you can’t do anything to us back here in Canada.” [ 58 ] He testified that on December 24, 2008 he and Shekhar went to the home located on Ashworth Road.

He said that Manish and Jitesh came out and got in their car to hold a discussion. The discussions became heated. They got out of the car. Lokesh said he dialed 911 to call the police but that Jitesh knocked his cell phone out of his hand. He testified that they got into a pushing and shoving match in front of the Raval home and that Shekhar received a scratch on his face. He said Sunjiv was pushing them. [ 59 ] The police soon arrived.

Lokesh said no criminal charges were laid. [ 60 ] Subsequently he said Manish filed a complaint with the police accusing Lokesh of slashing his tires. [ 61 ] Lokesh alleges fraud against Swasti, Manish, Sunjiv and Jitesh saying that they all lied and told untruths in terms of Swasti not having been married and that she had no children. Further she told him that Manish and she were brother and sister, and as well that Sunjiv was her brother. [ 62 ] Lokesh says he is claiming damages for the harm he suffered as a result of marrying Swasti.

He says she fraudulently misrepresented herself to him and that he never would have gone through a wedding had he known she had been previously married. He said he purchased her clothes and jewellery, although it was his brother Shekhar who actually paid. He claims damages for, or the return

of, the jewellery in his Statement of Claim.

Further, he says he is seeking justice for the indignities he has suffered, both mentally and physically, and accordingly claims punitive damages as well. [ 63 ] The Plaintiffs also claim the cost of sending their cousin with Manish Raval to see The Golden Temple when Manish attended at the wedding in Pathankot. [ 64 ] Lokesh Sharma did admit that he had loved Swasti Raval, but asserted that he was the victim of false statements which induced him to marry her. [ 65 ] Lokesh Sharma testified that all the amounts he is claiming for the costs of the wedding are solely for his and Swasti's wedding, and do not include any expenses for his sister Suman's wedding to Jaswant. [ 66 ] Lokesh said he and Swasti returned by plane to Calgary from their extended visit and wedding in India on December 11, 2008 together with Lokesh’s mother, Tripura Devi Sharma.

He said that once Swasti picked up her suitcase, she immediately left the airport without a word to him. Evidence of Suman Sharma and Jaswant Sharma [ 67 ] Suman Sharma is Lokesh’s sister. Jaswant Sharma is married to Suman and is Lokesh’s brother-in-law. [ 68 ] She testified, as did her mother, Tripura Devi Sharma, that she met Swasti, Manish, Sunjiv and Jitesh at the family meeting at the Namskar Restaurant in May 2008. Suman said Swasti told her and her mother that she had never been married before, had no children, and that her parents had previously passed away.

Suman said the purpose of the Namskar meeting was to talk about Lokesh’s marriage to Swasti. [ 69 ] Suman testified that originally they spoke about Swasti and Lokesh getting married in Calgary but later the venue changed to India at Swasti’s family’s insistence. [ 70 ] Suman was to be married to her fiancé Jaswant Sharma on October 1, 2008 in India.

She testified that about 400-500 people attended her wedding on October 1, 2008 held in Pathankot, and about 800-900 people attended the celebration the next day in Adial. [ 71 ] Suman testified she and her mother took Swasti shopping in Calgary to buy jewellery (a chain and rings) and fancy clothes as wedding gifts for Swasti prior to their departure for India. She testified her brother Shekhar paid for the gifts. [ 72 ] Suman testified that prior to their departure for India, Swasti attended Suman's high school graduation from Bow Valley College. AR and SR were with Swasti.

Suman says the boys called Swasti “Didi” which Suman says means older sister. [ 73 ] Suman testified that Manish introduced himself as Swasti’s brother at the Namskar meeting. She said that she was told Manish’s wife had died in childbirth having his youngest son. She said Manish got very emotional and that Sunjiv had to tell her family that news. Manish had both his sons, AR and SR, with him at the Namskar restaurant meeting.

She testified that Swasti’s other brother, Sunjiv and his cousin Jitesh were at the meeting as well. [ 74 ] She testified that she first met her husband Jaswant in mid-September 2008 when they shopped for their upcoming wedding in India. She said that hers was an arranged marriage and that Jaswant was a son of family friends in India and not related to her family although he has the same last name. [ 75 ] She testified that the family also took Swasti to Jogson’s Jewellers to purchase gold jewellery once they arrived in New Delhi, India.

She says they also purchased expensive clothing for Swasti for the upcoming wedding. [ 76 ] Jaswant Sharma testified that he and Suman and his parents met Manish on October 4, 2008 at Suman’s mother’s place in Pathankot. He says he and his parents were introduced to Swasti and Manish and were told by them that they were sister and brother. Jaswant said that Manish told him his brother Sunjiv was working and could not come to attend the wedding in India. [ 77 ] Suman testified that food for her wedding was provided by Jaswant’s family for her wedding reception on October 2, 2008 held at Adial.

She says any expenses claimed by Lokesh in this action were not expenses incurred for her wedding. She says she has no idea about wedding arrangements or expenses for Lokesh’s wedding. [ 78 ] Jaswant testified that he became engaged to Suman a few days before their wedding and that an engagement party had been held two or three months before their wedding. He said he met Suman prior to 2008 when she came from Canada to visit relatives in India.

Evidence of Tripura Devi Sharma [ 79 ] Tripura Devi Sharma, the mother of Lokesh and Suman, testified with the assistance of an interpreter. [ 80 ] She confirmed Suman’s testimony about meeting Swasti, Manish, Sunjiv and Jitesh and Manish’s children AR and SR at the Namskar Restaurant in Calgary. She said she was told that Manish and Sunjiv were the brothers of Swasti, and that AR and SR were Manish’s children. She testified Manish became very emotional when explaining that his wife had died in childbirth. She got the impression that all four Defendants had no other relatives.

She testified that all four Defendants arrived together to the restaurant. [ 81 ] Tripura Devi Sharma denied meeting Swasti’s mother Urmila at the restaurant. She commented “If she has already died how

could I meet her?” [ 82 ] Tripura Devi testified that Lokesh and Swasti’s wedding was first planned to be held in Calgary. She said Swasti’s family then refused to hold a Calgary wedding and telephoned Shekhar and insisted on holding the wedding in India.

She said she was present in the room when Shekhar received the phone call from Manish. [ 83 ] She confirmed that Manish performed the role of the parents at a traditional Hindu wedding at Swasti’s marriage to Lokesh. [ 84 ] Tripura Devi testified that Lokesh paid for the jewellery at Jogson’s in New Delhi, which she testified was purchased only for Swasti. [ 85 ] Suman had testified that Lokesh had paid for the jewellery but that Shekhar had given him the money.

Tripura Devi Sharma testified that they bought two sets of jewellery that were only for Swasti plus a dinner set comprising silver glasses, plates, spoons and a tea kettle. [ 86 ] Tripura Devi testified that after Swasti went missing on November 25, 2008 she was contacted by Lokesh and she immediately came back from her Auntie’s funeral which was a distance from Pathankot. [ 87 ] She spoke about the locker in her bedroom which she described as a small black box which was hidden in a cupboard. She said that the keys were right there and that she had left it locked.

