Chaudry v. Chaudry

• Decision Date: 05 June 1978
• Citation: 388 A.2d 1000,159 N.J.Super. 566
• Parties: Parveen CHAUDRY, Plaintiff-Respondent and Cross-Appellant, v. M. Hanif CHAUDRY, M.D., Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 566

159 N.J.Super. 566

388 A.2d 1000

Parveen CHAUDRY, Plaintiff-Respondent and Cross-Appellant, v. M. Hanif CHAUDRY, M.D., Defendant-Appellant and Cross-Respondent.

Superior Court of New Jersey,Appellate Division.

Argued Feb. 22, 1978.

Reargued May 9, 1978.

Decided June 5, 1978.

John Kuhn Bleimaier, Princeton, for defendant-appellant and cross-respondent.

Bruce Lubitz, Princeton, for plaintiff-respondent and cross-appellant (Warren, Goldberg & Berman, Princeton, attorneys).

Before Judges LYNCH, KOLE and PETRELLA.

The opinion of the court was delivered by

KOLE, J. A. D.

Plaintiff wife and defendant husband are citizens of Pakistan. The wife and the children of the marriage reside in Pakistan. The husband practices medicine as a psychiatrist in this State, and resides here.

The wife filed an "amended complaint" alleging (1) a subsisting marriage, unjustifiable abandonment by the husband in May 1972 and his refusal adequately to support her and the children, then aged 13, 10 and 1, and seeking separate maintenance, as well as support of the children, and that (2) if the court were to find that defendant was lawfully divorced from her, she should receive alimony and equitable distribution and the children should receive adequate support. The defenses essentially were as follows: (1) the husband already had obtained a valid divorce in accordance with the laws of Pakistan; (2) the Pakistan court had confirmed the divorce, had full jurisdiction to deal with all of the issues, including support, raised in this proceeding and its actions were "dispositive of the matters raised" in the complaint; (3) the husband had met all financial obligations to the wife in accordance with the antenuptial agreement between them and the laws of Pakistan, "the country with jurisdiction over the parties, the marriage and divorce;" (4) the proper forum for the resolution of the financial needs of the wife is the Pakistan court, "which already has jurisdiction over the parties and the subject matter, and in which there is currently an action pending * * * brought by plaintiff (wife) against defendant (husband);" and (5) the court was without jurisdiction to grant equitable distribution.

The trial judge, in a judgment entered August 12, 1976, under principles of comity refused to recognize the Pakistan divorce and awarded the wife separate maintenance in the sum of $430 a month. Relying on Shikoh v. Murff, 257 F.2d 306 (2 Cir. 1958), he held that the husband's method of obtaining the divorce in the Pakistan consulate in New York, while he resided in New Jersey, rendered it invalid under the laws of New Jersey. Although it is not too clear, apparently the judge also was of the view that Pakistan law, pursuant to which a divorced wife is not entitled to alimony, and the antenuptial agreement, under which the wife's sole property or other financial right was to receive 15,000 rupees ($1,500) from the husband, were so offensive to this State's public policy as to invalidate the divorce and to entitle her to separate maintenance, where, as here, the husband was found to have abandoned her. N.J.S.A. 2A:34-24.

In support of his separate maintenance award, the judge found that the husband was "domiciled in New Jersey" since he "is a resident here * * * has practiced medicine here" in excess of nine years, has a medical license and owns real estate and other property here, and "in every other respect demonstrates an intention not to return to Pakistan but to remain here to enjoy the pleasures" of these assets and "the protection and benefits of our laws and sovereignty." He further found that

The only purposes for which he (the husband) returns to Pakistan * * * are connected with his plan and intention that the plaintiff and his children shall remain in Pakistan, subject there to the lesser benefits and rights and share of his earnings and property which he enforces against them by the judgment he can secure from the Pakistani courts. He has * * * taken affirmative action to prevent the plaintiff (wife) from coming to reside in this Country, and I feel that in addition to the grounds which I have already detailed that there is an essential injustice in the defendant accepting all the benefits of living in New Jersey and earning a substantial income here while requiring his wife and family to live in Pakistan and be circumscribed by their law which is far less beneficial to them than the American law would be if they were to reside with the husband and father here.

