By Werner Mensky
The Journal of Legal Pluralism and Unofficial Law
This paper, providing one example each from Indian and from Pakistani law, with heavily contested litigation fallouts under English law and in English courts, discusses first why there are significant elements of mistrust in local and particularly translocal relationships that impact on how individuals and whole communities make choices in relation to dispute resolution. Conflicts arise not only over legal processes, costs and delays, but also increasingly in relation to the value systems involved in different types of family law regulation. This may be more so when people cross the boundaries between formal and informal methods of dispute settlement and when non-state jurisdiction and formal governance, in South Asia and elsewhere in the world, are seen to be clashing. South Asians as skilled cultural and legal navigators on a global scale are shown to be more resourceful kite flyers in this regard than states, which may have institutional power, but often do not possess the cultural knowledge and sensitivities needed to inspire trust in bringing about satisfactory resolutions of disputes.
The wider context: Globalized messiness of pluralism and the need for ordering
I must immediately ask for the reader’s indulgence, as analysis of the two cases I wish to present here will certainly benefit from an extended contextual framework of analytical tools that I need to lay out first, especially for readers fairly unfamiliar or simply unsympathetic to the emerging methodologies of global legal pluralism. Inspired by recent re-thinking of the critical role of legal anthropology in relation to law, I believe this to be a viable way forward, though certainly not a shortcut, to understanding the vast field of what claims to be law in its various forms better than we have done so far.
In today’s global world, the difficulties that seem to be caused by people moving around the globe affect not only those individuals who move, but also throw into potential turmoil an often carefully crafted equilibrium – or at least particular kinds of power relationships – between different legal components that may co-exist within any one formal state-centred legal system. We may have thought that such relationships were safely negotiated and somewhat fixed through private international law rules earlier, not only between different state laws but also between state laws and various other types of laws. Upstream and downstream laws, looking at the whole picture from the centre of state regulatory systems, are not set in stone however, and continue to experience multiple negotiations of their relative position within the pluralist field of law.
Today it seems that substantial fragments of whole jurisdictions, in the form of migrants and their families, are moving around the globe. We know that people carry at least fragments of their legal systems in their baggage with them, wherever they go. Shah (2012) has shown that British people in Turkey construct hybrid decision making processes that involve both English and Turkish law. Turks in Europe do the same, wherever they go, in their own way (see Shah in this special issue). Ballard (2007)Ballard, Roger. 2007. “Common Lawand Common Sense: Juries, Justice and the Challenge of Ethnic Plurality”. In Law and Ethnic Plurality: Socio-Legal Perspectives, Edited by: Shah, Prakash. 69–105. Leiden: Brill. theorizes in depth how Asians as skilled cultural navigators re-organize the world in their new home on their own terms. In some cases the legal rules that people carry in their baggage will then find themselves presented in whatever fragmented form before entirely new fora, causing much consternation and surprise, sometimes even utter disbelief, and now increasingly distrust, if not disgust.
It should also be no surprise at all that this globalizing messiness then sometimes manifests as off-hand rejection to even deal with particular unfamiliar foreign law issues or with foreign law itself on the part of official decision makers. 1 1. For a remarkable example, see Werner Menski (2007)Menski, Werner. 2007. Dodgy Asians or Dodgy Laws? The Story of H. Immigration, Asylum and Nationality Law, 21(4): 284–294.. Here an English County Court judge refused to deal with a claim relating to a divorce case involving Indian Hindu customary law, basically telling the litigant to go away and give up his claim, which of course did not resolve the issue.View all notesFurther research is beginning to uncover convenient strategies of redefining those boundaries of various laws. Neo-positivist scholarship predicted increasingly regulated and uniformized law, but the opposite seems to be happening: Super-diversity clearly also affects the legal sphere and its plural ways of operation. And it does so with totally unforeseen consequences – which were actually quite foreseeable, coming to think of it as a pluralist – but much of this remains unresearched. Regrettably, the benefit of such hindsight comes often too late and does not help hapless litigants in need of a fair decision. The lag between actual legal developments and scholarship that covers it entraps and then often further victimizes many litigants that might have been better off staying outside the official legal regulatory frameworks altogether. However, modern states push us all into more and more surveillance-based processes, so that keeping under the radar itself now increasingly risks criminalization.