She testified that the jewellery was missing when she returned from her Auntie’s funeral. [ 88 ] She testified that the family did not take jewellery on loan for Swasti’s wedding, but had purchased her jewellery at Jogson’s in Delhi. She says Swasti never returned the jewellery which was purchased for her. [ 89 ] Tripura Devi testified that she never would have let Lokesh married a divorced woman. She said “we would never have had this wedding. Divorced women are not welcome in my family.

She lied to us.” [ 90 ] She testified that the dinner set they purchased at Jogson’s in Delhi was taken by them when they travelled to Pathankot. She said it was put in the cupboard where the locker was kept. She says it was given to Swasti as part of the wedding ceremony and that Swasti took it when she went missing from the house at the time Tripura Devi was attending her Auntie’s funeral. She said she tried to speak to Swasti about the missing items but that Swasti didn’t answer. Evidence of Kanwar Kuldip Singh Jog [ 91 ] Mr. Jog testified with the assistance of an interpreter.

He testified that he has a jewellery store called “Jogson’s Jewellers” in Delhi. He said that he has known Lokesh for seven years and that Lokesh’s brother Shekhar was a friend of his son. Shekhar told Mr. Jog's son that his younger brother Lokesh was getting married and they were going to come to his jewellery shop in Delhi to purchase jewellery for the wedding. [ 92 ] Mr. Jog testified he was at the store with his manager at the time that the Sharma family, together with Swasti, came to shop in late August 2008.

He said they showed catalogues of jewellery to the Sharmas and that they ordered custom gold bangles. [ 93 ] Mr. Jog said the Sharmas purchased two sets (comprising earrings, a ring and necklace) of jewellery, and a ring plus a tikka (which is a head piece), another ring, two chains, and a nose ring. In addition, they purchased two silver anklets, toe rings and a silver dinner set as well as eight bangles. [ 94 ] Mr. Jog testified that his manager wrote up the invoices. He said that Lokesh’s mother paid some of the money at the time they attended at his shop, and the balance was paid by Shekhar to Mr.

Jog’s son in Calgary. [ 95 ] He testified that the eight bangles were custom ordered and had to be picked up later. He confirmed that Manish picked them up on October 1 or 2, 2008 at his store in New Delhi. He said Manish introduced himself as Swasti’s brother when he attended at the store. Evidence of Swasti Raval [ 96 ] Swasti married Manish Raval in 1997. They had two sons namely, AR born in 1998 and SR born 2000. She was born and married in Tanzania, but emigrated to Canada in 2001 and became a Canadian citizen in 2005. [ 97 ] She testified her marriage with Manish broke down as he was very controlling.

She was taking a Licensed Practical Nurse course at Bow Valley College, but later dropped out as she was not well supported by her husband at home. She and Manish divorced just prior to her marriage to Lokesh. [ 98 ] She testified that she met Lokesh at the Hindu temple in Calgary in September 2007. They formed a relationship. Manish found out about the relationship when he found a cell phone in her purse in October of 2007. She used this phone to maintain contact with Lokesh. [ 99 ] Manish became angry upon finding the phone and allegedly hurt Swasti's hand as a result.

A domestic violence investigation resulted in a no contact order of some sort being filed against Manish. [ 100 ] She testified that Lokesh knew that she was married and that the children were her sons. They were 9 years and 7 years old at

the time she and Lokesh met and Swasti testified that they went everywhere with her. [ 101 ] She testified that she and Lokesh were found by Manish in the master bedroom on Ashworth Road in January 2008. At the time, she had a restraining order against Manish, so he had taken up residence with his brother Sunjiv Raval. Manish attended at the home to pick up their sons to take them with him on a trip to Vancouver. [ 102 ] She testified that in the spring of 2008 she met Lokesh’s brother Shekhar and his sister Suman when they went for ice cream to Cochrane.

Additionally, she attended Shekhar’s son’s birthday party with her sons at Chuck E. Cheese’s in August 2008. This was later confirmed by the testimony of Shekhar's widow Seema. [ 103 ] She testified she and Lokesh saw each other mostly on weekends as Lokesh was out of town working during the week. She said “we were in a romantic relationship. He came to the hospital when she ingested a bottle of Tylenol. He told me he loved me.” [ 104 ] It is her evidence that they decided they wanted to get married. Lokesh’s evidence was that she proposed to him and her version is that he kept asking her to marry him.

Swasti testified that Lokesh sent a photo of himself to her on a cell phone with him holding a gun to his head. She said she feared she could be the cause of his death if she didn’t agree to go to India with him. [ 105 ] She testified that her mother came to visit from Florida in May 2008 once she realized that Swasti was having marital difficulties with Manish.

Swasti says that her mother, Urmila attended at the Namskar restaurant to meet Lokesh and his family on May 17, 2008 prior to returning to Florida. [ 106 ] As they only had one car, she said Manish dropped them off at the Namskar restaurant and then left to pick up their sons from a birthday party.

He then returned about one hour later to the restaurant and sat and visited for a while and then provided a ride home for Swasti and her mother Urmila. [ 107 ] Swasti testified that originally she and Lokesh had talked about getting married in Calgary. [ 108 ] She testified that they only decided to get married in India during the course of the flight over, and that Lokesh and Shekhar made all of the arrangements .

She was not included in making any of the wedding plans once she arrived in India. [ 109 ] She also denies ever shopping for jewellery and clothes with Suman and Tripura Devi Sharma in Calgary prior to leaving on the trip to India. [ 110 ] Lokesh insisted that she should come to attend his sister Suman’s wedding with him in India.

When she replied that she could not afford to, he indicated that his brother Shekhar would purchase her a ticket so that she could attend with Lokesh. [ 111 ] Swasti confirmed that she was given a wedding necklace and ring to wear at her wedding when she was in India. [ 112 ] She complained that once she arrived in India she was not allowed by Lokesh or his mother to leave the house. Lokesh said it was too hot. [ 113 ] Particularly, once she got to Pathankot, she said she was never allowed to leave the house alone.

She testified she was allowed on a few shopping trips with Seema to buy some clothing with long sleeves that Lokesh required her to wear (Indian suits), and to buy some clothing for his sister’s wedding. Lokesh insisted she must follow his culture. He also kept her passport. [ 114 ] She testified she was not allowed to invite her mother or sister to her wedding. The only guest that was invited from her side was her ex-husband, Manish Raval.

Shekhar invited him to attend. [ 115 ] Swasti says that before the wedding when she was in Pathankot, she was emotionally abused by Lokesh, was lonely and was not allowed to phone her children. She testified that she was required to wash clothes by hand, to clean, cook and to help serve. She testified she was required to treat Lokesh’s mother Tripura Devi like a goddess by praying to her daily. [ 116 ] She said that one time she had coffee with the wife of the owner who lived on the main floor of the house that the Sharma family was renting upstairs.

She says she was slapped by Lokesh for going out. [ 117 ] Swasti testified that the wedding jewellery that she wore during her Hindu wedding ceremony with Lokesh was rented from a bridal store in Pathankot. She said she returned the jewellery to Lokesh’s mother right after the wedding ceremony. She said the only thing she received as a gift was a wedding necklace and ring.