Now, with respect to the application of the * * * (antenuptial) agreement which was in fact entered into between the parties in this case, * * * this is contrary to the public policy of the State of New Jersey. While the State does recognize (such) agreements, it is essentially because there is a freedom of choice between the parties, and if they with full knowledge of their rights and with proper guidance and counselling come to a certain determination to waive or give up rights this certainly may be enforced in the proper case in this State; but, where as here there was no choice given to the plaintiff under the law of Pakistan and the Islamic law, which I do not criticize * * * she had no choice. She had to waive, give up or not claim support or alimony in the event of a divorce, and it cannot be said that with that choice she chose to do it, because there was no choice involved. To that extent it is so clearly contrary to the public policy of this State that I decline to enforce it, and, therefore, I find that it is open to her to prove by proper evidence that she would be entitled to certain support by way of separate maintenance.

Although the judgment awarded separate maintenance to the wife, it denied support for the three children, predicated on the court's asserted lack of authority over support for children beyond its jurisdiction. Indeed, the trial judge refused to take proofs on that issue.

The husband appeals from the separate maintenance award. The wife cross-appeals from the judgment to the extent that it denies support for the children. ¹

We consider first the separate maintenance award.

We hold that (1) the trial judge erred in refusing to recognize the Pakistan divorce as valid under principles of comity and, accordingly, he should not have awarded the wife separate maintenance; and (2) the wife was not entitled to equitable distribution or alimony under the proofs presented below.

In 1958, by negotiation between their parents, a marriage contract between the husband and wife was entered into. They were then, and when they were married in 1961 some three years later, citizens of Pakistan. The marriage contract is called a nikahname. It will hereafter be referred to as the antenuptial agreement.

Expert testimony on Pakistan law relating to marriage and divorce was supplied by the husband's witness, Kurshid Anwar Sheikh, an advocate or attorney in Pakistan. He had represented the husband in connection with his marital disputes, including the wife's appeal from the confirmation of the divorce by the lower court in Pakistan and the pending actions by the husband for custody and for an injunction against the wife from proceeding in any action anywhere to endeavor to obtain support or alimony. ²

It is clear from the proofs that the antenuptial agreement provided that the wife, at any time during or after the marriage, on demand could obtain from her husband 15,000 rupees, about $1,500. Although such agreement could have provided that she have additional rights in her husband's property, this one contained no such provision. Under Pakistan law she was not entitled to alimony or support upon a divorce. A provision in the agreement to the contrary would be void as a matter of law.

After the parties were married in 1961 they lived in Pakistan until the husband left for England in May or June 1962. The wife remained behind with their first child and her parents. She was able to join her husband in England when her parents paid for the plane tickets for her and the child. The family stayed in England for about seven months before coming to the United States.

From December 1963 to December 1966 the parties and their two daughters lived in Connecticut. The second child had been born in Connecticut in 1964. In December 1966 the family moved to New Jersey where defendant obtained a job with the Trenton Psychiatric Hospital. In December 1968 the wife and the two children returned to Pakistan, with the permanent intention, according to the husband, to remain there. But the wife claimed that he had informed her that he would return permanently to Pakistan to join them once he had completed his state medical examination, since his visa was then expiring. It was not until October 1970 that the husband returned to Pakistan, according to him, for the purpose of finding a position and remaining there. He stayed with his wife and children until February 1971, when the Trenton Psychiatric Hospital sent him papers permitting him to enter the United States. Although the husband claimed that his wife would not accompany him back to this country, she testified that he agreed to arrange for her and the children to join him at the New Jersey hospital once he was able to obtain the necessary immigration visa for this purpose. There is a conflict in the proofs as to his good faith efforts in endeavoring to have his wife and children return to New Jersey after his arrival here in February 1971. He returned to Pakistan in April 1972 for about four weeks, during which time he lived with his wife. He then returned to New Jersey without his family. The parties' third child was born in Pakistan in January 1973. He remained away from Pakistan from May 1972 until December 29, 1975. Meanwhile, he had instituted and had obtained a Pakistan divorce, as hereafter set forth.

The trial judge plainly believed the wife's testimony as to her reason for leaving New Jersey in December...