Azhar v. Choudhri
| Docket Number | 01-20-00169-CV |
| Decision Date | 31 August 2023 |
| Parties | HIRA AZHAR, Appellant v. MOHAMMAD ALI CHOUDHRI, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 312th District Court Harris County, Texas Trial Court Case No. 2015-36895
Panel consists of Chief Justice Adams and Justices Farris and Guerra.
In June 2015, Hira Azhar petitioned for divorce from Mohammad Ali Choudhri in a Harris County district court. To his answer Choudhri attached a Pakistani divorce decree and sought dismissal of Azhar's divorce action for want of jurisdiction based on the parties' purported earlier divorce in Pakistan. Following a bench trial, the trial court entered a final judgment recognizing the Pakistani divorce as valid, dismissing Azhar's divorce action for want of jurisdiction, and dismissing her subsequent post-dissolution property division claims with prejudice.
Azhar raises two issues on appeal. First, she contends that the trial court abused its discretion in granting comity to the Pakistani divorce and dismissing her divorce petition because she was not personally served and did not receive proper notice of the Pakistani divorce. Second, she argues that the trial court erred in applying Pakistani law to her claims for division of the community property estate and abused its discretion in dismissing those claims.
We affirm the trial court's judgment.
Azhar and Choudhri were married in Rawalpindi, Pakistan, in December 2008. The couple signed a Nikkah Nama, or marriage contract, registering the marriage in Pakistan in January 2009. At that time, Azhar lived in Rawalpindi and Choudhri lived in Houston, Texas. After obtaining her visa, Azhar traveled to the United States and joined Choudhri in Houston in 2010, where the couple lived together as husband and wife.
In 2012, Hira returned to Pakistan to renew her visa. In January 2013, while Azhar was still in Pakistan, Choudhri initiated talaq, or divorce proceedings pursuant to the Muslim Family Law Ordinance of 1961 (1961 Ordinance). A local arbitration council in Rawalpindi issued a Divorce Certificate on May 22, 2013.
On May 30, 2015, Azhar filed a suit for declaration and permanent injunction in civil court in Islamabad, Pakistan, challenging the validity of the 2013 Divorce Certificate (Islamabad suit). The Civil Judge, 1st Class-West, Islamabad, issued an order granting a temporary injunction and suspending the Divorce Certificate until the next hearing.
Choudhri appealed the order on the grounds that the Islamabad court did not have jurisdiction over the case because the marriage took place in Rawalpindi. The Additional District Judge (West), Islamabad, suspended the challenged order until the next hearing. Azhar withdrew the Islamabad suit and Civil Judge, 1st Class-West, Islamabad, issued an order dismissing the suit, noting Azhar "may file a fresh suit upon fresh cause of action."
After returning to Houston, Azhar filed a petition for divorce in Harris County district court on June 25, 2015. She sought a just and right division of the community property in the event the parties did not reach an agreement regarding its division. Azhar also asserted claims for fraud on the community property estate, breach of fiduciary duty, and waste, and sought a temporary restraining order. Choudhri answered asserting various defenses, including res judicata and moved to dismiss Azhar's suit on the grounds that a valid divorce had been granted in Pakistan. Choudhri later filed an amended plea in abatement and motion to dismiss the divorce petition as a matter of comity, among other grounds.
The trial court held an evidentiary hearing on Choudhri's amended plea and motion to dismiss on January 29, 2016, at which the following evidence was presented:
Kurram Hashmi, an attorney in Islamabad, testified that Choudhri retained him to obtain a Divorce Certificate in Pakistan. Hashmi testified that the West Pakistan Rules under the 1961 Ordinance govern family law practice in Pakistan. He testified that the local arbitration council is the administrative body that registers marriages and divorces.
