Chaudhary v Chaudhary
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE OLIVER,MR. JUSTICE BALCOMBE |
| Judgment Date | 31 July 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0731-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0338 10698 of 1982 |
| Date | 31 July 1984 |
[1984] EWCA Civ J0731-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE WOOD)
Royal Courts of Justice
Lord Justice Cumming-Bruce
Lord Justice Oliver
and
Mr. Justice Balcombe
84/0338
3613 of 1979
10698 of 1982
MR. W. AYLEN QC and MR. D. MARTINEAU (instructed by Messrs. Raphael Teff & Co, Solicitors, London EC2M 3UA) appeared on behalf of Khan Mohammad Chaudhary
MR. R. TITHERIDGE QC and MRS. A. SPEARMAN (instructed by Messrs. Maurice Nadeem & Co, Solicitors, London W14 OQX) appeared on behalf of Bibi Saira Chaudhary
This appeal raises two issues. First, is the pronouncement of a "bare talaq" in Kashmir, the country of the husband's nationality, a proceeding or proceedings within the meaning of s.2 and s.8 of the Recognition of Divorces and Legal Separations Act 1971 and s.16 of the Domicile and Matrimonial Proceedings Act 1973? Second, if the first question is answered in the affirmative, should recognition be refused on the ground that its recognition would manifestly be contrary to public policy?
Is pronouncement of a bare talaq in Kashmir a proceeding, or proceedings, within the meaning of the two above mentioned statutes? The Facts.
The facts are set out in the judgment of Mr. Justice Wood. Those relevant to the question under consideration may be classified as follows:
(a) In Kashmir, pronouncement by a husband of the words "I divorce thee" three times in the absence of the wife is effective to dissolve a Muslim marriage. This is because in Kashmir dissolution of marriage is in accordance with classic Muslim religion and tradition. All that is necessary is the thrice pronouncement of talaq, though frequently, as in this case, the pronouncement is made in the presence of two witnesses. By religious tradition, the act of declaring talaq three times, is regarded as a solemn religious act. It is by religion and tradition, a solemn ceremonial act even though the pronouncement may take place in private as well as in public, and the husband may be alone when he makes the pronouncement three times.
(b) Kashmir is within the sovereignty of the state of Pakistan. In the rest of the territory of the state, the pronouncement of talaq must be followed by compliance with the procedural requirements of the Muslim Family Laws Ordinance 1961 in order to be effective as terminating the marriage. But the provisions of that ordinance do not apply in the territory of Kashmir, where by the Law of Pakistan the classic religious tradition still prevails, without any statutory modification. By virtue of s.3(3) of the 1971 Act the territory of Kashmir is to be regarded as a country separated from the rest of Pakistan so that the system of law in force in matters of divorce that is relevant to questions of recognition is the system of law prevailing in the territory of Kashmir.
(c) Apart from the pronouncement by the husband of the talaq, there is no formality, no requirement of any notification to anybody. No institution of the state, legal or administrative, is involved. No religious institution plays any part.
(e) Upon pronouncement of the talaq in Kashmir, the marriage is terminated. The consequences, financial and in relation to the custody of children, may then be worked out in accordance with religious tradition.
The Law.
