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When Foreign Divorce Judgment Clashes with Illinois Law and Public Policy

In re Marriage of Basith, 2019 IL App.(2d) 180332-U

In Basith, the Second District reversed a decision by the Circuit Court that dismissed Tanveer Basith’s (“Tanveer”) Petition for Dissolution of Marriage. The Circuit Court dismissed Tanveer’s Petition for Dissolution of Marriage because a court in India had previously dissolved her marriage to Abuzaffer Basith (“Abuzaffer”). The Second District held that the Circuit Court should not, as a matter of law, have recognized the dissolution judgment from India because (a) Tanveer was not given proper notice of the dissolution of marriage proceeding that Abuzaffer commenced in India, and (b) the amount awarded to Tanveer from the court in India was “inconsistent with Illinois concepts of fairness and equity.”

The Alleged Facts

Tanveer and Abuzaffer were married in India in 1979. During their marriage, they had six children. The breakdown of their marriage led Tanveer to request a divorce. Abuzaffer alleged that both parties were devout Muslims and that he went to India to get Tanveer a divorce according to the precepts of their “culture and religion.” Abuzaffer alleged that his actions, with respect to the dissolution judgment from India, complied with “sharia law that governs aspects of Islamic life for pious Muslims.”

The dissolution judgment from the court in India was entered on May 10, 2017. By May 2017, the parties had been married approximately 38 years, and Tanveer was 63 years old. Under the dissolution judgment entered by the court in India, Tanveer was awarded $447. Tanveer did not receive any maintenance from this judgment.

Procedural History

After the dissolution judgment was entered by the court in India, Tanveer filed a Petition for Dissolution of Marriage in Illinois. Abuzaffer filed a motion to dismiss Tanveer’s petition on the ground that the court in India had already dissolved his marriage to Tanveer, and the Illinois court should recognize that judgment.

Tanveer argued that the court should not recognize the judgment from India for two main reasons. First, she did not receive proper notice of the dissolution of marriage proceeding in India. Second, the award of $447 from the court in India was grossly unfair and inconsistent with Illinois law and policy.

The Circuit Court granted Abuzaffer’s motion to dismiss Tanveer’s Petition for Dissolution of Marriage. The court recognized that the financial award from the court in India “may be egregious in that the disposition of property may not have been equitable.” The Circuit Court nonetheless held that it was bound by the dissolution judgment entered by the court in India. The Circuit Court stated that Tanveer “accepted the jurisdiction of [a court in India] when they got married there,” and that they “were following strict Muslim religion when they got married and Abuzaffer was following it when they got divorced.”

The Second District’s Decision

The Second District stated that the Circuit Court was not absolutely bound by the judgment issued by the court in India. An Illinois court will apply the doctrine of “comity” to determine whether it should recognize a judgment from a foreign country. There was no claim that a treaty existed between India and the United States that obligated the Circuit Court to recognize the judgment from the court in India. Accordingly, the Circuit Court had the discretion to refuse to recognize the judgment from the court in India.

Abuzaffer’s attorney admitted that Tanveer did not receive formal notice of the dissolution of marriage proceeding in India. The Second District stated that “Tanveer was never afforded the opportunity to appear, present her case, and be heard before the Indian tribunal.” For this reason alone, the Circuit Court abused its discretion when it agreed to recognize the judgment from the Indian court.

The Second District also held that the award of $447 to Tanveer violated Illinois law and public policy. The parties were married for 38 years, had six children and Tanveer was 63 years old when the judgment from the Indian court was entered. There was no indication that the $447 was anywhere close to an equitable distribution of the marital estate. Indeed, the Circuit Court itself questioned whether the $447 was an equitable distribution of marital assets. The judgment was even more problematic because it did not award any maintenance to Tanveer, when Tanveer earned substantially “less than Abuzaffer during the parties’ more than 37 years of marriage.” The Second District concluded that the judgment from the court in India was “inconsistent with Illinois concepts of fairness and equity . . .”

The Second District concluded its analysis by expressly criticizing the Circuit Court for failing to “consider American law and fundamental precepts of due process such as the right to notice and the right to defend one’s interests.” The Second District was concerned that the Circuit Court gave too much deference to Abuzaffer’s desires that religious and cultural practices in India trump Tanveer’s rights under Illinois law. The Second District also criticized the Circuit Court for not actually determining if Abuzaffer’s claims regarding Indian law were accurate: “the trial court’s reasoning was based on what it assumed the law was in India for pious Muslims.” (Emphasis original). As a result, Tanveer had to wait a year to get from filing a petition to the Second District’s decision, which the Second District described as “justice delayed is justice denied.” Given Tanveer’s age and potentially limited financial means, this delay was not a small burden for Tanveer.

Many missteps were made in Basith, and the Second District was quite harsh with the Circuit Court. The decision reiterates the most basic principle of due process: a respondent needs to be properly served and given an opportunity to defend themselves. The decision also shows the potential pitfalls of getting a divorce judgment in a foreign country when both parties reside in Illinois. When it comes to divorce, foreign counties may have laws concerning spousal rights that are starkly different from Illinois law. The Second District’s decision was not an attack on Indian divorce law, but a recognition that residents of Illinois have certain rights in a divorce proceeding that cannot be ignored.

The divorce process can be complex and it can be difficult to know which steps to take. The experienced Chicago divorce attorneys at the Law Office of George M. Sanders will help you fully understand the process and make the best decisions possible. You do not have to tackle your divorce alone, we are here to help.

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