Foreign Islamic Unilateral Divorce (Created by Saying "Talaq" Three Times) Not Recognized in U.S. Court

An excerpt from Khan v. Azeez, decided yesterday by the Louisiana Court of Appeal, in an opinion by Judge Shannon J. Gremillion, joined by Judges D. Kent Savoie and Candyce G. Perret:

Khan and Azeez are citizens of India and were married there in 2003 but have resided in the United States since 2007. They first lived in Maryland, then moved to Quincy, Illinois in 2017. They are the parents of two teenaged children, one born in 2005 and the other in 2008. Khan and Azeez traveled to India in November 2018, whereupon Khan deserted his wife taking her passport with him.

He was then unilaterally granted a divorce under Islamic law by uttering of the word "talaq" (divorce) three times, a practice which India declared illegal and unconstitutional on July 31, 2019, retroactive to September 19, 2018, under the Muslim Women (Protection of Rights on Marriage) Act. It states that a declaration of triple talaq is void and illegal and "any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal" and subjects the husband to a three year prison term and a fine. Upon her eventual return to the United States in March 2019, Azeez immediately filed a petition for dissolution of marriage in an Adams County, Illinois court on March 13, 2019.

Khan objected to the Illinois court's jurisdiction arguing he had been divorced via the talaq method [and that there had been an Indian court judgment acknowledging the divorce -EV] …. [T]he Illinois trial court denied Khan's exception finding that the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) and basic principles of human rights required a finding that the divorce by talaq and any subsequent child custody determinations were invalid….

Any divorce action that results in a judgment, that includes child custody, based simply on a pronouncement of divorce by a husband violates fundamental principles of the wife's rights to dispute the divorce action and be heard with regard to division of assets and debts as well as custody of the parties' minor children. According to the testimony of Dr. Khan, the only right afforded under this pronouncement of divorce is the right of the wife to make efforts of reconciliation. As such, the Court declines to give international application to the "Talak" as it applies to parental responsibility/custody of the parties' minor children. Only an Illinois court—not an Indian court—can grant complete relief to the parties, since only Illinois has the jurisdiction to decide parenting and custody matters. Under the UCCJEA, Illinois is the children's home state.

The Illinois court rendered a judgment on November 6, 2019, finding the India judgment invalid, dissolving the marriage, setting forth child custody, and awarding spousal and child support in accordance with Illinois laws….

Khan then tried to relitigate the matter in Louisiana courts, and the Louisiana trial and appellate court said no:

Khan argues that every foreign judgment afforded full faith and credit by this state must first have a full evidentiary hearing in order to make the judgment "executory" [and thus enforceable -EV]. We disagree….

Khan is the party who sought full faith and credit of his India divorce judgment in Louisiana, despite the Illinois judgment invalidating it and setting forth child custody determinations in accordance with the UCCJEA. He did not appeal the valid Illinois judgment. Moreover, as the moving party, he bore the burden of proving the validity of the India judgment…. Thus, the only question before us is whether the trial court's finding that the Illinois judgment was entitled to full faith and credit was erroneous.

The Illinois court exercised its jurisdiction over the parties pursuant to 750 ILCS 36/201, which authorizes a court in the state of Illinois to make an initial child custody determination if Illinois is the home state of the children, or was the home state of the children in the six months prior to the commencement of the action and the parent continues to live in Illinois. This article specifically provides for the exclusive, continuing jurisdiction of the court relating to child-custody matters. It is undisputed that Illinois was the home state of the children and Azeez. Khan challenged the jurisdiction of the Illinois court over him in Illinois, asserted the validity of the India judgment, and did not appeal the trial court's judgment. Khan's second attempt to validate his India judgment in Louisiana amounts to nothing more than forum shopping….

The State of Illinois referred the Illinois judgment to the State of Louisiana, Support Enforcement Services (LASES) to register and enforce the judgment in Louisiana…. At that time Khan owed arrearages of $162,716.15. A hearing followed on March 22, 2023. Azeez was unaware of these proceedings and had not received notice of any kind. The trial court found that Illinois did not have jurisdiction over Khan; however, because Azeez had received no notice of the LASES hearing, she was unable to defend Khan's claims, and the State had no evidence to dispute Khan's claims that he did not receive notice relating to the Illinois hearings. Thus, the trial court rendered a judgment in Khan's favor prohibiting the Department of Children and Family Services from enforcing the LASES order. The Department of Children and Family Services filed a motion for new trial or to annul an order denying and vacating registration in June 2023. In the motion, DCFS noted that the exhibits show that Khan:

testified falsely in this matter, at the very least, with regard to his supposed lack of notice in the Illinois proceedings….

In the current matter, the trial court took notice of its error in the LASES matter (which is not consolidated with this matter) stating that it was clear that it did not know at the time it ruled that Khan had been fully aware of and participated in the Illinois judgment. The trial court noted its erroneous ruling in the LASES case at the hearing on the exception of res judicata:

[A]ctually the basis upon which this Court denied enforcement of the Illinois Order, was based upon information that this Court had at that time indicating that Javeed Khan did not have notice of the November 5, 2019, Hearing. However, not only did Javeed Khan have notice of this Hearing, he also wrote an apology letter in advance of the Hearing, dated November 1, 2019, wherein he apologizes for not showing up for the November 5, 2019, Hearing…. The information supplied to the Court at the Hearing in the LASES case clearly was incomplete. As a result, the Ruling of the Court's finding that Javeed Khan did not have notice of the November 5, 2019 Hearing was clearly wrong.

