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*19 Chaudhary v Chaudhary

Court of Appeal
31 July 1984

[1985] 2 W.L.R. 350


[1985] Fam. 19

Cumming-Bruce , Oliver L.JJ. and Balcombe J.


Wood J.
1984 July 16, 17; 31
1983 Feb. 21, 22; March 3, 4; May 13
Husband and WifeDivorceForeign decree, recognition ofTalaq divorcePakistan
nationals acquiring domicile of choice in EnglandHusband travelling to Kashmir to
pronounce talaqTalaq pronounced in Kashmir having legal effect in Pakistan
Whether talaq "judicial or other proceedings" recognised in United KingdomWhether
recognition to be refused as contrary to public policy Recognition of Divorces and
Legal Separations Act 1971 (c. 53), ss. 2(a), 8(2)(b) (as amended by Domicile and
Matrimonial Proceedings Act 1973 (c. 45), ss. 2(4), 15(2) )
The parties, who were nationals of Pakistan were married in Kashmir in 1954 and
cohabited there until 1963 when the husband came to England leaving the wife and
children in Kashmir. The husband settled in England where he found secure
employment and subsequently formed a relationship with another woman, H. In 1967
the husband and H. went through a ceremony of marriage at a register office in
London and in 1969 they went through a further ceremony of marriage according to
Muslim rites in Beirut. The wife arrived in England in 1975 but returned to Kashmir
within a fortnight due to domestic disharmony. In 1976 the husband pronounced oral
talaq three times before witnesses at a mosque in London and notified the wife. The
wife returned to England in 1977. In 1978 the husband went to Kashmir and again
pronounced oral talaq three times before witnesses, that being instantly effective as a
final divorce under the law of Pakistan since the Muslim Family Laws Ordinance 1961
did not apply to Kashmir. In 1980 Balcombe J. declared the register office ceremony of
marriage between the husband and H. void and bigamous and made a decree
absolute of nullity. The wife petitioned the English courts for divorce on the ground of
the husband's adultery with H. The husband presented a petition for a declaration that
the marriage had been lawfully dissolved prior to the wife's petition, either by the
talaq of 1976 or by the second talaq of 1978. Wood J. held that the talaq of 1976
could not be recognised because by that date the husband had acquired a domicile of
choice in England and in any event under section 16(1) of the Domicile and
Matrimonial Proceedings Act 1973 no proceedings in the United Kingdom could validly
dissolve a marriage unless instituted in a court of law; that the talaq of 1978 which
was a "bare" talaq involving merely the husband's act could not be regarded as
"judicial or other proceedings" within the meaning of section 2(a) of the Recognition
of Divorces and Legal Separations Act 1971 1 and *20 therefore did not fall to be
recognised under sections 2 to 5 of the Act of 1971; and that even if either talaq
could be recognised under the statutory provisions the court would in the
circumstances exercise its discretion under section 8(2) of the Act of 1971 or under
the common law rules of public policy and refuse to recognise either talaq as a valid
divorce. Accordingly he refused to grant the declaration sought by the husband and
pronounced the decree nisi of divorce on the wife's petition.
On appeal by the husband on the ground, inter alia, that the talaq of 1978 should be
recognised as a valid divorce under section 2 of the Recognition of Divorces and Legal
Separations Act 1971 : Held, dismissing the appeal,
(1) that, although the Recognition of Divorces and Legal Separations Act 1971 had
been amended by the Domicile and Matrimonial Proceedings Act 1973 , the provisions
of the Act of 1973 had not affected the construction of "judicial or other proceedings"
in section 2 of the Act of 1971; that "proceedings" in that section was to be restricted
to acts of some formality that involved an agency recognised by the state and that
had some function to perform in dissolving a marriage; and that, accordingly, without
the intervention of a government recognised agency, the pronouncement of talaq,
whether or not in the presence of the wife or before witnesses, was an individual act

that was insufficient to constitute "other proceedings" recognised by the courts under
section 2 of the Act of 1971 as dissolving the parties' marriage (post, pp. 38A-C, 39DF, 40G - 41C, E - 42D, 43A-G, 46C-D, E-G, 48A-B).
Quazi v. Quazi [1980] A.C. 744 , H.L.(E.) considered.
(2) That, since both parties had by choice become domiciled in England, the only
reason that the husband had travelled to Kashmir to pronounce the talaq must have
been to take advantage of the then existing laws of the parties' domicile whereby a
decree granted in Kashmir would avoid his having to make any financial provision for
the wife; that, accordingly, the judge had rightly indicated that if the talaq could be
recognised under section 2(a) of the Act of 1971, he would exercise the court's
discretion preserved by section 8(2)(b) of the Act to refuse recognition on the ground
of public policy (post, pp. 40A-C, 45A-C, 48D-E).
Decision of Wood J., post, p. 22 et seq. upheld.
The following cases are referred to in the judgments of the Court of Appeal:

Lee v. Lau [1967] P. 14; [1964] 3 W.L.R. 750; [1964] 2 All E.R. 248
Quazi v. Quazi [1980] A.C. 744 ; [1979] 3 W.L.R. 402; [1979] 3 All E.R. 424,
C.A. ; [1980] A.C. 744; [1979] 3 W.L.R. 833 ; [1979] 3 All E.R. 897 , H.L.(E.) .
Qureshi v. Qureshi [1972] Fam. 173; [1971] 2 W.L.R. 518; [1971] 1 All E.R.
325

Ratanachai v. Ratanachai, The Times, 3 June 1960

Reg. v. Immigration Appeal Tribunal, Ex parte Secretary of State for the Home
Department [1985] Q.B. 190 ; [1984] 2 W.L.R. 36; [1984] 1 All E.R. 488 ; sub nom.
Reg. v. Secretary of State for the Home Department, Ex parte Ghulam Fatima [1985]
Q.B. 190; [1984] 3 W.L.R. 659; [1984] 2 All E.R. 458, C.A. .

Russ (orse. Geffers) v. Russ (Russ orse. De Waele intervening) [1964] P. 315;
[1962] 3 W.L.R. 930; [1963] 3 All E.R. 193, C.A. .
*21

Sharif v. Sharif (1980) 10 Fam. Law 216

Varanand v. Varanand (1964) 108 S.J. 693

Viswalingham v. Viswalingham (1979) 1 F.L.R. 15; 123 S.J. 604, C.A. .

Zaal v. Zaal (1982) 4 F.L.R. 284


No additional cases were cited in argument in the Court of Appeal.
The following cases are referred to in the judgment of Wood J.:

Flynn, decd., In re [1968] 1 W.L.R. 103; [1968] 1 All E.R. 49

Fuld, decd. (No. 3), In the Estate of [1968] P. 675; [1966] 2 W.L.R. 717;
[1965] 3 All E.R. 776

Gray (orse. Formosa) v. Formosa [1963] P. 259; [1962] 3 W.L.R. 1246; [1962]
3 All E.R. 419, C.A. .

Har-Shefi v. Har-Shefi (No. 2) [1953] P. 220; [1953] 3 W.L.R. 200; [1953] 2


All E.R. 373

Joyce v. Joyce and O'Hare [1979] Fam. 93 ; [1979] 2 W.L.R. 770; [1979] 2 All
E.R. 156
Newmarch v. Newmarch [1978] Fam. 79; [1977] 3 W.L.R. 832; [1978] 1 All
E.R. 1
Quazi v. Quazi [1980] A.C. 744; [1979] 3 W.L.R. 833; [1979] 3 All E.R. 897,
H.L.(E.) .
Qureshi v. Qureshi [1972] Fam. 173; [1971] 2 W.L.R. 518; [1971] 1 All E.R.
325
Udny v. Udny (1869) L.R. 1 Sc. & Div. 441, H.L.(Sc.) .
The following additional cases were cited in argument before Wood J.:

Hornett v. Hornett [1971] P. 255; [1971] 2 W.L.R. 181; [1971] 1 All E.R. 98

Igra v. Igra [1951] P. 404

Lee v. Lau [1967] P. 14; [1964] 3 W.L.R. 750; [1964] 2 All E.R. 248

Maher v. Maher [1951] P. 342; [1951] 2 All E.R. 37

Meyer, In re [1971] P. 298; [1971] 2 W.L.R. 401; [1971] 1 All E.R. 378

Mitford v. Mitford and Von Kuhlmann [1923] P. 130

Ratanachai v. Ratanachai, The Times, 3 June 1960

Reg. v. Registrar General of Births, Deaths and Marriages, Ex parte Minhas


[1977] Q.B. 1; [1976] 2 W.L.R. 473; [1976] 2 All E.R. 246, D.C. .

Sharif v. Sharif (1980) 10 Fam. Law 216

Varanand v. Varanand (1964) 108 S.J. 693

Zaal v. Zaal (1982) 4 F.L.R. 284

PETITIONS

The wife, Bibi Saira Chaudhary, married the husband, Khan Mohammed Chaudhary,
on 4 December 1954 in Kashmir, Pakistan. By her petition dated 26 March 1979, she
sought the dissolution of that marriage on the ground of the husband's adultery with
Hamida Begum, known as Sue Chaudhary. The husband, by his answer, alleged that,
since the parties had been validly divorced before the date of the petition, the court
had no jurisdiction in the matter.
By his petition of 19 October 1982, the husband alleged that the marriage had been
dissolved by a talaknama made by him on 29 June 1976 at Shepherd's Bush Mosque,
London, or by a talaknama made on 12 June 1978 at Muzaffarabad, Azad Kashmir,
Pakistan; and he sought a declaration that the marriage had been dissolved by either
the first or second talaknama.
*22
The facts are stated in the judgment of Wood J.

Representation

Davinder Lachhar for the wife.

Walter Aylen Q.C. for the husband.


Cur. adv. vult.

