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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> STARRED B v Entry Clearance Officer, Islamabad (Pakistan) [2002] UKIAT 04229 (13 September 2002) URL: https://www.bailii.org/uk/cases/UKIAT/2002/04229.html Cite as: [2002] UKIAT 04229, [2002] UKIAT 4229, [2003] INLR 117 |
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[2002] UKIAT 04229
APPEAL No. TH/05142/2000 (STARRED)
Date of hearing: 29 May 2002
Date Determination notified: 13 September 2002
MIRZA WAHEED BAIG |
APPELLANT |
and |
|
Entry Clearance Officer, Islamabad | RESPONDENT |
Introduction
The Facts
Islamic Law
The Law of Pakistan
"Talaq.
(1) 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.
(2) Whoever contravenes the provisions of sub-section(1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.
(3) Save as provided in sub-section (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
(4) Within thirty 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.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective."
English Law
"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 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.
(2) The validity of an overseas divorce, annulment or legal separation obtained otherwise than 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;
(b) at the relevant date
(i) each party to the marriage was domiciled in that country;
or
(ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and
(iii) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.
(3) In this section "the relevant date" means
(a) in the case of an overseas divorce, annulment or legal separation obtained by means of proceedings, the date of the commencement of the proceedings;
(b) in the case of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings, the date on which it was obtained. …
(5) For the purpose of this section, a party to a marriage shall be treated as domiciled in a country if he was domiciled in that country either according to the law of that country in family matters or according to the law of the part of the United Kingdom in which the question of recognition arises."
"'Proceedings' means judicial or other proceedings."
So far as concerns s 45, it is common ground that there is no other enactment that might give validity to the sponsor's divorce.
"21. The sponsor, during an address to me that she was determined personally to give, let slip matters which lead me to find that she did not believe that she was legally free from an encumbrance that would render the marriage a nullity. She had told the registrar that she was a spinster. I am satisfied that the sponsor is an educated and intelligent woman. She knew well that she was telling a lie. Furthermore, I find that it had a purpose – she did not want to reveal her previous marriage because she did not believe that she was legally free of it."
The Divorce
"8. In the present case, Mr Mahmood divorced Ms Nighat Parveen (Mirza) by a certain form of talaq, as evidenced in his three deeds of divorce dated 1st September 1993, 23rd October 1993, and finally 1st January 1994 respectively, which are part of the case file. All these three Deeds of Divorce are executed on Pakistani stamped paper to the value of Rs 10 each. It is not immediately obvious why this legal action should have been taken three times, so it will be helpful if I analyse these three documents in some more detail.
9. The Divorce Deed of 1st September 1993 states and confirms that the Muslim marriage between the spouses had been contracted in Rawalpindi on 14th December 1992. Mr Mahmood also declares that a dower (mahr) of 500 Rupees had been fixed and paid to Ms Nighat Parveen. This would have become her absolute property and we are not concerned with this aspect of the matter here. Mr Mahmood then proceeds to state that 'all efforts to normalise the relation had completely failed', which is probably a coded reference to the fact that this marriage had remained unconsummated. Hence, as the document proves, a single talaq was pronounced in front of two adult Muslim witnesses, who duly signed the document, and it is stated that after the waiting period fixed under law, the iddat period, Nighat Parveen would be free to marry any other person. This is not yet a final Muslim divorce, it is only a first pronouncement, a warning, so to say, and the divorce remains revocable at this stage.
10. The second Divorce Deed, dated 23rd October 1993, still falls within the iddat period of approximately three months and also still documents a state of affairs where the divorce remains revocable. Indeed, it is the husband's second pronouncement of talaq, as clearly indicated in the document itself, which contains otherwise the same wording as the first document and is made before the same two adult Muslim male witnesses, who have again duly signed. This document shows that the Entry Clearance Officer in Islamabad was totally misguided and simply wrong in law when concluding that Mr Mahmood had pronounced a 'bare talaq', since that would have to be done in the form of the 'triple talaq', with instant effect and no further need for additional documentary evidence. What we find here is not three identical forms of divorce document, but a clear progression from the first to the second, and finally the third pronouncement of talaq, which alone seals the fate of the marriage.
