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Syed v. Ahmed, [2004] ScotCS 83 (31 March 2004)
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OUTER HOUSE, COURT OF SESSION |
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A3001/00
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OPINION OF LORD MENZIES in the cause MASROOR AHMED SYED, otherwise named as SYED MASROOR AHMED Pursuer; against SAMRANA AHMED Defender:
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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."
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 constitute for the purpose of reconciliation was a non-judicial proceeding; parties were not required to attend, and if neither party attended, or if only one party attended, it was clear that there would be no reconciliation, and talaq would become effective at the expiry of the 90 day period of Iddat. In Dr Lau's experience it was unusual for a wife to appear in person at an arbitration council. Provisions relating to the proper notice and jurisdiction of a union council were made in the West Pakistan Rules under the Muslim Family Laws Ordinance 1961 (number 7/41 of process) and in particular Rule 3(b). Dr Lau stated that at one time, in the 1960s, consular officials in the Pakistan High Commission were empowered to act as a Union Council, but to the best of his knowledge there has never been any designated person in the High Commission in London to perform this duty. If a wife considered that notice had been given to the chairman of the wrong Union Council, Dr Lau was of the opinion that there were several course of action open to her, including a petition to the High Court for judicial review or an application to the Family Court. [9] Dr Lau stated that there were three procedural requirements for a divorce under the MFLO - (1) after the husband has pronounced talaq he must give written notice to the chairman of the Union Council of his having done so; (2) the husband must supply a copy of this written notice to the wife; and (3) within 30 days of the receipt of notice, the chairman shall constitute an arbitration council, which may or may not be attended by either or both parties. Thereafter, unless the talaq has been revoked, on the expiry of the 90 day period of Iddat which begins when the notice is delivered to the chairman, the divorce is effective. Dr Lau was very clear that it was not necessary for a divorce to be effective that any decree or certificate of divorce should be pronounced. There is no provision in the MFLO requiring this, nor is there any provision in Pakistani law authorising the Union Council to issue this. It has become the custom for a certificate of divorce to be issued if requested, to protect parties against allegations of adultery or criminal charges, but there is no requirement for such a certificate to render the divorce effective. Dr Lau emphasised that the important aspects of the proceedings were that notice was given to the chairman and that the wife received notification or knowledge - however informally this was done - that talaq had been pronounced and that the period of Iddat had commenced. Dr Lau was familiar with the decision of the House of Lords in Quazi v Quazi [1980] A.C. 744 (to which I shall return later in this Opinion), and agreed with the findings of Wood J. at pages 769-773 as to the lack of any requirement for a divorce certificate. This remained the position in 1989. [10] Dr Lau disagreed with certain passages in Dr Khan's supplementary report dated 5 June 2003. He indicated that the cases referred to in paragraph 5 on page 5 of that report have subsequently been overruled. Generally with regard to Dr Khan's point about the Islamisation of Pakistan laws, in 2000 the Sharia Court decided that certain parts of Section 7 of the MFLO were repugnant to Islam and should be invalidated; however, this decision has been appealed to the Sharia Appellate Court which has not yet issued its decision. Until it does, the decision of the Sharia Court is of no effect. In any event, even if the decision in 2000 regarding Section 7 was upheld on appeal, this would not have a retrospective effect and therefore would not affect proceedings in 1989 or 1994. Dr Lau disagreed with Dr Khan's observations at paragraphs 9-12 on pages 6 and 7 of his supplementary report: as observed in Quazi, the only obligation on the chairman is to set a date for the parties to meet. If one party did not turn up to an arbitration council meeting there were no sanctions. With regard to Dr Khan's original report dated 19 February 1993 (number 7/1 of process), which predated the decision of the Lahore High Court, Dr Lau observed that the reference on page 2 to the Civil Procedure Code 1908 was wrong, because by reason of Section 3 of the MFLO it is expressly provided that that code shall not apply to any arbitration council. [11] In cross-examination Dr Lau emphasised that the most important feature of the MFLO procedures is that the wife is made aware, however informally, of the existence of the proceedings. It is not an essential flaw nullifying the proceedings that notice may have been given to the chairman of the wrong ward of the Union Council. Dr Lau was aware of no case in which a divorce had been held to be invalidated by the giving of notice to the wrong ward chairman, as long as the wife was made aware of the proceedings. Rule 3(b) of the rules has been held by the Courts in Pakistan not to be mandatory. He maintained his position that if the husband at the arbitration council intimated that he did not wish reconciliation, the period of Iddat continued uninterrupted and there was no provision for any extension thereto. Moreover, not only was there no requirement for a certificate of divorce, standing the fact that there was no statutory power in the chairman of a Union Council to grant such a certificate, the legal effect of any such certificate was doubtful. In the present case, the two orders validated by the Lahore High Court were all that was required to constitute a divorce under Pakistani law. Dr Lau observed that the decision of the Lahore High Court supported his view, but he would have reached that view in any event. [12] Dr Khan gave evidence as to Pakistani law on behalf of the defender. He was aged 78 and was born and raised in India. His professional qualifications and experience are set out in his curriculum vitae (number 7/4 of process). He practised as an Advocate in the High Court at Lahore between 1958 and 1960; however, he has not practised in Pakistan since 1960, and not since the MFLO was passed. The last time that he was in Pakistan was some 20 to 25 years ago. Between 1965 and 1992 he was a lecturer in the Department of Public International Law at the University of Edinburgh, retiring as head of department in 1992. His principal areas of interest were world trade and international economic law. This was the first occasion on which he had appeared to give evidence about the MFLO in any Court; however, he had provided between 15 and 20 opinions over the last 20 years regarding practice under the MFLO. [13] Dr Khan had been involved in providing advice to the defender regarding Pakistani law since about February 1993, and before the decision of the Lahore High Court. He spoke to his various reports (7/1, 7/2, 7/3, 7/61 and 7/62). With regard to the hand written annotations with document numbers on 7/1, Dr Khan confirmed that these were in his hand, but could not say what the numbers related to and did not think that they had any real significance. He confirmed that his view had been that it was not competent for the pursuer to petition the High Court in Lahore, but the Court reached a different view. He had proceeded on the basis that the Lahore High Court proceedings were based on Section 151 of the Civil Procedure Code 1908, and not (as in fact appears to have been the case) Section 199 of the Constitution. [14] Dr Khan was of the opinion that where both parties to a marriage which was constituted in Pakistan were habitually resident in the United Kingdom, no Union Council within Pakistan had jurisdiction to entertain divorce proceedings, which required to be instituted before a conciliation commission to be established in the United Kingdom. Dr Khan disagreed with Dr Lau's views about the effect of Sharia law. He stated that in 1985 Sharia law was incorporated into the Constitution of Pakistan, and all things must be considered against this. However, Dr Khan accepted in cross-examination that he had not seen the cases referred to by Dr Lau, nor was he aware that the decision of the Sharia Court that Section 7 of the MFLO was repugnant to Islam had been appealed to the Sharia Appellate Court. He did however agree that even if the Appellate Court upheld the decision of the Sharia Court, this would not have a retrospective effect and would not affect proceedings in 1989 or 1994. [15] Dr Khan disagreed with Dr Lau that a notice of talaq to the chairman of the wrong Union Council Ward might not invalidate divorce proceedings. He considered that service of the notice on the correct chairman was a mandatory requirement of Pakistani law, and he was not aware of any practice to the contrary. Thereafter, the chairman has an obligation to constitute an arbitration