13 May 1983. WOOD J.

read the following judgment. There are two sets of proceedings before me, as the
result of an order of 19 October 1982. The first is a petition dated 26 March 1979,
filed by the wife seeking a divorce upon the ground of the husband's adultery with
Hamida Begum, otherwise known as Sue Chaudhary (I shall refer to her as Hamida),
in which the wife seeks custody of the children and the usual financial ancillary relief.
The second is a petition filed by the husband on 19 October 1982 which, with the
wife's answer to it, has since been amended and which seeks a declaration that the
marriage between the husband and the wife, dated 4 December 1954, had been
dissolved prior to the wife's petition either by an oral talaq of 29 June 1976 or by a
second oral talaq of 12 May 1978. It is fair to point out that the husband's case was
partially put forward in his answer to the wife's petition, which answer was dated 7
December 1979. By agreement the husband's petition has been heard first, as his
adultery was admitted and a decree nisi on the wife's petition would follow if the
husband did not succeed in his prayer for a declaration. There are four children of this
marriage, the eldest of whom is Khurshid, who is in his mid-20s; Ghazala, born on 27
January 1961, now 22; Kaleem, born on 28 August 1962 - now 20; and Shamin, born
on 11 October 1963 - now 19. Kaleem, unfortunately, is severely handicapped. He has
impaired sight and hearing, and is not in a good physical or mental condition. He can
walk, but needs to be dressed and also needs a great deal of daily attention.
The husband is now aged 50 and the wife 46. They are, in fact, first cousins and come
from the same village in Kashmir in Pakistan. They are both Pakistan nationals. She is
illiterate. Hamida comes from Malaysia.
The position today is that the husband and Hamida live at 7, Studland Street, London,
W.6, a property in his name and now worth 30,000. With them live Ghazala, who is
taking A levels in bio-chemistry at Paddington College, and for whom the husband
pays 700 per annum in college fees. Until fairly recently Shamin was also living with
them. Hamida has two sons of whom the husband is the father; they are now aged 13
and 10. The elder is at a fee-paying school where the fees are 1,180 per annum. It
is likely that the younger one will soon follow him to the same school.
In his occupation as an aircraft mechanic, the husband receives a salary of 220 per
week gross (160 per week net). Hamida is a senior radiographer at the West London
Hospital and is in receipt of a salary which, with overtime, comes to about 14,000
per annum. They each own a car. She owns a property, 44, Cunnington Street,
London, W.4, from which she obtains an income from the lettings. It now has a capital
value of 36,000.
*23
At 55, Roxwell Street, London, W.12, live the wife, Khurshid, Kaleem and Shamin.
This property is in the husband's sole name and is now worth 25,000. The wife
receives supplementary benefits. Kaleem, who is unable to work, receives a grant of
30.50 a week. They each receive 5 a week from the husband under a magistrates'
court order. Khurshid is employed as a television engineer and earns 40 per week.
Shamin is still studying and receives an annual grant of just under 300. The husband
makes no contribution towards the outgoings of this home.
Witnesses
Apart from two expert witnesses, I had evidence from the husband and his brother,
Mohammed, who both speak fluent English, and from the wife, through an interpreter
(although she now has some understanding of simple English phrases) and from
Khurshid, who now also speaks good English. Khurshid impressed me. He was in a
difficult position but was trying to give me the best of his recollection. I could not
accept the whole of the evidence of the other witnesses, and I have tried to look at
the probabilities in reaching my conclusions. It is important to emphasise that I have
not heard any evidence from Hamida, nor have I seen her.
The history

The husband was born on 14 May 1932 in the village of Sawan near Muzaffarabad in
Kashmir. At about the age of 16 he fought in the struggle for independence and later,
in 1950, joined the Pakistan Air Force. During his service with the Air Force he took an
external degree in engineering at the University of the Punjab. In 1954 he came to
London for three months on a training course. After some 12 years in the Air Force he
retired to his village, where he stayed for some three months before joining the Public
Service Department in Lahore. He left that employment on 15 June 1963. From his
joining the Air Force until 1963 he had spent his annual leave of about one month in
his village. His present wife is, in fact, his second wife and shortly after marrying her,
he divorced a wife whom he had married when he was very young. I do not know the
date of the earlier marriage or of the divorce.
The husband has four brothers and two sisters. His father is now aged 82 and his
mother is 76. The family own a property of some three acres in the village of Sawan
and there are a number of houses upon it. By the local law, he has a 14th share in
that property.
In the summer of 1963, as a result of a quarrel, the husband left his village to seek
work in Karachi. He failed to do so, but managed to obtain a work permit to enter the
United Kingdom, where he arrived in October 1963. His first return visit to Pakistan
thereafter was in 1972 and, apart from some subsequent visits to Pakistan, he has
lived in this country ever since.
As a skilled aircraft engineer, he has found no difficulty in obtaining work here and his
employment record to date is as follows: British Eagle Airways, November 1963 to
January 1964; Field Aircraft Services, January 1964 to summer 1965; G.E.C., summer
1965 for 13 months; *24 Royal Air Force, three months; British Caledonian Airways,
October 1966 to 5 February 1968; British European Airways (thereafter B.A.), 5
February 1968 to date.
Initially, his intention was to read for the Bar and then to return to Pakistan to
practise. He joined Inner Temple as a student member and took the first part of the
External LL.B. at London University. However, he never took his Bar finals, nor did he
complete his LL.B. degree.
In 1965 he met Hamida, who was training to be a radiographer. He gave up his idea
of becoming a barrister. In the summer of 1967 they set up home together at 7,
Studland Street. He bought that property for 5,200 and there was a mortgage of
3,750. Each of them contributed part of the remaining cost. That property has three
bedrooms and two reception rooms. On 23 December 1967 the husband went through
a ceremony of marriage with Hamida at the Hammersmith Register Office.
By 1969 Hamida had completed her training at the West London Hospital and on 18
August 1969 the husband went through a second ceremony of marriage with Hamida
in a Muslim court in Beirut. He gave as the reason for this second ceremony that the
certificate of marriage from there would be acceptable world wide.
In June 1970 they bought a shop with accommodation above it at 44 Cunnington
Street. This property was bought in Hamida's name, but it was the husband who
bought the goodwill and stock of the business. That business was closed in October
1972 and the ground floor was converted into living accommodation. Hamida was by
now a senior radiographer. They lived at Cunnington Street until some time in 1975
when they returned to Studland Street. Thereafter, I understand that the
accommodation at Cunnington Street was let.
As I have already said, it was in 1972 that the husband returned to Pakistan. He saw
his wife and told her that he had married again. He told me in evidence that his wife
was sympathetic and raised no objection, provided that he maintained both families.
Between 1963 and 1975 the husband had been sending some money to Kashmir and
he had also been writing to relatives, including his son, Khurshid.
On 25 November 1975 the wife and all four children arrived at Heathrow. The
husband was expecting them and had been able to provide tickets, which he had
obtained from British Airways at a concessionary rate. Both families crowded into
Studland Street. The wife only stayed some thirteen days. I accept Khurshid's
assessment that the two wives were not compatible. On the one hand there was a
simple country woman; on the other, the more sophisticated and westernised
professional woman. The husband conversed with this wife in the local dialect of
Kashmir, and with Hamida in English. Neither wife could communicate with the other. I

think that Khurshid was right when he said that Hamida insisted on this wife returning
to Pakistan.
She, in fact, did so on 8 December 1975, leaving Heathrow with three of the children.
Kaleem remained here for care and treatment. Her husband told Khurshid on that
occasion that he would ask them to return when he found another house and he gave
Khurshid some money for tickets (onward tickets) from Karachi.
*25
On 29 June 1976 the husband went to the mosque in Shepherd's Bush and
pronounced an oral talaq three times in Urdu before two witnesses. This, by Muslim
religious law, is sufficient to be an effective divorce without further notice to the wife
and without further acts of any kind. As the wife was in Pakistan it was decided that in
addition a talaknama or written document should be made out and a copy sent to her.
This was done. Whether the wife received this document is doubtful, but I am
satisfied that she learned of the divorce by 1976 or early 1977. I am not satisfied that
the wife sought or agreed to this divorce. The talaknama referred to her giving up
custody of her children and I do not think that she would willingly have done this. This
talaknama does not accurately set out what happened. The wife was no party to it.
On a date in 1976 or early 1977 - the date is not precise - the husband bought 55,
Roxwell Road, London, W.12. He bought it in his own name. It is said that
Mohammed, his brother, has a charge on the house of 2,500. It may be so, but I
have seen no documentation.
On 24 July 1977 the wife arrived at Heathrow. She stayed with friends for a day or
two and arrived at Studland Street thereafter. The house at Roxwell Road had been
refurbished and redecorated. During the first week of September 1977, the wife and
two children moved into Roxwell Road. Ghazala and Shamin remained at Studland
Street. The wife became dissatisfied with her treatment and her financial support, and
as a result on 3 February 1978 issued a summons in the magistrates' court alleging
desertion and wilful refusal to maintain. On 29 June 1978 an interim order was made
of 5 a week for herself and Kaleem, to which I have already referred.
On 12 May 1978 the husband travelled to Muzaffarabad where he once again
pronounced an oral talaq three times in front of two witnesses. He also on this
occasion had a talaknama written out, which he delivered to his wife. Having heard all
the evidence, including that of the experts, I am not satisfied that this talaknama is of
material effect. The divorce was a valid divorce by Muslim religious law on the
pronouncement of the talaq orally before the two witnesses. Nothing more was
required.
During 1979 - it may have been earlier, in 1977, as all the documentation is not
before me - proceedings took place between Hamida and the husband. The only detail
of which I have been told is that on 16 January 1980, Balcombe J. pronounced a
decree nisi of nullity, declaring that the ceremony of marriage entered into between
them on 23 December 1967 at the Hammersmith Register Office was void as it was
bigamous. As far as I am aware, the Beirut marriage of 18 August 1969 did not
feature in those proceedings, and the husband and Hamida are still living as husband
and wife at 7, Studland Street. The decree absolute of nullity was on 3 March 1980.
Muslim law
It is common ground that by the relevant legal provisions of Kashmir in Pakistan, it is
only the classical Islamic religious law which applies. Unlike other parts of Pakistan,
the Muslim Family Laws Ordinance 1961 *26 does not apply. Therefore, an oral talaq,
pronounced three times before two witnesses, is effective as a final divorce and
effective instantly, without any necessity for notice to be given to a wife. Although in
the present case a talaknama - written evidence of the divorce - came into being on
each of the two occasions, it was not a necessary element of the divorce. There is no
requirement that the talaq should be pronounced at any particular place.
Other aspects of Muslim religious law were discussed by the experts in their evidence
before me but I do not feel it necessary to refer to them. The effective divorces, if
they are to be recognised, were the oral talaqs.
Domicile
The husband owns his 14th share in the family property of some three acres in Sawan
village and he also owns a house in Muzaffarabad. Apart from these property
interests, all his assets are within this jurisdiction. He maintains that his domicile has