The law of recognition is now to be collected from the Recognition of Divorces and Legal Separations Act 1971 as amended by s.2 of the Domicile and Matrimonial Proceedings Act 1973 and supplemented by s.16 of that Act. In Quazi v. Quazi, (1980) Appeal Cases 744, the House of Lords allowed an appeal from the order of the Court of Appeal, and affirmed the order of Mr. Justice Wood who had held that a divorce obtained in Pakistan by talaq followed by compliance with the procedural requirements of the Pakistani Muslim Family Laws Ordinance 1961 was a divorce obtained by "other proceedings" within the intendment of s.2(a) of the 1971 Act. Their Lordships confined their decision to the determination of the question then before them, and Lord Fraser of Tullybelton in terms stated that he did not express any opinion as to whether a bare talaq pronounced in a country where, unlike Pakistan, (excluding the territory of Kashmir) it would be effective without any further procedure, should be recognised under the British Act of 1971 as a valid divorce. Nonetheless it is necessary as a starting point to decide what assistance can be derived from the speeches in Quazi (supra) upon the construction and effect of the phrase "legal or other proceedings". Since Quazi was decided there have been two cases upon bare talaq, decided at first instance. In Sharif (10 Family Law) Mr. Justice Wood decided that if the talaq pronounced in Baghdad by the husband was a bare talaq, it would not fall within the phrase "legal or other proceedings" in s.2(a) of the 1971 Act. But in Zaal, (1983) 4 Family Law Reports 284, Mr. Justice Bush took the contrary view. He held that a bare talaq pronounced in Dubai, where it was recognised by the local law as effective to end the marriage, was a divorce obtained by "judicial or other proceedings" pursuant to s.2(a) of the 1971 Act. This is the conflict of judicial decision which this court has now to resolve. In R. v. IAT, ex parte Home Secretary, (1984) 1 Weekly Law Reports 35, Mr. Justice Taylor expressed the view that he preferred the view of Mr. Justice Bush.
The section which falls to be construed is s.2 of the 1971 Act, as amended by the 1978 Act. This reads:
"Overseas divorces and legal separations 2. Sections 3 to 5 of this Act shall have effect, subject to section 8 of this Act, as respects the recognition in Great Britain of the validity of overseas divorces and legal separations, that is to say, divorces and legal separations which—
(a) have been obtained by means of judicial or other proceedings in any country outside the British Isles; and
(b) are effective under the law of that country".
The Act also refers to "proceedings" in ss.3, 5, 6(4) as amended by the 1973 Act, and s.8. The Act was passed following the signature in June 1970 at the Hague by the United Kingdom of a Convention on the Recognition of Divorces and Legal Separations, so that the Convention may be considered an aid to construction if there is ambiguity. The opening words of the Convention recite:
"The States signatory to the present Convention Desiring to facilitate the recognition of divorces and legal separations obtained in their respective territories Have resolved to conclude a Convention to this effect, and have agreed on the following provisions—
Article 1.
The present Convention shall apply to the recognition in one Contracting State of divorces and legal separations obtained in another contracting state which follow judicial or other proceedings officially recognised in that State and legally effective there.
Article 2.
Such divorces and legal separations shall be recognised in all other Contracting States, subject to the remaining terms of this Convention, if, at the date of the institution of proceedings in the State of the divorce or legal separation", and then follow the agreed conditions.
Copies of the Convention were sent out to each of the States represented at the Eleventh Session of the Hague Conference on Private International Law. The signatories were:
Czechoslovakia
Denmark
Finland
Norway
Sweden
Switzerland
United Kingdom
It is clear enough that the object of the Act was to reduce or prevent the continuance of the situation known as "limping marriage" where divorce or legal separation granted in one State was not recognised elsewhere. This immediately raises the question posed by Lord Justice Ormrod in Quazi (supra) at p.788 to 789 C.
"There is no definition of 'proceedings' in the Act and little other material which throws any light on its meaning except a number of references to 'the institution of proceedings' in other sections. The ordinary or natural meaning or meanings of the word 'proceedings' standing by itself, without any adjectival description, are so general and imprecise that the dictionary definitions do not carry the matter any further. The phrase 'judicial proceedings' implies some form of adjudication and some kind of order of a court or of some other person or body acting in a judicial capacity. The word 'other' gives little indication of the draftsman's intention. The preamble to the Act mentions The Hague Convention of 1968 and states that the Act was passed with a view to the ratification of the Convention by the United Kingdom. Reference may, therefore, be made to the terms of the Convention. Article 1 is in these terms:
'The present Convention shall apply to the recognition in one contracting state of divorces and legal separations obtained in another contracting state which follow judicial or other proceedings officially recognised in that state and which are legally effective there'.
We have already drawn attention to the difference in the area of application of the Convention and of the Act. Article 1 poses a question which permits of a fairly simple answer. A divorce is entitled to recognition if it followed judicial or other proceedings officially recognised by the relevant contracting state. The Act, however, is not limited in its operation to the contracting states; its scope is quite general. Moreover, the important words...
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