… We note that Khan's actions relating to this matter approach an abuse of judicial process, and we will find him in contempt of court for frivolous appeal should he assert another false claim that he did not have notice of the Illinois hearings that he clearly participated in….

The trial court's judgment granting Azeez's exception of res judicata is
affirmed as Louisiana must give full faith and credit to the Illinois judgment
dissolving the marriage and setting forth custody and support awards.

Douglas L. Bryan (The Bryan Law Firm, LLC) represents Azeez; Derek P. Manuel represents Louisiana.

Comments

[John F. Carr]

Leaving out the religious angle, consider a Nevada divorce before no fault divorce was universal. She can move to Nevada and divorce her husband but the Nevada court can not adjudicate property rights of the absent spouse.

[Frank Drackman]

If he forgot to throw Dog Poop on her shoes they're still married

[MaddogEngineer]

But all cultures are equally valid! We have no right to judge them deficient compared to ours! #eyeroll

[CJColucci]

Apparently, the Indian divorce was invalid under Indian law. The Illinois trial court refused to recognize it, and the disappointed husband didn't appeal in Illinois, but tried to get a Louisiana court to ignore the Illinois court. (And lying about what happened in Illinois in the process.) This course of action was not likely to be fruitful.

[Rossami]

re: "the Indian divorce was invalid under Indian law"

I don't think we know that yet. The article appears to contradict itself. On the one hand, "India declared [talaq] illegal and unconstitutional on July 31, 2019, retroactive to September 19, 2018" which, given the timing, would mean that the Indian divorce was invalid under Indian law. However, the article also says that "there [is] an Indian court judgment acknowledging the divorce". Since Indian courts are presumably better judges of Indian law than we are, I don't think we can conclusively say whether the divorce was invalid under Indian law or whether some exception applies. The alleged retroactivity seems pretty sketchy to me - but I say that looking at the case from American standards.

Thankfully, the trial court didn't need to get into those weeds because it found the practice of talaq a violation of fundamental human rights whether or not it was recognized by India at the time.

[David Nieporent]

The article appears to contradict itself. On the one hand, “India declared [talaq] illegal and unconstitutional on July 31, 2019, retroactive to September 19, 2018” which, given the timing, would mean that the Indian divorce was invalid under Indian law. However, the article also says that “there [is] an Indian court judgment acknowledging the divorce”.

I mean, I don't have any idea, but I don't see any necessary inconsistency: he was divorced under Sharia law in India in November 2018. That was recognized by Indian law at the time, so he was issued a court judgment of divorce. In July 2019, that was retroactively unrecognized. As you say, such retroactivity likely wouldn't fly in the U.S., but may in India.

[santamonica811]

That was also my own take. (I idly wonder how many hundreds or thousands of women in India currently believe that they are divorced, while still are actually married…due to their talaq divorce being judicially recognized during that “Sept 19, 2018 to July 31 2019” window. I suspect that there are also a bunch of "divorced-but-no-longer-divorced" men and women there who proceeded to get married again to another person...I doubt they'd be subject to bigamy prosecutions, since their second marriages would have been [a] done in good faith, and [b] legal at the time. Do law schools in India have hypo cases on their final exams, as we do in the States. This would make a good Family Law final exam question in India.)

[IANNAL]

Or Rushdie could write the sequel to Midnight's Children

[John F. Carr]

In the United States final judgments remain final despite later changes in the law. If India has that rule a judicially recognized divorce is valid. That rule doesn't resolve the status of the bigamists whose marriage was legal when performed.

[John F. Carr]

I don't see this as a question of human rights or religion. It's a straightforward application of American due process principles. The woman in this case had her rights determined by a process she was not allowed to participate in. The legal situation is familiar to American law because it used to come up in the mid 20th century when most states allowed divorce only for cause. A spouse could get a unilateral divorce by going to Nevada with its liberal no fault divorce rules. (Cf. Billy Joel, "Stop in Nevada.") The divorce may have been granted against the will of the absent spouse and was illegal and immoral by the rules of their former place of residence. A Nevada court could dissolve the marriage anyway. But that's all. If the husband runs off to Nevada alone the question of who gets the house and kids is not for Nevada courts to decide.

If she took the kids to Nevada with her then things got messy and the parties could end up both having legal custody under different states' court orders. The Supreme Court did not clean up the mess before interstate child custody rules were reformed by statute in 1968. See https://www.ojp.gov/pdffiles1/ojjdp/189181.pdf

[ReaderY]

If there was in fact an Indian court judgment, it seems to me US courts would first need to determine if Indian courts would honor it. If they would, then I think US courts would need to as well.

Was the judgement before or during the retroactivity period? If during, does making a law retroactive undo existing judgments in India?

These questions would need to be answered applying Indian law, not US law.,

[ReaderY]

However, if there is a judgment, it seems to me it is presumptively valid and the person seeking to invalidate it has the burden of establishing it isn’t.