The basic and so apparently inevitable scenario of what has been called deep legal pluralism or radical legal pluralism involves the co-existence of competing types of orders and normative systems. These competing forms of laws are inextricably linked, in my present view, to the four focal points of (1) religion/ethics/values; (2) socio-cultural norms and socio-economic arrangements; (3) state-centric laws of different kinds and the political arrangements sustaining them; and (4) various forms of international law and norms that claim predominance in today’s world. 22. See in detail my various recent writings on kite flying and the underlying model of the kite as an illustration of the dynamism within the law and the constant need to make decisions and to navigate the journey of all the kites involved. For example, see Werner Menski (2010aMenski, Werner. 2010a. Fuzzy law and the boundaries of secularism.’ December 3, 2010. Potchefstroom Electronic Law Journal, 13(3) Available at SSRN:http://ssrn.com/abstract=1752910).View all notes
To illustrate how this highly dynamic linkage works, one may hierarchize the sequence and intensity of the linkages between these four corners and envisioning rhetoric models. For example, a religious fundamentalist, starting from an ideological position that puts religion at the centre of his/her universe, would consider the various law-making elements in the sequence 1-2-4-3, because s/he probably hates the state, has reservations about ‘Western’ human rights ideology, and normally starts from a perspective of religious rootedness, which is also typically a very individualistic approach. We see here how decision-making processes are directly connected to what many scholars call now ‘legal consciousness’.
Going back to my exercize, human rights fundamentalists in my classes normally tend to start their legal analysis from corner 4, which generates a totally different sequence, probably 4-3-2-1. This happens because of their focus on modern values and individual rights. This appears as a messy patchwork of competing normativities between the local and the global and the tensions between those competing roles cause never-ending agony about decision-making.
It is of course possible to argue, and has in fact been argued by many scholars, that various kinds of pluralism and especially the co-existence of general law systems and personal status laws in many jurisdictions of the world, particularly in the global South, makes the picture even more complicated. So the idea has been that we should simply get rid of personal laws. However, I am certain that abolition of personal laws may work formally, as law manifestly has the formal power to change rules. But this power is also to a large extent a fiction, as the primary legal actor remains the individual, not the state. Formal legal interventions as well as deliberate non-action thus create new forms of reactive plurality, as is so clearly visible in secular Turkey, but also in the UK. 33. Ihsan Yilmaz, who wrote his much-cited 2005Yilmaz, Ihsan. 2005. Muslim Laws, Politics and Society in Modern Nation States. Dynamic Legal Pluralisms in England, Turkey and Pakistan, Aldershot: Ashgate. PhD under my guidance, has clearly shown how this works in practice. Much earlier, David Pearl and Werner Menski (1998Pearl, David and Werner, Menski. 1998. Muslim Family Law, London: Sweet & Maxwell.) provided significant evidence, too, inter alia by introducing the hybrid concept of angrezi shariat, British Muslim law, which is officially not supposed to exist, but has even been smuggled by dishonest governments into the formal legal structures of English law, specifically in financial matters, adoption laws and in relation to certain divorces.View all notes
Moreover, it is uncertain that formal unification of personal laws, or even of certain aspects of personal laws, will provide feasible remedies, as the lessons of global legal realism always take us back to the drawing board of ‘living laws’ and thus the emergence of new deep pluralities. What seems instead possible, and this is increasingly visible now, is the strategy of combining the two competing approaches rather than to see and treat them in opposition or as contradictory forces. In other words, pluralist methodology helps us to understand better state law. This is why new initiatives to revitalize studies in legal anthropology are so very critical to ambitions to make progress in this messy field.
