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Court denies Islamic divorce

The Baltimore Sun

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."

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