Islam and American Law

The Trial Court "Did Not Consider American Law and Fundamental Precepts of Due Process"

The Appellate Court of Illinois reverses a trial court decision that deferred to a Muslim divorce from India.

|The Volokh Conspiracy |

Tanveer Basith and Abuzaffer Basith were married in India in 1979. In September 2017, Tanveer sought a divorce, in Illinois court; she says that the parties are Illinois residents. (All the facts and quotes here are drawn from In re Marriage of Basith, decided last week.)

Abuzaffer moved to dismiss the divorce petition, "assert[ing] that the parties' marriage had already been dissolved in India on May 10, 2017, and that Tanveer had accepted a financial settlement of … about $447. Because she had accepted the financial settlement, Abuzaffer argued that Tanveer's action was barred by res judicata." Tanveer responded, "assert[ing] that she was never properly served with notice of the petition for dissolution filed in India, nor did she consent to the entry of that judgment."

… Abuzaffer filed a reply. He asserted that Tanveer had requested a divorce. Therefore, pursuant to their culture and religion, he went to India in order to grant her request and obtain a divorce.

Abuzaffer further stated that as he and Tanveer were pious Muslims, his actions complied with sharia law that governs aspects of Islamic life for pious Muslims. As the trial court had the right to consider sharia law, Abuzaffer requested that the Indian divorce decree be upheld and Tanveer's action be dismissed….

Abuzaffer's attorney acknowledged that Tanveer "didn't have formal notice that we talk about in our country [i.e., the United States]" regarding the dissolution proceedings in India. Nonetheless, Abuzaffer's attorney argued that Tanveer's petition should be dismissed anyway. The trial court [Lake County Judge Raymond D. Collins] agreed and dismissed Tanveer's petition. The trial court made the following comments that reflected its reasoning:

"Well, when they were married in India, are there certain restrictions and guidelines that they need to follow? That's what I don't know. If [and] when they get married there, the marriage is valid if they follow certain rules, and I'm assuming they're religious about getting divorced, then they would have jurisdiction, if she accepted the jurisdiction of the country when they got married there….

"But my question is, when they got married in India, there were certain things that they signed and agreed to when it comes to getting divorced. And, again, I'm assuming that's religious in nature that they have to agree to, then they would have jurisdiction. So because it's inequitable, that's not a reason to dismiss it….

"[T]hey were following strict Muslim religion when they got married and he was following it when they got divorced[.]

"Well, it may be egregious in that the disposition of property may not have been equitable, but I don't think I have any choice but to dismiss under 2-619 [presumably the part providing that a case should be dismissed if "the cause of action is barred by a prior judgment"-EV]."

The Appellate Court reversed:

Comity has been defined as the "recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws." Under the doctrine of comity, Illinois courts may choose to recognize orders issued by foreign courts, although recognition may be withheld where the foreign court lacked jurisdiction over the cause and the parties….

Here, the trial court abused its discretion in granting comity to the Indian divorce decree. This was because Tanveer was never afforded the opportunity to appear, present her case, and be heard before the Indian tribunal. Thus, that tribunal never obtained personal jurisdiction over her.

Moreover, the trial court's decision constituted an abuse of discretion because the Indian tribunal's decision violated the laws and public policy of this state. The Illinois Marriage and Dissolution of Marriage Act provides that marital property must be divided in "just proportions" considering all relevant factors. The Act also provides that maintenance should be awarded if it is just and equitable. Here, the Indian tribunal awarded all of the marital assets to Abuzaffer except for approximately $447 that it awarded Tanveer. The Indian tribunal also did not award Tanveer any maintenance despite Tanveer earning substantially less than Abuzaffer during the parties' more than 37 years of marriage. As the Indian tribunal's decision was inconsistent with Illinois concepts of fairness and equity, the trial court should not have granted it comity….

Finally, we note that we find the trial court's ruling troubling. The trial court's comments reflect that, in dismissing Tanveer's petition, it did not consider American law and fundamental precepts of due process such as the right to notice and the right to defend one's interests. Rather, the trial court's reasoning indicates that its decision was based on what it assumed the law was in India for pious Muslims…. We therefore strongly encourage the trial court to be more cognizant of the parties' fundamental rights and controlling case law before dismissing an action….

Sounds right to me; for more on this general topic, see Religious Law (Especially Islamic Law) in American Courts and Foreign Law in American Courts. Note also that under American law a divorce must be obtained in the jurisdiction in which the parties are domiciled, rather than in the jurisdiction where the parties were married (often decades ago).