council which will genuinely promote conciliation. If only one party attends an arbitration council meeting, and if the arbitration council takes no further steps to bring about a reconciliation, Dr Khan considered this a fundamental flaw in the proceedings which would vitiate any subsequent divorce. Finally, Dr Khan considered that a talaq divorce did not become final until a certificate of talaq is issued by the chairman of the appropriate Union Council. A certificate of divorce is essential in his view to the completion of the proceedings: without a certificate, the parties are not effectively divorced. Dr Khan was therefore of the opinion that Pakistani law required certain mandatory steps to be taken before a divorce could be effective. First, notice must be given to the chairman of the correct Union Council Ward - there is no latitude or scope for error. Second, a copy of that notice must be provided to the wife - it is not enough that she obtains knowledge of the existence of the proceedings informally. Third, the arbitration council must see to it that genuine efforts are made at conciliation. And fourth, a certificate of divorce must be obtained. [16] I preferred the evidence of Dr Lau to that of Dr Khan. Dr Lau's experience of the practical procedures of Pakistani law was greater than Dr Khan's. Dr Lau travels to Pakistan each year, his main area of teaching and research for the last 15 years has been Pakistani law and he has given at least 50 opinions on Pakistani law for the English Courts. By contrast, Dr Khan retired in 1992; between 1965 and 1992 he was a lecturer in public international law and his particular subject area was world trade and international economic law. He has never practised law in Pakistan since the MFLO came into effect, and the last time that he visited Pakistan was about 20 to 25 years ago. He had given between 15 and 20 opinions regarding Pakistani law, but this was the first occasion that he had appeared in Court. While of course I accept that Dr Khan was doing his best to assist the Court, I took the view that Dr Lau's more recent and more relevant experience rendered his evidence more reliable than that of Dr Khan. [17] There were also several respects in which I found Dr Khan's evidence to be somewhat confused and therefore unreliable. For example, he maintained that the proceedings before the Lahore High Court had been initiated under Section 151 of the Civil Procedure Code 1908, and that the basis of the petition to that Court was only changed subsequently to Article 199 of the Constitution of Pakistan. It was on this basis that Dr Khan criticised the jurisdiction of the Lahore High Court, in his first two reports (numbers 7/1 and 7/2 of process) and in his evidence. However, no evidence has been led to indicate that the proceedings before the Lahore High Court were ever raised under Section 151 of the 1908 Code; on the contrary, the attested writ petition itself (number 6/2 of process) makes it clear, as does the final judgment of the Court, that the petition was brought under Article 199 of the Constitution. On a separate matter, Dr Khan maintained his position with regard to the increasing effect of Islamic Sharia law and disagreed with Dr Lau's views on this matter, but was unaware of the pending case before the Sharia Appellate Court and was also unaware of the cases referred to by Dr Lau in this regard. On another matter Dr Khan gave clear evidence to the effect that if the wife did not attend an arbitration council, or appoint a representative to attend on her behalf, the husband could not be divorced under the MFLO. However, on considering the matter over an adjournment for lunch, Dr Khan reversed his view on this and stated that in these circumstances the arbitration council would be effective even if the wife or her representative did not attend. [18] Dr Khan based his view that a certificate was an essential element of a completed divorce on his interpretation of Rule 5(6) of the MFLO Rules (number 7/41 of process). He construed the reference to "all decisions of Arbitration Council" as meaning that there must be a decision at the conclusion of the proceedings. He stated that it was the obligation of the chairman of the arbitration council under the rules to give a decision at the end of the proceedings. I cannot read the rule as giving rise to such an obligation, either expressly or by inference. The rule applies to all proceedings before the arbitration council. As Rule 3 makes clear, the arbitration council has several areas of jurisdiction, including not only reconciliation after a notice of talaq, but also granting permission for polygamous marriages under Section 6 of the MFLO and issuing a certificate specifying the amount of maintenance to be paid by a husband under Section 9 of the MFLO. I consider that the reference to decisions in Rule 5(6) relates to those matters where a decision is clearly required. It does not relate to issuing a certificate at the conclusion of a divorce, for which no provision is made in the MFLO or the rules. [19] I note that this view is consistent with the judgment in Fahmida Bibi v Mukhtar Ahmad, P.L.D. 1972 Lah. 694 which is quoted in Quazi v Quazi [1980] A.C. 744 (by Wood J. at 770/771 and by Lord Fraser of Tullibelton at 817):"The chairman is required to bring about reconciliation between the parties for which purpose he is to give notice to them to nominate their representatives in order to constitute the arbitration council. If any of the parties fails to appear before him, he cannot enforce his attendance nor a default of appearance on the part of any of the parties can be visited with any penal consequence. The divorce, notwithstanding the conduct or attitude of any of the parties, shall become effective after the expiry of 90 days unless the divorce is revoked earlier by the husband. In the event, the parties appear before the chairman and an arbitration council is constituted, but reconciliation does not succeed, the only thing the council or the chairman may do, is to record in writing that reconciliation has failed. There is no other function which a chairman or an arbitration council is competent to perform in this behalf. If reconciliation does not succeed or the husband does not revoke talaq before expiry of 90 days, it becomes automatically operative and effective. There is no provision either in the Ordinance or the rules requiring the chairman or the arbitration council to give a decision or issue a certificate to make the divorce effective. If the chairman issued the certificate, it was not under any provision of law and had no legal effect."
(i) The husband must pronounce talaq and thereafter give the chairman of the Union Council notice in writing of his having done so. Normally this notice will be sent to the chairman of Union Council of the Ward in which the wife was residing at the time of pronouncement of talaq. There is no Union Council, nor any officer designated to be chairman of a Union Council, within the United Kingdom. In practice the requirements of Rule 3 of the West Pakistan Rules under the MFLO are not strictly observed as to the precise territorial jurisdiction of the Union Council. A notice served on the chairman of a Union Council for a Ward which has a substantial connection with a wife not resident in Pakistan - for example, the Ward in which she was last resident in Pakistan, or the Ward in which her immediate family reside - will suffice for this purpose. It does not appear that a mistake as to the precise boundaries of a Union Council will invalidate such a notice or render void subsequent divorce proceedings.
(ii) The husband must supply a copy of the notice to the wife. There are no prescribed formalities for doing this; it is not specified where the copy must be sent. The essential point is that the wife must be made aware that the husband has pronounced talaq and has given notice in writing to the chairman of an identified Union Council.
(iii) Upon the expiration of 90 days from the date on which the chairman receives the notice, the talaq becomes effective and the parties are thereby divorced, unless within that 90 day period the husband revokes the talaq or a reconciliation is effected.
(iv) Within 30 days of the receipt of the notice the chairman must constitute an Arbitration Council for the purpose of bring about a reconciliation between the parties. If any of the parties fails to appear before the Arbitration Council, the attendance of that party cannot be enforced, nor is a failure to attend visited with any penal consequences. In the event that the husband declines to revoke talaq or to agree to a reconciliation, the 90 day period of Iddat continues without interruption.
(v) After convening the arbitration council and ascertaining that the husband will not revoke talaq nor agree to reconciliation, the chairman of the Union Council has no further function. There is no obligation on the chairman to provide a certificate of divorce at the end of the period of Iddat, and there is no statutory provision empowering him to do so, although as a matter of practice chairmen of Union Councils will issue a certificate of divorce if requested to do so. In particular, it is not necessary element of a divorce that a certificate of divorce is issued.