at all times been his domicile of origin in Kashmir, Pakistan. In 1965 he gave up his
idea of coming to the Bar and he told me that by 1970 his intention was to save up
enough money to be able to return to Pakistan and to open up a transport business.
He also told me that in 1973 they had tried to sell Cunnington Street, but could not
get a good enough price. They would have re-invested it in Pakistan or Malaysia.
There was no corroboration of these matters. By summer 1977 his plan was to await
the completion of the children's education and, after they had found good
employment, he would sell up and return to Pakistan. He acknowledged that he would
have to make arrangements for Hamida or to have left her here. His present plans, he
tells me, are to return to Pakistan when this case is over. Under cross-examination, he
alleged that Hamida is quite willing to go to live in Pakistan.
It is clear that English law applies to the issue of domicile and I have been referred to
the well-known cases of Udny v. Udny (1869) L.R. 1 Sc. & Div. 441; In the Estate of
Fuld, decd. (No. 3) [1968] P. 675 and In re Flynn, decd. [1968] 1 W.L.R. 103 , and I
apply the well-known principles which are indicated in these cases.
Although in recent years this husband has paid an increasing number of visits to
Pakistan, I am quite satisfied that at least by 1976 he had acquired a domicile of
choice in England and Wales. I have taken all the circumstances into account. The
husband has, since 1976, been anxious to rid himself of his wife and of his possible
financial responsibility for her in order to make his future with Hamida. He, therefore,
has a motive for his declarations of intention. I do not feel that I can place sufficient
reliance upon them. I must look at his actions. There is, however, a further important
factor, which is that he is clearly deeply attached to Hamida and their two sons. I have
little doubt that he will marry her, if not still married by reason of the Beirut
ceremony. She has not given evidence and, on a balance of probabilities, I am not
satisfied that she is prepared to give up her present life in this country and return to
the uncertainties of Pakistan; nor am I satisfied that he would go without her.
*27
As Sir Robert Megarry V.-C. said in In re Flynn, decd ., at p. 107D "too much detail
may stultify." I am satisfied that at least by 1976 this husband had a domicile of
choice in this country and I do not think that he is going to return to Pakistan.
Mr. Aylen, for the husband, placed greater reliance upon the second talaq and because
the Bar argued it in this order I will take the second talaq and consider it first. The
first question is whether this divorce falls within the wording "other proceedings" in
section 2(a) of the Recognition of Divorces and Legal Separations Act 1971 . The
requirements of section 3 are satisfied in that both husband and wife are nationals of
Pakistan. As I have already stated, it is clear that in Kashmir, Pakistan, the Muslim
Family Laws Ordinance 1961 has no application. It is the Muslim religious law only
which applies. Therefore, the situation is different from that which existed in Quazi v.
Quazi [1980] A.C. 744 . Each of the talaqs which I have to consider in the present
case are what I termed "bare" talaqs in Quazi v. Quazi to which I have been referred.
It has been argued that this bare talaq is a "proceeding" because of the requirement
of three pronouncements of talaq which must take place before two witnesses. I do
not think that it could properly be described as a "proceeding" and I do not wish to
alter the view which I took of a bare talaq in Quazi v. Quazi, at pp. 776-777.
It has been submitted that there are passages in the speech of Lord Scarman in the
House of Lords which indicate a different view. The first passage is, at p. 824:
"For these reasons I construe section 2 as applying to any divorce which has been
obtained by means of any proceeding, i.e., any act or acts, officially recognised as
leading to divorce in the country where the divorce was obtained, and which itself is
recognised by the law of the country as an effective divorce. Specifically, 'other
proceedings' will include an act or sequence of acts other than a proceeding instituted
in a court of law, as, indeed, Parliament must have thought when enacting section 16
of the Domicile and Matrimonial Proceedings Act 1973 : see in particular subsection
(2) of the section."
The second passage to which I was referred is at p. 825:
"Upon the view that I have formed as to the meaning of section 2 of the Act of 1971,
the pronouncement of talaq, the notices to the chairman and the wife, though not
judicial in character, were 'other proceedings' as that term is used in the section: for
they were acts officially recognised by the law of Pakistan as leading to an effective

divorce. The divorce became under Pakistan law effective not, as under the classic
Islamic law, upon pronouncement of talaq but upon expiry of 90 days, unless revoked,
from the notice in writing to the chairman of the union council. That this is the law of
Pakistan brooks of no doubt."
In the first of these passages Lord Scarman seems to me to be expressing the general
principle which he finds applicable upon his interpretation of the statutory provisions
and in the latter passage he *28 repeats and applies those principles to the facts of
Quazi v. Quazi itself. I do not read either passage as indicating that Lord Scarman
took the view that a bare talaq fell within the words "other proceedings." In my
judgment, therefore, this talaq does not fall to be recognised within sections 2 to 5 of
the Recognition of Divorces and Legal Separations Act 1971 .
By May 1978, I have found that this husband was domiciled in England and I am also
satisfied that the wife obtained a domicile of choice here. Therefore, the provisions of
section 6 of the Act of 1971 have no application. Therefore, the second talaq does not
fall to be recognised under the Act of 1971 on either limb.
Turning now to the first talaq of 29 June 1976, it took place within this jurisdiction.
The Act of 1971, therefore, does not apply and the court is thrown back upon the
common law position prior to the passage of that Act. It is argued on the basis of HarShefi v. Har-Shefi (No. 2) [1953] P. 220and upon the basis of Qureshi v. Qureshi
[1972] Fam. 173 , that this talaq would be recognised in this country if both spouses
were domiciled in Pakistan at that date because such a divorce would be recognised
by the Muslim religious law, which is the relevant law applicable. In my judgment, the
husband had by 1976 acquired a domicile of choice in England, but if I am wrong in so
finding, then this talaq is, in my judgment, caught by the provisions of section 16(1)
of the Domicile and Matrimonial Proceedings Act 1973 which came into force on 1
January 1974. That subsection, in my judgment, was clearly enacted in order to
overrule the decision in Qureshi v. Qureshi [1972] Fam. 173 .
Mr. Aylen, however, submits otherwise. The argument runs thus: If a bare talaq is not
within the words "other proceedings" in section 2(a) of the Recognition of Divorces
and Legal Separations Act 1971 , then it is not a "proceeding" within section 16(1) of
the Domicile and Matrimonial Proceedings Act 1973 . It is something less than a
proceeding and, therefore, the first talaq is not caught by the provisions of section
16(1) of the Act of 1973.
I do not agree. If a proceeding not instituted through the courts of law in this country
is caught by the provisions of section 16(1), then, in my judgment, it was clearly the
intention of Parliament to bring within its net something even less formal.
The true meaning of section 16(1) would seem to be as follows: "No divorce in the
United Kingdom, Channel Islands or Isle of Man shall be valid to dissolve a marriage
unless the decree is obtained through due process in the courts of law in one of those
countries," and might have been so phrased. I, therefore, find that the first talaq is
invalid under the provisions of that section.
If either talaq is to be recognised, then I have a discretion to refuse to do so under
the provisions of section 8(2) of the Recognition of Divorces and Legal Separations Act
1971 or the common law rules of public policy. My attention has been drawn to a
number of cases and, in particular,Newmarch v. Newmarch [1978] Fam. 79 , 95
and Joyce v. Joyce and O'Hare [1979] Fam. 93 , 111. On the issue of public policy, I
note that in section 8(2) of the Act of 1971 although the wording follows *29 closely
that of The Hague Convention dated 1 June 1970 the word "manifestly" is inserted.
This was no doubt done to discourage excessive reliance on the grounds of public
policies in some countries where foreign law might be applicable to domestic family
problems. I do not believe that this word adds anything to the subsection, for I do not
believe that any judge would invoke the doctrine of public policy unless he felt that it
was clearly right and just so to do.
The doctrine of public policy is a creature of the common law and prior to the
commencement of the Recognition of Divorces and Legal Separations Act 1971 (1
January 1972) English courts have always reserved to themselves a residual
discretion whether or not to recognise foreign decrees or orders. I have no doubt that
the principles of the common law as they affect the residual discretion of English
judges to refuse the recognition of foreign decrees or orders, continues and is
unaffected by the provisions of the Act of 1971. I do not think that it is helpful for me

to refer to a number of cases at length. I am content to base my decision upon the


principles enunciated by the Court of Appeal (Lord Denning M.R. and Donovan and
Pearson L.JJ.) in Gray (orse. Formosa) v. Formosa [1963] P. 259 and, in particular,
where Donovan L.J. said, at p. 271:
"If the courts here have, as I think they have, a residual discretion in these matters,
they can be trusted to do whatever the justice of a particular case may require, if that
is at all possible."
The combination of circumstances which a court in this country may need to consider
when exercising its discretion under the head of public policy are limitless and I would
not seek to define any limits. To those who say that such a wide discretion brings
uncertainty into the law, I would reply that in many branches of the Family
jurisdictions today there is an extremely wide discretion given to the court.
Bearing in mind all the circumstances of this case, in the exercise of my discretion, I
would refuse to recognise either talaq, whether under the provision of section 8 of the
Recognition of Divorces and Legal Separations Act 1971 or under the common law of
public policy.
It follows, therefore, that I must refuse the declaration sought by the husband in this
suit and pronounce the decree nisi of divorce on the wife's petition on the ground of
the husband's adultery with Hamida. All the ancillary matters will be adjourned. I
think this is a case for a judge and, if I am available, then so be it.
Order accordingly. (M. B. D. )

Representation

Solicitors: Maurice Nadeem & Co. ; Raphael Teff & Co .


