The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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).