2. Did the pursuer comply with these requirements?
[23] Apart from Dr Lau (and a translator, Salmann Aziz who gave very brief evidence) the only parole evidence for the pursuer came from the pursuer himself. In addition, counsel for the pursuer relied on affidavit evidence from five witnesses. The only parole evidence for the defender apart from that of Dr Khan, came from the defender herself. In addition, counsel for the defender relied on affidavit evidence from seven witnesses. [24] The pursuer stated that he was a national of Pakistan, and married the defender (who was also a national of Pakistan) on 19 November 1979. He explained that in Pakistan a marriage is a contract between the parties, arranged between the respective families; number 6/9 of process was an English version of the parties' marriage contract. The pursuer met the defender for approximately 5 minutes shortly before the marriage. After the marriage, the parties lived in Pakistan for about 3 weeks. They then both travelled to live in Iran, and in about April 1981 they went to live in England. There were two children of the marriage, a son born in 1981 and a daughter born in 1984. Both parties were employed as doctors. While living in England they did not always live together - they lived apart for quite long periods. In about December 1986 the pursuer went to work in Law Hospital in Carluke. In about July 1987, or shortly thereafter, the defender also came to work at the same hospital. The pursuer described the marriage as being very unhappy from the start, and he began to give serious consideration to seeking a divorce in about March 1987. He sought advice from solicitors in Eastbourne regarding this - number 6/15 of process is a letter dated 8 April 1987 in which solicitors gave him advice about this. The parties finally separated on 14 November 1988. [25] On about 27 or 28 April 1989 the pursuer returned to Pakistan. At this time it was his intention to live permanently in Pakistan, and he intended to open up his own clinic there practising as a general surgeon. However, after attending interviews and discussing matters with several people it became clear to him that there was no prospect of a job as a surgeon in Pakistan, nor of his establishing his own practice there. After some months he therefore gave up these plans. He had terminated his United Kingdom permanent residence status and lost his work permit; he returned briefly to the United Kingdom and then settled in the United States of America, where he continues to live. [26] The pursuer explained that when he returned to Pakistan in April 1989 he discussed his matrimonial problems with his family. Because a family is involved in the arranging of a marriage in Pakistan, divorce can cause difficulties between families, and so is a matter which the pursuer felt he must discuss with his wider family. Having done this, the pursuer's uncle Fazal Haq telephoned the defender's mother, who came to the pursuer's house. The parties' daughter was staying with the defender's mother at this time; the pursuer asked if his daughter could stay with him for some days, but the defender's mother refused to allow this, saying that the defender was coming to Pakistan and would be staying with her mother very shortly, and the pursuer could talk to her then. Number 6/11 of process is a photograph of the pursuer, his daughter and his mother taken on this visit. [27] After this meeting, the pursuer resolved to divorce the defender. He saw an attorney and pronounced talaq. He wrote out the "deed of divorce" which was checked by the attorney. The attorney advised him to send notice of talaq to the chairman of Union Council Ward 75, because the address of the defender's mother was within Ward 75 and the defender would be staying with her mother. The pursuer accepted this advice and sent the necessary notice to the chairman of Ward 75, and a copy thereof to the defender at her mother's address. Number 6/82 of process is the attested English translation of the registered mail receipt of the copy notice addressed to the defender at her mother's address and delivered on 4 May 1989. Number 6/86 of process is the translation of the registered mail receipt for the notice sent to the chairman of Ward 75; the delivery date stamp on this receipt is illegible, but the pursuer believed that both notices were sent on the same date. [28] The defender and the parties' son travelled from Glasgow to Pakistan on 9 May 1989, as appears from her passport (7/38 of process), and returned from Pakistan to the United Kingdom on 26 May 1989. In about the middle of May 1989 there was an informal meeting in the pursuer's uncle's house, which was attended by the pursuer, his mother, his uncle Fazal Haq and other members of the pursuer's family, and by the defender, her mother, her aunt and her brother-in-law, Mohsin Rafique. Although this was an evening meeting, it was extremely hot as the air conditioning had broken. It lasted some four hours. The pursuer outlined the difficulties in the parties' marriage; the defender adopted a belligerent attitude and did not wish to be divorced. The pursuer's family supported him, and any possibility that the pursuer might withdraw or revoke the talaq disappeared. The pursuer did not say anything at this meeting, nor at any other time, to suggest that he would withdraw or revoke the talaq. [29] Thereafter a meeting was convened by the chairman of the Union Council Ward 75 on 27 May 1989. The pursuer attended with his uncle Fazal Haq, who was his appointed agent; the defender's mother and brother-in-law were also there, as was the chairman of the Arbitration Council. At this meeting the chairman explained the rules and asked the pursuer about the possibility of a reconciliation. The pursuer told him that there was no question of a reconciliation, and that he wished to divorce the defender. The defender was represented principally by her mother at this meeting, who stated that the defender did not wish to be divorced and that more time should be allowed. The chairman indicated that there was ample time before the expiry of the 90 day period of Iddat, and noted that the pursuer had categorically stated that he would not withdraw the talaq. After this meeting there were no further steps that required to be taken - the pursuer merely waited for the period of Iddat to expire. He was in frequent contact with his uncle Fazal Haq who was acting on his behalf. Fazal Haq told the pursuer that he attended before the chairman of Ward 75 on 3 August 1989 and the chairman noted that the 90 period of Iddat was completed and ordered that a divorce certificate should be issued. The pursuer considered that his divorce became final once the chairman noted that the period of Iddat had expired. However, by this time the pursuer had left Pakistan and returned to the United Kingdom en route to the United States of America. For practical purposes he wished to obtain a certificate of divorce. He was then told that the defender's brother-in-law, Mohsin Rafique had approached the chairman of Ward 75 and told him that the defender's mother's house was in Ward 72, as result of which Fazal Haq was advised to speak to the chairman of Ward 72 to obtain a certificate of divorce. [30] The pursuer, who can read and speak Urdu, was shown number 7/63 (ii) of process and stated that he had seen this before. He stated that this document indicated that "it was not in this Ward", "hence on these reasons the applicant is sent to the file room and the first party is instructed to approach the Arbitration Council of the appropriate address", or words to this effect. He was shown 7/63 (i), which bore to be an English translation of 7/63 (ii). He had never seen this document before, nor had it been referred to in any of the court proceedings over the preceding 13 or 14 years. It was not referred to before the Lahore High Court nor in the Scottish Courts. If it purports to be a translation of 7/63 (ii), the pursuer maintained that it was wildly inaccurate. There was no mention of territorial jurisdiction in the original document, and the last paragraph does not appear in the Urdu original. The pursuer considered that the translation of the last paragraph of 7/63 (ii) given in the text of the judgment of Mr Justice Arif in the Lahore High Court was accurate. [31] The pursuer stated that his uncle Fazal Haq told him that about four weeks after the papers were forwarded to Ward 72 Mr Haq went to the office of the chairman of that Ward and applied for a certificate, and the chairman issued a certificate. Number 6/1 of process is an attested copy of that certificate, in both English and Urdu. The pursuer reiterated that this was not necessary for the constitution of his divorce, but was of practical assistance to him as he was going to live in the United States of America; he subsequently remarried in January 1992. [32] In cross-examination the pursuer maintained that when he travelled to Pakistan in April 1989 he did not intend to resume residence in the United Kingdom. If he failed to find a job, or a professional opportunity, in Pakistan, he intended to go to practice in the United States of America, but this would have taken many years of obtaining the necessary qualifications and therefore was not his preferred option. He maintained that he met with the defender's mother before he sent a copy of the notice to the defender at her mother's address - after this notice was sent, relations with his mother-in-law became acrimonious and it was inconceivable that she would have visited the pursuer at his family home and taken lunch with him. He maintained that he never gave any indication that he would not proceed with the talaq or would revoke it, either at the informal meeting in about the middle of May 1989 or at the Arbitration Council meeting; he was shown the affidavit of the defender's mother (number 7/68 of process) and categorically denied this aspect of it. He told the chairman at the Arbitration Council meeting in clear terms that he did not want to withdraw the talaq. [33] The pursuer's evidence was consistent with the affidavit of Fazal Haq (6/63 of process). An affidavit from Mahmood Siddique, a District and Sessions Judge in Pakistan, dated 22 March 1998 (number 6/5 of process) supported the pursuer's position that the parties were validly and effectively divorced under Pakistani law on 3 August 1989. The affidavits of Sana Khokhar and Masud Khan (numbers 6/84 and 6/85 of process) supported the pursuer's translation of the orders of Wards 75 and 72, as did the decision of the Lahore High Court (number 6/4 of process). Moreover, the whole tenor of the decision of the Lahore High Court vindicated the pursuer's position and clearly showed that that Court considered that the pursuer was effectively divorced from the defender on 3 August 1989. [34] The defender gave evidence on her own behalf. She was aged 48 and employed as a locum hospital doctor. She stated that she met the pursuer briefly on two occasions before they were married on 19 November 1979. She confirmed that after some time in Iran the parties moved to the United Kingdom and that she gave