APPEAL from Wood J.
By notice of appeal dated 10 June 1983, the husband appealed against the order of
Wood J. He sought an order setting aside the decree of divorce granted to the wife,
asked that the prayer of the wife's petition be rejected and that a declaration be
granted on the prayer in *30 his own petition that the marriage between the parties
was validly dissolved by the talaq of 12 May 1978.
The grounds of the appeal were that (1) the judge erred in law in holding that the
talaq of 1978 did not constitute "other proceedings" and/or "proceedings" within the
meaning of sections 2 to 5 of the Recognition of Divorces and Legal Separations Act
1971 ; (2) it being common ground that the law of the parties' nationality would
recognise the validity of that talaq and that accordingly the divorce was effective
under the law of Kashmir where it was obtained, the judge should have declared that
the courts of England and Wales would recognise the talaq; (3) that the judge erred in
holding that section 16(1) of the Domicile and Matrimonial Proceedings Act 1973 did
not support the interpretation of sections 2 to 5 of the Act of 1971 contended for by
the husband, namely that the talaq of 1978 constituted "other proceedings" and/or
"proceedings"; (4) the judge erred in law or misdirected himself in holding that the
recognition of the talaq of 1978 would be manifestly contrary to public policy within
the meaning of section 8(2)(b) of the Act of 1971; (5) in particular the judge erred in
law by (a) holding that the word "manifestly" added nothing to the concept of public
policy set out in section 8(2)(b) of the Act of 1971, notwithstanding that the word was
taken by the English legislature from the Convention on the Recognition of Divorces
and Legal Separations held at The Hague on 1 June 1970 (Cmnd. 6248) ; (b) having
found as a fact that the wife knew by late 1976 or early 1977 that the husband had
pronounced an oral talaq on 29 June 1976 at Shepherd's Bush Mosque, London,
failing to give any or any sufficient weight to the fact that the divorce (although not to
be recognised in England and Wales on findings of the judge which were not under
appeal) was binding upon the wife and valid by virtue of her religion, law of her
nationality and of her domicile at the time of its pronouncement and was, in the
premises, known to her several months before she came to England in 1977; (c)
failing to have any or any sufficient regard for the wife's own evidence that, had she
known of the talaq pronounced in 1976 (of which, on the judge's finding she did know
contrary to her evidence) she would not have come to England; and (6) alternatively,
the judge erred in law or misdirected himself by failing to make any or any sufficient
findings of fact so as to justify his finding that to recognise the talaq of 1978 would be
manifestly contrary to public policy.

Walter Aylen Q.C. and David Martineau for the husband. Two main questions arise on
this appeal. (1) Does a bare talaq pronounced under classic Muslim law constitute
"[judicial or] other proceedings" within the meaning of sections 2 and 3 of the
Recognition of Divorces and Legal Separations Act 1971 ? (2) If it does, should
recognition of the talaq of 1978 be refused on the grounds of public policy under
section 8 of the Act of 1971?
It is clear and so conceded, that the bare talaq does not constitute "judicial...
proceedings." If therefore it is "other proceedings" it should be recognised (subject to
considerations of public policy) since it is agreed that both husband and wife were
nationals of Kashmir, *31 Pakistan and that the talaq was effective in Kashmir,
Pakistan under section 2(b) of the Act of 1971.
A proceeding is at least any juristic act recognised by law. The Shorter Oxford English
Dictionary defines "proceeding" as "A particular action... a piece of conduct" or "a
legal action or process." If there was the need for a narrow definition, a divorce
recognised after some form of procedure has been gone through is a "proceeding" or
"proceedings." However there is no need to narrow the definition. The word is
sufficient to cover (a) a solemn verbal pronouncement (whether oral or in writing);
(b) deliberately made; (c) in the presence of witnesses; (d) in a manner handed down
by scripture and tradition: see Qureshi v. Qureshi [1972] Fam. 173 , 201F.
The policy of the Convention on the Recognition of Divorces and Legal Separations at
The Hague in June 1970 was to avoid "limping marriages." The Act of 1971 goes
much further than the convention and chooses to preserve old grounds of recognition.
See section 6 of the Act of 1971. It applies grounds of recognition stemming from the
convention to countries other than convention countries. The new grounds provided
for countries outside the convention countries are much wider and include habitual
residence, nationality and domicile, but waive the factors which strengthen the ties to
"state of origin." The reason for that was that "limping marriages" are undesirable and
a simple test was required since the question of law might have to be decided by
immigration officers, revenue officials, registrars of marriages and private persons
such as trustees.
The propositions in Quazi v. Quazi [1980] A.C. 744 are amply wide enough to cover
bare talaqs, although that question was expressly left open by the House of Lords.
The structure of the Act of 1971 supports the recognition of the bare talaq. Section 6
preserves the rule of common law that the English courts would recognise a foreign
decree if it was obtained under the law recognised by the country of domicile of the
parties. It relied on domicile at the date of "institution of proceedings." The word
"proceedings" should be given the same meaning each time it occurs in the Act of
1971. The common law clearly recognised informal divorces: see Lee v. Lau [1967] P.
14 ; Quazi v. Quazi [1980] A.C. 744 ; Qureshi v. Qureshi [1972] Fam. 173 ;
Ratanachai v. Ratanachai, The Times, 3 June 1960 ; Russ (orse. Geffers) v. Russ
(Russ orse. De Waele intervening) [1964] P. 315 ; Varanand v. Varanand (1964) 108
S.J. 693 and Viswalingham v. Viswalingham (1979) 1 F.L.R. 15 . Clearly extra judicial
divorces would be recognised under section 6 of the Act of 1971.
The word "proceeding" in section 16 of the Domicile and Matrimonial Proceedings Act
1973 means the same thing as a matter of language and common sense: see
also Quazi v. Quazi [1980] A.C. 744 , per Lord Fraser of Tullybelton at p. 818C and
Lord Scarman at pp. 823A to B and 824B. If a bare talaq is not a "proceeding," a
relatively common form of divorce will be recognisable and not restrained by the
provisions of section 16 of the Act of 1973 by virtue of its informality while a talaq
which was subject to the Muslim Family Laws Ordinance 1961 would be. Thus,
paradoxically, the informal divorce would be more effective. *32 Parliament cannot
have intended that result. Section 16 of the Act of 1973 was designed to overrule the
actual decision in Qureshi v. Qureshi [1972] Fam. 173 . Consequently a bare talaq
constitutes "other proceedings" within the meaning of section 2 to 5 of the Act of
1971.
The English courts, in their discretion should recognise a bare talaq pronounced by a
Muslim against a Muslim, provided the provisions of the Act of 1971 are met. The
practice of the bare talaq, which is the classic Islamic talaq, has the authority of holy
scripture of the Muslim religion: see Qureshi v. Qureshi [1972] Fam. 173 . It has a
history longer than the common law of England. A Muslim wife who contracts a

marriage with a Muslim husband accepts that he has the right by scripture and
tradition to divorce her in this way, just as he has the right to take more than one
wife.
It is more desirable to have certainty and to deny anyone the opportunity of
submitting to immigration officers etc. that he or she is not divorced because English
law would or might refuse to recognise the foreign divorce. The United Kingdom has a
large number of people who follow Islam and at least two countries, Kashmir and
Dubai, have classic talaqs. It is inappropriate in the interests of comity, to refuse to
recognise such divorces, especially when a Muslim marriage is recognised.
The only discernible disadvantage to the wife is the fact that under the present law of
England, she is unable to be awarded ancillary relief. Provision for such relief is a
matter for legislation and there is and was no obstacle to the easy provision for such
relief.
The question of refusal of recognition arises under section 8 of the Act of 1971.
Section 8(2)(a) deals with notice and opportunity to take part in proceedings and
section 8(2)(b) refers to recognition being "manifestly contrary to public policy." The
questions raised in those two subsections are inter-related. Both effectively include
the words "having regard to the nature of the proceedings and all the circumstances."
The nature of the proceedings involved in a bare talaq makes it quite inapposite to
demand notice and opportunity to take part. If section 8(2)(a)(i) and (ii) apply a bare
talaq would never be recognised: see Wood J. in Sharif v. Sharif (1980) 10 Fam. Law
216 , 217. Bush J. was quite wrong in requiring something more than informal notice
in Zaal v. Zaal (1982) 4 F.L.R. 284 , 288-289. Any notice would be a pointless exercise
by virtue of the nature of the present divorce.
The modern view is that want of notice is no more than a prima facie ground on which
to refuse recognition. Section 8(2)(a) of the Act of 1971 has no applicability to a bare
talaq and should be totally ignored in so far as they relate to questions of public
policy. It would not make sense for Parliament to categorise this form of divorce as
"proceedings" but refuse to recognise it automatically under the head of public policy.
Roger Titheridge Q.C. and Alexandra Spearman for the wife. The first question is
whether a bare talaq pronounced under classic Muslim law constitutes "other
proceedings" within the meaning of sections 2 and 3 of the Act of 1971.
The use of the word "proceedings" indicates that more than a single act is required.
The plural is important and section 6(c) of the Interpretation Act 1978 does not apply
because a contrary intention *33 appears in the Act of 1971. Such contrary intention
appears (1) from the expression "judicial or other proceedings," since judicial
proceedings necessarily involve more than one act; and (2) from section 3(1) of the
Act of 1971 "at the date of the institution of proceedings" indicating that there must
be a first step followed by other steps to constitute proceedings. The Act of 1971
contemplates a set of proceedings. See also Reg. v. Immigration Appeal Tribunal, Ex
parte Secretary of State for the Home Department [1985] Q.B. 190 . The appropriate
definition of "proceedings" in the light of the authorities, in particular Quazi v. Quazi
[1980] A.C. 744 , is a series or set of acts constituting a procedure which leads to
final and official state recognition of a divorce or separation in the country where it
was obtained. Section 16(1) of the Act of 1973 covers a bare talaq since the use of
the singular "proceeding" was, in the context of that Act, deliberate, the purpose
being to reverse the decision in Qureshi v. Qureshi [1972] Fam. 173 .
If contrary to the foregoing submissions, a single act is sufficient to constitute
proceedings, the appropriate definition is: an act or acts constituting a procedure
which leads to final and official state recognition of a divorce or separation in the
country where it was obtained.
A bare talaq is not within either of those definitions. The expression "judicial or other
proceedings" clearly involves a limit upon recognition beyond the bare test of
effectiveness under the relevant law: see Ormrod L.J. in Quazi v. Quazi [1980] A.C.
744 , 788G - 789D. This part of the judgment of the Court of Appeal was not
challenged in argument before, nor was it disapproved by, the House of Lords.
If such a bare talaq does constitute proceedings within the meaning of the Act of
1971, should recognition of the talaq of 1978 be refused under section 8 of that Act?
Although it may well be undesirable in principle to attempt to define or to limit public
policy too closely, the following factors are relevant to the exercise of the court's

discretion and if each of them is present, recognition should be refused. (1) The
foreign divorce was obtained by the husband without the wife's consent, and she has
not subsequently approbated the divorce, e.g. by remarrying in reliance upon it. (2)
The wife was, at the time of the foreign proceedings, and has since remained
domiciled or habitually resident in England. (3) The wife has not obtained from the
husband adequate financial provision, substantially equivalent to what an English
court would award her if it granted a divorce, either under an amicable settlement or
under an order of a foreign court. (4) The wife has instituted proceedings expressly or
impliedly seeking refusal of recognition of the foreign divorce within a reasonable time
of learning of the foreign divorce. The bare talaq of 1978 should therefore be refused
recognition on the grounds that it was manifestly contrary to public policy under
section 8 of the Act of 1971.
Aylen Q.C. replied.
31 July 1984. The following judgments were handed down
CUMMING-BRUCE L.J.
This appeal raises two issues. First, is the pronouncement of a "bare talaq" in
Kashmir, the country of the husband's nationality, a proceeding or proceedings within
the meaning *34 of section 2 and section 8 of the Recognition of Divorces and Legal
Separations Act 1971 and section 16 of the Domicile and Matrimonial Proceedings Act
1973 ? Second, if the first question is answered in the affirmative, should recognition
be refused on the ground that its recognition would manifestly be contrary to public
policy?