She denies ever receiving the chain and two rings which Lokesh testified that his mother and Suman purchased as engagement gifts for Swasti in Calgary just prior to their departure for India. [ 118 ] In cross-examination, she was required by the Plaintiffs’ counsel to look at the photos taken at the wedding which Lokesh had produced as an exhibit. Plaintiffs’ counsel pointed out that she was wearing bangles. She said that she was never given gold bangles, but actually was wearing plastic bangles.

She acknowledged she was wearing earrings, but stated they were not gold. [ 119 ] Also, she testified that many of the bangles and the necklace that were shown in the photos that Lokesh said were given to her during her wedding with him were actually hers prior thereto when she was married to Manish. Ex 1, Tab 28. [ 120 ] She says the reason she fled from the Pathankot residence after her marriage was because Lokesh had tried to strangle her when he was mad. She testified that after the wedding Lokesh forced sexual relations on her and that he would never take no for an answer. He also threw a shoe at her.

She said she left in such a hurry that she left without any money or her passport which Lokesh was holding. She explained that when she ran away, she was “not in her right mind” and could no longer take the torture and abuse she was suffering. [ 121 ] Swasti says between not being able to invite her mother, sister or her children to her wedding with Lokesh, nor being allowed to contact her children while she was in India, that she was beside herself. She said that when she was physically abused by Lokesh after the marriage, that was the final straw that caused her to run away.

[ 122 ] When she returned to Pathankot after running away, Swasti said that Lokesh took the cell phone away from her at the train station. [ 123 ] She did not deny that she sent voicemail and text messages to Lokesh that are found in Ex 1, Tab 47 alleging she had been kidnapped, raped or threatened to be sold by her captors.

She said she just wanted to be alone with Lokesh and hoped he would agree to come to Bombay to save her. [ 124 ] When she returned to Pathankot after running away to Bombay, she said Lokesh took her to a magistrate who prepared an affidavit while Lokesh stood beside him dictating what to write. She said she signed the affidavit and was not allowed to read it before signing it.

She said she did so because she was told by Lokesh that an affidavit was required to withdraw the missing person report he filed with the police. [ 125 ] The India Non-Judicial Affidavit dated the 3rd day of December 2008 shown in Ex 1, Tab 9 was prepared subsequent to Swasti’s return to Pathankot. Swasti testified that Lokesh told her the Affidavit was required so that he could withdraw the missing person report he filed with the police in Pathankot. Swasti said she was not allowed to read the document before signing. A review of the Affidavit indicates many spelling errors.

Swasti’s name is not spelled correctly, her last name is stated as Manish, her father’s name is spelled incorrectly and her relationship with Manish, her ex-husband, is indicated as “her brother-in-law” when in fact he was her husband, or according to Lokesh’s version, her “brother”. [ 126 ] In cross-examination, Swasti confirmed that she had officially been divorced from Manish on September 25, 2008 on the basis of her adultery, namely that she had sexual intercourse in November 2007 with Lokesh. [ 127 ] Once she returned from Bombay after she ran away, she said she was slapped by Lokesh and required by him to remove her wedding necklace.

He gave it to his older sister, Bandita who lives in India. [ 128 ] After that, they soon returned by airplane back to Calgary. [ 129 ] She said once they cleared through Customs in Vancouver she got her passport back. Upon arrival in Calgary, after getting her luggage, Lokesh and his mother left. She said she had no choice but to phone Manish from the airport. He told her to take a cab to their Ashworth Road home and that she could stay in a bedroom in the basement, provided she agreed to pay room and board.

She testified that she and Manish did not live together as husband and wife after her return to Calgary. [ 130 ] She testified that she realized that once she got to the Ashworth Road home that all of her childhood pictures and photos of her, her cousins, aunt and uncle and mother were missing from her suitcase. [ 131 ] Swasti testified that she was treated for severe depression and has sought counselling since she returned from India early in 2009. [ 132 ] She testified that once she returned to Calgary, Lokesh starting stalking her everywhere.

Blank phone calls were made to the Ashworth Road home almost every night. There were also incidents of a window in the house and one in the car being smashed. Swasti explained that is why a complaint was filed with the Calgary City Police. [ 133 ] She says that the wedding photographs of their traditional Hindu wedding were taken by Lokesh after they returned to Calgary and shown around the Hindu temple in northeast Calgary. She testified that she has never received any of the wedding photos. As well, she said that Lokesh would turn up at the Raval’s Gujarati events and videotape them.

In addition, she states that some of the photos that Lokesh was showing people in the temple (which are included in Ex 1, Tabs 27 and 28 of this proceeding) are her personal photos from childhood and her journals and photos taken during her marriage to Manish. She stated that Lokesh must have taken them from her suitcase and requests that Lokesh be ordered to return them to her. She said Lokesh also showed a wedding album of photos taken at their wedding to her children at the Hindu temple in Calgary. She also said Lokesh tailgated her children to their school.

She and Manish reported these activities to the Calgary police. She said after that everything went quiet until the Plaintiffs issued a Statement of Claim. [ 134 ] In cross-examination Swasti confirmed that the Sharma family shopped at Jogson’s Jewellers in Delhi before proceeding on to Pathankot. She said that she never met Mr. Jog. One of his employees was there, and she was not told who the jewellery was being purchased was for. She said she assumed it was for Suman’s wedding. Evidence of Urmila Dilip Ramanuj [ 135 ] Urmila is the mother of Swasti.

Her husband died in 2003 and she is now remarried and living in Florida, USA. [ 136 ] She testified she came to Canada to visit as she was surprised when she was told that Swasti and Manish had separated. [ 137 ] She did not want Manish and Swasti to separate but by the time she got to Calgary it was already a fait accompli . Swasti told her that she was in love with "another guy", Lokesh. Urmila wanted to meet him, and Swasti told her that Lokesh's family wanted to meet her. [ 138 ] Urmila testified that she met Lokesh at the Namskar Restaurant on May 17, 2008.

She provided a copy of her passport to the court which was marked as Exhibit 2 confirming that she visited Canada from April 25, 2008 to May 19, 2008. [ 139 ] She testified that at the Namskar Restaurant most of the discussion was about Suman’s upcoming wedding in India. She acknowledged meeting the Sharma family, but was unable to converse with Tripura Devi as she does not speak Hindi. She was told that Lokesh and Swasti loved each other.

She testified that at the time of the restaurant meeting, there was no mention of their marriage. [ 140 ] She was never told about wedding plans, nor was she invited to attend Swasti’s and Lokesh’s wedding in India.

[ 141 ] In cross-examination Urmila said that when she came to Calgary her purpose was to get Swasti together with Manish again. Instead, she met Lokesh and his family and was told by Swasti that she and Lokesh were deeply in love. [ 142 ] She testified that she heard nothing about the wedding between Swasti and Lokesh until Swasti called her after she returned from India. She said that Swasti was “messed up”. Evidence of Seema Sharma [ 143 ] Seema is the widow of Shekhar Sharma.