birth to their son in 1981 and their daughter in 1984. She stated that the pursuer moved to work at Law Hospital in Carluke in about December 1986 and that she came to Scotland to work there in about May 1987. The parties separated in about November 1988, although at that time she was not aware that this was to be their final separation - she thought that the pursuer left Scotland to resume possession of a tenanted house which he owned in Chatham. She was unaware in the winter of 1988/1989 that the pursuer wanted to obtain a divorce or that he intended to return to Pakistan. Her mother visited her in Scotland between about December 1988 and late March 1989, when she returned to Pakistan with the parties' daughter. [35] The defender stated that the first she knew of the pursuer having pronounced talaq was when she received a telephone call from her mother on about 5 or 6 May 1989 telling her that a copy notice of talaq had been received. The defender immediately arranged to travel to Pakistan; she left Glasgow on 9 May 1989 and arrived in Pakistan on 10 May 1989. She remained in Pakistan until 25 May, when she returned to the United Kingdom, arriving at Heathrow on 26 May 1989. She stated that her mother had lived at the address to which the copy notice had been sent for over four years before this date, having moved there in about late 1984 or early 1985. [36] The defender stated that at her mother's suggestion she went to the offices of both Ward 75 and Ward 72 to see if they had received any notice of talaq from the pursuer, and they had not. Initially on her return to Pakistan her brother-in-law, Mohsin Rafique dealt with the pursuer's family on her behalf, and attempted to arrange a meeting. After about one week the defender lost patience and she and her family decided to visit the pursuer's uncle's house uninvited. This happened on about 17 or 18 May 1989. She stated that Mohsin Rafique informed the pursuer's uncle that a copy notice had been sent to the defender but not to the chairman of the Union Council, so the procedure was illegal. At this the pursuer's uncle looked quite taken aback. The pursuer's uncle was there, but the pursuer was not. Another meeting was arranged between the families, on about 20 or 21 May 1989. The defender described this as a fairly lengthy meeting, which was quite acrimonious. It had no particular outcome. When asked whether there was any discussion abut reconciliation or revocation of talaq at this meeting, the defender stated that her brother-in-law, Rafique suggested that he would have further discussions with the pursuer; he had observed that because tempers were becoming so heated, there was no point in continuing the discussions on that date, and further discussions would take place between Mohsin Rafique on behalf of the defender, and the pursuer. The defender left Lahore on 22 May 1989 for Karachi, before flying back to the United Kingdom on 25 May. She had not received any notice of a reconciliation meeting before she left Lahore, but before she left Pakistan she was aware that an Arbitration Council meeting had been arranged for 27 May 1989. [37] Although the defender was not present in Pakistan after 25 May 1989, she held strong views as to what had happened there, and gave evidence as her understanding of this. She stated that her mother and Mohsin Rafique attended the Arbitration Council meeting on 27 May. The chairman was not present at that meeting but the secretary was there. Her mother maintained the defender's objection to the jurisdiction on the basis that the defender did not wish to be divorced, and that the procedures should be carried out in the United Kingdom. Thereafter the pursuer's uncle's wife assured Mohsin Rafique that the pursuer would rescind the talaq. On about 24 July 1989 the defender sent her power of attorney to Mohsin Rafique, who made an application on 3 August 1989 to the chairman of Union Council Ward 75 that Ward 75 had no jurisdiction. The result of this application was the second order of 3 August 1989. The defender stated that she believed that the parties were not divorced in Pakistan, and she assumed that the pursuer would talk to her in Scotland and seek divorce here. She raised her divorce action against the pursuer on 28 August 1989, and she maintained that she did not conceal from her Scottish legal advisers what had happened in Pakistan. She maintained that she told her solicitor, Mr Paul Santoni, exactly what was going on at the time. [38] The defender was of the view that the purported divorce proceedings in Pakistan were fatally flawed in several respects. First, no Union Council in Pakistan had jurisdiction to deal with the matter - because both she and the pursuer were living in the United Kingdom, proceedings ought to have been raised in the United Kingdom. Second, no notice of talaq was sent to the chairman of Ward 75 at about 2 May 1989. Third, the copy notice was sent to her at her mother's address, although the defender was not living there at the time. Fourth, the pursuer had indicated that he had revoked or rescinded talaq. Fifth, the Arbitration Council meeting on 27 May was not properly constituted, because the chairman was not present. Sixth, as a result of the second order of 3 August 1989 the chairman of the Union Council Ward 75 recognised that he had no jurisdiction in the matter, and no certificate of divorce was granted by Ward 75. Seventh, the proceedings in Ward 72 were fundamentally flawed - no separate notice was sent to the chairman of Ward 72, no Arbitration Council meeting was arranged in Ward 72, and the chairman of Ward 72 had no jurisdiction to issue the certificate of divorce on 31 August 1989. [39] In cross-examination the defender accepted that the proceedings before the Lahore High Court which resulted in the judgment of 9 October 1994 lasted for over five years, and during this time she was represented by a competent lawyer. She was able to instruct him by telephone, and her mother and brother-in-law, Mohsin Rafique were in Pakistan and able to instruct him. She continued to maintain that the judgment of the Lahore High Court was wrong. She accepted that no argument was made before the Lahore High Court that the required notice was not sent to the chairman of Union Council Ward 75 on about 2 May 1989, and also that the Lahore High Court had all the paperwork in the proceedings before both Wards 75 and 72. She also accepted that the argument that the chairman was not present at the Arbitration Council meeting on 27 May 1989 was never presented to the Lahore High Court. She said that this was because her mother did not think that it was important. She also said that her lawyer may not have been given the information. When faced with the statement in Mohsin Rafique's affidavit (number 7/24 of process) that "Chairman started the proceedings on 27/05/1989" she stated that Mr Rafique was there but that the chairman was not there. She knew this because her mother had told her that the chairman was not there. She was then faced with the passage in her mother's affidavit (number 7/68 of process): "On 27 May 1989 Masroor Ahmed communicated that he wanted to divorce his wife whereas I told the chairman of the Union Council that my daughter wants to settle all issues with her husband ......". The defender maintained that her mother had told her that the chairman was not there, and that there must have been a complete misunderstanding. With regard to the opinion of the Lahore High Court, she repeatedly maintained that Arif J. was completely wrong and that he chose to ignore the facts. [40] It was put to the defender that she knew that divorce proceedings had been initiated in Pakistan, and she agreed that she did as a result of her mother's telephone call. She was asked if she had seen the copy notice, and she replied "I heard about it. I did not receive it. I got to know about it. I saw it." She maintained that it was she herself who went to check with the Union Council to see if they had received the pursuer's notice of talaq. When Mr Santoni's affidavit and notes (7/69 of process) were put to her, in which it is stated that "That her sister had apparently gone to the Council to enquire about the divorce but the Council claimed that they had no record of it", she accepted that she may have told Mr Santoni that it was her sister who went, but she insisted that it was she who went. On one day she may have gone with her mother, and on another day she may have gone with her sister. [41] The defender was pressed as to her evidence that the pursuer retracted or revoked the talaq. She accepted that she had never seen a document retracting it, but she maintained that the pursuer said that he would probably take it back. She revised this to state that he would "most probably take it back". She then said that he said that he would consider it. Then she said that her understanding was that he was going to consider it and would withdraw it. She accepted that he did not retract in writing, but maintained that he said that he would retract. He said this on 19, 20 or 21 May - she could not say which date. She then stated that his relatives told her relatives that he intended to withdraw. She accepted that no one on her behalf made any allegation or argument before the Lahore High Court that the pursuer had retracted the talaq. When asked why this was, initially she stated that she believed that she needed to have written evidence of a retraction. She then stated that there were difficulties regarding witnesses. She then stated that she could not say why her lawyer did not raise this matter. She accepted that there was no mention of a retraction or revocation of talaq in the Scottish divorce proceedings, nor in any of the averments on her behalf in the present proceedings. [42] The order sheet of the Lahore High Court proceedings for 26 November 1989 (number 6/6 of process) was put to the defender. On that date the Lahore High Court pronounced an order that the operation of the impugned order (that is the order of 12 October 1989 cancelling the divorce certificate) was suspended. The defender accepted that no mention was made of this in the pleadings on her behalf in her Scottish action for divorce. She maintained that she was not aware of the Lahore High Court order of 26 November 1989 and that her brother-in-law, Mohsin Rafique did not tell her of it. She then said that she did not understand Pakistani law and she thought that this order meant the certificate of divorce was also suspended. She maintained that this Court certainly knew that the Lahore High Court had suspended the impugned order, but she could not explain how this Court became aware of this. [43] The principal issue in this chapter of the case is the credibility and reliability of the parties themselves. The pursuer gave his evidence calmly and without exaggeration. His evidence was consistent with the affidavits of Fazal Haq and (to the extent that it is relevant) judge Mahmood Siddique (number 6/5 of process). His evidence received some support from the affidavits of the defender's mother and brother-in-law. Moreover, it was generally consistent with the documentary