Hashmi testified that he complied with the requirements of Section 7 of the 1961 Ordinance, "Talaq," by filing notice (Section 7 Notice) of the dissolution of the marriage with the arbitration council and sending a copy of the notice to Azhar's residence in Rawalpindi. He testified that once the arbitration council receives a Section 7 Notice, it sends notices to the parties advising them that it received the notice and that the parties should prepare for reconciliation. If reconciliation is not achieved, the divorce becomes effective ninety days after the Section 7 Notice is received by the council. Hashmi testified that he mailed the Section 7 Notice to Azhar at her residence as well as served her by courier and publication. Hashmi testified that Choudhri and Azhar's divorce became final on May 22, 2013.
Hashmi testified that there was no division of marital assets in Pakistan. He testified that neither the Pakistan arbitration council nor the Pakistan courts has authority to divide marital property. He testified that a Pakistan court does not have the authority to award any assets outside of Pakistan or to review a property division.
Following the comity hearing, the trial court denied Choudhri's amended plea in abatement and motion to dismiss based on comity.[1] In its July 3, 2017 order, the trial court found that "enforcement of the certificate of divorce issued in Pakistan would be contrary to Texas public policy and would, if enforced, violate Hira Azhar's basic right to due process."
In July 2015, following dismissal of her Islamabad suit, Azhar filed suit for declaration and permanent injunction in Rawalpindi civil court, challenging the validity of the Divorce Certificate. The Civil Judge, 1st Class, Rawalpindi, issued an order granting a temporary injunction and suspending the Divorce Certificate until the next hearing. Choudhri appealed the order. The appellate court suspended the civil judge's order, returned the case to the Rawalpindi civil court, and directed the civil judge to decide the matter.
After conducting a multi-day hearing, Civil Judge, 1st Class, Rawalpindi, issued an order dismissing Azhar's suit for lack of jurisdiction. The order stated, in relevant part:
The West Pakistan Family Courts Act, 1964, referred to in the civil judge's order, defines the term "Family Court" as "a Court constituted under this Act."[2]
Azhar filed a constitutional writ of petition in the Lahore High Court, Single Bench, Rawalpindi (Lahore Single Bench). On February 22, 2017, the Lahore Single Bench ruled in Azhar's favor and declared the Divorce Certificate void ab initio. In its order, the court noted that "[a]s far as objection of [Choudhri's] counsel with regard to filing of civil suits on the same subject matter is concerned, it is an admitted fact that the civil court has not adjudicated upon the matter on jurisdictional flaw as such on that basis the petitioner cannot be non-suited."
Choudhri appealed the order. The Lahore High Court, Double Bench, Rawalpindi (Lahore Double Bench) concluded that the court "cannot delve into factual controversy while exercising constitutional jurisdiction" and "[t]he exercise of constitutional jurisdiction by the learned Single Judge in Chamber was thus unwarranted." It noted that "the matter in issue falls exclusively within the domain of Family Court, [established under the Family Courts Act, 1964]."[3] The Lahore Double Bench observed that Azhar "may seek her remedy before the Family Court as set forth in the January 15, 2016 order of the Civil Judge, 1st Class, Rawalpindi." The Lahore Double Bench set aside the lower court's order and dismissed Azhar's constitutional writ of petition on October 31, 2017.
Azhar appealed the Lahore Double Bench order. On November 3, 2018, the Supreme Court of Pakistan affirmed the Lahore Double Bench ruling that it lacked jurisdiction to resolve the factual controversy at issue and dismissed Azhar's writ of petition. The Court noted that "[n]o illegality or perversity has been pointed out warranting interference in the impugned judgment."
In light of the Pakistan Supreme Court's order, Choudhri again moved to dismiss Azhar's divorce action. Following a hearing, the trial court orally announced that it intended to grant, in part, Choudhri's motion to dismiss and allow Azhar leave to amend her petition to assert a claim for division of community property. On July 3, 2019, Azhar filed her fifth amended petition asserting a claim for post-dissolution division of undivided community assets pursuant to Chapter 9 of the Family Code and, alternatively a claim for partition under Texas Property Code Chapter 23.
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