By Limeng Sun
The Maryland Court of Appeals, the state’s highest court, in a case of first impression, held that the enforcement of a talāq divorce under Pakistani law was contrary to Maryland’s public policy because (1) only the husband had an independent right to exercise talāq to the exclusion of the wife, which violated “sex equality” under the state constitution; and (2) the process deprived the wife of due process. The Court further ruled that the marriage contract between the parties, if enforced under Pakistani law, will deprive the wife of half of the marital property that she is entitled to under Maryland law, which also contradicts the state’s public policy.
The parties, Irfan Aleem and Farah Aleem, were married in Pakistan in 1980. On the day of the wedding, Farah executed a marriage contract in accordance with Pakistani law. The agreement provided for a “dower” (mahr) of 51,000 rupees with its payment “deferred” (mu’ajjal) rather than “prompt” (mu‘ajjal). The agreement made no mention of other financial arrangements. The parties moved to the United States and resided in Maryland for 20 years before Farah filed for divorce in the Circuit Court for Montgomery County, Maryland. Irfan, a Pakistani national, went to the Pakistan Embassy in Washington, D.C., and performed talāq by executing a written document stating that he irrevocably pronounced upon Farah divorce by uttering “I Divorce thee Farah Aleem” three times.
Irfan argues in the case that the talāq was validly performed under Islamic religious law and Pakistani law based on Islamic law. In conjunction with the marriage contract, Maryland courts have no jurisdiction to decide the division of the parties’ marital property located in the United States.
The Court began its analysis by discussing the role of “comity” in recognizing foreign judgments and its applicability in the context of marriage. After reviewing a century of precedents, including the landmark Supreme Court case Hilton v. Guyot, the Court noted that “judgments rendered in [a] foreign country . . . are not entitled to full credit . . . but are prima facie evidence only of the justice of the plaintiffs’ claim.”
Specially, in the context of marriage, the Court recalled instructions from Hilton that “[a] judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law.” The Court then cited a Maryland case stating that a foreign decree of divorce will not be recognized by comity where “it was obtained by a procedure which denies due process of law in the real sense of the term, or was obtained by fraud, or where the divorce offends the public policy of the state in which recognition is sought . . . .”
In order to understand talāq and its legal implications in the present case, the Court looked at Pakistani law and practices for guidance. The Court cited a British case in the House of Lords that explains Pakistani divorce law as follows:
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 talāq, and in traditional law a divorce by talāq would take the simple form of the husband announcing talāq three times. The divorce then becomes immediately effective and irrevocable.
Relying on In re Fatima, the Court observed that under Pakistani law, which modified traditional Islamic law, only the husband has an independent right to use talāq to divorce his wife, and he can do so with no prior notice to the wife.
With these observations in mind, the Court examined the relevant public policy in Maryland. The Court recalled that in 1972, the state ratified the Equal Rights Amendment to the state constitution, which provides “[e]quality of rights under the law shall not be abridged or denied because of sex.” The Court declared that the institution of talāq, which only the male husband has an independent right to utilize, “is contrary to Maryland’s constitutional provisions and thus is contrary to the ‘public policy’ of Maryland.” In formulating a more general rule, the Court held that “the talāq divorce of countries applying Islamic law, unless substantially modified, is contrary to the public policy of this state and we decline to give talāq, as it is presented in this case, any comity.”
Additionally, the Court considered the wife’s procedural due process rights. The Court concluded that “talāq lacks any significant ‘due process’ for the wife” because it deprived the wife of the right to initiate divorce litigation in this state, and the lack of due process itself contradicts Maryland’s public policy. Before reaching this conclusion, the Court addressed Irfan’s argument that the Pakistani practice that makes a council of arbitration available to the wife during divorce satisfied due process. The Court rejected this argument by examining the Pakistani Muslim Family Laws Ordinance, which provides that “an arbitration council” only serves the purpose of “bringing about a reconciliation between the parties[.]” The Court concluded that the arbitration council is inapplicable in this case because the parties had no intention to reconcile.