They were married in February 1998. [ 144 ] Seema was presented as the first witness on behalf of the defendants, which caused the Plaintiffs’ counsel great consternation. [ 145 ] Counsel objected to the court hearing anything from Seema Sharma on the basis that the plaintiffs had no notice that she was going to be a witness at these proceedings. [ 146 ] A break was taken over the lunch hour so that Plaintiffs’ counsel could prepare submissions to make to this court citing the legal basis for his objection to the court hearing evidence from Seema Sharma. [ 147 ] No specific rule from the Rules of Court or case law was drawn to the court’s attention after the lunch break.

Counsel for the Plaintiffs indicated that he would deal with the matter in Argument. The hearing proceeded. [ 148 ] Seema emigrated with her family from India to Canada in 1988. She graduated from James Fowler High School in Calgary and currently works in airport security in Calgary, Alberta. [ 149 ] She married Shekhar Sharma in February 1998. He was then living in India. Seema sponsored Shekhar to come to Canada in December 1998. [ 150 ] The rest of Shekhar’s family emigrated in March 2003.

They lived with Seema and Shekhar until 2009. [ 151 ] Seema and Shekhar have 3 children who are currently 15, 12 and 10. [ 152 ] Seema worked while the children were young and Tripura Devi cared for her grandchildren while their parents were working. [ 153 ] Seema advised the court that Shekhar passed away on May 19, 2010 from alcohol together with carbon monoxide poisoning. He was talking to someone on the phone late during the night while parked in his car in the garage at their home. [ 154 ] Seema said that she and her husband Shekhar had a tumultuous marriage.

There were many incidents of domestic disputes between them. She testified that in May 2004, one of these disputes ended with her having to have 22 stiches to her leg. The fact that Seema was stabbed was confirmed by Suman when called for rebuttal although she gave no information as to the circumstances, other than to imply that this is when there began to be a rift between Seema and the rest of the Sharma family. [Transcript p. 42, line 28,29] In addition, she testified she received a beating with a shoe at the hands of Shekhar and Lokesh.

She explained that in the Indian culture that Shekhar and Lokesh came from, women have no say. [ 155 ] Seema testified that in the Sharma household, girls were treated like shoes except for their own daughter. [ 156 ] Seema confirmed she was at the Namskar Restaurant meeting in Calgary in May 2008 with her husband and their three children together with Suman, Lokesh and Tripura Devi. [ 157 ] Seema said Lokesh had fallen in love with Swasti Raval.

She testified that Swasti attended at the Namskar restaurant together with her mother, Urmila who was in town visiting from the United States. [ 158 ] Seema testified that initially Manish was not present, but did arrive later with his sons, AR and SR and joined them at the restaurant for about a half hour. He departed with his sons, Swasti and her mother, Urmila. [ 159 ] Seema states that most of the discussion at the meal was about Suman’s upcoming wedding in India. Seema said that there was talk of Lokesh and Swasti getting married, but there were no specific plans being discussed at that time.

Seema confirmed that she met Swasti’s mother Urmila at the Namskar Restaurant as well. [ 160 ] It was Seema’s testimony that Suman had been engaged to Jaswant since 2005. She testified that both she and Suman visited relatives in India in 2005. Seema says she attended Suman and Jaswant’s engagement celebration then. [ 161 ] She confirmed that Suman’s plans were that she would marry Jaswant at a traditional Hindu wedding ceremony in India on October 1, 2008 in Pathankot. [ 162 ] Seema testified that Lokesh’s family knew that Swasti had been married before.

She stated that Swasti brought her children to her son’s birthday party at Chuck E. Cheese’s in August, 2008 just prior to everyone’s departure for Suman’s wedding in India. [ 163 ] Seema said she was advised by Shekhar that there had been a dispute in Swasti’s family and that Swasti and Manish were getting a divorce. Seema said the first time she met Swasti was at the Namskar Restaurant in May 2008. [ 164 ] At the Namskar restaurant, she recalled Lokesh saying that if Swasti would marry him on the same trip as Suman’s wedding, that he would pay for the wedding.

Just prior to that time, Seema was informed by Lokesh that Swasti was taking licensed practical nurse training. Swasti told Seema at Namskar that she wished to complete her education prior to getting married to Lokesh.

[ 165 ] Seema testified that when she arrived in Pathankot that Swasti seemed upset as she was not allowed to go out of the house. Seema testified that the Sharma family didn’t want her talking to Swasti since she was viewed as a bad daughter-in-law. She testified that the reason she was a bad daughter-in-law was because she would not always do the Sharma family’s bidding. [ 166 ] Seema testified that she was not allowed to depart the house unless she had permission either from her husband or Tripura Devi.

She did admit that she and Swasti were given permission to go shopping to the market in Pathankot approximately twice for purposes of obtaining a wedding sari. [ 167 ] She testified that she and Swasti were allowed out of the house on a few occasions to do some shopping and eat pizza while they were in Pathankot. Seema testified that otherwise, she was busy looking after her children and could not remember all the particulars when asked in cross-examination. [ 168 ] Seema said she was required to cook, clean and wash clothes with Swasti and other staff hired by the Sharmas.

She was also required to serve food to the relatives who were there from the day of Suman’s wedding on October 1, 2008 and the days in between until Swasti’s and Lokesh’s wedding on October 5, 2008. It is for this period of time that the Plaintiffs claim for many wedding expenses. [ 169 ] She did concede that the Sharma family had rented her a servant to assist with the children’s care.

In fact, she confirmed that the servant carried her purse around as they had rented gold jewellery for her to wear for the weddings and that the jewellery was kept in her purse for safe keeping. [ 170 ] Seema testified that Tripura Devi kept the jewellery to be worn to the weddings at the home of Tripura Devi’s friend. [ 171 ] Seema also confirmed that she had never met Sunjiv Raval or Jitesh Joshi before coming to court to testify. [ 172 ] She said Swasti was depressed as she could not spend time with Lokesh alone, nor was she allowed to call her children who were back in Calgary. [ 173 ] She testified that she was at the Sharma home in Pathankot when Swasti gave back the wedding garments and rented jewellery to Tripura Devi.

Further, she says she was there when Swasti was required to handover her wedding necklace to Lokesh’s sister Bandita when Swasti returned from Bombay. [ 174 ] Seema testified that there were approximately sixty people staying at the Sharma house during the weddings. She said she was busy serving food and taking care of her children at the time. [ 175 ] Seema was open about the fact that her relations with the Sharma family had not been cordial since Shekhar passed away. There were previous law suits over issues which have a cast a dark shadow over family relations.

She said she was left penniless and there was a law suit over whether she would be able to retain the matrimonial home. There was also a fight with Lokesh over possession of Shekhar’s BMW vehicle which she says she had to give back to the bank as it was financed. [ 176 ] She testified she eventually received the matrimonial home as there was mortgage insurance. Later, she said she sold the home and moved to a different community in Calgary where she presently lives with her children. Evidence of Manish Raval [ 177 ] Manish was born in Tanzania and graduated high school there.

