Texas court of appeals recognizes Pakistani Islamic divorce

|The Volokh Conspiracy |

1. The basic facts:

Fariha [Ashfaq] and Mohammad [Ashfaq] were married in Pakistan in December 2007. After the marriage, Mohammad spent a few months with Fariha in Pakistan, then returned to his home in Fort Worth. Fariha remained in Pakistan until June 2009, when she was granted a visa to join Mohammad and traveled to the United States. Fariha and Mohammad then lived together in Fort Worth as husband and wife.

In late 2009, however, Mohammad divorced Fariha under Pakistani law, in Pakistan, where they were visiting at the time (both of them have returned to the U.S. since then, and Mohammad has remarried). In 2011, Fariha petitioned for divorce in Texas, and argued that the Pakistani divorce decree should not be recognized. Tuesday, a Texas Court of Appeals panel rejected Fariha's argument, and concluded that the Pakistani divorce should indeed be recognized under Texas law.

2. Here is what the court found were the terms of Pakistani divorce law:

An English translation of "Proceeding of Union Council under Muslim Family Law Ordinance 1961(7)," in evidence before the trial court, explains that, after the husband pronounces "talaq" ("I divorce you") three times:

1. He provides a copy of the divorce deed to the wife.

2. He gives notice to the Chairman of the Union Council, along with the divorce deed, that he has divorced his wife.

3. The Chairman shall supply a notice for reconciliation to the wife.

4. The Chairman shall constitute an Arbitration Council within thirty days for the purpose of bringing about reconciliation between the parties.

5. The prescribed period is three months (90 days). The time period begins when the Chairman of the Union Council receives notice. If the Chairman does not constitute an Arbitration Council for reconciliation, or reconciliation efforts fail, or either party does not want reconciliation, the divorce shall become final after 90 days of such a notice.

6. The Chairman will issue a divorce certificate.

Moreover, under Pakistani law a Pakistani divorce can be granted whenever the parties are Pakistani residents or Pakistani citizens, "regardless of whether they live in another country, 'whether permanently or for a fixed time.'" Fariha was at the time solely a Pakistani citizen, and Mohammad is a dual U.S.-Pakistani citizen.

3. The court also concluded that the Pakistani divorce should be recognized as valid under Texas law (much as Texas law routinely recognizes foreign divorces and other foreign judicial decrees, under the doctrine of "comity"). "The question before the trial court was not whether the parties satisfied the statutory requirements to file a divorce petition in Texas, but whether to recognize the Pakistani divorce as a valid divorce that terminated the Ashfaqs' marriage before Fariha filed her petition in Texas." And, though Fariha argued that the Pakistani divorce shouldn't have been recognized "because it denies due process and is fundamentally unfair"—thus distinguishing it from, say, Canadian, Mexican, English, etc. divorces, which are routinely recognized in Texas—the court concluded that Pakistani divorce law provided at least the minimum amount of due process required to give comity to foreign divorce decrees:

Inherent in the right to due process is "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action…." Mohammad's expert witness distinguished the traditional Muslim talaq from the requirements for divorce under the Pakistani Ordinance, which requires notice to the wife and the Union Council and authorizes the imposition of criminal penalties for failure to comply with those requirements. The Ordinance imposes a mandatory 90-day waiting period before the divorce is final to allow for reconciliation efforts during that period and facilitates these efforts by providing for constitution of an Arbitration Council for reconciliation upon request…. Fariha admitted to receiving the notice before the divorce became final….

In contending that the Pakistani divorce should be considered void for public policy reasons, Fariha relies on Aleem v. Aleem, 947 A.2d 489 (Md.App.2008), in which the Maryland Court of Appeals declined to recognize as a matter of comity the validity of a divorce the husband obtained by appearing at the Pakistan Embassy and performing talaq in writing without any advance notice to his wife. We find Aleem inapposite. Specifically at issue in Aleem was a dispute regarding the division of marital property, which is not involved in this appeal. Further, the Maryland appellate court decided that the talaq divorce was inequitable in the apparent absence of evidence of Pakistan's "Dissolution of Muslim Marriages Act, 1939," which permits women to divorce under certain circumstances. See id. at 490 n.1 (explaining its understanding that "where that Islamic law has been adopted as the secular law of a jurisdiction, such as Pakistan, a husband has a virtual automatic right to talaq, … but the wife only has a right to talaq if it is in the written marriage agreement or if he otherwise delegates that right to her"). Through his legal expert, Mohammad proffered evidence of the 1939 Act, which permits women to initiate divorce based on, among other things, the husband's abandonment, polygamy, imprisonment, or mistreatment.