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

21 responses to “The Trial Court "Did Not Consider American Law and Fundamental Precepts of Due Process"

  1. The difference between this case and the last marriage case is that the religious obligation in case of divorce (mahr) was in the contract. Here it wasn’t. Dude is another weasel.

    It also sounds a bit like the process in India was done in the all-too-common way of village elders making whack-ass (and extralegal) decisions. It’s traditional but the Indian government views it more as the Indian Judge Judy now.

  2. I think there is a big difference between limiting current permanent residents’ ability to forum-shop abroad to obtain favorable judgments, on the one hand, and imposing American standards on what was done in foreign places before anyone came to the United States, on the other.

    There have been periodic cases of states (New York for example) refusing to recognize foreign marriages years afterwards, and telling surprised long-married couples that their marriages never happened. This, I think, is hardly in the interest of justice.

    Accordingly, I think comity standards for recognition of statuses acquired abroad need to be more lenient, perhaps much more lenient, than standards in a blatant forum-shopping situation such as this case. Otherwise, things deteriorate to the point where we do things like claiming parenthood is insufficiently documented and take people’s children away – in the interest of American principles of fairness, of course.

    1. So how does one separate the leniency you seek from instances where fundamental American concepts/values are apparently being violated as in Abuzaffer’s assertion? Extreme leniency would seem to uphold a suitably constructed marriage contract made in duly authorized foreign situation, but which would deprive an American citizen of their rights here. That’s good? Why should American courts enforce flagrantly unAmerican holdings?

    2. I agree with you. The court here mixed up the procedural unfairness and the substantive unfairness. The former certainly was a basis to avoid the judgment. But on the latter, I am very disturbed by the idea that a U.S. court can not recognize a foreign judgment simply because it finds it unfair.

      1. Why is that disturbing? It is what comity is all about.

        1. Even in this case, if the wife had in fact wanted a divorce, the Illinois courts could have recognized the status of divorce (that is, given effect to the Indian tribunal’s act of declaring the couple divorced), without necessarily agreeing to all the details of the decreed property settlement.

          The particularly egregious case is where applying American law extraterritoriality and retroactively upsets a status that the parties themselves all wanted and all mutually relied on.

          1. To me the salient point is that they were both Illinois residents at the time (and treated as married under IL law). So it seems quite reasonable that IL law would govern their divorce, and that the IL courts would refuse to enforce a foreign judgment substantially inconsistent w IL practice.

            My answer would be different if they had been Indian residents and had just been in Chicago on vacation when the wife asked for a divorce.

  3. Muslims must come to learn that the women-folk that they bring to the West get feminism in the tapwater over here.

    1. So should American christians.

      1. That ship has already sailed. I am hopeful that the message will get out to Muslims who wish to come to the West and think that they can have all the trappings of Sharia AND Western prosperity will see that both cannot happen simultaneously.

        Furthermore, even if they do come over here, secularization, modernity, and unrepentant female hypergamy will steamroll their culture too, such that in three generations you won’t be able to tell the difference (in attitudes and lifestyle) between the cast of Jersey Shore today and their grandchildren’s’ children.

        1. Newcomers might wonder why Prof. Volokh mentions Muslim- or Sharia-related cases so frequently. Comments such as these are the obvious explanation.

          1. Okay, call me obtuse, but wtf are you getting at?

            1. He’s a troll. If RAK only commented when he had something coherent to say, he’d never comment at all.

      2. I must have missed the case where a Christian American man traveled to Armenia to annul his marriage without her knowledge.

        1. I suspect you’re taking the reg’s comment the wrong way. If I may be so bold, I read it to imply, that even if you think she a traditional Christian gal, the software updates running on her include feminism.

  4. Perhaps I missed something. But short of a grave denial of due process, comity should be observed and respected. It is becoming incredibly tiresome to see how Islam/sharia is the latest “evolution” that our society must respect, yet if you are dissatisfied with the result in your country, under your law, the same law you wish to see in force in this country, you run to our common and statutory law. You are a vile hypocrite, just as are most of the rest of your ilk.

    1. … I award you no points, and may God have mercy on your soul

    2. You missed the part where there are two separate people involved.

      The husband went to India and got an insulting divorce decree without the wife’s notification, presence, or agreement.

      The wife asked for a divorce in the American courts via American law. The husband was the one who tried to use the run-around.

      This is clearly the right judgment. The husband performed an underhanded trick, the trial judge lazily and absurdly allowed it, and it is slapped down by an appeals court.

Please to post comments