He testified that he married Swasti in 1997 and they have two sons who were both born in Tanzania: AR in 1998 and SR in 2000. [ 178 ] He and Swasti and their two sons emigrated eventually to Calgary in 2001. Shortly after coming to Calgary, he and Swasti purchased a home on Ashworth Road in southeast Calgary. [ 179 ] In November 2007 he discovered that Swasti was having an affair with Lokesh after discovering a cell phone in her purse. [ 180 ] Upon his discovery, they had an argument that got out of hand, resulting in a restraining order being granted against him.

Following the argument, Swasti ingested a bottle of Tylenol and was taken to the hospital by ambulance. The children were taken by social services for a short time, but then placed back with Swasti once she was out of the hospital. [ 181 ] Manish testified that it was at that point that marital relations between himself and Swasti ceased. [ 182 ] Manish testified that he first met Lokesh on January 5, 2008 when he attended at the Ashworth Road home to pick up the children. He and his brother and cousin were driving to Vancouver to place his mother’s ashes in the Pacific Ocean. She had recently died in England.

He had attended her funeral and returned to Calgary with his mother’s ashes. AR and SR were to travel with Manish to Vancouver for the ash dispersal. [ 183 ] He stated that he found Swasti and Lokesh half-dressed in the master bedroom. Lokesh protested his love for Swasti to Manish and said that he wanted to marry her. [ 184 ] Manish said he called his brother Sunjiv to come over to his house. They sat and talked with Swasti and Lokesh.

Lokesh kept insisting he loved Swasti and wanted to marry her. [ 185 ] After the initial shock of discovering the relationship of Swasti with Lokesh, Manish and Swasti agreed it would be best if they divorced so she was free to marry. He was allowed to move back into their Ashworth Road home.

[ 186 ] He said that shortly after that time he met Lokesh’s brother Shekhar at a Tim Hortons. He found Shekhar be a gregarious and pleasant fellow.

Lokesh and Swasti also attended. [ 187 ] Manish said that he and Swasti had an amicable and civilized divorce and that he attended the Parenting After Separation course which gave him an understanding of how important it was to deal cordially with your former spouse when there are children involved after separation and divorce. [ 188 ] Manish confirmed that his mother-in-law Urmila came to visit them from Florida in May 2008. [ 189 ] He says he dropped Swasti and Urmila off at the Namskar Restaurant where they were meeting with Lokesh, Shekhar and their family members.

He said he took his children to a short movie and then came back to pick up Swasti and his mother-in-law to provide them a ride home as they owned only one vehicle. He actually joined Swasti, Urmila and the Sharmas for about an hour and a half and ate some food as he felt he should be polite. [ 190 ] Manish testified during this time that he and Swasti were trying to do as well as they could for the sake of their children.

He said Lokesh would call the house to talk to Swasti and he would hand the phone over to her. [ 191 ] Sometime in August, Swasti told him that she was going to India with Lokesh to attend his sister Suman’s wedding. [ 192 ] Manish said that shortly after that, he received a phone call from Shekhar, Lokesh’s older brother, inviting him to come to India.

Shekhar told him that they were planning a wedding for Swasti and Lokesh on October 5, 2008 and it would be wonderful if he would come so there would be somebody attending from Swasti’s family. [ 193 ] He said that Swasti departed sometime late in August for India. He said he thought about Shekhar’s invitation for a while. He didn’t initially agree to go. However, around that time the International High Commissioner representative from India was attending Calgary and he was able to get a visa to visit India. On September 25, 2008 he booked and paid for his plane ticket to travel to India.

He thought it would be good for the children’s sake if he could communicate with Lokesh’s family given that Swasti was determined she would marry Lokesh. He had learned from the Parenting After Separation course how important it was to have normalized relations with the new spouse for the sake of the children. [ 194 ] He arrived in Delhi on October 2, 2008. Shekhar sent a taxi and driver to pick him up as he needed someone to go to Jogson’s Jewellers to pick up some custom jewellery that had been ordered by his mother and Lokesh. [ 195 ] Manish agreed to do so.

He said the taxi trip from Delhi to Pathankot took fourteen hours. He had to wait at Jogson’s Jewellers approximately two hours until the jewellery was ready and packaged in a 10” x 10” parcel for him to take with him to Pathankot. He arrived in Pathankot about 4:00 a.m. on October 3, 2008 and rented a hotel room. [ 196 ] He met Swasti and Lokesh later that day. He gave them the parcel he had picked up at Jogson’s plus gave them wedding gifts that he brought from Canada for both Suman’s wedding and Swasti’s wedding.

He was told to come well-dressed the next day and that a car would pick him up at 7:00 a.m. as there were pre-wedding rituals to attend. After the rituals ended around 11:00 a.m., Lokesh told him that he was sending a car to pick up his cousin in Amritsar who was coming to attend the wedding. He asked if Manish would like to go along as he could see The Golden Temple. Manish agreed. It was about a two hour taxi drive to Amritsar. The cousin and driver then took him to visit The Golden Temple that afternoon.

Later, they watched the border closing ceremony which was nearby, and then returned to Pathankot by 8:00 p.m. [ 197 ] He then proceeded on to the Venus Resort where the wedding reception was taking place for Lokesh and Swasti’s wedding. He said after dinner there was a dance party, and then the wedding ceremony started at 12:00 a.m. on October 5th. [ 198 ] In cross-examination, Manish agreed that he assisted happily with everything that he was asked to do. He said that he just wanted to do right for his children.

He testified that the wedding ceremony took place from 12:00 a.m. to 5:00 a.m. on October 5, 2008. [ 199 ] After the ceremony Shekhar invited him to move to one of the hotel rooms that he had reserved which was sitting empty. Manish said he gladly accepted as his hotel room didn’t have a shower. Shekhar was staying at the hotel as well. Seema and the children were staying with the other some fifty guests at the Sharma home. [ 200 ] After the wedding Manish said he slept until 6:30 or 7:00 p.m. He then walked around the city and bought some sweets for the children.

The next morning, he got up, had breakfast, shopped and met Lokesh and Swasti and members of the Sharma family for lunch around 1:30 p.m. Afterwards, he went back to the hotel, packed and was taken by taxi back to Delhi to catch his plane home. [ 201 ] He said that when he was leaving Pathankot he handed his cell phone, which still had minutes on it, over to Lokesh so they could have use of the balance of time left on the phone. [ 202 ] Near the end of November, Manish’s brother Sunjiv ran into Shekhar at the Hindu temple in Calgary.

Shekhar requested that Sunjiv tell Manish that he needed to call him right away. [ 203 ] Manish called Shekhar immediately. As requested, he went to meet Shekhar at Shekhar’s office in northeast Calgary. He said Shekhar was not his happy self and was certainly not joking around. Shekhar kept asking Manish where Swasti was. Manish replied that he had no idea as he had had no contact with Swasti since her wedding with Lokesh. He testified that shortly after, Lokesh called him from India asking where Swasti was. He replied that he had no idea where she might be.

He told Lokesh if he had any word he would call and leave a message. [ 204 ] He testified that he did not hear anything from Swasti until December 11, 2008. Swasti called him from the airport. She asked if she could come back to live at the Ashworth Road house.

