Court denies Muslim man's talaq as a way to circumvent U.S. law

http://www.baltimoresun.com/news/local/bal-
md.divorce07may07,0,4609441.story

Man's attempt to circumvent state law is rejected

By Nick Madigan | Sun reporter
May 7, 2008

Saying "I divorce thee" three times, as men in Muslim
countries have been able to do for centuries when
leaving their wives, is not enough if you're a
resident of Maryland, the state's highest court ruled
yesterday.

Yesterday, the Court of Appeals rejected a Pakistani
man's argument that his invocation of the Islamic
talaq, under which a marriage is dissolved simply by
the husband's say-so, allowed him to part with his
wife of more than 20 years and deny her a share of his
$2 million estate.

The justices affirmed a lower court's decision
overturning a divorce decree obtained in Pakistan by
Irfan Aleem, a World Bank economist who moved from
London to Maryland with his wife, Farah Aleem, in
1985.

Both of their children were born in the United States.

In 2003, Aleem's wife filed for divorce in Montgomery
County Circuit Court.

When he filed a counterclaim, he did not object to the
court's jurisdiction over the case, according to the
ruling. But before the legal process could be
completed - and without telling his wife - Aleem went
to the Pakistani Embassy in Washington and invoked the
talaq, in effect attempting to turn jurisdiction of
the case over to a Pakistani court that later granted
him a divorce.

When they were married in Karachi in 1980, Farah Aleem
was 18 and had just graduated from high school. Irfan
Aleem was 29, a doctoral candidate at Oxford
University in England. As is customary, the couple
signed a marriage contract. It obligated Aleem to give
his wife the equivalent of $2,500 in the event of
their divorce. When they split, he did so, and claimed
he owed her nothing more.

Maryland's highest court disagreed.

"If we were to affirm the use of talaq, controlled as
it is by the husband, a wife, a resident of this
state, would never be able to consummate a divorce
action filed by her in which she seeks a division of
marital property," the judges wrote in their decision.

They said the talaq "directly deprives the wife of the
due process she is entitled to when she initiates
divorce litigation."

Priya R. Aiyar, an attorney for Irfan Aleem, said
yesterday from Washington that she had been unable to
reach her client to tell him he had lost his appeal.
Until she does, Aiyar said, she would have no comment
on the case.

Jeffrey M. Geller, a lawyer for Farah Aleem, did not
return a call seeking comment.

Experts in Islamic law and religion who are based in
the U.S. said they agreed with the court's ruling.
Abdullahi An-Na'im, a Muslim scholar and law professor
at Emory University in Atlanta, said "there can only
be one law of the land."

An-Na'im, who wrote Islam and the Secular State:
Negotiating the Future of Shari'a, said that "if
Muslims wish to influence what the law of the state
says, they must do so through the normal political
process and in accordance with civic discourse that is
equally open for debate by all citizens, and not on
the basis of religious beliefs."

Julie Macfarlane, a law professor at the University of
Windsor, Ontario, who has spent two years on a
research project titled "Understanding Islamic Divorce
in North America," said she was surprised that Aleem
had tried to force the notion of talaq on a U.S.
court.

"It's unclear how he even thought he was going to make
a successful legal argument on this point," Macfarlane
said.

Many North American Muslim religious leaders, known as
imams, now treat a woman's request for a divorce as a
right, Macfarlane said, an evolution from the common
scenario under which she may split up with her husband
only if he consents.

"The theory of Islamic law is that the man has the
right and that the woman has to ask for it, but what's
fascinating is that in practice, Islamic divorce is
evolving to fit contemporary mores," she said. "Women
are asking for divorce now. Two decades ago, they were
not."

Muneer Fareed, secretary-general of the Islamic
Society of North America, said that if Aleem had
traveled to Pakistan and invoked his talaq there, it
might have been recognized in a U.S. court under the
concept of comity, under which nations accept the
premise of a law in another country "whether or not we
agree with the law or its spirit."

But Aleem, he said, attempted to circumvent any such
agreements.

"There was a certain lack of faith here because the
husband initiated the talaq after his wife had filed
for divorce," Fareed said. "He was trying to defeat
the ends of justice within the American legal system."