The theoretical underpinnings for such discussions remain globally fuzzied and partly disrupted by sectorial standpoints. A significant example is found in the recent writing by Brian Tamanaha (2010)Tamanaha, Brian Z. 2010. “Understanding legal pluralism: past to present, local to global”. In Legal Theory and the Social Sciences, Edited by: Mar, Maksymilian Del and Giudice, Michael. Aldershot: Ashgate. who appears to differentiate and perhaps antagonize American and European pluralisms. The often highly artificial boundaries between various official lawsand unofficial laws may well be shifted by interventions from self-appointed reformers, but there will always be other boundaries arising as a result of such shifts, given that law is everywhere intensely dynamic. ‘Living law’ is and remains a key concept in that context, but there are many types of ‘living law’, not just the classic Ehrlich type highlighted by Tamanaha. And, as Hannah Arendt (1958)Arendt, Hannah. 1958. The Human Condition, Chicago: University of Chicago. noted long ago with regard to the human condition of plurality, we are all the same, but every individual is at the same time unique and thus different from everything else. The legal neo-positivism appears just as dangerous as the traditional classic top-down Austinian method. The anti-pluralist stance of dictatorships in the name of one type of law notably needs to be scrutinized.
At an official legal level, it may of course be possible that a formally and often exceedingly well-formulated solution can be found to a particular issue or dispute. But such a formally resolved conflict may not forever settle the issue, which may then continue to simmer below the surface, escaping the radar of official sensors and systems and bypassing formal understandings of law, while still causing havoc in people’s personal lives or in other respects. It is useful to remember in this context all the time Sally Falk Moore’s wise axiom that all legal interventions are of necessity piecemeal. Maybe it helps, as I shall try to elaborate in the concluding analysis, to view the entire conundrum presented here as a management scenario in which, as pluralists know, the state is not necessarily the only entity in charge of what goes on, in law and in life.
Two case scenarios of distrust and disgust
I shall present here two cases of intense intercultural havoc, asking thereby also to what extent recourse to formal legal systems and official dispute settlement mechanisms is actually viable in certain scenarios that individuals, both men and women, may face in their lives while navigating the pluralities of today’s world and trying to cope with their very own personal dramas.
But first still a bit more of background on why and how the selection of material was made. Originally, I had set out to demonstrate how within one particular nation’s legal system, that of India, the co-existence of a plurality of legal orderings could lead to surprisingly unpredictable results, both negative and positive. The intended key argument was going to be that the navigation of the boundaries between personal laws and general laws often gives rise to potential conflicts, but these may be resolved if all participants in a dispute play ball and abide, ultimately, by a solution worked out by them or for them. More often than not, such a solution would straddle aspects of formal and informal legal systems and would connect personal law agenda with general law elements, and so on. These would be typical boundary dispute issues of the kind that are popular with family lawyers working on the global South, as the battle between more state involvement (Verstaatlichung) and less state involvement (Entstaatlichung) continues to rage.
I had in mind to focus on the topic of post-divorce maintenance laws, which has given rise to such amazingly interesting developments in India. But having written quite a lot about this subject, 4 4. See more recently Werner Menski (2008Menski, Werner. 2008. The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda. German Law Journal, 9(3): 211–250., 2009Menski, Werner. 2009. “Indian Secular Pluralism and its Relevance for Europe”. In Legal Practice and Cultural Diversity, Edited by: Grillo, Ralph, Ballard, Roger, Ferrari, Alessandro, Hoekema, André, Maussen, Marceland Shah, Prakash. 31–48. Aldershot: Ashgate., 2010bMenski, Werner. 2010b. “Law, State and Culture: How Countries Accommodate Religious, Cultural and Ethnic Diversity. The British and Indian Experiences”. In Cultural Diversity and the Law. State Responses from Around the World, Edited by: Foblets, Marie-Claire, Gaudreault-Desbiens, Jean-François and Renteln, Alison Dundes. 403–446. Brussels: Bruylant and Ėditions Yvon Blais.).View all notesI was readily persuaded to move the analytical searchlight towards private international law scenarios. Thus it was decided that I should rather shift focus to the navigational issues arising between state law and non-state law jurisdictions and governance on a transnational level. The common pattern there would be at first sight that in Western (supposedly uniform and formal) legal systems huge questions arise today over the structure and function of non-Western legal systems, which are by some scholars even challenged as violative of human rights per se. Non-Western legal systems are often known to be intensely plural and may consist of an intricate combination of general laws and personal laws. Closer scrutiny shows that there is still much else that awaits analysis, above all a peeling away of several layers of internal conflicts, showing ultimately conflicts within those plural legal systems about the yet deeper pluralities within the minutiae of different components.