[ 205 ] He testified it was apparent that something had happened to Swasti’s relationship with Lokesh. He agreed that Swasti could come back and live at the house, but that she would have to live in the basement bedroom and agree to pay him room and board. [ 206 ] Manish testified that Swasti was pale, thin and seemed to be very depressed when she arrived at their home. [ 207 ] Within days, Manish testified that a brick was thrown through their living room window and, as well, the rear window of his vehicle was smashed. [ 208 ] He testified that almost every night they received blank phone calls.

Someone would be on the phone, although not speaking, there would be Punjabi music playing in the background and then the phone would be hung up. [ 209 ] Manish says he didn’t file a police report after these incidents until such time as Shekhar or Lokesh started tailgating him home from the Hindu temple down Deerfoot Trail to his house. He said that either Lokesh or Shekhar would drive very fast flashing their lights, then pull into the lane beside him and then cut quickly into the lane in front of his car. His children were often in the car.

Between that, and Lokesh driving by the house on Ashford Road at all hours, Manish said he and Swasti decided to contact the police to make a harassment report. [ 210 ] On Christmas Eve, December 24, 2008 Manish received a phone call prior to dinner from Shekhar insisting that he come meet him at the Tim Hortons near his house. [ 211 ] His cousin Jitesh arrived at his house just as he was leaving, so Jitesh accompanied him. [ 212 ] Swasti was home making Christmas Eve dinner to which his brother Sunjiv, his family and Jitesh were invited to attend. [ 213 ] Manish described Shekhar as being very drunk and surly.

Lokesh was with him as well. They kept asking why Swasti had done this to them. Manish replied he didn’t know, and perhaps they would like to come to the house and talk to Swasti. [ 214 ] After approximately two hours making no progress in the discussions, and Shekhar being so drunk that he made no sense, he and Jitesh left for home. Lokesh and Shekhar followed them in Lokesh’s vehicle. Lokesh and Shekhar parked in front of the Ashworth Road home and insisted that they weren’t finished talking. Manish and Jitesh again got into the back seat of Lokesh’s vehicle to talk.

Manish said they still weren’t making any sense and Shekhar swore at his mom, so he said “now I’m done” and got out of the car to leave. He said Lokesh got out of the front seat and pushed him to the ground. He said he did not see anything in Lokesh’s hand. Shekhar got out of the driver’s side, but slipped on ice and fell to the ground. [ 215 ] The rest of the Raval family were looking out the front living room window of the house. They called the police. The police arrived immediately and broke up the parties. They interviewed all the parties and sent the Sharmas home.

They did not file any charges. [ 216 ] Manish Raval confirmed that he and Swasti were divorced officially on September 25, 2008 by virtue of Swasti admitting to adultery so that they could obtain a divorce on a rush basis. [ 217 ] In order to obtain a rush divorce, both parties had to sign an undertaking agreeing not to appeal the divorce judgment. [ 218 ] Manish denied that he or his family insisted that Swasti get married with Lokesh in India.

He says he was told by Shekhar that Lokesh and Swasti were going to get married in India and it was then that Shekhar invited him to the wedding in India so that Swasti would have someone in attendance from her side. [ 219 ] Manish also denies ever introducing himself as the brother of Swasti or ever saying that Swasti’s parents had both passed away. [ 220 ] Further, he says they never referred to each other as brother and sister or said that Sunjiv was their brother. [ 221 ] Manish denies that the taxi trip up to Amritsar was planned solely to take him on a trip to see The Golden Temple.

He confirmed that he was invited along because there was a taxi being sent to pick up Lokesh’s cousin who lived in Amritsar to come to the wedding. Manish says it was the Sharma family, particularly Shekhar, who asked him if he would like to go. He indicated they would show him The Golden Temple while they were there. [ 222 ] Manish said the only thing he knew about Swasti and Lokesh falling out was when Swasti arrived back from India and asked to come back to their home.

She told him that her marriage with Lokesh was not working. [ 223 ] Manish denies that he had claimed any role in the disappearance of Swasti or had any awareness of or any discussion with Swasti about the missing jewellery or money which was allegedly taken from the Sharma home in Pathankot. [ 224 ] Manish did agree he played a role in some rituals relating to Swasti and Lokesh’s wedding. He said that he did what Shekhar requested as he was the only member from Swasti’s side of the family attending the wedding. Evidence of Sunjiv Raval [ 225 ] Sunjiv Raval is the brother of Manish Raval.

He emigrated to Canada at the same time as Manish, in September 2001. [ 226 ] Sunjiv says he never attended a wedding lunch or dinner at the Namskar Restaurant with the Sharma family. [ 227 ] He says the only time he met Lokesh was at Manish’s house in January 2008. Manish had been living with him due to the no contact order in place between him and Swasti. Manish called him to come over to the Ashworth Road house as he had just found Swasti and Lokesh half-dressed in the master bedroom together

[ 228 ] Manish had gone to pick up the boys to go and scatter Manish and Sunjiv’s mother’s ashes in the Pacific Ocean. They planned to drive to Vancouver that day, disperse their mother's ashes into the Pacific Ocean and then immediately drive back to Calgary. [ 229 ] In November 2008 he ran into Shekhar at the Hindu temple in Calgary. Shekhar told Sunjiv to have Manish call him immediately. [ 230 ] He said the next time he saw Lokesh and Shekhar was on December 24, 2008 when Lokesh and Shekhar parked their car in front of Manish’s house when they were about to have Christmas Eve dinner.

The Raval family was watching from the living room window of Manish’s home. [ 231 ] Sunjiv said he ran out in bare feet to pick up Manish as Lokesh had pushed Manish to the ground after getting out of the car. [ 232 ] Other than that, he testified that once he was driving with Manish to Manish’s home when Lokesh tailgated them from the Hindu temple down Deerfoot Trail. [ 233 ] Sunjiv denied ever saying to any of the Sharmas that he and Swasti and Manish were brothers and sister or that their parents were deceased or that Swasti had never been married.

Evidence of Jitesh Joshi [ 234 ] Jitesh Joshi is the cousin of Manish and Sunjiv Raval. He emigrated from Bombay to Calgary. He is related to Sunjiv and Manish as his mother was their father’s sister. [ 235 ] Jitesh testified that when Manish went to India to attend Swasti’s wedding to Lokesh, he stayed at Manish’s home to babysit AR and SR. He remained living with Manish until such time as Swasti returned home from India. [ 236 ] He testified that on December 24, 2008 he was invited to Manish’s home for dinner. Manish was just leaving the house as Jitesh arrived.

He said he received a phone call and had to go meet with Shekhar and Lokesh Sharma as they insisted on talking to him. [ 237 ] Jitesh said he tagged along as he didn’t think that Manish should go alone to meet with the Sharmas. [ 238 ] Jitesh testified that at the Tim Hortons parking lot meeting that Shekhar did all of the talking.

Shekhar kept asking “why did Swasti do this to us?” He testified that Shekhar was very drunk and Manish kept saying, “look, don’t involve me and my kids in whatever this is and no, I can’t tell you why, why don’t you ask Swasti?” [ 239 ] Shekhar kept saying “I know the best lawyer in Calgary, and I know the mayor and you will be sorry for crossing us.” [ 240 ] After approximately an hour and a half Jitesh says he got a call on his cell phone from Swasti saying that dinner was ready and they should come home.

