Aleem v. Aleem

LAWRENCE F. RODOWSKY, Judge (retired, specially assigned). The appellant, Irfan Aleem (Husband), and the appellee, Farah Aleem (Wife), are nationals of the Islamic Republic of Pakistan. While Wife was suing Husband for divorce in the Circuit Court for Montgomery County, Husband divorced Wife by talaq, in accordance with Pakistani law. The controversy before us concerns the Maryland court’s equitable division of marital property in the form of Husband’s pension.

Husband is aggrieved because the Maryland court did not give comity to Pakistani law under which his divorce by talaq did not include any equitable division of marital property titled in his name. The Pakistani law of divorce was succinctly described by the House of Lords in In re Fatima, [1986] 2 W.L.R. 693, [1986] 2 All E.R. 32, [1986] A.C. 527, 1996 WL 406815 (HL). There, the entire court joined in the opinion (“speech”) of Lord Ackner, who said: ⁶⁶⁵ “In Pakistan the law relating to divorce is the Islamic law as modified by the Muslim Family Laws Ordinance 1961. In traditional Islamic law the husband has the right unilaterally to repudiate his wife, without showing cause and without recourse to a court of law.

Such divorce is effected by the announcement of the formula of repudiation, a talaq, and in traditional law a divorce by talaq would take the simple form of the husband announcing talaq three times. The divorce then becomes immediately effective and irrevocable. Such a form of talaq has been called ‘a bare talaq.’ Although it is still effective in some countries, for example, Dubai, section 7 of the Ordinance provides: “ ‘(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman notice in writing of his having done so, and shall supply a copy thereof to the ■wife. (2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to 5,000 rupees or with both.

(3) Save as provided in subsection (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of 90 days from the day on which notice under subsection (1) is delivered to the chairman. (4) Within 30 days of the receipt of notice under subsection (1), the chairman shall constitute an arbitration council for the purpose of bringing about a reconciliation between the parties, and the arbitration council shall take all steps necessary to bring about such reconciliation. (5) If the wife be pregnant at the time talaq is pronounced talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever be later, ends. (6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.’ ⁶⁶⁶ ‘“The chairman’ refers to the chairman of the relevant local union council in Pakistan.

Although he is required to convene an arbitration council to attempt the reconciliation of the parties, their attendance is not obligatory and the divorce -will become effective, unless the wife is pregnant, once 90 days have elapsed from the date on which the chairman received notice of the talaq.” [ 1986] A.C. at 531-32. The background facts of this case are succinctly presented in the memorandum opinion of the circuit court (Pineus, J.). “The parties were married on July 16, 1980 in Karachi, Pakistan after their families arranged their meeting. [Wife] was 18 years old and [Husband] was 29 years old. [Wife] had just finished high school and [Husband] was about to begin his doctoral studies at Oxford University in England [ 1 ] A few weeks after the marriage, [Husband] moved to England. The parties never lived together in Pakistan. [Wife] eventually joined [Husband] in England and the two lived there together for four years. When [Husband] completed his studies, the parties moved to the United States.

They have been living in Maryland for over twenty years. They have two children together, Zeeshan, born September 22, 1985 and Zoya, born September 12, 1988. Zeeshan is in college at George Washington University and Zoya is about to begin her senior year of high school in Washington, DC. Both children were born in the United States and are U.S. citizens. “[Wife] is 43 years old.

She earned her high school diploma in Pakistan. Initially, she intended to study medicine immediately, however she was unable [to] attain placement in the local medical program. She had some educational training in England. After she moved to the United States, she began taking courses at Montgomery College in Maryland and later at American University in Washington, D.C. To date, she has earned 60 credits to ⁶⁶⁷ wards a bachelor’s degree.

She indicated a strong desire to complete her degree. “During the marriage, [Wife] was a homemaker. Her responsibilities included caring for the children, the household, and [Husband]. [Husband] was employed at the World Bank during the marriage, from 1985 until his retirement in 2004. Due to her immigration status, [Wife’s] ability to obtain employment was severely limited. World Bank and immigration policies required [Wife] to get [Husband’s] written permission before she could secure employment. [Husband] agreed to sign a work permit, and [Wife] began to work for Executive Office Suites in Virginia.