11. The third Divorce Deed, dated 1st January 1994, is a textbook example of the third and final Muslim talaq, given by a husband at the expiry of the iddat period, in fact four months after the first pronouncement. This document reiterates that the first talaq was given on 1st September 1993, the second on 23rd October 1993, and that the third and final divorce pronouncement is now made through this document. As of that date, Ms Nighat Parveen was therefore irrevocably and legally divorced under the Muslim law ofPakistan
.
12. This document mentions specifically that Mr Mahmood would henceforth have no further concern or connection whatsoever with his former wife and also restates the final phrase that appeared in the earlier two notices, namely that she 'is free to marry any other person at the expiry of period fixed under the law and completion of legal formalities and service of notice to the Councilor [sic] concerned'."
There was no notification to the Chairman of the Union Council under the Muslim Family Laws Ordinance.
Authorities
"The pronouncement of the talaq was required by law to be notified to a public authority, the Chairman of the Union Council; he in turn was required by law to constitute an arbitration council for the purposes of conciliation and to invite each spouse to nominate a representative. These are 'proceedings'; none the less so because in the event neither spouse elects to take advantage of the opportunity for conciliation which the arbitration council presents. They are proceedings that are not merely officially recognised but are also enforced by penal sanctions under the Muslim Family Laws Ordinance 1961. Without such proceedings the divorce by talaq never becomes effective. The proceedings come first, the divorce follows them 90 days after they have been commenced."
Lord Fraser of Tullybelton said (at 814):
"If they are to be proceedings at all, they must of course have some regular definite form, but anything that can properly be regarded as proceedings will qualify so long as it is legally effective";
and at 817:
"I am of the opinion that the talaq and the notice to the civil judge, a copy of which has to be sent to the respondent, taken together are 'proceedings'."
Lord Fraser specifically reserved the question whether "a bare talaq pronounced in some country where, unlike Pakistan
, it would be effective without any further procedure, should be recognised".
"The only requirement is a proceeding, or proceedings (for there is no magic in the singular or the plural), officially recognised resulting in a divorce which is effective under the country's law."
In indicating what would amount to "proceedings", Lord Scarman appears to have taken a view somewhat wider than his brethren. He indicated (at 824B and 825F) that the process adopted, including notification to the Chairman of the Union Council, amounted to "proceedings", because they were "acts officially recognised by the law of Pakistan
as leading to an effective divorce".
"The criterion 'judicial or other proceedings' must be given a construction which restricts recognition to a narrower category of divorces than all divorces obtained by any means whatsoever which are effective by the law of the country in which the divorce was obtained."
He went on to say, in commenting on the apparently wider dicta by Lord Scarman in Quazi v Quazi:
"There is nothing to be found in the speeches of the House of Lords which is inconsistent with this conclusion. On the contrary, all their Lordships focused their analysis on the question whether the procedure required by thePakistan
Ordinance of 1961 impressed the characteristic of 'proceedings' on the means by which the divorce in that case was obtained. If a bare talaq had been enough, the ratio decidendi of all the speeches was quite unnecessary. The answer may be that the House confined itself to the legal effect of the facts in the case before it. Talaq followed by compliance with the requirements was enough to constitute 'other proceedings', so that it was unnecessary to look for a wider criterion by considering the effect of a bare talaq. There is force in the point, and it gains strength from the express words of Lord Fraser. Nonetheless, if divorce obtained by any means effective by the law of the country where it was obtained was sufficient, the reasoning in all the speeches was quite unnecessary. And I do not understand the dictum of Lord Scarman in Quazi v Quazi … which led Bush J in Zaal v Zaal (1983) 4 FLR 284 at 288 to a contrary view, as an expression of the view that any act or acts legally effective in the country where the divorce was obtained constitute proceedings. Lord Scarman was considering the acts done by way of compliance with the 1961
Pakistan
Ordinance."