At that time, Manish was in his car with Shekhar trying to talk to him. [ 241 ] Jitesh said he was sitting in Lokesh’s car while the other two talked. Jitesh testified that Lokesh told him that “we know everyone in Calgary.” Jitesh said while he was sitting in Lokesh’s car, Lokesh said to him that they were very important people and that he had a gun in his car. He said Lokesh kept interrogating Jitesh about his knowledge of what happened in India. Jitesh said he had no idea. [ 242 ] Manish eventually came back from his vehicle indicating he was returning home.

Jitesh said he and Manish decided there was no point any longer in trying to talk the matter out with Shekhar and Lokesh because they were getting nowhere. On the way home, Jitesh realized that Shekhar and Lokesh were following them in Lokesh’s car. The Sharmas parked in front of the Raval home. [ 243 ] Jitesh testified that Shekhar insisted that he wasn’t finished talking yet. Manish relented and said “let’s try one more time.” They got into Lokesh’s car. Apparently the discussion was again going nowhere. Suddenly Shekhar made a rude comment about Manish’s recently departed mother.

Manish then decided he had had enough, got out of the car, after which the other parties followed. Then, Jitesh said, Lokesh pushed Manish to the ground. Shekhar got out of the car, but slipped on the ice and fell to the ground. Meanwhile, the people watching from inside the house, namely, Sunjiv and his wife and family and Swasti and children called the police. Sunjiv came running out in bare feet to help Manish up off the ground.

Jitesh said that he told Lokesh “no fighting please.” Jitesh said he did not push or have any physical altercation with the Sharmas. [ 244 ] Suddenly the police pulled up, interviewed all parties, searched for a gun and sent the Sharmas home. No charges were laid. Rebuttal Evidence [ 245 ] Plaintiffs’ counsel vociferously opposed the Defendants calling Seema Sharma as a witness.

Because the Plaintiffs had not had the opportunity to adduce evidence relating to Seema Sharma from their witnesses, the court ordered that the Sharmas were allowed to call rebuttal evidence. [ 246 ] Accordingly, Lokesh, Suman and a sister-in-law of Seema’s named Kavita Bali, (who took the stand with the assistance of a Punjabi interpreter) provided rebuttal testimony. Lokesh and Suman went over the same story that they had given in their evidence in chief.

They did not call Seema’s testimony into question except for the fact that an invoice was entered by Lokesh showing that he had paid for his brother Shekhar’s funeral on his visa. Seema had given evidence that her mother had paid cash to the Hindu temple for the funeral for Shekhar. Other than the funeral bill, their only rebuttal was to say Seema was an untruthful witness with an axe to grind due to the falling out in the family.

[247] Suman denied that Shekhar was an alcoholic, or that he was ever drunk or beat up his wife. Suman testified that Shekhar woulddrink beer, but never alcohol. Further, Suman denied ever getting engaged to Jaswant in 2005. She repeated her assertion that she becameengaged to Jaswant just shortly before she departed for India for her arranged wedding. [248] Kavita Bali, the sister-in-law of Seema, gave evidence that Seema was a liar. She said there was tension all the time whenSeema was around.

She said her husband, who is Seema’s brother, doesn’t like Seema. [249] She testified that Seema and Shekhar quarrelled all the time but she denied knowing anything about stabbings, bruises,abrasions, which Seema testified receiving at the hand of Shekhar. Issues [250] This pleadings in this case give rise to a number of issues. As a preliminary matter, I will address the admissibility of testimonyby Seema Sharma. The following issues then arise:

a) The plaintiffs seek damages for fraudulent misrepresentation inducing marriage. Is there a legal basis for such a claim? i. If so, are the plaintiffs limited to special damages in such a claim? ii. Are general damages available for such a claim? iii. Are damages available for psychological loss and suffering for such a claim? iv. Are punitive or exemplary damages available for such a claim?

b) If it is open to the plaintiffs to plead fraudulent misrepresentation inducing marriage, have the plaintiffs proved their case on abalance of probabilities?

c) The plaintiffs seek damages for assault and battery. Have they made out their case?

d) What is the legal basis for the plaintiffs’ claim for the return of jewellery allegedly given as wedding gifts?

e) Can the plaintiffs sue for damages based on the laying of a police report by the defendants?

f) What is the effect of the Survival of Actions Act RSA 2000, S-27 on the Plaintiff Shekhar Sharma’s claims?

Seema’s Appearance for the Defence [251] Counsel for the Plaintiffs vehemently objected to Seema Sharma being able to give evidence in these proceedings. [252] It is my view that the strong objection had everything to do with the Plaintiffs not wanting the Court to hear the truth. [253] I acknowledge that calling Seema Sharma may have come as a surprise to the Plaintiffs’ side, but I gave more than adequatetime for the Plaintiffs to prepare for cross-examination once evidence was given by Seema Sharma on the second Friday of the trial.

Thehearing was adjourned to the following Tuesday to allow the Plaintiffs sufficient time to prepare cross-examination.

As well, they wereallowed to call rebuttal witnesses to contradict the evidence provided by Seema Sharma. [254] Plaintiffs’ counsel argued that Seema Sharma’s evidence should not be accepted by the Court given that the Plaintiffs did nothave the opportunity to adduce evidence from his witnesses on items later spoken to when Seema Sharma gave evidence, and that thiswas contrary to the rule laid down in the well-known case of Browne v Dunne, (1893) 6 R 67. [255] In Browne v Dunne, Lord Hershel stated when it is intended to suggest a witness is not speaking the truth on a particular point,to direct his attention to the fact by some questions put in cross-examination that the imputation is intended to be made, and not to takehis evidence and pass it as a matter altogether unchallenged, and then, when it is possible to explain, as perhaps he might have to do ifsuch questions had been put to him, the circumstances which it is suggested indicate the story he tells ought not to be believed, to arguethat he is a witness unworthy of credit. [256] The final statement by Lord Hershel was accordingly, if counsel is considering the impeachment of the credibility of a witnessby calling independent evidence, the witness must be confronted with evidence in cross-examination while he or she is still in the witnessbox.

In these proceedings the Plaintiffs’ were not told of the anticipated attendance of Seema Sharma to give evidence on behalf of theDefendants. [257] The purpose of the rule in Browne v Dunne is to ensure procedural fairness. Some decisions in which it has been consideredhave focused on the importance of the Crown/plaintiff not being allowed to effectively split their case.

Here, that is not an issue as theunexpected witness was called by the Defence. [258] The Supreme Court of Canada in R v Lyttle, 2004 SCC 5 , [2004] 1 SCR 193, confirmed that the rule is not absolute,but is grounded in common sense and fairness to the witness and the parties.