I have thus recently come to speak of law as ‘pop’, a multi-layered plurality of pluralities, and the two cases discussed here illustrate this intensely ‘pop’-like nature of laws really well. Thus, we find here firstly a familiar conflict between different types of national legal systems existing in the world today, called private international law or conflict of laws. Secondly, however, one identifies also huge conflicts within the various national legal components involved in a particular case. Both cases presented here may help us to achieve a more sophisticated understanding of how such pluralist conflicts and tensions arise in the first place and why final resolution of such conflicts may often be impossible through recourse to formal dispute settlement fora and related mechanisms, more so if the decision makers are foreign judges. The suffering and the chaos will remain present despite a judicial verdict, even if one is given and it does look correct and right. The past cannot be undone, memories of injustices committed will linger. Worse, other people will stumble across the same trip wires, may fall differently and sustain different injuries.
So it does not seem right to simply blame pluralism, pluralities and diversity for the woes of humankind. If Hannah Arendt is right that all humans are unique, we actually have to try and manage this limitless diversity as best we can. Professionals, whether practising lawyers or legal academics of some description, should actually be happy and grateful, for this plural scenario generates never-ending work, especially for those willing to combine theory with practice. A more jaundiced view is also possible: We may reasonably conclude that the presence of such confusions means simply that sharky lawyers will become ever-richer, while poor litigants may be even poorer and more damaged at the end of these convoluted processes. Yet the issue is also on whether state-law alone is indeed able to provide a better and accountable justice. Let us be more positive and hopeful, though, and search for something like ‘best practice’.
The cases: Their emergence and their management
The following current cases, conducted largely, though not exclusively, under English lawappear to remain unresolved, despite years of legal struggle and despite the fact that one of them is meanwhile officially reported. 5 5. See R v. M  EWHC 2132 (Fam).View all notesConcerns of fast and efficient justice seem to fly out of the window when parties fight like proverbial cats and dogs in front of English judges, who may not be amused, and may rightfully ask serious questions about why their valuable time should be taken up with such abstruse litigations over fine points of foreign law, after all. While the official law expects to serve as a dispute settlement forum, it seems that it sometimes pays a rather heavy price for wanting to be in control of how people regulate all or most aspects of their lives. The basic claims of the law may need to be re-examined if the scenario become unmanageable and just too complex to handle. Or should we also comment on the increasing litigiousness observed in many societies and on the opportunity to restrict or at least control it? Maybe some fresh reflections about this are permissible and necessary, too.
These two cases linger on even after many legal actions have taken place to navigate the formal boundaries between the various state laws and non-state laws involved. This would indicate that recourse to courts is not a route to speedy remedies. I am not convinced that this translocal or transnational element is by itself the main reason for such procrastinations of litigation. It appears that the complexities of life and even a somewhat poisonous dose of human deviousness have led us all into a labyrinth of competing and contradictory argumentations called litigation or dispute processing, certainly an attractive industry. The scenarios presented often appear like Gordian knots that judges are then struggling to untie, only to cause new knots and twists.
Actually, in cases of this kind, one generally observes that one or both of the parties (and often the people around them) simply use the various available avenues and dispute settlement fora to engage in a battle that ultimately serves hidden agenda, or even no tangible legal purpose. 6 6. The only major study from Pakistan on this subject contains amazingly clear evidence of competing management strategies, so that one may imagine a kite being pulled in different directions by several strings and different kite flyers. See Muhammad Azam Chaudhary (1999)Chaudhary, Muhammad Azam. 1999. Justice in Practice. Legal Ethnography of a Pakistani Punjabi village, Oxford: Oxford University Press..View all notesIn one of the cases discussed here, indeed in the reported case of R v. M of 2011 (see note 10), the learned judge explicitly notes early on, in paragraph 4, ‘that nothing turns on this dispute of a practical nature’. So the fight, causing much anguish, huge expenditure and multiple other costs – as we shall see – needs to be scrutinized also as the result of formal legal structures that perhaps unwittingly permit obfuscating arguments, even if they are plain lies, to be paraded as legal evidence. Does this mean that our filtering mechanisms are insufficient? Are we worried that pre-judging an issue will deny justice?