Is pronouncement of a bare talaq in Kashmir a proceeding, or


proceedings, within the meaning of the two above mentioned statutes?

The facts
The facts are set out in the judgment of Wood J. Those relevant to the question under
consideration may be classified as follows. (a) In Kashmir, pronouncement by a
husband of the words "I divorce thee" three times in the absence of the wife is
effective to dissolve a Muslim marriage. This is because in Kashmir dissolution of
marriage is in accordance with classic Muslim religion and tradition. All that is
necessary is the thrice pronouncement of talaq, though frequently, as in this case, the
pronouncement is made in the presence of two witnesses. By religious tradition, the
act of declaring talaq three times, is regarded as a solemn religious act. It is by
religion and tradition, a solemn ceremonial act even though the pronouncement may
take place in private as well as in public, and the husband may be alone when he
makes the pronouncement three times. (b) Kashmir is within the sovereignty of the
state of Pakistan. In the rest of the territory of the state, the pronouncement of talaq
must be followed by compliance with the procedural requirements of the Muslim
Family Laws Ordinance 1961 in order to be effective as terminating the marriage. But
the provisions of that ordinance do not apply in the territory of Kashmir, where by the
law of Pakistan the classic religious tradition still prevails, without any statutory
modification. By virtue of section 3(3) of the Act of 1971 the territory of Kashmir is to
be regarded as a country separated from the rest of Pakistan so that the system of
law in force in matters of divorce that is relevant to questions of recognition is the
system of law prevailing in the territory of Kashmir. (c) Apart from the pronouncement
by the husband of the talaq, there is no formality, no requirement of any notification
to anybody. No institution of the state, legal or administrative, is involved. No
religious institution plays any part. (d) Upon pronouncement of the talaq in Kashmir,
the marriage is terminated. The consequences, financial and in relation to the custody
of children, may then be worked out in accordance with religious tradition.
The law
The law of recognition is now to be collected from the Recognition of Divorces and
Legal Separations Act 1971 as amended by section 2 of the Domicile and Matrimonial
Proceedings Act 1973 and supplemented by section 16 of that Act. In Quazi v. Quazi
[1980] A.C. 744 , the House of Lords allowed an appeal from the order of the Court of
Appeal, and affirmed the order of Wood J. who had held that a divorce obtained in
Pakistan by talaq followed by compliance with the procedural requirements of the
Pakistani Muslim Family Laws Ordinance 1961 was *35 a divorce obtained by "other
proceedings" within the intendment of section 2(a) of the Act of 1971. Their Lordships
confined their decision to the determination of the question then before them, and

Lord Fraser of Tullybelton in terms stated that he did not express any opinion as to
whether a bare talaq pronounced in a country where, unlike Pakistan (excluding the
territory of Kashmir), it would be effective without any further procedure, should be
recognised under the British Act of 1971 as a valid divorce. Nonetheless it is
necessary as a starting point to decide what assistance can be derived from the
speeches in Quazi v. Quazi [1980] A.C. 744 upon the construction and effect of the
phrase "judicial or other proceedings." Since Quazi v. Quazi was decided there have
been two cases upon bare talaq, decided at first instance. In Sharif v. Sharif (1980)
10 Fam. Law 216 Wood J. decided that if the talaq pronounced in Baghdad by the
husband was a bare talaq, it would not fall within the phrase "judicial or other
proceedings" in section 2(a) of the Act of 1971. But in Zaal v. Zaal (1982) 4 F.L.R.
284 , Bush J. took the contrary view. He held that a bare talaq pronounced in Dubai,
where it was recognised by the local law as effective to end the marriage, was a
divorce obtained by "judicial or other proceedings" pursuant to section 2(a) of the Act
of 1971. This is the conflict of judicial decision which this court has now to resolve.
In Reg. v. Immigration Appeal Tribunal, Ex parte Secretary of State for the Home
Department [1985] Q.B. 190 , Taylor J. expressed the view that he preferred the view
of Bush J.
The section which falls to be construed is section 2 of the Act of 1971 as amended by
the Act of 1973. This reads:
"Overseas divorces and legal separations
"2. Sections 3 to 5 of this Act shall have effect, subject to section 8 of this Act, as
respects the recognition in the United Kingdom of the validity of overseas divorces
and legal separations, that is to say, divorces and legal separations which - (a) have
been obtained by means of judicial or other proceedings in any country outside the
British Isles; and (b) are effective under the law of that country."
The Act of 1971 also refers to "proceedings" in sections 3, 5, 6(4) as amended by the
Act of 1973, and section 8. The Act of 1971 was passed following the signature in
June 1970 at The Hague by the United Kingdom of a Convention on the Recognition of
Divorces and Legal Separations (Cmnd. 6248) so that the Convention may be
considered an aid to construction if there is ambiguity. The opening words of the
Convention recite:
"The states signatory to the present Convention, desiring to facilitate the recognition
of divorces and legal separations obtained in their respective territories, have resolved
to conclude a Convention to this effect, and have agreed on the following provisions "Article 1.
"The present Convention shall apply to the recognition in one contracting state of
divorces and legal separations obtained in another contracting state which follow
judicial or other proceedings *36 officially recognised in that state and which are
legally effective there....
"Article 2.
"Such divorces and legal separations shall be recognised in all other contracting
states, subject to the remaining terms of this Convention, if, at the date of the
institution of the proceedings in the state of the divorce or legal separation,..."
and then follow the agreed conditions.
Copies of the Convention were sent out to each of the states represented at the
Eleventh Session of The Hague Conference on Private International Law. The
signatories were Czechoslovakia, Denmark, Finland, Norway, Sweden, Switzerland and
the United Kingdom.
It is clear enough that the object of the Act of 1971 was to reduce or prevent the
continuance of the situation known as "limping marriage" where divorce or legal
separation granted in one state was not recognised elsewhere. This immediately
raises the question posed by Ormrod L.J. in Quazi v. Quazi [1980] A.C. 744 , 788789:
"There is no definition of 'proceedings' in the Act and little other material which
throws any light on its meaning, except a number of references to 'the institution of
proceedings' in other sections. The ordinary or natural meaning or meanings of the
word 'proceedings' standing by itself, without any adjectival description, are so
general and imprecise that the dictionary definitions do not carry the matter any
further. The phrase 'judicial proceedings' implies some form of adjudication and some

kind of order of a court or of some other person or body acting in a judicial capacity.
The word 'other' gives little indication of the draftsman's intention. The preamble to
the Act mentions The Hague Convention of 1968 and states that the Act was passed
with a view to the ratification of the Convention by the United Kingdom. Reference
may, therefore, be made to the terms of the Convention. Article 1 is in these terms:
'The present Convention shall apply to the recognition in one contracting state of
divorces and legal separations obtained in another contracting state which follow
judicial or other proceedings officially recognised in that state and which are legally
effective there.'
"We have already drawn attention to the difference in the area of application of the
Convention and of the Act. Article 1 poses a question which permits of a fairly simple
answer. A divorce is entitled to recognition if it followed judicial or other proceedings
officially recognised by the relevant contracting state. The Act, however, is not limited
in its operation to the contracting states; its scope is quite general. Moreover, the
important words 'officially recognised in that state...' do not appear in section 2, and
there is no alternative qualification to the words 'other proceedings.' This means that
it is for this court itself to determine whether an overseas divorce has been obtained
by means of 'judicial or other proceedings' within the section.
*37
"The inclusion of these words must be intended as a limitation on the scope of the
section. If they were omitted, the only relevant question would be, 'Is the divorce
effective under the relevant law?' Some forms of divorce must, therefore, be
excluded, and the filter is the phrase 'judicial or other proceedings.' In our judgment,
the phrase must be intended to exclude those divorces which depend for their legal
efficacy solely on the act or acts of the parties to the marriage or of one of them. In
such cases, although certain formalities or procedures have to be complied with, there
is nothing which can properly be regarded as 'proceedings.' We think that, given the
apposition of the words 'other proceedings' to the word 'judicial,' 'proceedings' here
means that the efficacy of the divorce depends in some way on the authority of the
state expressed in a formal manner, as provided for by the law of the state. To put it
in other words, the state or some official organisation recognised by the state must
play some part in the divorce process at least to the extent that, in proper cases, it
can prevent the wishes of the parties or one of them, as the case may be, from
dissolving the marriage tie as of right. It, therefore, includes some 'extra-judicial'
divorces, but, as it seems to us, it is impossible to be more precise. Individual
examination by the court of the divorce process in each case seems to be
unavoidable. In coming to this conclusion we have had to bear in mind the terms of
section 6 of the Recognition Act , which enables those who are domiciled abroad to
obtain recognition of divorces which, on this construction, are excluded from the
operation of section 3. In these circumstances we do not think that reasons of policy
require that an unduly liberal construction should be given to the phrase 'other
proceedings,' since those who are habitually resident in this country will have little
difficulty in complying with our own jurisdictional rules, and those who are domiciled
abroad can take advantage of section 6."
Though the House of Lords disapproved the application by Ormrod L.J. of the ejusdem
generis rule to the construction of the phrase "judicial or other proceedings," none of
their Lordships indicated disapproval of the analysis in the passage quoted above. If
the draftsman of the Act of 1971 had intended that all divorces granted in any country
should be recognised if they were effective under the law of that country it would
have been easy to use the appropriate words of unlimited generality. Instead, the
draftsman followed the more restrictive language of the Convention and made the
primary criterion for recognition that the divorce or legal separation had
been "obtained by means of judicial or other proceedings" (my emphasis). and those
words must be intended as a limitation on the scope of the section.
To my mind there is no other answer to this question. There is an immense range of
religious or customary practices which give rise to divorce and legal separation in a
variety of countries which have not yet attained the degree of institutional
sophistication common to the states which signed and ratified the Convention. But
both the Convention and the Act were confined to divorce obtained by means of legal
or other *38 proceedings. The Convention expressly resolved that such proceedings

