Masroor Ahmed Syed Otherwise Named As Syed Masroor Ahmed V. Samrana Ahmed

Pursuer: J. M. Scott; Balfour & Manson (for Maxwell McLaurin, Solicitors, Glasgow)

Defender: Coutts; Brodies, W.S.

31 March 2004

Introduction

[1]In this action the pursuer seeks production and reduction of a pretended decree of this Court dated 11 May 1994 insofar as it purports to divorce the pursuer from the defender, to ordain payment by the pursuer to the defender of a capital sum of £65,000, and to find the pursuer liable to the defender in the expenses of that action. It is not disputed between the parties that they were married in Pakistan on 19 November 1979. At that time both parties were nationals of Pakistan and they remain so. After their marriage they lived for several years in the United Kingdom. They have two children. By summons signeted on 28 August 1989 the defender raised proceedings in this Court in which she sought divorce from the pursuer, payment by him of a capital sum, custody of the two children of the marriage and aliment for each of them. Those proceedings eventually resulted in the decree which is the subject matter of the present action being granted on 11 May 1994. The pursuer claims that that decree was incompetent insofar as it purported to divorce the pursuer from the defender and to ordain payment of a capital sum and expenses because he divorced the defender by talaq on 2 May 1989 in Lahore, and that the talaq divorce became final and irrevocable on 3 August 1989. The defender denies that the pursuer validly divorced her in Pakistan in 1989 and maintains that the decree of this Court was competent. In any event she maintains that in all the circumstances, and having regard to considerations of public policy and equity, the decree of this Court dated 11 May 1994 should not be reduced, or at the very least should not be reduced insofar as the awards of capital sum and expenses are concerned.

[2]The validity of the Pakistani divorce was the subject of prolonged litigation in Pakistan. The pursuer claims to have pronounced talaq on 2 May 1989 and to have given notice to the chairman of Union Council Ward 75 on about 4 May 1989; that the 90 day period of "Iddat" expired on about 3 August 1989 and that the talaq divorce became final and irrevocable on that date. On 3 August 1989 the chairman of Union Council Ward 75 made two orders. The first of these appears to have been in approximately the following terms:

"The Certificate of Divorce are being issued on the expiry of period of notice of talaq and the completion of Iddat period as no reconciliation was made during the period of Iddat in between the parties concerned."

The second order made by the chairman of Union Council Ward 75 later that day took notice of certain objections made on behalf of the defender. The terms of this second order were disputed before me, but appear to have had the general effect that the application was being consigned to the office and parties were directed to contact the Court concerned. On 31 August 1989, on an application made on behalf of the pursuer, the chairman of a different Union Council, namely Ward 72, issued a certificate of divorce purporting to state that "the divorce has become effective. The parties are at liberty to remarry at their free will and choice." On 3 October 1989 an application was made on behalf of the defender to the chairman Union Council Ward 72 for the cancellation of this certificate of divorce. On 12 October 1989 the chairman of Ward 72 made a purported order stating that he had no territorial jurisdiction and that the decree of talaq issued on 31 August 1989 was ordered to be cancelled. Thereafter the pursuer raised proceedings in the High Court in Lahore under Article 199 of the Constitution of the Islamic Republic of Pakistan challenging the order of 12 October 1989. On 26 November 1989 the Lahore High Court suspended the operation of the order of 12 October 1989. On 9 October 1994 the Lahore High Court declared the order of 12 October 1989 to have been rendered without lawful authority and to be of no legal effect, with the result inter alia that the first order dated 3 August 1989 made by the chairman Union Council Ward 75 was upheld. This decision has not been appealed. Even before the issuing of this decision, the pursuer considered himself divorced and free to remarry. He remarried in January 1992.

[3]The statutory framework within which the issues before me were argued is to be found principally in Part 2 of the Family Law Act 1986. The relevant sections for present purposes are as follows:

"45. Subject to Sections 51 and 52 of this Act, the validity of a divorce, annulment or legal separation obtained in a country outside the British Islands (in this Part referred to as an overseas divorce, annulment or legal separation) shall be recognised in the United Kingdom if, and only if, it is entitled to recognition -

(a) by virtue of Sections 46 to 49 of this Act, or

(b) by virtue of any enactment other than this Part.

46(1) The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if -

(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and

(b) at the relevant date either party to the marriage -

(i) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or

(ii) was domiciled in that country; or

(iii) was a national of that country.

51(3) ... recognition by virtue of Section 45 of this Act of the validity of an overseas divorce ... may be refused if -

(a) in the case of a divorce ... obtained by means of proceedings, it was obtained -

(i) without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or

(ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given; or ...

(c) ... recognition of the divorce ... would be manifestly contrary to public policy.

54(1) In this Part ... 'proceedings' means judicial or other proceedings."

[4]I propose to deal with the issues which were argued before me under the following headings: (i) What were the legal requirements for an effective talaq divorce in Pakistan in 1989? (ii) Did the pursuer comply with these requirements? (iii) If the answer to (ii) is affirmative, is the pursuer's Pakistani divorce capable of being recognised by this Court? (iv) What is the effect of the decision of the Lahore High Court on the issues before me? and (v) Are there any considerations, whether of public policy or equity or otherwise which would justify this Court in exercising its discretion not to pronounce decree of reduction?

1. What were the legal requirements for an effective talaq divorce in Pakistan in 1989?

[5]On this issue I heard evidence on behalf of the pursuer from Dr Martin Lau and on behalf of the defender from Dr Kabir-ur-Rahman Khan.

[6]Dr Lau was aged 40 when he gave evidence before me, and was a practising barrister and member of the Middle Temple. He is also the head of the Law Department of the School of Oriental and African Studies in the University of London and teaches Asian and Islamic law there at both post-graduate and under-graduate level. His qualifications and experience are summarised in his report (number 6/7 of process). He stated that Pakistan law had been the main area of his teaching and research for the last fifteen years or so. He travels to Pakistan every year; he is the co-editor of the yearbook of Islamic and Middle Eastern law; and he has written at least 50 expert opinions on Pakistani law and given expert evidence in proceedings before the English Courts.

[7]Dr Lau explained that until 1961 all Muslims in Pakistan were governed by classical Islamic law, but that Section 7 of the Muslim Family Laws Ordinance 1961 (number 7/40 of process - hereafter "the MFLO") made important reforms. Before the MFLO, a man could divorce his wife verbally simply by pronouncing talaq, without any requirement for written proceedings or for any written notice to the wife. Section 7(1) of the MFLO provides that "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". The chairman referred to is the chairman of the Union Council. By reason of Section 1(2), the MFLO extends to the whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be. Section 7(2) provides for punishment by imprisonment for contravention of Section 7(1). Sub-section (3) provides that 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 sub-section (1) is delivered to the Chairman. (This 90 day period is known as Iddat or Eidat). Section 7(4) provides that within 30 days of the receipt of notice under sub-section (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.

[8]Dr Lau gave evidence that by 1989 a Union Council was a democratically elected unit of local government, and the chairman would not normally be legally qualified but would be an elected politician. There were several Union Councils in the city of Lahore. The arbitration council which the chairman was obliged to...