She worked there for four and half years. [Wife’s] immigration status has recently changed and she obtained her Green Card in January 2006. She is now a permanent resident of Maryland and she has no restrictions on employment. She currently works for Profitable Association in Washington, D.C. where she earns $2,894 net per month. She is responsible for her own medical insurance.” This litigation was commenced by Wife’s bill of complaint filed March 3, 2003, which sought a limited divorce.

Husband answered and counterclaimed. The answer did not raise any jurisdictional issues. After numerous motions and hearings, the court, on October 31, 2003, ordered Husband to vacate the family home, and on November 20, 2003, the court entered judgment against the Husband in the amount of $10,800 for arrearage in pendente lite child support. That judgment was marked satisfied in January 2004.

In February, Wife amended her complaint to seek an absolute divorce. On April 5, 2004, Husband moved to dismiss the divorce action on the ground that “all issues have already been decided in Pakistani.]” 2 (Capitalization and bold type altered). Exhibits attached to that motion reflect what had transpired while the Maryland action was pending. The parties’ marriage was pursuant to a contract, more fully described infra, which ⁶⁶⁸ called for a deferred dowry of 51,000 Pakistani rupees, which Husband converts to $2,500 (U.S.).

The motion further informed the court that, four months after the divorce action was filed in Montgomery County, Husband presented at the Pakistani Embassy in Washington, D.C. There, before two witnesses, he signed and had notarized a “Divorce Deed,” which in relevant part reads: “Now this deed witnesses that I the said Irfan Aleem, do hereby divorce Farah Aleem, daughter of Mahmood Mirza, by pronouncing upon her Divoree/Talaq three times irrevocably and by severing all connections of husband and wife with her forever and for good. “1. I Divorce thee Farah Aleem. “2. I Divorce thee Farah Aleem. “3. I Divorce thee Farah Aleem.” On July 23, 2003, a private process server served Wife with the “Divorce Decree [Deed],” a check for $2,500, and a letter from Husband concerning notice under § 7.1 of the Muslim Family Laws Ordinance (Pakistan) 1961. 3 Also attached as an exhibit to Husband’s motion was a copy of a letter from the Chairman, Arbitration Council, Cantonment Board Clifton, Karachi, to Wife’s counsel.

It responded to counsel’s request that Husband’s “application” be denied, because an action had already been filed in the jurisdiction in which the parties resided and owned property, and in which their children had been born and raised. The Cantonment Board Chairman stated that the parties were Pakistani citizens who had been married in Pakistan, so that his “Union Council” had jurisdiction. He advised that “[t]he purpose of notices is to ascertain whether both parties want to reconcile in which case the divorce shall not become final.” The Chairman pointed out that three notices had been sent to Wife and to Husband. ⁶⁶⁹ The latter had replied by disclaiming any desire to reconcile. The Chairman’s letter concluded: “It may also be mentioned that [the] function of the Arbitration Council is only to see whether both husband and wife want to reconcile and live again as husband and wife.” The Cantonment Board Chairman’s “Confirmation Certificate of Divorce,” dated February 26, 2004, was also exhibited by Husband to the Montgomery County court in support of dismissal of Wife’s divorce action.

Husband’s position as to the legal effect of the above-described exhibits was presented in an affidavit of Ahsan Zahir Rizvi, an apparently highly regarded Pakistani lawyer. He affirmed that, under Pakistani law, the talaq pronounced by Husband on June 30, 2003, became effective ninety days after notice had been delivered to the “officer appointed for receiving the same.” 4 With respect to property disposition on divorce under Pakistani law, that expert witness tendered by Husband would have opined: “5. Under Pakistan law, a division of the properties, consequent upon termination of the marriage, takes place ipso facto upon such termination in the following manner: “a) All property owned by the husband on the date of such termination of marriage remains the husband’s property and the wife has [no] claim thereto. ⁶⁷⁰ “b) All property owned by the wife on the date of termination of the marriage remains the wife’s property and the husband has no claim thereto.” Husband’s motion to dismiss was heard on April 23, 2004, the first day of the first of three trials in this matter. The court (Sundt, J.).denied the motion.