should be officially recognised in the country in which the divorce was obtained. The
draftsman of the Act did not expressly include that requirement, but as Viscount
Dilhorne and Lord Fraser of Tullybelton stated in their speeches in Quazi v. Quazi
[1980] A.C. 744 their inclusion was probably regarded as unnecessary as its official
recognition of the proceedings is implicit in any situation in which the divorce is
effective under the law of that country.
The conclusion that follows from the above is that the criterion "judicial or other
proceedings" must be given a construction which restricts recognition to a narrower
category of divorces than all divorces obtained by any means whatsoever which are
effective by the law of the country in which the divorce was obtained.
There is nothing to be found in the speeches in the House of Lords which is
inconsistent with this conclusion. On the contrary, all their Lordships focused their
analysis upon the question whether the procedure required by the Pakistani Ordinance
of 1961 impressed the characteristic of "proceedings" upon the means by which the
divorce in that case was obtained. If bare talaq had been enough, the ratio decidendi
of all the speeches was quite unnecessary. The answer may be that the House
confined itself to the legal effect of the facts in the case before it. Talaq followed by
compliance with the requirements was enough to constitute "other proceedings," so
that it was unnecessary to look for a wider criterion by considering the effect of bare
talaq. There is force in the point, and it gains strength from the express words of Lord
Fraser. Nonetheless, if divorce obtained by any means effective by the law of the
country where it was obtained was sufficient, the reasoning in all the speeches was
quite unnecessary. and I do not understand the dictum of Lord Scarman at p. 744,
which led Bush J. in Zaal v. Zaal (1982) 4 F.L.R. 284 to a contrary view, as an
expression of the view that any act or acts legally effective in the country where the
divorce was obtained constitute proceedings. Lord Scarman was considering the acts
done by way of compliance with the Ordinance of 1961.
If then the divorce has to be obtained by means that can fairly be regarded as
proceedings, should pronouncement of a bare talaq be so regarded? Such a divorce is
not at first sight obtained by means of "any proceeding." It is pronounced.
Pronouncement of talaq three times finally terminates the marriage in Kashmir, Dubai,
and probably in other unsophisticated peasant, desert or jungle communities which
respect classical Muslim religious tradition. Certainly by that tradition the
pronouncement is a solemn religious act. It might doubtfully be described as a
ceremony, though the absence of any formality of any kind renders the ceremony
singularly unceremonious. It can fairly be described as a "procedure" laid down by
divine authority in the inspired text of the Koran. But neither respect for the divine
origin of the procedure nor respect for the long enduring tradition which over the
centuries had rendered the bare talaq effective as terminating marriage by the law of
Muslim countries necessarily or sensibly should convert the procedure into a
"proceeding" within the intent of section 2 of the Act of 1971. So I conclude that at
the date of the Royal Assent to the Act of *39 1971, a divorce obtained by a bare
talaq would be construed as not "obtained by means of judicial or other proceedings"
within the intendment of section 2 of that Act.
The first reason for rejecting this construction is derived from consideration of section
16 of the Act of 1973. That section was passed to modify what Parliament regarded as
an anomalous consequence of the law as declared by Sir Jocelyn Simon P. in Qureshi
v. Qureshi [1972] Fam. 173 .
Though on the facts in Qureshi v. Qureshi the President was not dealing with a bare
talaq, the principle declared in Qureshi v. Qureshi clearly applied to all informal
divorces which were effective as terminating marriage in the countries where the
divorce occurred. The noun "proceeding" in section 16 may be expected therefore to
comprehend all those different types of informal divorce which qualified for
recognition upon the principles explained in Qureshi v. Qureshi. This is a different
meaning from the meaning of "proceedings" in section 2 of the Act of 1971 if given
the restrictive meaning which, for reasons I have given, was the preferred meaning in
1971. An even greater difficulty arises from section 2 of the Act of 1973, which
introduces into the Act of 1971 an amended version of section 6 of that Act. It is most
unlikely that the draftsman of section 2 of the Act of 1973 intended the "proceedings"
therein to bear a different meaning from "proceeding" in section 16.

The court that has to reconcile the meaning of section 2 of the Act of 1971 with the
meaning of the new section 6 introduced into the Act of 1971 by the Act of 1973 is
upon a bed of Procrustes. I have had the advantage of reading the judgments about
to be delivered by Oliver L.J. and Balcombe J. I agree with their analysis and
description of the dilemma, and accept the solution which they propound.
This is not an occasion for finding in the subsequent Act of 1973 a guide to the
meaning of "judicial or other proceedings" in section 2 of the Act of 1971 because the
restrictive meaning is clearly to be preferred to a meaning which renders the whole
phrase otiose. The restrictive meaning is the ordinary meaning of section 2 of the Act
of 1971, and it is unaffected by subsequent legislation.

Should recognition be refused on the ground that recognition would be


manifestly contrary to public policy?

The facts relevant to the answer to this question are "all the circumstances of the
case." To find them it is necessary to refer to all the findings of fact of Wood J., the
trial judge. I do not repeat them, and regard it as unsatisfactory to express them
more concisely in words of my own. The significant feature of the instant case which
distinguishes it from the facts in earlier cases such as Quazi v. Quazi [1980] A.C.
744 is that by the date of the 1978 divorce both parties were domiciled in England.
They had both abandoned their Kashmiri domicile of origin, and attracted to
themselves the personal law of their English domicile of choice. The husband had
been resident in England for years, and the wife manifested an intention to continue
to reside in England if she could do so with the aid of ancillary financial relief from her
former husband. The judge held that the requirements of section 3 of the Act *40 of
1971 were satisfied in that both husband and wife were nationals of Pakistan, and
that it was clear that in Kashmir, Pakistan, the Muslim Family Laws Ordinance 1961
has no application. There is no appeal against that decision, and we have heard no
argument upon it. I am content in the circumstances to assume that by the terms of
section 3, he could claim his Pakistani nationality as foundation for recognition of a
divorce pronounced in Kashmir which the law of Pakistan would regard as effective to
terminate the marriage. The proper construction of section 3 is not easy. It may some
day have to be decided, though it does not arise in this appeal. But the whole
adventure of his journey to Kashmir in 1978 was simply in order to deprive his wife of
the rights that accrued to her pursuant to the personal law of their domicile of choice.
This he would have succeeded in achieving before Part III of the Matrimonial and
Family Proceedings Act 1984 was enacted. I have no doubt that in these
circumstances, having regard to all the facts found by Wood J., he would have been
entitled to refuse to exercise his discretion pursuant to section 8 if he had held that
the talaq of 1978 otherwise qualified for recognition in England.
For those reasons I would dismiss the appeal.
OLIVER L.J.
I agree that this appeal fails. The primary question is whether the so-called "bare
talaq" is an "other proceeding" within the meaning of section 2(a) of the Act of 1971.
The judge held that it was not and, after some initial hesitation, I agree with his
conclusion on this point. It does not, however, seem to me that anything can turn
upon the use of the plural "proceedings" in the section or upon whether the particular
formula recognised by the foreign law as effective for the dissolution of a marriage is
one to which resort is required on one occasion only or on two or more. I prefer to
base myself simply upon what appears to me to be the only reasonable construction
of the word "proceedings" in the context of the Act of 1971 as originally enacted. The
decision of the House of Lords in Quazi v. Quazi [1980] A.C. 744 , rules out any notion
that the "proceedings" referred to in the section require to be of a quasi-judicial
nature or of a nature in which any official organisation recognised by the state has
some right of veto on, or control over, the operation of the wishes of the parties or of
one of them. That had been suggested in the judgment of this court in that case,
which was delivered by Ormrod L.J. but it was clearly rejected by their Lordships.
What I do not find rejected, however, in the speeches of their Lordships is the basic
analysis by Ormrod L.J. of the section. He pointed out that it requires two conditions
to be satisfied. The first is that the divorce or separation shall have been obtained by
means of "judicial or other proceedings"; the second that the divorce so obtained is
effective under the law of the country where it is obtained. These, as he pointed out,