Let me report here also briefly that my experience as expert in court in such cases has indeed been that either of the two parties is lying – but who is it, and why? The expert as a detective may find huge challenges, even to his own professional status and standing, in a formal system that emphasizes adversarial battle, despite struggling to save time and resources. At the end of the day one must still ask, as does another recent paper, whether we really do not know any better how to handle such disputes, or we simply do not want to know. 77. See Werner Menski (2011aMenski, Werner. 2011a. “Islamic lawin British courts: Do we not know or do we not want to know?”. In The Place of Religion in Family Law: A Comparative Search,, Edited by: Mair, Jane and Őrűcű, Esin. 15–36. Mortsel: Intersentia.).View all notes
Finally: The cases themselves
Focusing on the two cases themselves now, we see that the first case, which I shall call N v. P, concerns a frequently encountered problem scenario for Hindu women from India. They frequently marry a man with a foreign passport, move to join him abroad, and then find rather soon that the marriage breaks down and huge unforeseen problems arise because of jurisdictional and intercultural complications. I am not advising against such marriages, being party to one such union myself, but make factual observations of management crises that then land on the desks of British and other judges who may be utterly puzzled and gasping in disbelief about what they are made to read.
In the present case, an Indian Hindu woman, N, had married P, a Hindu male from the UK, in a Hindu marriage ceremony in India. No doubt this was a legally valid marriage under the relevant Indian law. She then came to live in the UK, which is where P is resident, domiciled and working, holding a British passport. P had been married and divorced before, and this was known to N. She obtained entry clearance to the UK on the basis of evidence that there was a legally valid marriage under Indian law, but quite typically, the moment some problems arose in the marital relationship this presumed or actual legal validity was suddenly challenged.
It has become an observable pattern that one of the parties, normally a husband faced with claims for property and other financial entitlements, then suddenly turns round to claim that there was no legally valid marriage. This is not quite what happened here, though, so this particular case introduces yet more twists and turns. Rather than claiming bluntly that the marriage was not legally valid, which was attempted, but did not get the husband very far, when the marital relationship began to crumble, P allegedly tricked N into going to India and then arranged a customary divorce there with the involvement of some caste elders and family seniors. She went along with this process, it seems, not fully realizing (or maybe not wanting to admit to herself) that she was being divorced. P knew Indian law better, he assumed, and thought that he had gotten rid of his troublesome wife who had dared to complain, and he basically abandoned her in India.
P then returned to the UK to resume his business activities, while N stayed back for some time. But soon she got worried about her long-term position, still not having obtained indefinite leave to remain and she managed to get back into the UK. To cut a long and convoluted story short, when she then attempted to resume marital relations or at least co-residence, believing that she was still married, she was basically locked out of the home, became destitute and dependent on the charity of others. The husband, claiming that N had descended from hell to pursue him and his new wife (see below), persisted in denying any responsibility and simply threw N out. In such situations, modern Western welfare states profess readiness to support vulnerable individuals. Yet whatever meagre state support a woman in such a situation in Britain may obtain today depends heavily on whether she even knows where and how to start making such claims. We are not concerned with those aspects of the case here.