At least one legal commentator has characterized the Pakistani divorce laws as providing an avenue beyond traditional Islamic law that can be used to safeguard and promote "the fundamental rights guarantees of contemporary constitutions and the modern ideas of social justice that have influenced them." Karin Carmit Yefet, The Constitution and Female-Initiated Divorce In Pakistan: Western Liberalism in Islamic Garb, 34 Harv. J.L. & Gender 553, 562 (2011). We also note that the U.S. State Department considers a Pakistani talaq divorce obtained pursuant to the Ordinance—as opposed to a "bare talaq"—as valid proof of marital status for immigration purposes, and it presumably recognized the validity of this particular divorce in approving the visa for Mohammad's current wife. Accordingly, we hold that the trial court acted within its discretion in recognizing the Pakistani divorce as valid as a matter of comity.

4. The court also relied in part on Fariha's acceptance of the "maher," "a fixed dowry payment upon divorce," in concluding that this bars her—given Pakistani law—from contesting the divorce:

Within the 90-day period before the divorce was final, Fariha's parents went to Mohammad's family's house and were given Fariha's personal effects, including the "maher," a fixed dowry payment owed upon divorce, and the jewelry also given as dowry. The expert witness testified that Fariha's acceptance of the maher payment equates to acceptance of the divorce….

Fariha does not counter Mohammad's argument at trial that Fariha's acceptance of the maher estops her from denying the validity of the divorce. See Leedy v. Leedy, 399 S.W.3d 335, 339-40 (Tex.App.-Houston [14th Dist.] 2013, no pet.) (party who accepts and retains benefits of judgment is thereafter estopped to assert its invalidity); Richards v. Richards, 371 S.W.3d 412, (Tex.App.-Houston [1st Dist.] 2012, no pet.) (same). We hold that the trial court did not err in concluding that the divorce complied with the applicable legal requirements.

5. Fariha's appellate brief did briefly argue that the talaq proceeding was fundamentally unfair because it discriminates against women, and that it provided women with inadequate property settlements:

62. Even Respondent's expert witness was forced to admit in her testimony that triple-talaq divorce is unfair to the woman.

63. The expert witness testified that only a man has the right to pronounce a triple talaq divorce, the woman does not have that same right. Please see 54 RR 11 to 14, Vol. 2.

64. The expert witness even testified that Islam gives the right to the man alone, to give a triple talaq divorce for any reason, or no reason at all. 57 RR 1 to 3, and 73 RR 3, Vol., 2. However, the woman has to allege specific grounds for divorce in Court and a hearing is held where the man must answer for these allegations before a divorce is granted. Please see 73 RR 4 to 12, Vol. 2.

65. Furthermore, the expert witness testified that a woman who is granted a divorce in Court in Pakistan forgoes her property rights. Please see 74 RR 4 to 12, Vol. 2.

66. Finally, the expert witness testified that all the man has to do in order to effectuate a divorce is travel to Pakistan along with his wife, and pronounce "I divorce you" three times and the divorce has occurred. Please see 76 RR 2 to 6, Vol. 2.

67. Even the Trial Court pronounced at trial of the importance of foreign judgments being consistent with the public policy of Texas. Please see 73 RR 22 to 24.

68. Despite the evidence and testimony from Respondent's own expert witness that a triple-talaq divorce is fundamentally unfair to a woman, the Trial Court ruled that the divorce in Pakistan was valid. The Trial Court in effect adopted Islamic law to this case, even though it is so "counter to our notions of good morals and natural justice that… need not be applied." Seth v. Seth 694 S.W.2d 459, 463 (Tex. App.—Fort Worth, 1985).