In explanation of her ruling, she said: “The idea that in this case Mr. Aleem can apply for and on the basis of his declaration receive a divorce offends the notions of this Court in terms of how a divorce is granted. I am not, as a member of this bench, going to give comity to such an award.” The first trial terminated with a dismissal of the claim for divorce, without prejudice and with leave to amend, because Wife had not established the requisite duration of a voluntary separation as ground for an absolute divorce. At that trial, Husband was represented by the attorney who had moved to dismiss. At the second trial, on November 21, 2005, Husband appeared pro se.

He submitted that the court was required to hold an evidentiary hearing on issues of comity under Hosain v. Malik, 108 Md.App. 284 , 671 A.2d 988 (1996), discussed infra. The court (Sundt, J.) considered that the submission requested reconsideration of its previous determination. The court stood by its prior decision, i.e., “[t]hat the Pakistani divorce is not being given comity.” That second trial also ended in a dismissal without prejudice, based on the lack of testimony as to the grounds for divorce and as to corroboration. Husband, acting pro se and “in the spirit of justice,” moved on March 9, 2006, for a “clarification from Judge Sundt on the possibility of judicial error underlying the court’s decision not to grant comity to Pakistani divorce.” (Capitalization and bold type altered).

He again relied on Hosain v. Malik, supra. The court (Sundt, J.) denied that motion by an order signed June 6 and docketed June 27, 2006. ⁶⁷¹ Trial number three, at which Husband again appeared pro se, commenced June 7, 2006. During that trial, on June 9, 2006, Husband complained that he had not received a ruling on his motion filed March 9, 2006, and he again began to argue that he should have been allowed an evidentiary hearing on Pakistani law. The court (Pincus, J.) pointed out that Husband should withhold his argument until closing.

For the reasons stated in a memorandum opinion, the court entered a judgment granting Wife an absolute divorce, on the ground of a two-year separation, and the court signed an amended order for spousal support, docketed June 29, 2006. That order directed Husband to pay to Wife, until the death of either party, fifty percent of Husband’s monthly benefit from the Staff Retirement Plan of the International Bank for Reconstruction and Development. 5 In response to the court’s judgment, Husband moved to alter or amend it. 6 That motion, inter alia, submitted that, “by virtue of the [marriage] contract in question and Pakistani law as it applies to that contract, [Wife] is not entitled to any portion of his pension and he should be allowed to introduce evidence and expert testimony to that effect.” In support, Husband refiled the affidavit of Pakistani-lawyer Ahsan Zahir Rizvi. To his memorandum responding to Wife’s opposition to the motion to alter the judgment, Husband attached the affidavit of another Pakistani attorney, Tasawur Ali Hashmi, whom Husband tendered as an expert. That affidavit identified the marriage contract between the parties as a Nikah Nama.

He said that it is “ordinarily executed in a standardized form,” and that “[t]he terms of the contract are supplied by operation of Pakistani laws which govern the Nikah Nama and the marriage.” (Emphasis added). He enumerated the remedies available to a wife in divorce under Pakistan law, and ⁶⁷² he opined that a wife cannot make a claim to “[mjoney, property or assets titled in the name of the husband on the date of the divorce — these remain the property of the husband and the wife has no claim to them except her claim to the amount/property/assets mentioned in the contract[.]” Because the pension is an asset of the pensioner, a wife does not have any right to a husband’s pension, in whole or in part, “unless the Nikah Nama expressly provides for it.” The motion to alter was denied, and Husband noted this appeal. He presents two questions for review: “1. Whether The Trial Court Erred In Failing to Hold an Evidentiary Hearing to Determine If the Parties’ Pakistani Divorce Should be Granted Comity. “2.

Whether The Trial Court Erred In Refusing to Grant Comity to a Pakistani Divorce.” Additional facts will be stated in the discussion of the issues. I Husband contends that the Montgomery County court was required to receive evidence, via live testimony or deposition, in explanation of Pakistani law as it relates to the divorce by talaq obtained by him. As authority for this contention, he cites cases decided in this country, dealing with judgments rendered by courts in foreign countries. Here, although it appears that the Pakistani divorce was non-judicial, see Note, United States Recognition of Foreign, Nonjudicial Divorces, 53 Minn.