The Court affirmed that it is a matter of discretion as to howthe trial judge deals with the failure on the part of counsel to confront a witness in cross-examination before impeaching the witness bycontradictory evidence. [259] I am satisfied that the credibility of the Plaintiffs’ witnesses was vigorously challenged at the time of giving their evidence. In

addition, the Plaintiffs were given, and took, the opportunity of calling rebuttal witnesses to contradict Seema’s evidence. Both Sumanand Lokesh were recalled, and an additional rebuttal witness, Kavita Bali, was also called. [260] The recent Court of Appeal case, R v Werkman 2007 ABCA 130, cited with approval the line of cases which indicates that asuitable remedy for breach of the rule in Browne v Dunne is allowing the wronged party to call witnesses in reply. Accordingly, Ibelieve that the Plaintiffs counsel’s concerns have been fairly addressed by the court.

Fraudulent Misrepresentation Inducing Marriage [261] The court must first determine whether there is even any legal basis for the claims made by the Plaintiffs for the costs ofputting on a wedding and the psychological strain Lokesh suffered when his wife ran away just subsequent to their wedding while theywere still in a honeymoon period. [262] Derry v Peek (1889), 14 App Cas 337, established the elements of the tort of deceit and they have not changed in any significantway since.

However, the first question I must answer is not whether the plaintiffs have made out the elements of fraudulentmisrepresentation, but whether it is open to them to plead it in the context of inducing marriage. [263] Historically, the courts have chosen restraint when faced with claims of fraudulent misrepresentation inducing marriage. Caselaw regarding misrepresentations as to the character of a spouse is quite clear.

As a matter of public policy, the deceived party is notentitled to damages for fraudulent misrepresentation. [264] Generally, an allegation of fraudulent misrepresentation inducing marriage has only been allowed to stand as a cause of actionwhere the validity of the marriage itself is affected such as in cases of bigamy or false identity. [265] Brennen v Brennen, (1890), 19 OR 327 (Ont HC), established the law in this regard. In that case, a wife sued her husband’sparents and brother.

She alleged false misrepresentations as to the husband’s character and financial standing had induced her to enterinto the marriage. In his judgment, Falconridge J. noted that the concealment of previous unchaste and immoral behaviour could not ingeneral vitiate a marriage. At pp. 337-8, he further said: The maxim “ caveat emptor” seems as brutally and necessarily applicable to the case of marrying and taking in marriage as it is to thepurchase of a rood of land or of a horse. […] A fortiori, the present action cannot be maintained.

There has been a change of the position of the parties which can never be revoked.They can never be replaced to their original status; and it would be against public policy, against public morals, and fraught with thegreatest damage to the most sacred of the domestic relations, if the plaintiff should be held entitled to succeed. [266] Falconbridge J. went on to hold that it would be against public policy to allow one spouse to sue the other’s family for falserepresentations as to the attributes of that spouse.

He concluded, at p. 338: She took her chances and must now, as far as this Court is concerned, read into her contract the words “for better for worse, for richer forpoorer.” [267] There is a virtually unbroken line of cases endorsing the principles set out in Brennen v Brennen. [268] Christian v Gorgas, (ON SC), [1939] 3 DLR 350 (Ont HC), affirmed (ON SC), [1939] 3DLR 778 (CA) involved an arranged marriage. The wife and her mother sued the husband’s parents for fraudulent misrepresentation.

Itwas alleged that the defendants had misrepresented the husband as a fit and healthy young man and that as a result the plaintiff wife hadmarried him. In fact, the husband suffered from epilepsy, and the wife claimed that he was also impotent. The judge noted that in fiftyyears, no case in the reports suggested any different view than that expressed in Brennen v. Brennen. [269] In Phillips v Phillips, (ON SC), [1962] OR 242 (Ont SC) a wife sued her husband for fraudulentmisrepresentation and deceit arising from misrepresentations made by him in regard to his financial position.

She claimed to havemarried him based on those representations. Specifically adopting the principles enunciated in Brennen, the judge struck out the wife’saction. [270] The leading modern case on this issue is Said v Said , (BC CA), 1986 CarswellBC 375, [1987] 1 WWR 691(BCCA).

The facts in Said are very similar to those of the case before me. [271] The plaintiff wife and defendant husband were both Muslim. [272] Under Muslim law, a man is entitled to have more than one wife, however, prior to marrying a second time, he must obtain theconsent of his first wife and must disclose the first marriage to the proposed second wife. Prior to getting married in Canada, thedefendant failed to disclose that he had gone through a Muslim marriage ceremony in England. [273] That marriage was not valid under either English or Canadian law, but was still in effect under Muslim law.

The parties livedtogether for only a few days, and then the husband returned to England. [274] The wife and her parents sued the defendant and various other members of his family on the basis that his failure to disclose hisprior marriage was a deceit giving rise to damages. [275] The plaintiffs further alleged that the defendant had made an express representation that he had legal status to enter into a

marriage. In addition, they claimed that the defendant had married the plaintiff only for immigration purposes [276] The plaintiffs claimed that the wife had suffered loss of reputation and that her chances of marriage had been prejudiced. Theyalso claimed special damages for wedding costs, engagement expenses and gifts to the husband, among other expenses. [277] Initially, a chambers judge dismissed the claim against the husband on the grounds that it was statute-barred due to s 10(3) ofthe Married Woman’s Property Act, RSBC 1979, c 252 which provided for interspousal tort immunity.

He dismissed the claim againstthe defendant’s family members on the ground that there is no duty to disclose uncomplimentary matters with regard to a third person.He found that the case law was determinative that there is no such cause of action: Said, para 17. [278] On appeal, the court made its decision on public policy grounds. In dismissing the appeal, McFarlane J.A., speaking for thecourt said,: The dearth of authority in support of the appellants’ submission is not surprising. The courts are involved in the results flowing frominvalid marriages, from divorce, and from broken marriages.

The courts cannot become involved in inquiries relating to the quality of amarriage, the motives and expectations of the parties, the reasons behind the marriage, matters of conscience, and the theological impactof the union upon the parties to a failed marriage. If the marriage is valid, all these concerns are collateral, not actionable. The parties toa valid marriage ought to be left alone to work out their differences with respect to such collateral questions. Third parties must live withtheir mistakes.

The parties to the marriage have their remedies under the Divorce Act, the Family Relations Act and otherwise. [para. 33] [279] The importance of the public policy issues that arise from such claims cannot be overstated. In Frame v Smith, (SCC), [1987] 2 SCR 99, the Supreme Court of Canada cautions that claims in tort should be introduced to family law sparingly and onlyafter ample consideration has been given to the broader effect that judicial approval of the tort would have on the matrimonial litigationgenerally. [280] In that case, a divorced husband sought damages for interference with his access rights.

Although Wilson J. dissented, hercomments that such a tort would be “tailor-made for abuse” was expressly approved by the majority.

In addition, she commented thatextending the tort of intentional infliction of mental suffering to the matrimonial arena would provide an ideal weapon for one angryspouse to use against another. [281] Three relatively recent cases relevant to the existence of the cause of action were provided by counsel, one from Alberta andtwo from British Columbia. [282] Plaintiffs’ counsel also cited the line of bigamy cases in which damages were recoverable: Graham v Saville, (ON CA), [1945] OR 301 (Ont CA); Beaulne v Ricketts, (AB KB), 1979 CarswellAlta

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