productions before me, and with the findings of fact of the Lahore High Court. In general I found the pursuer to be a credible and reliable witness. By contrast, I did not find the defender to be an impressive witness. In several important aspects of her evidence she was evasive in her answers and I was not impressed with her demeanour as a witness. For example, she brought a file of her own notes as an aide memoire to the witness box when she gave evidence. She was told by her counsel, and then by me, that she should not look at this. Despite these warnings, she persisted in looking at the contents of the file, until repeated warnings from the Court resulted in her putting it away. On occasions she insisted on maintaining a position in evidence which was clearly at odds with the affidavit evidence lodged on her behalf. An example of this was her insistence that no notice of talaq was sent to the chairman of Union Council Ward 75 at about 2 May 1989. This appears to be at odds with the affidavit of her own representative, Mohsin Rafique, who states in his affidavit (7/24 of process) that "Dr Masroor Ahmed sent a notice of talaq dated 2/5/1989 to the chairman, Union Council, Ward 75, Model Town, Lahore ......". Not only is the defender's evidence on this point at odds with the affidavit of Mohsin Rafique, this point was never raised before the Lahore High Court, nor is there any hint of it in the averments on behalf of the defender in the present action. The Lahore High Court had all the paperwork relating to the proceedings before Ward 75 and Ward 72 - it seems surprising that the Lahore High Court should ignore such a fundamental failure, if such a failure existed. On the contrary, Arif J found that the pursuer divorced the defender "and sent a notice of talaq dated 2.5.1989 to the chairman Union Council Ward 75, Model Town, Lahore." He also found that the proceedings before the chairman, Union Council, Ward 75 had been initiated in accordance with law. [44] Another example of the defender maintaining a position in her evidence which was at variance with the affidavit evidence adduced on her behalf was her insistence that the chairman was not present at the Arbitration Council meeting on 27 May 1989. The defender herself was not there - she had returned to the United Kingdom. Her brother-in-law, Mohsin Rafique was acting on her behalf, and was present at the Arbitration Council meeting. He stated in his affidavit that the chairman was there. The defender's mother was also present and stated in her affidavit that the chairman was there. Once again, the point does not appear to have been raised at any stage during the course of the proceedings before the Lahore High Court, nor is there any hint of this point in the averments for the defender in the present proceedings. There were several other examples of the defender's evidence being at odds with the affidavit evidence lodged and relied on, on her behalf. Two examples may suffice. The defender stated that when she went with Mohsin Rafique to the pursuer's uncle's house on 17 or 18 May, Mr Rafique told the pursuer's uncle that although a copy notice had been sent to the defender, no notice had been sent to the Union Council and so the procedure was illegal. This, it seems to me, is an important point which, if true, one would expect to see reflected in Mohsin Rafique's affidavit. There is no mention of it in that affidavit. On a separate matter, the defender maintained that she had told her local Scottish solicitor, Mr Paul Santoni, exactly what was going on in August 1989. According to Mr Santoni's notes which form an appendix to his affidavit (7/69 of process) it is recorded that "By letter dated 25 August 1989 the client had advised me that she and her husband were making one last attempt at reconciliation and was hoping to meet her husband soon to discuss this within a few days of the letter being dispatched to me." The defender's divorce action was raised in this Court on 28 August 1989. [45] Quite apart from the matters noted above, the defender tended to respond to difficult questions with long, rambling and evasive answers, which were peppered with speculation. Her evidence regarding who went to check with Union Council Ward 75 as to whether the requisite notice had been received is an example; her evidence as to the retraction or revocation of talaq, and her evidence as to why there was no reference in her pleadings in the Scottish divorce action regarding the suspension by Lahore High Court of the order of 12 October 1989 are other examples. [46] In the result, I have felt able to accept and rely upon the evidence of the pursuer, and to prefer his evidence to that of the defender. I am satisfied, on the basis of the evidence before me, that the pursuer pronounced talaq on or shortly before 2 May 1989; he sent the requisite notice to the chairman of Union Council Ward 75 on 2 May 1989; he sent a copy of that notice to the defender at her mother's address on the same date; the defender became aware of this notice on about 5 or 6 May; an Arbitration Council meeting was fixed for 27 May1989, and the defender was aware of this before that date; that meeting took place, and was chaired by the chairman of the Union Council; the defender's interests were represented at that meeting by her brother-in-law, Mohsin Rafique and her mother; the pursuer indicated clearly at that meeting that there was no prospect of reconciliation; at no time did the pursuer give any indication to the defender, or to anyone on the defender's behalf, that he had rescinded or revoked talaq or that he would rescind or revoke talaq; and that by 3 August 1989 the 90 day period of Iddat had expired, with the consequence that the parties were effectively divorced under Pakistani law. I therefore answer the question posed above in the affirmative - I am satisfied on the evidence that the pursuer did comply with the legal requirements for an effective talaq divorce in Pakistan in 1989.3. Is the pursuer's Pakistani divorce capable of being recognised by this Court?
[47] The pursuer relies on Section 46(1) of the Family Law Act 1986. To this end, he requires to show (a) that the Pakistani divorce was obtained "by means of proceedings"; (b) that the divorce is effective under Pakistani law; and (c) that at the relevant date either party to the marriage was habitually resident in Pakistan or domiciled there or was a national of Pakistan. [48] With regard to the first of these points I am satisfied that the divorce was obtained by means of proceedings. By reason of Section 54(1) of the 1986 Act, "proceedings" means judicial or other proceedings. This is the same term as was used in the Recognition of Divorces and Legal Separations Act 1971, Section 2(A). That was one of the sections with which the House of Lords was concerned in Quazi v Quazi [1980] A.C. 744. Their Lordships held that the words "other proceedings" were not to be limited to quasi-judicial proceedings; they referred to any proceedings, other than judicial proceedings, which were officially recognised in the country in which they were taken, and that a divorce obtained by talaq in Pakistan in accordance with the requirements of Pakistani law was a divorce obtained by such "other proceedings". As indicated above, I am satisfied on the evidence before me that the necessary administrative steps were taken in terms of the MFLO. The High Court in Lahore clearly regarded the divorce as effective in Pakistani law, and that because the various steps which were required had been taken. While the present case might perhaps be described as not precisely on all fours with Quazi in its facts, I am satisfied that the reasoning of their Lordships in Quazi applies to this case. I consider that the pursuer has established that the Pakistani divorce was obtained by means of proceedings. With regard to the second point, the divorce was effective under Pakistani law. As I have indicated above, that was the evidence of Dr Lau, which I accepted. It was also clearly the view of the Lahore High Court. With regard to the third point, it was not a matter of dispute that at the relevant date both parties to the marriage were nationals of Pakistan. I am accordingly satisfied that the tests set out in Section 46(1) of the 1986 Act have been met. [49] The matter does not end there, however, because Section 45 of the 1986 Act is expressly subject to Sections 51 and 52 thereof. Section 52 is not relevant for present purposes. Section 51 provides for certain circumstances in which recognition of the validity of an overseas divorce may be refused. Section 51(3) is relevant in two respects. First, it provides (reading short) that recognition of the validity of an overseas divorce obtained by means of proceedings may be refused if reasonable steps have not been taken to give notice of the proceedings to a party to the marriage, or that party has not been given a reasonable opportunity to take part in the proceedings. Second, it provides that recognition of the validity of an overseas divorce may be refused if recognition would be manifestly contrary to public policy. [50] I propose to address the question of whether recognition of the divorce would be manifestly contrary to public policy later in this opinion, when I consider the fifth question. On the first point, namely notice to the defender and opportunity to take part in the proceedings, counsel for the pursuer referred me to El Fadl v El Fadl [2000] 1 F.L.R. 175 at 188/9, where Hughes J. observed that the power to refuse recognition under Section 51(3)(a) of the 1986 Act was discretionary, not mandatory. In that case he decided not to refuse recognition of a divorce in circumstances where the wife was unaware of the proceedings until after they had been concluded. In the present case the defender knew about the proceedings shortly after they were initiated, and it was this notice which caused her to travel to Pakistan. She saw the copy notice after she arrived in Pakistan, and was able to take active steps in the proceedings as a result. These steps included her attendance at a meeting with the pursuer's uncle, and her attendance thereafter at a lengthy and acrimonious meeting between the families of both the pursuer and the defender. She was able to instruct her brother-in-law Mohsin Rafique to act on her behalf, and she was aware of the Arbitration Council meeting fixed for 27 May 1989 before she flew back from Pakistan to the United Kingdom. In her submissions to me counsel for the defender did invite me to refuse to recognise the divorce on the basis of lack of reasonable notice and lack of reasonable opportunity to take part in the proceedings. However, this did not form a major part of her submissions, and there is no hint of the point in the defender's pleadings. On the evidence I am not prepared to refuse recognition of this divorce by reason of Section 51(3)(a) of the 1986 Act. [51] It follows that, subject to considerations of public policy, which I address below, this question also falls to be answered in the affirmative.4. What is the effect of the decision of the Lahore High Court on the issues before me?