L.Rev. 612 (1969), we shall assume that the applicable law is that concerning recognition of judgments rendered by courts in foreign countries. The litigation receiving principal emphasis by Husband is that reported in Malik v. Malik, 99 Md.App. 521 , 638 A.2d 1184 (1994) (Malik I), and Hosain v. Malik, 108 Md.App. 284 , 671 A.2d 988 (1996) (Malik II). The holdings of these cases, however, do not require that formal evidence of Pakistani law be admitted in the instant matter, as a preliminary to determining whether comity should b e accorded the Pakistani divorce or its consequences under Pakistani law. ⁶⁷³ The Malik litigation was a child custody dispute. The parents, both citizens of Pakistan, were married in 1982.

Their child was born in that country in 1988, where the family lived together until September 1990, when the mother moved to her parents’ home, also in Pakistan, and took the child with her. The father sued for custody in a Pakistani judicial proceeding in which the wife was represented by counsel but in which she did not personally participate. After the Pakistani court awarded custody to the father, he spent two years trying to locate mother and child. They were found in Baltimore County.

When the father sought enforcement of the Pakistani judgment in the Circuit Court for Baltimore County, that court concluded that it had jurisdiction, but refused to enforce the order for lack of comity. Malik I, 99 Md.App. at 523-24 , 638 A.2d at 1185-86 . The reported opinion does not reflect whether, or, if so, how and to what extent, either party sought to present Pakistani law to the circuit court. In any event, this Court was not able to determine, on the record before it, whether Pakistani law lacked conformity with Maryland law.

Id. at 535 , 638 A.2d at 1191 . The problem that this Court faced in Malik I was that the record did not even disclose whether a court in Pakistan, in a child custody dispute, applied the best interest of the child standard. In remanding for evidence and a determination as to Pakistani law, this Court stated that, unless the Pakistani court did not apply the best interest of the child standard, the circuit court should decline to exercise jurisdiction. Id. at 533-34 , 638 A.2d at 1190 .

In summing up, this Court said: “If the Pakistani court’s custody order was founded on principles of law that are repugnant to Maryland public policy, the Circuit Court for Baltimore County must exercise its jurisdiction. If the Pakistani court’s determination was made without giving primary consideration to the best interest of the child, the circuit court must resolve this dispute by applying that standard. If the Pakistani court’s determination was made on the basis of a rule of law or evidence or procedure so contrary to Maryland public policy ⁶⁷⁴ as to undermine confidence in the outcome of the trial, the circuit court must exercise its jurisdiction and resolve this dispute by applying Maryland law.” Id. at 534-35 , 638 A.2d at 1191 . Husband finds comfort in this Court’s further statement: “On remand, the circuit court must first determine whether the Pakistani court applied law that is in substantial conformity with Maryland law.

That determination requires the presentation of evidence.” Id. at 536 , 638 A.2d at 1191 . On remand, both parties elected to present their evidence through live witnesses at trial. Malik II, 108 Md.App. at 290 , 671 A.2d at 991 . The circuit court concluded that Pakistani law, as to custody, was in substantial conformity with Maryland law and declined to exercise jurisdiction.

Id. at 293 , 671 A.2d at 992 . This Court affirmed, over a dissent. Malik II first considered the substantive issue and concluded, “[bjased exclusively on the plain reading of the Pakistani court orders themselves, ... that there was substantial competent evidence from which the circuit court could have concluded that the Pakistani courts applied the best interest standard.” Id. at 314 , 671 A.2d at 1003 . Arguments advanced by the mother, based on matters of procedure and evidentiary presumption, were rejected.

The issue presented in the instant matter is analogous to the question in Malik of whether the Pakistani law of child custody was based on a best-interest-of-the-child standard. That is a question of substantive law that does not involve the procedures in a particular case, or whether those procedures undermined confidence in the outcome. Here, Husband, on two occasions, tendered to the court in the form of affidavits from Pakistani counsel, evidence of what he contended was the substantive law of Pakistan with respect to divorce by talaq, and its consequences. We accept those tenders as accurate statements of Pakistani law.

Thus, any error by the circuit court in