But the brief didn't provide any legal authorities or extended legal argument supporting the sex discrimination/unfair property settlement claims; the one cited case, Seth v. Seth, rejected a foreign divorce based simply on the due process argument that the Afshaq decision rejected (see item 3 above):

Based on the testimony of Wife Two's experts, the trial court [which had held that the Indian Islamic divorce should not be recognized -EV] could have found that Islamic law simply allows a non-Muslim man to convert to Islam by pronouncing a short phrase, and then divorce his wife through the ex parte procedure of talak. The harshness of such a result to the non-Muslim divorced wife runs so counter to our notions of good morals and natural justice that we hold that Islamic law in this situation need not be applied.

6. So what do you think about this? Were the Texas courts right in recognizing the divorce, because it involves Pakistani courts adjudicating the rights of Pakistani citizens (though the husband was also a U.S. citizen and the wife a U.S. resident)? Or should they have refused to recognize the divorce, because the process was unfair to a U.S. resident? If so, what precisely is the unfairness that you think should lead to that result?

Recall, of course, that this is at bottom a question of Texas law: When should Texas courts treat as conclusive a judgment from a foreign court? Recall also that this is a matter that arises as to all sorts of foreign countries, and as to judgments in all sorts of civil ligation (including commercial litigation as well as family law litigation); such judgments are routinely recognized, even when they use procedures quite far from Texas's—for instance, if they don't allow jury trials—though they aren't always recognized.

UPDATE: Note that the couple's marital assets seem to have been divided under Texas law; the trial court "treated the remainder of Fariha's pleading as a post-divorce petition for division of assets, upon which it entered a judgment dividing the parties' assets." The opinion doesn't say, though, whether the assets that were divided were (1) those assets that belonged to the couple as of the date of the Pakistani divorce or (2) those assets that belonged to the couple as of the date of the Texas trial court proceedings.

FURTHER UPDATE: I e-mailed Prof. Karin Carmit Yefet (Haifa University), whose article was cited by the court, to hear her views on it; here's an excerpt from her response:

Pakistani divorce law is truly remarkable—Pakistani women enjoy one of the most liberal divorce rights in the world, surely in the Islamic world, but this is true for the Western world as well. In fact, Pakistani women may fare better under Pakistan's judicially-crafted liberal divorce regime than some American women do in certain jurisdictions, having at their disposal an absolute, unilateral, speedy no-fault right. [Truth be told, they do not often take advantage of their liberal right to marital exit because divorce is highly stigmatized for Pakistani women and because of the economic destitution that may lie ahead.]

While the court mentioned my article's support for the Pakistani female divorce right, it chose to overlook my critique of the other side of the divorce story—the male right of talaq. As Fariha's public policy argument insisted, men often abuse their divorce power under the auspices of the law, which often results in the denial of due process and may be "fundamentally unfair" to women…. It turns out that many men actually fail to notify their wives of the divorce proceedings, a practice which has caused both emotional pain and financial loss for women and has been a cause of concern for feminists.

In addition, at least in the past, Pakistani men were notorious in notifying the divorce to the wife, yet failing to register it. What happened was this: a woman who believed herself divorced and then remarries, even though her ex-husband failed to register the divorce, risked being charged with the criminal offense of zina (unlawful sexual intercourse), which until recently could be punished by stoning to death. And Pakistani husbands frequently brought charges against their former wives who remarried, for the sake of humiliating and punishing them, and ultimately for preventing them from remarrying.

One last point to think of before American courts hasten to rule that the divorce proceedings in Pakistan meet due process and fairness requirements: In Pakistan a talaq pronounced unintentionally, involuntarily, or in inebriation, anger, or jest, is still valid and binding, leaving Pakistan behind countries such as Egypt, Syria, Morocco, Iraq, Jordan, Kuwait, Sudan, and Oman, which all refuse to recognize such repudiations. The omission is especially unfortunate in Pakistan, where divorce is "not uncommonly pronounced in anger and with a desire to take revenge from the wife and every attempt is made to cause as much injury as possible."

However, it seems to me that the court was comfortable with the result it reached because we clearly have a case in which both husband and wife are not interested in the marriage, and the economic consequences of divorce were settled according to Texas law (and not according to the Pakistani marital property and alimony legislation, which no doubt would have made the wife worse off).

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