[52] I have already referred to passages of the judgment of Arif J. in the Lahore High Court given on 9 October 1994. It is clear from that judgment that the Court considered that the pursuer's divorce of the defender was effective in Pakistani law. The Court repelled the defender's objection to the jurisdiction of the Chairman of Union Council Ward 75. The following excerpt from paragraph 14 of the Court's judgment summarises its view of the divorce:"It is trite law that talaq would become effective after its notice is given to Chairman and a period of three months, provided for bringing about reconciliation between the parties, has expired. ... I find that the proceedings before the Chairman, Union Council, Ward number 75 had been initiated in accordance with law; that the respondent/wife was represented there through her brother; that on 27/5/1989 the petitioner/husband unequivocally stated that there was no chance of reconciliation being brought about between the spouses and the pronouncement of talaq by him upon respondent number 2 was final; that the learned Chairman, Union Council, Ward number 75 took notice of the plea raised on behalf of the mother of respondent number 2 to the effect that the latter does not want talaq and needs some time 'so that both could reconcile later' whereafter the Chairman, Union Council, Ward number 75 consigned the application of the petitioner/husband to record during the period of Iddat. On the expiry of the period of Iddat, talaq did become effective, then. ... Here, notice of talaq had been given to the Chairman as required by Section 7(1) of the Ordinance and there being no impediment left in the way of the same being effective, on the expiry of period of Iddat of three months from the date of the order of the Chairman, Union Council, Ward number 75, Model Town, Lahore, the petitioner/husband cannot be denied the legal consequences flowing from his action of pronouncement of talaq on respondent number 2 and serving a notice of talaq on the Chairman in terms of the Ordinance."
5. 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?
[58] There are two respects in which such considerations are relevant. First, as noted above, by virtue of Section 51(3)(c) of the 1986 Act, recognition of the validity of an overseas divorce may be refused if it would be manifestly contrary to public policy. Second, as reduction is an equitable remedy, it is open to the Court to refuse to grant the remedy in the exercise of its equitable discretion. Although these two matters are distinct, and require to be considered separately, much of the evidence relevant to one was also relevant to the other, and counsel in their submissions to me looked at all of this evidence as a whole. It is convenient to summarise their submissions on the evidence about these matters as a whole, before considering each issue separately.Submissions for the pursuer as to why recognition should be given and reduction granted:-
(i) It was not competent for the Court of Session to grant decree of divorce when the parties were already effectively divorced in Pakistan. In granting decree, this Court (albeit unwittingly, and on the basis of the present defender's averments which were misleading) was acting ultra vires.
(ii) At present there are two apparently effective but inconsistent divorces, one in Pakistan and one in Scotland. It is clear from the decision of the Lahore High Court that the Pakistani divorce is effective in Pakistan, and that it was effective in August 1989. It is unsatisfactory that there should be an apparently effective divorce granted at a later date in Scotland - particularly in circumstances in which the defender is taking enforcement action in the United States of America on the basis of the Scottish decree. Moreover, the defender is resident in England, and has lived there for many years. By reason of the Family Law Act 1986, Section 51(2), recognition of the validity of the Scottish divorce may be refused in England.
(iii) Counsel for the pursuer accepted that the decree of this Court dated 11 May 1994 was a decree in foro. The proper approach of the Court to reduction of such decrees has been discussed in several cases - see Adair v David Colville & Sons Limited 1926 S.C. (H.L.) 51, Robertson's Executor v Robertson 1995 S.C. 23, Ali v Ali (No. 2) 2001 S.C. 618; and Ali v Ali (No. 3) 2003 S.L.T. 641. There is however no doubt that it is competent to reduce a decree in foro - see Forrest v Dunlop (1875) 3 R 15. Counsel submitted that the circumstances of the present case were analogous to Ali v Ali (No. 3) in that the present pursuer did not simply turn his back upon the divorce proceedings and indicate that he was prepared to accept whatever result the Court arrived at - he was effectively excluded from the litigation by the present defender's insistence that he should sist a mandatory, and his inability to find the necessary resources to enable him to do so.
In support of this proposition, counsel for the pursuer pointed out that throughout the course of the divorce proceedings the present defender's position on her averments was lacking in candour with regard to the Pakistani proceedings. In the divorce summons she averred "There are no proceedings continuing outside Scotland which are in respect of the marriage or capable of affecting its validity or subsistence. The pursuer believes that proceedings for divorce in Pakistan, instructed by the defender, have been abandoned." Counsel submitted that the present defender had no grounds for such belief. Moreover, even in the finally adjusted record the present defender made no reference to the order of the Lahore High Court on 26 November 1989 which suspended the cancellation of the certificate of divorce, nor the confirmation of this order on 17 March 1990. Because the proceedings in the Lahore High Court were taking so long to reach a conclusion, the present pursuer was obliged to accept the dismissal of his pleas to competency and jurisdiction in the Scottish proceedings; however, he maintained his general plea to the relevancy, and also maintained his sixth plea-in-law to the effect that "the parties having already been validly divorced, the pursuer is not entitled to decree for capital sum, custody or aliment, as concluded for". It is clear from the correspondence that although the present defender's solicitors sought acceptance that the parties were married, no such confirmation or undertaking was given on behalf of the present pursuer. Indeed it is clear from the affidavit of Alayne Swanson (number 7/70 of process) that the present defender was left in no doubt that the present pursuer certainly did not accept that he was married. Both parties were well aware that the decision of the Lahore High Court would have a material bearing on the divorce action. It is clear from the record of proceedings in the Lahore High Court that much of the delay in those proceedings was attributable to the actings or omissions of those acting for the present defender. The position of the present pursuer throughout remained that he had been effectively divorced in Pakistan; were it not for the fact that he was working in the U.S.A. at the time and could not afford to sist a mandatory he would have maintained this position before this Court.
(iv) It is well settled that the Court's discretion to refuse recognition of a divorce, whether by way of proceedings or not, on the ground that it is contrary to public policy to recognise it, is a discretion which should be exercised sparingly. In support of this proposition counsel referred me to Quazi at page 826, Kellman at page 798 and El Fadl at 189. In Kellman, Paul Coleridge, Q.C. (sitting as a Deputy Judge of the High Court) observed that in Eroglu it was held that the discretion to refuse recognition should be used sparingly, and that even fraud on the part of the parties to the foreign divorce so that the foreign Court was deceived into granting a decree to which the parties were not entitled was not sufficient to render it contrary to public policy to recognise the decree. It was observed that " 'manifestly contrary to public policy' is a very high hurdle to clear."