The most remarkable twist in this case is, as indicated, that P has meanwhile remarried and has brought another Indian woman to the UK as his wife, while N is still challenging her customary divorce, and does so now in repeatedly aborted proceedings in the English courts. This case appears to indicate, as another case that I encountered earlier, that the right hand of the law may not quite know what the left hand does. 8 8. See the article mentioned in note 2 above and now also Werner Menski (2011bMenski, Werner. 2011b. “Life and law: Advocacy and expert witnessing in the UK”. In Cultural expertise and litigation: Patterns, Conflicts, Narratives, Edited by: Holden, Livia. 151–172. London and New York: Routledge.).View all notesCertainly, the cross-jurisdictional navigations in this case are intriguing. Further discussion of this case will be provided below, but it should have become clear that the English courts are going to face claims that a formal decision should be made about the precise nature of N’s present marital status and, perhaps, any entitlements to ancillary relief. It goes without saying that the legal status of the purported Indian customary divorce, and the circumstances in which it was procured, will probably be a key element of evidence. But then, quite when and how are people getting married and divorced under Indian Hindu law with its plurality of provisions? In transnational disputes, we now find global messiness and turbulences of the legal kite, as such questions are not decided in the Indian Supreme Court in New Delhi these days, but in courtrooms in faraway places, this time in London.
The second case, which as indicated is by now a reported court decision from the Family Division in London, 9 9. R v. M  EWHC 2132 (Fam).View all notesinvolved as the petitioner a female Pakistani citizen while the respondent was a British Pakistani who lived in the UK with his parents. It was an arranged marriage, but it does not appear that full and truthful disclosures about the respective parties were made. For example, the wife claims that she was told that the husband was an educated professional, but he turned out to be a driver. The spouses and perhaps even their families did not realize that a match was being made here between two individuals who would clash violently within days of marrying. While the depressing facts are not of direct interest, the fact that the marriage broke down almost instantly after its celebration had important repercussions in terms of formal registration of this marriage, as we shall see.
Other dramatic and complex complications arise because the parties were Ahmadis. The marriage, contracted according to Ahmadi customs in Islamabad on 9 November 2007, consisted of a religious ceremony, referred to as a nikah (which may well be an illegal term for this ceremony in Pakistan), followed by a public announcement of the solemnization of the marriage. The husband’s claim, however, became very soon that he was only married to the petitioner religiously, not legally. Since in his view there was no legal marriage between the parties under Pakistani law, English law could simply not claim jurisdiction to grant a divorce. The judge was told to close the case and in effect to refuse dealing with the matter. The wife, however, insisted on her claim to divorce under English law, ferociously opposed by the husband and his entire legal team, who collectively argued with much force that the Pakistani marriage had not been a legally valid marriage. There was, however, also some telling evidence that a divorce had been given by the husband, notably under Ahmadi law in the UK. There seem to be no jurisdictional boundaries for the kite journeys depicted in this heavily convoluted case.
This deceptively simple (but only at first sight) case thus asked the English Court as a preliminary issue to ascertain whether there had ever been a legally valid marriage between the parties under Pakistani law. English courts are often faced with such scenarios today, while judges and lawyers alike are regularly out of their depth in such cases and need the assistance of country experts. The added trouble here is, however, that under formal Pakistani law, there is simply no law for Ahmadis, so even the cleverest expert in the world could not just invent such a law to support the wife’s claim.
Readers will need to know that Ahmadis have been declared non-Muslims in Pakistan since 1974 and are prohibited by law from calling themselves Muslims since 1984. The galling irony of the matter is that they claim to be better Muslims than the adherents of the mainstream brand of Pakistani Islam. Whatever those religious and sectarian quibbles, Ahmadis as official non-Muslims are also barred from bringing themselves under the provisions of the Muslim Family Laws Ordinance of 1961 in Pakistan, which clearly only applies to Muslims. They simply have no personal law, it seems, because the last thing the Pakistani state would wish to do is to provide a new personal law for Ahmadis. Given that these are probably millions of people, it is highly fictitious to imagine that there is simply a legal void. The case of R v. M thus showed in frightening clarity the abyss of utter distrust and disgust, not only between husband and wife, but also between Ahmadis and the Pakistani state. This case therefore shows what happens when there is no formal law and illustrates how the gaps between formal law and informal laws may be and are being filled by people’s informal, largely unofficial legal practice. One probably needs the lenses of a psychologist and a legal anthropologist to pick up such evidence, but it could not be much stronger than in the present case.