are separate conditions. If it had been the intention of the legislature to recognise
every divorce obtained abroad, however obtained, it would have been unnecessary to
have any reference at all to "judicial or other proceedings" and section 2(a) of the Act
of 1971 could have been omitted altogether. The starting-point, therefore, as it seems
to me - and I do not find anything in their Lordships' reasoning to suggest otherwise is that the phrase "judicial or other proceedings" is *41 restrictive. It is not every
divorce or legal separation recognised as effective by the foreign law which is to be
accorded recognition here, but only one which has resulted from "judicial or other
proceedings" in the country in which the divorce or separation is obtained. Now, of
course, it has to be recognised that in its dictionary definition, "proceeding" is a word
of wide import, capable at its widest of embracing simply the doing of an act. But if it
is so to be construed in this Act, it becomes merely tautologous, for the obtaining of a
divorce or separation is in itself the doing of an act and one is back in the same
dilemma as that envisaged in Ormrod L.J.'s judgment that section 2(a) has then no
sensible field of operation. "Proceedings" must, in my judgment, at least bear in the
statute a meaning which the word would have in normal speech where, as it seems to
me, no one would ordinarily refer to a private act conducted entirely by parties inter
se or by one party alone, as a proceeding, even though the party performing it may
give it an additional solemnity or even an efficacy by performing it in the presence of
other persons whose only involvement is that they witness its performance. The word
would not, in my judgment, ordinarily be used as being synonymous with "procedure"
or "ritual." Thus, for instance, the formalities which are required by law to be
observed in the execution by a testator of a valid will under the provisions of the Wills
Act 1837 (7 Will. 4 & 1 Vict. c. 26) would not, I should have thought, be normally
referred to as "proceedings" although the testator would be properly described as
having gone through the correct procedure. On the other hand, the word does not, I
think, necessarily connote publicity - for instance, business transacted at a meeting of
a board of directors of a company are universally and properly described as
"proceedings of the directors." In the context, however, of a solemn change of status,
it does seem to me that the word must import a degree of formality and at least the
involvement of some agency, whether lay or religious, of or recognised by the state
having a function that is more than simply probative, although Quazi v. Quazi [1980]
A.C. 744 clearly shows that it need have no power of veto. From the judgment of
Wood J. in the instant case it seems that the bare talaq in Kashmir requires to be
witnessed by two other persons, but there appears to be no other prescribed condition
and it can, presumably, be declared by a husband in the privacy of his own backyard
so long as, in doing it, he manages to engage the attention of two neighbours. In
Dubai, on the other hand, it appears from Zaal v. Zaal, 4 F.L.R. 284 , before Bush J.,
that even witnesses are not required. It is notable that in Quazi v. Quazi [1980] A.C.
744 , all of their Lordships, in holding that the talaq there pronounced constituted
"proceedings," stressed the feature of the regulatory provisions of the Pakistani
Ordinance of 1961 which required the invocation and involvement of agencies of the
state before the divorce became effective. No opinion was expressed as regards the
status of the bare talaq and indeed Lord Fraser of Tullybelton, in his speech, expressly
reserved his opinion upon the point. Thus the matter remains at large. It seems to me
that one has to approach the question initially by asking not what sort of ceremony
the propositus in any given case has chosen to go through in order to invest the act
with some *42 additional solemnity, but what are the essential elements generally of
the particular act or acts which result in the marriage being dissolved and does the
performance of those essentials constitute a "proceeding," for anything more is mere
surplusage. The essentials of the bare talaq are, as I understand it, merely the private
recital of a verbal formula in front of witnesses who may or may not have been
specially assembled by the husband for the purpose and whose only qualification is
that, presumably, they can see and hear. It may be, as it was in this case, pronounced
in the temple. It may be, as it was here, reinforced by a written document containing
such information, accurate or inaccurate, as the husband cares to insert in it. But
what brings about the divorce is the pronouncement before witnesses and that alone.
Thus in its essential elements it lacks any formality other than ritual performance; it
lacks any necessary element of publicity; it lacks the invocation of the assistance or
involvement of any organ of, or recognised by, the state in any capacity at all, even if

merely that of registering or recording what has been done. Thus, though the public
consequences are very different, the essential procedure differs very little from any
other private act such as the execution of a will and is akin to the purely consensual
type of divorce recognised in some states of the Far East: see, e.g. Ratanachai v.
Ratanachai, The Times, 3 June 1960 ; Varanand v. Varanand (1964) 108 S.J.
693 and Lee v. Lau [1967] P. 14 .
In my judgment, and looking at the Act of 1971 alone, such an act cannot properly be
described as a "proceeding" in any ordinary sense of the word, still less a
"proceeding" in what must, for the reasons given above, be the restrictive sense of
the word as used in the Act of 1971.
Speaking for myself, I feel very little doubt about this as a matter of construction of
the Act of 1971 alone as originally enacted. There is, however, a very real difficulty
about accepting such a construction if one reads the Acts of 1971 and 1973 together,
for there can, in my judgment, be no reasonable doubt that in section 16 of the Act of
1973, the word "proceeding" must, if the section is to make any sense, cover the sort
of consensual arrangement found to be effective in, for instance, Varanand v.
Varanand, 108 S.J. 693 . The obvious intention of section 16 was to deny by statute
the recognition accorded by the decision in Qureshi v. Qureshi [1972] Fam. 173 to
informal divorces effected in this country. The Qureshi case was, it is true, not a case
of a bare talaq, but it cannot reasonably be supposed that the legislature intended to
exclude from the operation of the section and thus to permit the continued recognition
of even less formal divorces obtained here, such as, for instance, the consensual
agreement recognised by the law of Thailand. One is forced then to concede that in
section 16 at least, such an informal act constitutes a "proceeding." That, in itself,
perhaps creates no particular difficulty, for although nothing, as I think, turns on the
use of the singular rather than the plural, it is not an inevitable conclusion that a word
used in one Act necessarily bears the same meaning when used in a subsequent Act.
The real difficulty arises from section 2 of the Act of 1973 which substitutes a new
section 6 into the Act of 1971 itself. The original section 6 preserved the common law
position as regards divorces obtained abroad. The new section 6 lays down with
precision the *43 circumstances in which, and in which alone, such divorces are to be
recognised in this country and it does so by reference to the position prevailing "at the
material time," that phrase being defined by reference to "the institution of
proceedings" in the country where the divorce was obtained. Now it can hardly be
supposed that the draftsman of the Act of 1973 can have intended in the substituted
section 6 to use the word "proceedings" in a sense different from that to be attributed
to the same word (albeit used in the singular) in section 16; and I am bound to say
that I find it impossible to conclude that the "institution of proceedings" in the new
section 6 can be construed as excluding the informal divorces which are clearly
referred to as "proceedings" in section 16. Thus one is presented with the dilemma
either that the word when used in section 2(a) of the Act of 1971 is used in the same
sense and becomes bereft of any sensible meaning because it includes every divorce
however obtained, or the word "proceedings" in that section bears a different meaning
from the same word as it is used in section 6 of the same Act and in section 16 of the
Act of 1973.
Although I accept that the difficulty exists, I am not persuaded that it is fatal to what
I consider to be the only natural construction of the Act of 1971 in its original form.
Had this question occurred in 1972 it would, in my view, clearly have fallen to be
answered in the way in which Wood J. answered it. A fortiori that would have been the
case in relation to the Ratanachai and Varanand type of divorce. There are, of course,
circumstances, although they are rare, in which the meaning of an earlier statute can
be ascertained by reference to a subsequent amending statute, but, as I understand
it, the invocation of subsequent legislation as a guide to construction is permissible
only where the earlier statute contains an ambiguity which can be resolved by two
equally acceptable constructions; and here, for the reasons which I have endeavoured
to explain above, I do not, for my part, find a construction of "proceedings" which
accords no meaning to the word which is not tautologous, an acceptable construction
in the absence of a compulsive context.
Equally, I can find nothing in the Act of 1973 which could reasonably lead to the belief
that the legislature intended, as it were by a side-wind, to alter the sense of the

existing section 2. In my judgment, therefore, what I consider to be the ordinary and


sensible meaning of the word in the context of section 2 is unaffected by the
subsequent amending legislation, even though that results in the word now being
used in different senses in the Act as amended. Accordingly, I am of the view that
Wood J. rightly concluded that a bare talaq is not a "proceeding" for the purposes of
section 2.
However, even if I am wrong in the view that I take on this point, I agree entirely with
the judge's decision on the second point - namely, that to recognise the bare talaq
divorce in the instant case as effective here would be manifestly contrary to public
policy. For my part, I accept Mr. Aylen's submission that the reference to public policy
in section 8(2)(b) must be to a head of public policy which is unconnected with lack of
notice or lack of opportunity to participate in the proceedings, for the inclusion in
subsection (2)(a)(i) and (ii) of the *44 words "having regard to the nature of the
proceedings" and "having regard to the matters aforesaid" clearly must, I think,
contemplate the possibility of proceedings which preclude the possibility of notice or
participation. The only other possible head of public policy in the circumstances, Mr.
Aylen suggests, is that of depriving the wife of her right to apply in this country for
ancillary relief (a deprivation which followed at the relevant date in this case but
which has since been remedied by statute). That, however, he submits, cannot be an
objection having regard to Quazi v. Quazi [1980] A.C. 744 , where the facts were very
similar but where the House of Lords upheld the decision of Wood J. at first instance
that there was nothing contrary to public policy in recognising here the effectiveness
of the divorce obtained in Karachi. Whilst I see the force of this, it must be pointed
out that in that case the wife's residence in England was of a most ephemeral
character. She had arrived in this country from Karachi without a visa and with a
return ticket, and having gained temporary admission, she refused to return. Her
presence here was therefore impermanent and was, as the judge found, merely a
tactical move in a matrimonial dispute which had been simmering for many years.
She had thus done nothing capable of establishing an English domicile and it is
noteworthy that in rejecting the argument based on public policy in that case, Wood J.
observed, at p. 783A, that "if the petitioner and the respondent had lived here by
agreement between each other for a substantial period of time then the situation
might have been very different." The wife in that case having no established residence
here, he had, broadly, only to consider the argument that the husband, having as an
established resident taken advantage of the rights of citizens in England ought not, as
a matter of public policy, to be allowed to avoid his obligations here. In that case,
however, the wife had already been, as she knew, divorced according to the classical
law of her religion and had no prior claim to the protection of English law. There was
therefore no reason why the husband should not be permitted to rely upon the
custom of his religion.
The instant case is very different in my judgment. The judge found that the wife
learned of the 1976 talaq in that year or in early 1977 but that she neither sought nor
agreed to the divorce and there is no finding that she accepted it as an effective
divorce. She came to this country in July 1977. It may well be that her coming was
influenced by her intention of making a claim upon her husband for support, but she
was lawfully here and the judge found as a fact that by May 1978 she had established
a domicile of choice here. She was therefore entitled to the protection of her
domiciliary law. She had moved into a house provided by her husband, and in
February 1978 had commenced properly constituted proceedings here for
maintenance on the grounds of desertion and wilful refusal to maintain. It is, as it
seems to me, beyond doubt that the only reason for the husband's visit to Kashmir in
May 1978 was to take advantage of the provision in the Act which enabled him to rely
upon his nationality to procure an effective divorce there without her cooperation. He
too was domiciled here and there was no impediment at all to his commencing
proceedings for dissolution of marriage here. Had he done so, however, he would have
had to accept the corollary of *45 ancillary proceedings for proper financial provision
which, at that time, could be avoided if he could effectively divorce his wife abroad.
In my judgment it must plainly be contrary to the policy of the law in a case where
both parties to a marriage are domiciled in this country to permit one of them, whilst
continuing his English domicile, to avoid the incidents of his domiciliary law and to

deprive the other party to the marriage of her rights under that law by the simple
process of taking advantage of his financial ability to travel to a country whose laws
appear temporarily to be more favourable to him. This, as it seems to me, is precisely
the sort of situation which the legislature must have had in mind in enacting the
provisions of section 8 (2)(b) . In exercising his discretion against the recognition of
the talaq pronounced in Kashmir, even on the footing that it is otherwise effective
under the provisions of section 3(1) , the judge was, in my judgment, quite right and
I would accordingly dismiss the appeal.
BALCOMBE J.
I do not propose to rehearse the facts of this case: they are fully set out in the
judgment at first instance and in the judgment of Cumming-Bruce L.J.
This appeal raises two questions. (1) Is a bare talaq within the phrase "other
proceedings" in section 2(a) of the Recognition of Divorces and Legal Separations Act
1971 ? This question was left open by the Court of Appeal in Reg. v. Secretary of
State for the Home Department, Ex parte Ghulam Fatima [1985] Q.B. 190 , 207C,
and by Lord Fraser of Tullybelton in his speech in Quazi v. Quazi [1980] A.C. 744 ,
817G. (2) If the answer to the first question is in the affirmative, should the bare
talaq which the husband obtained in Kashmir on 12 May 1978 be refused recognition
on the grounds that its recognition would manifestly be contrary to public policy under
section 8(2)(b) of the Act of 1971?