"It is pronounced. Pronouncement of talaq three times finally terminates the marriage in Kashmir, Dubai, and probably in other unsophisticated peasant, desert or jungle communities which respect classical Muslim religious tradition. Certainly by that tradition the pronouncement is a solemn religious act. It might doubtfully be described as a ceremony, though the absence of any formality of any kind renders the ceremony singularly unceremonious. It can fairly be described as a 'procedure' laid down by divine authority in the inspired text of the Koran. But neither respect for the divine origin of the procedure nor respect for the long enduring tradition which over the centuries had rendered the bare talaq effective as terminating a marriage by the law of Muslim countries necessarily or sensibly should convert the procedure into a proceeding within the intent of [the Act]."
"'Proceedings' must, in my judgement, at least bear in the statute a meaning which the word would have in normal speech where, as it seems to me, no-one would ordinarily refer to a private act conducted entirely by parties inter se or by one party alone, as a proceeding, even though the party performing it may give it an additional solemnity or even an efficacy by performing it in the presence of other persons whose only involvement is that they witness its performance. The word would not, in my judgement, ordinarily be used as being synonymous with 'procedure' or 'ritual'. Thus, for instance, the formalities which are required by law to be observed in the execution by a testator of a valid will under the provisions of the Wills Act 1837 would not, I should have thought, be normally referred to as 'proceedings' although the testator would be properly described as having gone through the correct procedure. On the other hand, the word does not, I think, necessarily connote publicity; for instance, business transacted at a meeting of a board of directors of a company is universally and properly described as 'proceedings of the directors'. In the context, however, of a solemn change of status, it does seem to me that the word must import a degree of formality and at least the involvement of some agency, of or recognised by the state having a function that is more than simply probative, although Quazi v Quazi clearly shows that it need have no power of veto. [That is a reference to the recognition in Quazi v Quazi of the fact that the parties have no obligation to submit to conciliation, nor can the state prevent the divorce taking effect 90 days after notification to the Chairman of the Union Council.]
… The essentials of the bare talaq are, as I understand it, merely the private recital of a verbal formula in front of witnesses who may or may not have been specially assembled by the husband for the purpose and whose only qualification is that, presumably, they can see and hear. It may be, as it was in this case, pronounced in the temple. It may be, as it was here, reinforced by a written document containing such information, accurate or inaccurate, as the husband cares to insert in it. But what brings about the divorce is the pronouncement before witnesses and that alone. Thus in its essential elements it lacks any formality other than ritual performance; it lacks any necessary element of publicity; it lacks the invocation of the assistance or involvement of any organ of, or recognised by, the state in any capacity at all, even if merely that of registering or recording what has been done. Thus, though the public consequences are very different, the essential procedure differs very little from any other private act such as the execution of a will and is akin to the purely consensual type of divorce recognised in some states of the Far East.
In my judgement, … such an act cannot properly be described as a 'proceeding' in any ordinary sense of the word, still less a 'proceeding' in what must, for the reasons given above, be the restrictive sense of the word as used in the Act."
"The test is therefore whether the divorce depends for its validity, at least in part, on what can properly be termed 'proceedings'. In this case, not one but both sides submit that the proper conclusion is that it does so depend. On the evidence that I have I accept that submission. Although the Sharia Court has no judicial decision to make whether there is to be divorce or no, what occurred before it with the assembly of the court, judge and clerk, and the duty to record into the register, having taken formal declarations, is properly described as 'proceedings' and the local law explicitly requires such proceedings as an integral part of the divorce process. Since both spouses were at the material time domiciled in, and, indeed, nationals of the Lebanon, it follows that this proceedings divorce qualifies for recognition under s 46(1)."
"This divorce is governed by s 46(1) of the Family Law Act 1986 (a divorce obtained by means of proceedings: Quazi v Quazi [1980] AC 744) and is therefore recognised in this country if it is effective in Bangladesh (which it is) and at the relevant date either party was habitually resident, domiciled or a national of Bangladesh."
That is a perfectly correct statement of the applicable law. The EIN summary which is not a summary, is also not correct.
Proceedings
Other issues
Conclusions
C M G OCKELTON
DEPUTY PRESIDENT