Involved as the expert for the wife, I had full access to the various documents and pleadings. Not for the first time, I learnt a lot about how Ahmadis as transnational skilled cultural and legal navigators have begun to re-organize their personal law system so as to be able to marry in Pakistan, where many Ahmadis are still living, while there is by now also a global Ahmadi diaspora, with a leadership based in London and with its own agenda of managing such cross-jurisdictional complications.
A marriage document or Nikah Form, dated November 2007, was produced in court, issued by the main Ahmadi organization in the town of Rabwah in Pakistan. The form contains details analogous to a Muslim nikahnama, such as details of the parties, the amount of the stipulated dower, names and signatures of the male witnesses and details and signature of the officiant. Another ‘marriage certificate’ was issued roughly two weeks subsequent to the ceremony and the wife joined the husband in England some time in 2008. Despite the existence of such documents, doubts are in order whether the marriage was formally registered in Pakistan. Of course it is also not universally agreed whether in Pakistani law it is necessary at all to register a marriage to bring about legal validity. Decades of legal involvement on my part have not resulted even in obtaining the agreement of my closest colleagues about this simple matter of law. Does one really need to register a Muslim marriage in Pakistan to obtain full legal validity? The answer appears to depend on what one means by ‘law’! While the answer of living law analysis is clearly a resounding no to compulsory registration, as a Muslim marriage contract is valid because God himself is deemed to have listened to the offer and acceptance, positivist and stubborn insistence on sweeping interpretations of legal regulation continues to claim that an unregistered Muslim marriage in Pakistan is not legally valid in spite of the well known published precedents. Such cracks and disagreements are then exploited by devious litigants and their legal advisors, as this case so clearly illustrates, to cause utter havoc in overseas courts and to give even judges sleepless nights.
A related example illustrates this problem further: A few years ago, it was found in a conference on this topic in the Netherlands (the proceedings are unfortunately not reported) that dozens of mature Dutch ladies had been marrying younger Pakistani men, who then presented marriage documents from Pakistan to support their claims for residence in Holland. Someone raised an alarm and the entire legal system looked utterly foolish in trusting official documents rather than understanding the basics of Muslim law relating to marriage. While our sensors about immigration-related abuses are sharp in light of such evidence, the pluralistic safeguards that should have been noticed were not fully called upon: Since when is it the law of Pakistan that a marriage document per se constitutes valid evidence of the existence of a legal Muslim marriage under Pakistani law? The gaps between formalistic Western legal systems and the hybrid and thus more culture-sensitive plural legal frameworks of countries like Pakistan are evident here. In the absence of socio-legal knowledge about foreign procedures and processes, such gaps are not even noticed by bureaucrats and lawyers. We see in the case of R v. M quite clearly how fuzzily handled key issues in the domestic matrimonial law of another country can lead to serious confusions for judges in a Western jurisdiction that is used to deciding matters on the basis of official documents. But this case highlights two more points: (1) the expert in court is not simply someone acquainted with the positive law of the country of the litigants but more broadly with the socio-legal contexts and law practices of that country; and (2) law practices that become translocal are very often transformed and may acquire contextual validity even if this is sometimes contested in the countries of their origin.
While it made sense to the learned judge that a religious marriage may be legally valid as a matter of custom, the absence of Ahmadi law and the amazingly convoluted arguments over that particular aspect threw spanners into the judicial works. But such money-spinning obfuscations caused immense delay and agony in the decision-making process, because an expert who is challenged by another expert cannot of course just be believed by a court. That then raises the intriguing question of who or what is an expert, again necessarily the subject of another paper.
So the convoluted arguments in R v. M carried on. The parties had failed to register the marriage in the UK, as was claimed to have been the original intention. The reason for this failure to register in the UK is evidently the very swift breakdown of the marriage, with more dramatic consequences that do not concern us here. When the relationship had totally broken down, however, and the wife petitioned for a divorce in the District Court, her husband simply denied that there was ever a legally valid marriage between the parties, either in Pakistan or in the UK. On this count, Hindu and Muslim men seem to sing from the same hymn sheet. Totally contradictory positions were taken by the parties, and there was huge confusion over fine procedural details of Pakistani laws on marriage registration, with desperate recourse by the wife’s family even to the secular provisions of the Pakistani Special Marriage Act of 1872 as late as October 2009, two years after the marriage. Urgent demands for yet more documentation led to highly risky actions that potentially damaged the judge’s trust in the credibility of the claimant and her family. The husband, on his part, was simply unable to provide sufficient proof to support his ardent claim that the marriage was legally invalid. The totally competing positions of the wife, the husband, and their respective experts could form the subject of a lengthy dissertation.