The first question

In giving the judgment of the Court of Appeal in Quazi v. Quazi [1980] A.C.
744 Ormrod L.J. pointed out, at p. 788G, that the inclusion in section 2(a) of the Act
of 1971 of the requirement that the overseas divorce must have been obtained "by
means of judicial or other proceedings" must have been intended as a limitation on
the scope of the section; if those words had been omitted the only relevant question
would be: "Is the divorce effective under the relevant law?" Some forms of divorce
must, therefore, be excluded. and the filter is the phrase "judicial or other
proceedings." InQuazi v. Quazi [1980] A.C. 744 the Court of Appeal then held that the
phrase "other proceedings" was to be construed as meaning that the efficacy of the
divorce depended in some way on the authority of the state expressed in a formal
manner, as provided for by the law of the state. This construction of the phrase was
rejected by the House of Lords, but there is nothing in any of the speeches of their
Lordships in that case to suggest that they rejected the self-evident proposition that
the phrase "have been obtained by means of judicial or other proceedings" is a filter
and must operate to exclude some overseas divorces, even though valid by the law of
the country where obtained.
*46
The question, therefore, is what meaning should, in this context, be given to the
phrase "other proceedings?" Mr. Aylen, for the husband, accepts that the phrase is not
otiose and must be given some meaning, but he submits that a formal act is
sufficient, provided that the act is directed towards ending the marriage. He submits
that a bare talaq fulfils this definition because it is a solemn verbal pronouncement,
made deliberately in accordance with a formula prescribed by scripture and tradition,
in front of two witnesses present for the purpose. Mr. Titheridge, for the wife, submits
on the other hand that the phrase "proceedings" requires some form of state
machinery to be involved in the divorce process: not necessarily machinery
established by the state, since existing religious machinery recognised by the state is
sufficient. He submits that the act or acts of one or both of the parties to the
marriage, without more, cannot amount to proceedings; there must be the
intervention of some other body or person with a specific function to fulfil, such as the
union council in the case of the talaq considered in Quazi v. Quazi [1980] A.C. 744 .
As between these two views, that put forward on behalf of the wife in my judgment
gives a more natural meaning to the phrase "other proceedings" in its context. It does
not seem to me that the unilateral act of one party to a marriage, however formal in
its nature, and whether or not performed in the presence of witnesses - and according
to the evidence given to Bush J. in Zaal v. Zaal, 4 F.L.R. 284 , 287C, there is no need
even for witnesses in strict Islamic law - is properly characterised as "proceedings."
The point is a short one and incapable of elaboration, so I turn to consider whether
there is anything which constrains me to reach a different conclusion.

The preamble to the Act of 1971 states that it was passed with a view to the
ratification by the United Kingdom of The Hague Convention on the Recognition of
Divorces and Legal Separations , and the preamble to the Convention states that it
was concluded pursuant to a desire on the part of the signatory states to facilitate the
recognition of divorces and legal separations obtained in their respective territories.
So I approach the construction of the Act of 1971 with this aim in mind and in the
knowledge that it is socially undesirable for persons to be tied to a "limping"
marriage: a marriage which has been dissolved by a decree of divorce in one country
which is not recognised in another. But to carry that approach to its logical conclusion
would be to ignore the provisions of section 2(a) of the Act of 1971 and to recognise
any overseas divorce which is effective under the law of the country where it was
obtained and, as explained above, that is not what the Act provides. Giving due
weight to this approach I am not convinced that it requires me to give to the phrase
"other proceedings" the meaning for which the husband contends.
On this question authority is inconclusive. At first instance Wood J. in Quazi v. Quazi
[1980] A.C. 744 , 776F-H. and Sharif v. Sharif (1980) 10 Fam.Law 216 , has decided
that a bare talaq is not within the phrase "other proceedings" in section 2(a) of the
Act of 1971. Bush J. in Zaal v. Zaal. 4 F.L.R. 284 and Taylor J. in Reg. v. Immigration
Appeal *47 Tribunal, Ex parte Secretary of State for the Home Department [1985]
Q.B. 190 (the Fatima case at first instance) have taken the opposite. view. None of
these decisions is binding on this court. Except for that of Lord Fraser of Tullybelton,
none of the speeches in the House of Lords in Quazi v. Quazi [1980] A.C. 744 adverts
to the question of the bare talaq, and I derive no assistance from those speeches in
deciding the instant question.
Mr. Aylen also advanced an argument based on the structure of the Act of 1971. He
referred us to section 6 which, as substituted by section 2(2) of the Domicile and
Matrimonial Proceedings Act 1973 , preserves (subject to conditions) the recognition
of the validity of overseas divorces and legal separations by virtue of the common law
rules as to domicile. Section 6(4) defines "the material time," in relation to an
overseas divorce or legal separation, as the time of the institution of proceedings in
the country in which it was obtained. He then cited a number of cases which, he
submitted, showed that under the common law rules, overseas divorces were
recognised even though obtained by informal procedures which could not be
characterised as "proceedings" within the meaning proposed by the wife. Then,
relying on the principle that the same phrase should, if possible, be given the same
meaning in different sections of the same statute, he invites us to give "proceedings"
the same wide meaning in section 2. Of the cases cited only three - Ratanachai v.
Ratanachai, The Times, 3 June 1960 ; Varanand v. Varanand, 108 S.J. 693 ; and Lee
v. Lau [1967] P. 14 , all at first instance - were examples of informal procedures which
would not come within the preferred meaning of "proceedings" as mentioned
above. Russ (orse. Geffers) v. Russ (Russ orse. De Waele intervening) [1964] P.
315 and Qureshi v. Qureshi [1972] Fam. 173 , were both cases of talaqs accompanied
by formal procedures as in Quazi v. Quazi [1980] A.C. 744 , while Viswalingham v.
Viswalingham (1979) 1 F.L.R. 15 was not a case of a divorce at all: see per Ormrod
L.J. giving the judgment of the court at p. 19(iii). But the short answer to this
submission appears to me to be that the principle of giving a word or phrase the same
construction when it appears in different sections of the same Act - which in any event
is not an absolute rule - is of limited application when the section which is relied on
for purposes of comparison has been introduced subsequently by another Act.
A similar answer is available to the argument based on section 16 of the Act of
1973. Section 16(1) provides that no proceeding in the United Kingdom, the Channel
Islands or the Isle of Man shall be regarded as validly dissolving a marriage unless
instituted in the courts of law of one of these countries. This subsection was enacted
to reverse the decision in Qureshi v. Qureshi [1972] Fam. 173 and undoubtedly
applies to a bare talaq. It can be said that "proceeding" (in the singular) is different
from "proceedings" (in the plural), but in any event I am not persuaded that it is
necessary for the meaning of "proceeding" in section 16 of the Act of 1973 to govern
the construction of "proceedings" in section 2 of the Act of 1971.
I appreciate that in Quazi v. Quazi [1980] A.C. 744 both Lord Fraser of Tullybelton, at
p. 818B-D, and Lord Scarman, at p. 824B-C, *48 expressed the view that the

construction of "proceedings" in section 2(a) of the Act of 1971 is assisted by the


construction of "proceeding" in section 16 of the Act of 1973, but neither was
directing his attention to the particular problem with which we are here concerned:
see in particular Lord Fraser at p. 817G.
Accordingly I answer the first question by holding that a bare talaq is not within the
phrase "other proceedings" in section 2(a) of the Act of 1971.

The second question

In view of my answer to the first question, this question does not strictly arise, but it
had been fully argued before us and it is desirable to attempt to answer it. The judge,
in his judgment in this case, did not specify those matters on which he relied in
holding that recognition of the bare talaq of 12 May 1978 was contrary to public
policy. Prima facie I would have considered that recognition of the validity of a divorce
(which brings to an end the status of marriage) obtained by a procedure of which one
party (the wife) has no notice, and no opportunity to take part, is contrary to public
policy. However, the specific provisions of section 8(2)(a)(i) and (ii) of the Act of 1973
make it clear that notice, and an opportunity to take part, need not be given if the
nature of the proceedings (as in the case of a talaq) is such as to render such
requirements unnecessary. However where, as here, both parties were resident and
domiciled in England at the date of the bare talaq of 12 May 1978 - and in this respect
this case is very different fromQuazi v. Quazi [1980] A.C. 744 - so that the only
reason for the husband's going to Kashmir for his divorce was to obtain the collateral
advantage of preventing the wife from obtaining the financial relief to which she would
be entitled under an English divorce, then in my judgment the recognition of such a
divorce would be manifestly contrary to public policy. (I note, in passing, that because
of the recent change in the law, it would not now be possible for the husband to
obtain such a collateral advantage, even without recourse to the doctrine of public
policy. It seems probable that there will now be many fewer attempts to rely on
section 2(a) of the Act of 1971.)
Accordingly, I too agree that this appeal fails.

Representation

Solicitors: Raphael Teff & Co. ; Maurice Nadeem & Co .


Appeal dismissed with costs. Order as to costs not to be enforced without leave of
court. Legal aid taxation of wife's costs. Leave to appeal refused. Petition: 4 February
1985. The Appeal Committee of the House of Lords (Lord Fraser of Tullybelton, Lord
Keith of Kinkel and Lord Brightman) dismissed a petition by the husband for leave to
appeal. (S. H. )