(v) Esto the motive of the present pursuer in getting divorced in Pakistan rather than in the United Kingdom is relevant, counsel submitted that it was clear that his motive was not to avoid paying the present defender a reasonable financial settlement. He consulted English solicitors about the possibility of divorce, who gave him advice by letter dated 8 April 1987 (number 6/15 of process). In that advice the solicitors indicated that if the present pursuer had grounds for divorce in Pakistan and obtained a divorce there, this would have two advantages - first, the divorce would be recognised in the United Kingdom, and secondly the Courts in this country could still deal with financial matters. On her own admission the present defender opened this letter and was aware of its contents. Throughout the proceedings the present pursuer made it clear to the present defender that he wished to achieve a reasonable financial settlement with the defender - see the offer made by his solicitors on 9 May 1994, (number 7/35 of process). Thereafter, when the present defender was seeking to enforce the Scottish decree through the Courts in the U.S.A., the pursuer's lawyer in Florida wrote (6/64) to the defender's lawyer in Florida indicating that the pursuer was willing to accommodate the defender in whatever way he could in order to have the defender attend mediation; he was willing to pay for reasonable travel and lodging expenses, arrange for her travel at a mutually convenient time and make whatever other provisions might be necessary to enable her to come to Florida. The defender did not accept this offer.
(vi) Furthermore the defender will not be deprived of any financial provision in the event that decree of reduction is granted. The pursuer's solicitors made an open offer to the defender's solicitors in their letter dated 29 May 2003 (number 6/54 of process) which was not accepted. The pursuer has given an undertaking to the Court that this offer will be maintained for such period following upon decree as the Court considers reasonable. In any event, it remains open to the defender to make an application to the English Court in terms of the Matrimonial and Family Proceedings Act 1984, Sections 12 and 13. Broad claims on behalf of the defender that reduction should be refused on grounds of equity are therefore ill-founded.
(vii) Any suggestion on behalf of the defender that if decree of divorce is reduced nonetheless decree quoad financial provision should stand is ill-founded. The order for capital sum was made in terms of Sections 8(1) and (2), and Section 12, of the Family Law (Scotland) Act 1985. The Court could only make such order on granting decree of divorce, or within such period as the Court on granting decree of divorce might specify. If the Court was not entitled to pronounce decree of divorce (because the parties were already effectively divorced elsewhere) no order for capital sum could be made. The order was not made under the Matrimonial and Family Proceedings Act 1984; the present defender did not proceed under the 1984 Act, but rather on a basis which was inconsistent with that Act. She returned to England in 1990 and so could not have satisfied the conditions in Section 28 of the 1984 Act after that date. Moreover, there were grounds of challenge to the jurisdiction of the Scottish Courts in such an application which were open to the present pursuer (eg. whether the marriage had a substantial connection with Scotland) which were not open to him, nor were they raised, in the divorce proceedings. If the decree of divorce is reduced, the decree for capital sum should be reduced as well.
(viii) It is accepted that there was some element of delay on the present pursuer's part in raising these proceedings, between May 1994 and October 2000. However, throughout this period the pursuer maintained his position to the defender and her advisers that the divorce in Pakistan was effective. He was resisting enforcement action against him in the United States of America on the basis that the Scottish decree was incompetent. When he received legal advice in 2000 that reduction of the Scottish decree was a remedy which was open to him, he acted immediately on that advice. In all the circumstances the delay in bringing these proceedings was not significant. In any event, the present defender and her Pakistani advisers caused significant delays in the Pakistani proceedings before the Lahore High Court.
(ix) The Lahore High Court has made a decision which is based on a finding that the pursuer's Pakistani divorce was effective. That Court is in a better position than the Scottish Court to make a finding on such a matter. In any event, on grounds of comity and public policy, particularly in light of recent initiatives in family law between the two jurisdictions based on mutual respect and recognition of judgments, the Court should exercise its discretion to grant decree of reduction as sought.
Submissions for the defender as to why recognition should not be given and reduction should be refused:-
(a) It was clear that the pursuer's motive in travelling to Pakistan and pronouncing talaq, and throughout all the proceedings since then, was to avoid making financial provision for the defender. The parties had only lived together in Pakistan very briefly since their marriage. By contrast, they had lived in the United Kingdom for many years. The natural and proper place for the parties to be divorced was in one of the jurisdictions within the United Kingdom. The pursuer has changed his name, transferred his assets to his present wife, and sought to conceal his whereabouts from the defender and her advisers in order to frustrate attempts to enforce the Scottish decree. It is thus manifestly contrary to public policy to recognise the Pakistani decree. Counsel referred me to Chaudhary v Chaudhary [1985] Fam 19, and Tahir v Tahir 1993 S.L.T. 194.
(b) The present pursuer submitted to the jurisdiction of the Scottish Courts, as a result of which the defender was induced to pursue her remedy under the Family Law (Scotland) Act 1985 rather than the Matrimonial and Family Proceedings Act 1984. As a result of the consequent delay, the defender has been deprived of her alternative remedy under the 1984 Act. The Court should not condone what counsel described as a scheme intended to deprive the defender of her entitlement to financial provision.
(c) If the Pakistani divorce must be recognised, this is only because of the decision of the Lahore High Court on 9 October 1994. By this time, the decree of the Scottish Court had been pronounced. Recognition of the validity of the Pakistani divorce should therefore be refused by reason of Section 51(1)(b) because it was obtained at a time when it was irreconcilable with the decision of the Scottish Court.
(d) Even if the divorce decree falls to be reduced, the Court should refuse to reduce the award of capital sum and expenses. The present defender could have obtained an award of capital sum under the 1984 Act. The decree of 11 May 1994 can be split into its constituent parts - Ali v Ali 1999 S.L.T. 943. The award of capital sum and expenses should therefore be allowed to stand, having regard to the broad equities of the case.
(e) Equity involves wider considerations than just public policy. The approach of the Court is exemplified by Tahir - the Court should be slow to grant reduction where to do so would result in depriving the present defender of financial provision to which she is entitled under our law. The Court should take account of all of the circumstances of the case, including the fact that the talaq procedures were not in accordance with the MFLO, the fact that the Lahore High Court misunderstood and misconstrued matters, the pursuer's deceitful behaviour before the Pakistani Court, the Scottish Court and the Courts in the U.S.A., the effect of the delay in bringing these proceedings, and the fact that the defender has spent large sums of money attempting to enforce the Scottish decree in the U.S.A..
(f) In any event, the awards of expenses made in the earlier proceedings should stand. These expenses were incurred as a result of steps such as the discharge of diets of procedure roll debate or preliminary proofs.
(g) The offer made on behalf of the pursuer in 1994 (number 7/35 of process) was arguably not in good faith because title to the house at 51 Mount Road, Chatham had been transferred from the present pursuer's name. In any event it was not a reasonable offer because it ignored assets such as pensions and life insurance and a second heritable property in England. The pursuer's present offer, dated 29 May 2003 (number 6/54 of process) and renewed in an undertaking to the Court during the proof is also unreasonable particularly with regard to its attached conditions. The defender would require to pay all costs of her enforcement actions in the United States of America, and she would lose the expenses of this action.
Decision on these matters.
