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The Personal Laws of Divorce in India' with a comment on Chaudry v. Chaudry²

Vinaya Saijwani

It is fundamental that foreign laws and provisions be interpreted correctly and that they be interpreted in the context of the circumstances under which a marriage or divorce takes place. Inequitable decisions result from cloaking foreign circumstances and institutions with Western interpretations and equivalents.

This article is a primer intended to inform American attorneys handling Indian, Pakistani or Bangladeshi divorce suits in the United States of the diverse personal laws governing any marriage or divorce originating on the Indian subcontinent. ³ There are two primary religious communities on the subcontinent, Hindu and Moslem, The rules and impact of divorce are dictated by the personal law under which the marriage was solemnized.⁴ In India, despite the availability of a uniform civil code⁵, most Indians choose to marry under their respective personal laws. If a marriage performed under personal law ends in divorce, property division and child custody will be governed by that personal law, not by a uniform civil code. The preference for the personal law holds true in the theocracies of Pakistan and Bangladesh.⁶

A New Jersey case involving a Pakistani divorce, Chaudry v. Chaudry, illustrates the patent unfairness that results when an American court erroneously equates the customary and mandatory mehr provision in a Moslem marriage contract with a western ante-nuptial agreement. Later New Jersey decisions which define the term ante-nuptial agreement and discuss the requirements for its judicial recognition show the obvious difference between mehr and an ante-nuptial agreement. The later New Jersey decisions cite the Chaudry case as precedent in the judicial recognition of ante-nuptial agreements.⁷ A historical background to the eastern system of religious and civil laws reveals the difficulties encountered in imposing a uniform secular civil code in matters of marriage, divorce and inheritance on the Indian subcontinent.

In Chaudry v. Chaudry, the plaintiff wife and defendant husband, both Moslems, were Pakistani citizens, married in 1961, in Pakistan, under

1. India is a federation of states, with a parliamentary system of government, based on the British model. The Supreme Court is located in New Delhi, the capital, with High Courts and City Civil Courts located in the states. The majority of the cases cited herein are reported in the All India Reporter System, (hereinafter A.I.R.). A.I.R. reports cases from the Supreme Court and the High Courts.

2. 159 N.J. Super. 566, 388 A.2d 1000 (App. Div.), cert. denied, 78 N.J. 335, 395 A.2d 204 (1978).

3. Personal laws are the laws of the religion under which the marriage took place.

4. See generally D. PEARL, INTERPERSONAL CONFLICT OF LAWS--INDIA, PAKISTAN, AND BANGLADESH (1974).

5. See VI INDIA CODE (Act NO. 43 of 1954) [hereinafter SPECIAL MARRIAGE ACT or S.M.A.], V1 INDIA CODE (Act No. 33 of 1969) [hereinafter FOREIGN MARRIAGE ACT].

6. There are several accounts of the Partition of India of 1947. See generally A. INDERSINGH, ORIGINS OF THE PARTITION OF INDIA, 1936-1947 (1987). Islamic law is universally applicable throughout the Moslem world. See M. HIDAYATULLAH & S. HIDAYATULLAH, MULLA'S PRINCIPLES OF MOHAMEDAN LAW 290 (18th ed. 1977).

7. DeLorean v. DeLorean, 211 N.J. Super. 432, 511 A.2d 1257 (Ch. Div. 1986), D'Onofrio v. D'Onofrio, 200 N.J. Super. 361, 491 A.2d 752 (App. Div. 1985), Marschall v. Marschall, 195 N.J. Super. 16, 477 A.2d 833 (App. Div. 1984).

(Women's Rights Law Reporter, Volume II, Number I, Spring 1989] c 1989 by Women 's Rights Law Reporter, Rutgers--The State University 0085-8269/80/0908