Foreign Law in American Courts
Ohio Court Recognizes Telephonic Marriage Ceremony Under Bangladesh Sharia Law Between Two Bangladesh Citizens
From Momotaz v. Sattar, decided Thursday by the Ohio Court of Appeals, in an opinion by Judge Sean Gallagher, joined by Judges Anita Laster Mays and Eileen Gallagher:
On August 22, 2005, the parties participated in a telephonic marriage ceremony, which was conducted over a speaker phone. At the time of the marriage ceremony, husband resided in the United States, wife resided in Bangladesh, and both were citizens of Bangladesh. Husband traveled from Pennsylvania to New York and was with friends and relatives during the ceremony. Wife was in Bangladesh with friends and family members and husband's father. Also present in Bangladesh was Mawlana Kofiul Ahmed, who solemnized the marriage and identified himself as an assistant marriage registrar, and Abul Hashem Majumdar, a community leader who appeared to sign the marriage register on husband's behalf as his "pleader."
Pictures of the marriage ceremony were provided. {One photograph depicts Majumdar signing the marriage register during the marriage ceremony. Wife alleges that Majumdar was invited by husband's father to be the pleader. Although there are conflicting statements from witnesses, several witnesses stated that during the ceremony husband was asked for the appointment of Majumdar as his pleader and husband consented.} Witness statements indicated that the solemnization was according to Sharia law.
The legal marriage contract that was entered into between the parties is referred to as a "Nikah Nama." Husband stated in his deposition that there were no issues with the ceremony or the solemnization of the marriage before witnesses according to Muslim law, and he believed he was lawfully married according to Bangladesh law.
Following the marriage ceremony, wife continued to reside in Bangladesh until 2007, when husband traveled to Bangladesh. The marriage was consummated at that time. After a temporary stay in Canada, in August 2007, the couple arrived together in the United States, and they resided together in Pennsylvania. One child was born as issue of the marriage in February 2009. In October 2009, the family moved to Cleveland. Throughout their marriage, husband and wife presented themselves as a married couple. They lived together for 12 years, raised their child together, filed joint income tax returns, and wife received tuition benefits at Case Western Reserve University because husband was a faculty member.
But when the marriage broke down, the husband took the view that the marriage was invalid from the outset, arguing that various procedural rules required by Bangladesh law were not complied with. No, said the Ohio court:
On April 29, 2021, the trial court granted wife's motion and denied husband's motion. The trial court determined that "[t]he parties' marriage * * * is governed by Muslim Law also known as 'Sharia Law' or 'Mohammedan Law[,]' " that "the validity of the registration document is not an element to a valid Muslim marriage in Bangladesh and an invalid registration does not render the marriage invalid," and that the elements for a valid Muslim marriage were met. Upon the evidence presented, the trial court concluded as follows:
[T]he Court finds that there are no issues of material fact and the parties' marriage in Bangladesh was valid. [Wife] demonstrated that: (1) the parties' admitted telephone marriage on August 22, 2005 met the essentials of a valid Mohammedan and Bangladeshi marriage and [2] registration of the marriage is not an essential element in order to establish the validity of a marriage. Accordingly, [Wife] is entitled to judgment as a matter of law and the Court retains jurisdiction over the parties' divorce.
… The trial court determined that the parties' marriage was valid under Bangladesh law. More specifically, the court found that the parties agreed the marriage met the essentials of a valid Mohammedan and Bangladeshi marriage and that the alleged invalidity of the registration does not render the marriage invalid. Upon our review of the record, we agree….
Husband proceeds to argue that the trial court erred by applying the Muslim Sharia Law of Bangladesh because he was a resident of the United States and not a Bangladesh resident at the time of the 2005 telephonic marriage ceremony. In support of this argument, he cites to the Muslim Personal Law (Shariat) Application Act, 1937, which makes "provision for the application of the Muslim Personal Law (Shariat) to Muslims in Bangladesh" and states that "[i]t extends to the whole of Bangladesh." While husband refers to language referencing a "resident of Bangladesh" he cites no authority or logical reason to limit the Muslim Sharia Law to only residents of Bangladesh. Further, as argued by wife, subsequent legislative enactments to the 1937 Act, including the 1961 Family Laws and the 1974 Registration Act, are indicative of including "Muslim citizens of Bangladesh wherever they may be" and husband availed himself of these laws. Additionally, the expert legal opinions provided by wife support the conclusion that the marriage between the parties was valid.
Husband further claims that the trial court erred by recognizing a transnational telephonic marriage solemnization despite the lack of any authorizing provision of Bangladesh law or Muslim law. However, as stated in the legal opinion of Mahmud & Bhuiyan Barristers & Advocates, under Bangladesh law or Mohammedan law, "there is no legal bar against such telephone marriage" and they "are common in Bangladesh, and since they have all the essentials of a valid marriage contract, they are valid under the laws of Bangladesh." This is consistent with authority that "[m]arriage under the Mohammedan Law is a civil contract requiring no ceremony or special formality." Thus, as observed by Barrister Kahn, "[t]here are witness statements that this marriage was conducted according to Sharia law" and "the mere fact that the marriage was conducted through telephone will not invalidate this otherwise valid marriage."
Based on the facts and circumstances of this case, we find the trial court did not err in finding the marriage between husband and wife was valid….
Judge Gallagher, joined by Judge Laster Mays, added:
I concur with the decision issued by this court and write separately to express my incredulity with appellant's position that there was no legal marriage between himself and his ex-wife. I am flummoxed by his assertion.
As appellant suggests that there was no legal marriage, then I would suggest that there was fraud committed by him against the United States of America and his employer, Case Western Reserve University.
Appellant secured entry into this country, albeit through Canada for reasons which are unclear, for his spouse. Appellant and his spouse filed joint tax returns thereby utilizing the system in that respect. Appellant and his spouse took advantage of his employer, Case Western Reserve University, to avail themselves of tuition benefits for spouses of employees.
I find that for appellant to now argue that there was no valid marriage is staggering.
Congratulations to Sharon Comet-Epstein and to John Sayre (Nicola, Gudbranson & Cooper, LLC), who represented the wife.