The husband strenuously sought to maintain that the marriage in 2007 had consisted merely of a religious union according to Ahmadi practice. Use of the word ‘custom’ was vigorously opposed, especially since I had suggested that the case file contained clear-cut evidence of the development of new Ahmadi customs, given the legal void regarding Ahmadis in Pakistani law. The husband’s declaration of divorce had been approved by the President of an Ahmadi Board in the UK in July 2009, and was allegedly the only form of divorce necessary in the circumstances. After the three month iddat period, the Ahmadi Board had formally confirmed the divorce as effective from 7 October 2009. According to the husband, thus, there was no reason for the English Court to intervene at all.
As indicated, in situations such as this, English law has the facility of using expert evidence on matters of foreign law. The husband relied on the expertise and statements of a senior advocate of the High Courts of Pakistan and a prominent senior member of the Ahmadi community who was also a diplomat. The husband’s experts contended that Pakistani Ahmadis, along with other non-Muslim minorities, can and indeed must register their marriages following a religious or customary ceremony under the provisions of Section 5 of the MFLO 1961. Interestingly, these experts not only claimed the law of Pakistan to be what it is manifestly not, but also sought to mislead the Court by reference to another Pakistani Act, the Family Courts Act of 1964. This Act applies indeed potentially to all Pakistanis, but it is merely procedural and contains no substantive provisions regarding compulsory registration of marriages by either Muslims or non-Muslims. While both these experts from the respondent’s side adamantly declared the necessity for registration of marriages in Pakistan in order for them to be deemed legally valid, my position was all along that this was a positivism-infected fiction, a myth of law rather than the law itself.
It has subsequently been discovered that there was another case in Pakistan in 2010, Riaz Javed v. Sheraz Ahmed, where the learned judge categorically declared that the MFLO cannot be applied to non-Muslims, including Ahmadis. Information of that case was not presented to the Court in London by the Pakistani experts, evidently for good reason – it contradicts their stance. In addition, as I had shown the Court, the case of Allah Rakha v. Federation of PakistanPLD  FSC 1 held clearly that unregistered Muslim marriages continue to be accepted and legally recognized by Pakistani law. If the majority population of Pakistan does not have stringent rules regarding registration of marriages, it would be safe to assume that minorities are not specifically expected to register their marriages, either. At least this is what I knew to be the situation and thus also argued in Court.
The case file itself and the lengthy proceedings made it absolutely clear that Ahmadis in Pakistan have had to develop their own methods of handling the processes of solemnizing and recording marriages for the benefit of their community members. They had no other option, it appears. This particular case thus intervened in a most dramatic way in the protracted political struggles between the Pakistani state and Ahmadis, a highly sensitive issue, to say the least.
Faced with evidence that Pakistani Ahmadis had no law in their own country, both experts for the husband bypassed the key issue of the case and claimed that Ahmadis from Pakistan would simply register their marriages once they travelled abroad to any other country. Another hidden agenda of choice of law and choice of forum appears here. Indeed, this may well have happened in many cases, but was not possible in the present case, as the marital relationship was probably already seriously strained even before the wife travelled to the UK. The argument about the need for subsequent registration of the marriage abroad raises of course questions how Pakistanis could then travel abroad in the first place as purported spouses if the marriage undertaken in Pakistan did not yet have legal validity in its own right. My pluralist reading of the evidence, thus, from a variety of angles (or corners of the kite, to be clear) provided a sound explanation also for how Ahmadi marriages in Pakistan, while not formally registered with the state, must nevertheless be religiously and legally valid, as otherwise people could simply not travel abroad on spouse visas. To take any other interpretation would also make nonsense of standard rules of private international law.