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United States: Maryland High Court Holds Islamic “Talaq” Divorce Unconstitutional

(May 2, 2008) On May 6, 2008 the Maryland Court of Appeals declined to recognize a Pakistani “talaq” divorce, holding that the practice conflicted with Maryland public policy and the Maryland Constitution.

Farah and Irfan Aleem, citizens of Pakistan, were married in Pakistan in 1980, but have resided in Maryland for the past 20 years. Farah filed for divorce in Maryland. Her husband Irfan filed an answer in which he raised no jurisdictional objections. Before proceedings were complete, and without notifying his wife, he visited the Pakistani Embassy in Washington, D.C., and there performed talaq, an Islamic divorce practice which has been incorporated into Pakistan's secular law. Only a male is allowed to perform talaq unless he grants the right to his wife. Irfan claimed that under the law of Pakistan, talaq removed jurisdiction over the divorce proceedings from Maryland's courts.

The Court of Appeals examined both Maryland and federal precedent on the issue of comity with other nations' laws, finding that judgments of foreign states need not be recognized as valid if they are contrary to public policy. The court then noted the contrast between Pakistani and Maryland law regarding property division: in this case, under Pakistani law the wife would get nothing, while under Maryland law, she might be entitled to up to one half of two million dollars. In addition, the Maryland Constitution contains a provision requiring equality of the sexes under the law, which is violated by the talaq procedure. The court noted a further constitutional problem: a wife could never be guaranteed access to due process of law during divorce proceedings if the husband could, without notice, terminate the proceedings by visiting the Pakistani embassy and performing talaq.

The court found the Pakistani statutes recognizing talaq divorce conflicted with the public policy of Maryland, and declined to afford comity to them. (Aleem v. Aleem, No. 108, Sept. Term 2007 (Md. May 6, 2008), available at http://mdcourts.gov/opinions/coa/2008/108a07.pdf).