WOMEN'S RIGHTS LAW REPORTER [Vol. 11:41 (1989)

their personal law. The Chaudry court referred to the Moslem marriage deed, or nikahnama, as an ante-nuptial agreement providing the customary and compulsory mehr provision for the wife.⁸ In Chaudry, the court accepted the finding that nikahnama, or marriage contract, was negotiated in 1958 by the parents of the parties. The marriage took place pursuant to the agreement three years later in 1961.

            The Moslem marriage contract requires the provision of a term for mehr.⁹ Mehr is essentially contractual consideration for surrender of the woman's sexual services, specifically virginity. In this case, the mehr was set at 15,000 Pakistani Rupees, or $1500.00. ¹⁰ The parties did not negotiate any ante-nuptial agreement beyond the actual nikahnama¹¹

                                                      The parties were married in 1961 and lived in Pakistan until the husband left for England in May or June of 1962. The wife and their first child remained with the wife's parents. With plane tickets provided by her parents, Mrs. Chaudry joined her husband in England. The three stayed in England for seven months and subsequently moved to the United States. From December 1963 to December 1966 the parties resided in Connecticut. A second child was born in Connecticut in 1964. In December 1966 the family moved to New Jersey when Dr. Chaudry accepted a job at the Trenton Psychiatric Hospital. In December 1968 the wife and the two children returned to Pakistan; the husband claimed he intended to remain in the United States; the wife claimed he intended to join them in Pakistan when his visa expired. The husband did return to Pakistan in October 1970, and remained there with his wife and children until February 1971 when Trenton Psychiatric sent him papers permitting him to return to the United States. There was a conflict of proof whether he tried to have his wife return to the United States with him. The husband returned to Pakistan in April 1972 for a four-week visit nine months later, in January 1973, the couple's third child was born in Pakistan.¹²

            On December 16, 1973 the husband went to the Pakistani consulate in New York and obtained a Moslem divorce by the unilateral pronouncement of talak. Talak is a unilateral divorce, at will, by the husband, orally or in writing, with or without the presence of the wife, with no cause assigned.¹³ The extrajudicial divorce was contested by the wife in a Pakistan court, but was confirmed in Pakistan at both the trial and appellate levels. Under the principles of comity, the New Jersey court recognized the Pakistani divorce decree because talak is permitted under Moslem law.¹⁴

                                                       In March 1975, the wife instituted an action in New Jersey, seeking alimony, equitable division, and child support. The issue of alimony and the wife's property rights were not adjudicated by the Pakistani courts.¹⁵

The New Jersey court denied both claims because it considered two years of living in New Jersey as an inadequate nexus of the marriage to the state. However, the court conceded that, as a factual matter, if there were a sufficient nexus, for example, where the parties had lived in New Jersey for a substantial period of time, a claim for alimony and equitable distribution may be considered even though such relief could not have been obtained in the country granting the divorce.^l6 It is interesting to note that in this case the married couple did not reside in any jurisdiction for more than three years.

                                                       In Chaudry, despite the fact that the court found there was no jurisdiction for New Jersey to award alimony or equitable distribution, the court decided that the mehr debt constituted an antenuptial agreement and further that a woman could be bound to an ante-nuptial agreement negotiated by her parents, without any knowledge of what the husband's actual worth or earnings  were¹⁷.

            The court emphasized that "there is no reason of public policy that would justify refusing to interpret and enforce the agreement in accordance with the law of Pakistan, where it was freely

8. Chaudry, 159 N.J. Super. at 572, 388 A.2d at 1003.

 9. See Nizamel Haque v. Begum Noorjahan, 1966 A.I.R. 465 (Calcutta); Mydeen Bivi Ammal v. Mydeen Rowther, 1951 A.I.R. 992 (Madras); see also M. HIDAYATULLAH, supra note 6, at 304.

 10. 15,000 Rupees is a fairly small sum of money by Indian middle class standards. World Bank, 1988 World Development Reports 222 (1988).

   11. Chaudry, 159 N.J. Super. at 572, 388 A.2d at 1004.

12. Id. at 573-74, 388 A.2d at 1004.

13. M. HIDAYATULLAH, supra note 6, at 290.  

14.Chaudry, 159 N.J. Super. at 574, 388 A.2d at 1004. 

15. Id. at 576, 388 A.2d at 1006.  

16.Id. at 577, 388 A.2d at 1006.  

17. Id. at 578, 388 A.2d at 1006.