The Court’s reliance on “sex equality” in annulling the talāq deserves special attention. Interestingly, the Court did not invalidate talāq as a divorce mechanism altogether; rather, it leaves room for recognizing talāq’s legality if it is “substantially modified” from its traditional form. Talāq as modified under Pakistani law, however, did not pass the Court’s threshold. Pakistani law’s requirement of filing notice of talāq with the relevant local union and the inclusion of an arbitration council to facilitate reconciliation do not address the Court’s concern with the unilateral, male-dominated nature of talāq. At the bare minimum, the Court would not recognize talāq’s validity unless a further modified talāq is available to both men and women. With respect to procedural due process, it appears that the Court is open to recognizing a divorce effectuated under foreign law where the parties had sufficient notice and hearing.
In the matter of marital property, the Court relied on the lower court’s finding on Pakistani law that “[i]f the Pakistani marriage contract is silent, Pakistani law does not recognize marital property[;]” and a man cannot divorce his wife by talāq unless he pays the deferred mahr to the wife. The Court noted the “stark discrepancy” between what Farah is entitled to under Pakistani law, which is the payment of $2,500 deferred mahr, and what she is entitled to under Maryland law, which is half of almost two million dollars in Irfan’s pension. Contrasting Pakistani law with Maryland law that entitles a wife to fair and equitable division of marital property in the absence of a valid agreement, the Court held that the Pakistani statutes are “wholly in conflict with” the public policy of Maryland and should be afforded no comity.
There are several peculiar aspects of this ruling. First, there is no discussion in the case about the payment of alimony and costs of child custody. Under traditional Islamic law, the husband who performed talāq is under obligation to pay the divorced wife alimony (mutʿa), costs of child custody, payments for support and lodging during the waiting period (‘idda) in addition to the payment of deferred mahr. The lack of discussion about alimony and child support in this case may be a result of their omission from both the marriage contract and the Muslim Family Laws Ordinance under which the divorce was supposedly entered into force. Second, the amount of deferred mahr payment is indeed unreasonably low in light of the length of the marriage and the husband’s economic status. As a result, financial costs associated with a talāq divorce, which were powerful deterrents against a husband’s invocation of talāq in traditional Islamic law, are ineffective in this case.
The Maryland Court of Appeals, by holding a talāq effectuated under Pakistani law to be contrary to the state’s public policy, demonstrates talāq’s incompatibility with the notion of sex equality and due process under Maryland law. However, the Court leaves room for recognizing a modified talāq where it is made available to women and parties have opportunities to litigate their divorce claims. Further, the case illustrates that financial deterrence associated with talāq, including the payment of deferred mahr, can be ineffective in many modern contexts, especially when the deferred mahr is small and there are no further financial obligations on the husband.
 Aleem v. Aleem, 947 A.2d 489, 501–02 (Md. 2008).
 Pak. Muslim Family L. Ordinance (1961), http://bdlaws.minlaw.gov.bd/act-details-305.html
 See Aleem, at 490–91.
 Id. at 494–95 (quoting Hilton v. Guyot, 159 U.S. 113 (1985)).
 Id. at 499 (quoting Wolff v. Wolff, 389 A.2d 413 (Md. 1978)).
 Id. at 500 n.12 (quoting In re Fatima,  AC 527 (HL)). Under Muslim Family Laws Ordinance, the right to divorce could be “delegated” to the wife. See Art. 8, Pak. Muslim Family L. Ordinance. However, Irfan did not delegate such right to Farah. See Aleem, 947 A.2d at 490 n.1.
 Id. at 500.
 Id. at 500–01 (quoting Md. Dec. of R., art. 46).
 Id. at 501.
 See id. at 500–01.
 See Pak. Muslim Family L. Ordinance, art. 7.
 See Aleem v. Aleem, 947 A.2d, at 501.
 Id. at 501–02.
 Id. at 494.
 See Wael B. Hallaq, Sharī‘a: Theory, Practice, Transformations 282 (2009); see also Yossef Rapoport, Marriage, Money and Divorce in Medieval Islamic Society 70–71 (2005).
 See Aleem, at 492; see also Pak. Muslim Family L. Ordinance, art. 9 (discussing “maintenance” in the context of the husband failing to provide for the wife during the marriage, which appears to differ from alimony).