[59] I am not persuaded that recognition of the Pakistani divorce would be manifestly contrary to public policy for the purposes of Section 51(3)(c) of the Family Law Act 1986. If the defender had persuaded me that by granting decree of reduction I should be depriving her of any prospect of obtaining financial provision from the pursuer I might have answered this question differently. In that event, the observations of the Court in Chaudhary and Tahir would have had greater relevance. However, I am not persuaded that the granting of decree of reduction would result in the defender having no prospect of obtaining any financial provision. The defender is now resident in England, and has been resident there since about 1990. I have heard no evidence to the effect that the defender would not have a reasonable prospect of obtaining financial relief under Part 3 of the Matrimonial and Family Proceedings Act 1984, and, although leave of the Court is required for an application for financial relief, on the face of the provisions of the 1984 Act such an application seems competent. In any event, even if leave is refused, the pursuer's offer (number 6/54) remains on the table. Standing all the tortuous circumstances of the various proceedings in this matter, this offer does not appear to me to be unreasonable. [60] On the other side of the coin, the decision of the Lahore High Court is clearly to the effect that the pursuer was effectively divorced from the defender in Pakistan in 1989. It seems to me that public policy suggests that due deference and respect should be given to that decision. In this case, where there is a decision of the High Court of the country in which divorce has been effected upholding the effectiveness of the divorce, following upon Court proceedings which appear to have been thorough and fair, I consider that public policy favours the recognition of the Pakistani divorce. In all the circumstances I am not prepared to exercise my discretion to refuse to recognise the validity of the Pakistani divorce on the ground that such recognition would be manifestly contrary to public policy. [61] The scope of the considerations to which I must have regard when exercising my equitable discretion to grant or refuse reduction is wider than being "manifestly contrary to public policy" in Section 51(3)(c) of the Family Law Act 1986. The decree which the pursuer seeks to have reduced is a decree in foro, and the Courts have repeatedly held that exceptional circumstances must be averred (and if necessary, proved) in order for such a decree to be reduced. As Viscount Dunedin observed in Adair v Colville & Sons:"That the remedy of reduction may be competent to set aside a judgment, when other means of review are not, is true. Instances can be found where it has been so utilised, but it is a remedy which does not exist of right, and must be most carefully applied."
"There are no proceedings continuing outside Scotland which are in respect of the marriage or capable of affecting its validity or subsistence. The pursuer believes that proceedings for divorce in Pakistan, instructed by the defender, have been abandoned."
There was no specification of any material which might give rise to such a belief that the proceedings have been abandoned, and as I have indicated earlier in this Opinion, even when giving evidence before me the present defender could not substantiate her assertion that the proceedings had been abandoned. By the time that the pleadings in the original divorce action were in their final form (number 7/9 of process - the amended record which was before the Court on 11 May 1994) these averments had been considerably expanded. However, there were still glaring omissions from the present defender's averments. There was no mention of the fact that the Lahore High Court had pronounced an order dated 26 November 1989 suspending the operation of the impugned order dated 12 October 1989 which purported to cancel the decree of talaq issued on 31 August 1989. This was in my view a crucial omission. The present defender had averments narrating the cancellation of the certificate of divorce; that the present pursuer had commenced proceedings in the Lahore High Court to challenge this cancellation; and that such proceedings were incompetent under the laws of Pakistan. If this Court had been made aware that the Lahore High Court had made an interim order suspending the cancellation of the certificate of divorce it seems most unlikely that it would have been prepared to pronounce decree of divorce itself. Moreover, the present defender's averments that the proceedings before the Lahore High Court were incompetent appear to have been ill-founded. The present defender went on to make averments about the delay in the Pakistani High Court proceedings "for no good reason". It is apparent from a perusal of the Court order sheet (No. 6/6 of process) that there were protracted periods of delay in the Pakistani proceedings caused largely (although not solely) by the representative for the present defender.
[65] I consider that the picture presented to this Court in the present defender's averments in 1994 was so misleading as to be almost capable of being categorised as a fraud on the Court. I have little doubt that the Court would not have been prepared to pronounce decree of divorce if it had the full picture before it. Part of the reason that the Court did not have the full picture before it was that the present pursuer was obliged to withdraw from defending that action because he could not find the necessary funds to enable him to sist a mandatory. Moreover, he was obliged to accept the dismissal of his first two pleas-in-law, directed to competency and jurisdiction, and his fifth plea-in-law, because of the delays in the Pakistani Court proceedings - delays which, as I have noted above, were caused in large part by the present defender's Advocate in Pakistan. It is clear from the correspondence between the present pursuer and his solicitors that at no time did the present pursuer depart from his position that he had been effectively divorced in Pakistan in 1989, and it was clearly the intention that this point should be argued if the decision of the Lahore High Court was obtained in time. As it was, the present pursuer maintained a plea-in-law that "the parties having already been validly divorced, the pursuer is not entitled to decree for capital sum, custody or aliment, as concluded for". In the end, however, the divorce proceeded as undefended because the present pursuer was unable to sist a mandatory and was resident in the United States of America. The consequence of all of these factors was that the Court was given a misleading and one sided picture when it granted divorce on 11 May 1994. Responsibility for that state of affairs lies very largely with the present defender. [66] My reasons for deciding that decree of reduction should be granted may be summarised as follows:-(a) It was not competent for the Scottish Court to grant decree of divorce, the parties having already been effectively divorced in Pakistan. As already discussed, the reason that this Court granted an incompetent decree is largely attributable to the fact that the present defender presented a misleading picture to the Court of events in Pakistan.
(b) Although the decree of 11 May 1994 was a decree in foro and so I should be cautious in reducing it, the present pursuer was effectively excluded from the original litigation, and I am persuaded that in such circumstances the test for granting reduction is not perhaps quite as demanding as for other decrees in foro (see Ali v Ali (No. 3) 2003 S.L.T. 641).
(c) It is unsatisfactory that there are two inconsistent divorces, one effective in Pakistan and one effective in Scotland, particularly standing the fact that there are currently pending enforcement proceedings in the United States of America against the present pursuer.
(d) The Court's discretion to refuse recognition of an effective foreign divorce should be exercised sparingly (see Kellman; El Fadl; Quazi).
(e) As discussed above, the defender will not be left without any financial provision if decree of reduction is granted - she may be able to apply to the English Court under the 1984 Act, and in any event the pursuer's offer remains open for acceptance.
(f) I am not satisfied that the pursuer's motive in obtaining divorce in Pakistan is relevant. However, the defender was aware that he had taken advice from English solicitors, and that even in the event of his obtaining a Pakistani divorce she had a right to seek financial provision in the United Kingdom. Whatever the pursuer's motive, I am not persuaded that he has acted reprehensibly since the granting of the Scottish decree in May 1994. I am not persuaded that he has sought to hide his whereabouts or to change his name in order to defeat the defender's claims against him. Throughout the enforcement proceedings he has maintained that his Pakistani divorce was effective; moreover, he has offered to pay for the defender to travel to America for the purpose of mediation, and he has made offers of financial provision for her.
(g) I do not consider that it is competent for me to reduce the decree of divorce but to allow the award of capital sum and expenses to stand. While it is true that for purposes of suspension such a decree can be split into constituent parts (see Ali v Ali 1999 S.L.T. 943) this does not assist the defender. The award of capital sum was made in the context of the Family Law (Scotland) Act 1985, and not in the context of the Matrimonial and Family Proceedings Act 1984. It was in the context of a divorce that the present defender sought a capital sum, and it was in that context that the Court granted the remedy. It was not open to grant the remedy of a capital sum under the 1985 Act without granting a divorce. If the divorce decree falls, so must the decree for capital sum.
(h) The argument for the defender that recognition of the Pakistani divorce should be refused by reason of Section 51(1)(b) of the Family Law Act 1986 is in my view misconceived. It proceeds on the basis that the Pakistani divorce only became effective when the Lahore High Court issued its Opinion on 9 October 1994, by which time the Scottish decree of divorce had been pronounced. This is not an accurate representation of what happened. The decree of the Lahore High Court was merely declaratory of events that occurred in 1989. I am satisfied, on the basis of the evidence led before me and also on the basis of the judgment of the Lahore High Court, that the parties were effectively divorced in Pakistan in August 1989. It follows that Section 51(1)(b) of the 1986 Act does not apply.
(i) In light of all of the above considerations, and particularly the conduct of the present defender in the course of the original divorce proceedings in Scotland, I do not consider that it would be appropriate or fair to leave the award of expenses in her favour standing.
Conclusion
[67] In all the circumstances I shall sustain the first plea-in-law for the pursuer and grant reduction as first concluded for. I also direct that the pursuer's offer (as contained in number 6/54 of process and as repeated by way of undertaking at the Bar) shall remain open for acceptance by the defender, if so advised, until 30 June 2004, after which date the pursuer may withdraw it.