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Maryland High Court Refuses To Grant Comity To Pakistani Talaq Divorce

By Howard Friedman

In Aleem v. Aleem, (Ct. App. Md., May 6, 2008), the Maryland Court of Appeals (the state's highest court) refused to recognize a talaq divorce obtained under the laws of Pakistan (Mulsim Family Laws Ordinance 1961) by a husband who, with his wife, resided in Maryland. The parties, married in Pakistan in 1980, resided in the U.S. on diplomatic visas.

After Farah Aleem filed for divorce in a Maryland court, her husband, Irfan Aleem, without notice to Farah, went to the Pakistani embassy in Washington and performed talaq by executing a written document that recited "I divorce thee" three times. Under Pakistani law, unless agreed otherwise, the wife has no claim to property owned by her husband on the date of divorce. In her Maryland divorce action, Farah sought to have Irfan's World Bank pension and other assets declared marital property. Pointing to a provision in Maryland's constitution (Declaration of Rights, Art. 46) that assures equal rights to men and women, the court reasoned that:

the enforceability of a foreign talaq divorce provision, such as that presented here, in the courts of Maryland, where only the male, i.e., husband, has an independent right to utilize talaq and the wife may utilize it only with the husband?s permission, is contrary to Maryland?s constitutional provisions....

The court concluded that:

talaq divorce of countries applying Islamic law, unless substantially modified, is contrary to the public policy of this state... where, in the absence of valid agreements otherwise, ... marital property is subject to fair and equitable division.... Additionally, a procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and ... summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife. Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.

The court observed in an introductory footnote: "we address Islamic law only to the extent it is also the civil law of a country. The viability of Islamic law as a religious canon is not intended to be affected." Today's Baltimore Sun, reporting on the decision, notes that the assets involved in the case total $2 million.

Full post as published by Religion Clause on May 07, 2008 (boomark / email).