THE CLOCK PUT BACK : [QUAZI V. QUAZI]

THE CLOCK PUT BACK : [QUAZI V THE CLOCK PUT BACK : [QUAZI V. QUAZI] By C. M. SHAFQAT 1 Quazt v. Quazi2 is one of the few cases which have so far dealt with the interpretation of the Recognition of Divorces and Legal Separation Act, 1971, made in pursuance of The Hague Convention of 1968 on the subject, concluded in order to remedy the evil of `limping marriages'. Ormrod, L. J., wrote the judgment far the Court of Appeal which, besides himself, consisted of Orr and Brown, L, JJ. The parties, Muhammad Ameeruddin Quazi (the husband) and Bilguis Hehan (phonetically Bilqis Jehan) Begum Quazi (the wife), who came from Anrangabad in the former State of Hyderabad, now in India, were married in 1963. Further facts were a trifle involved. The parties moved to Dacca in the former East Pakistan, where they acquired Pakistani nationality. In January, 1964 they went to live in Bangkok, where they acquired their domicile. On 22 March 1968 they went through the pocess of khula`, a form of divorce under Muslim law. However, they continued to live under the same roof, even after they shifted to Penang in Malaysia in 1970. In February 1973, their itinerary brought them to Karachi in Pakistan, where after spending one night in separate rooms in the house of relatives, they went on to live separately. Any sexual relation betwcen them after the khula` appears to have been disclaimed. Their odyssey was not yet over. The husband went on to London, where subsequently he purchased a house, in which he has been living. Marriage continued to come under strain, and apparently under the impression that the khu/a` was ineffective, he wrote to the wife intimating that he was going to dissolve the marriage by talaq, another form of divorce. By way of answer, the wife, obviously a deter-mined woman, arrived at the husband's abode in London on 17 June 1974. Relentless, the husband flew to Karachi on 9th July 1974, and on the 12th pronounced talaq in presence of two witnesses, by saying `I divorce you three times. Notice was sent to the wife at the joint address at London and 1. Law Consultant, Cornelius, Lane and Mufti Law Associates, Lahore; Author of Muslim Marriage, Dower &Divorce, etc. (P L D Publication). 2. (1979) 3 All E. R. 424. The `u' in Quazi is redundant. This is the English way of spelling. In plain Roman it would tie Qazi, a name indicating that there was some Qadi (in the' Arabic seise) in the ancestry, her last residential address in Karachi. Notice was also sent to the Chairman of the Union Council in Karachi, apparently the one within whose jurisdiction the wife had last resided. Notice was requisite under section 7, subsection (1) of the Muslim Family Laws Ordinance, 1961, read with rule 3(b) of the West Pakistan Rules, 1961, made under the Ordinance which applies to Pakistanis all over the world. However, the law makes no provision in case the wife be not residing within Pakistan and there is no joint address therein. Subsequent proceedings before the Chairman consist of a compulsory cooling off period of 90 days. During this period considerable activity is provided. The Chairman, or in certain cases his locum-tenens, has to constitute an Arbitration Council within 30 days in order to attempt to reconcile the parties. By definition in section 2(a), this Council consists of a representative of each of the parties who, under the Rules, may change them during its deliberations. This, of course, is only if the parties are willing or able to participate. If either party fails or declines to make a nomination, the matter shall never theless proceed. It is important to note that it is only on the expiry of 90 days that the talaq becomes effective, and that till then the husband is at liberty to revoke it. This period really approximates to the term of iddat2 prescribed by the Holy Qur'an, .which, in case- of .divorce where there is no pregnancy, is three monthly courses,3 or, if not subject to the courses, three lunar months. Divorce, according to the Qur'anic style,4 has to be pronounced twice during .two consecutive ttlfir, period of purity between the Courses, for there is a bar to sexual connection while the wife is in her menSes.g At the end of the third tuhr, she has to be "released in kindness" ; till then she may be retained in honour.6 The genesis of the enactment lies in An-Nisa :7 "And if ye fear a breach (shigaq) between them twain, appoint an arbiter (hakim) from his folk and an arbiter from her folk. If they desire amendment (Isiah) Allah will make them of one mind: ' This is to be read with general observations in Al-Bagara ; " it may happen that ye hate a thing which is good for you, and it may happen that ye love a thing which is bad for you. Allah Knoweth, ye know not." Learned commentators have differed as to whether the arbiters prescribed have the power of decision. Tradition vests them with this power, though the Ordinance does not. Indeed marital life has impartible nuances, The key words are, "if they require amendment". Even where the spouses are rent in twain, a common home, the children, the social and 20 Iddat is the term until the completion of which the remarriage of a woman, divorced or widow, is not lawful. 3. II :228.. 4. II :229. 5. II :222. 6. II :229. 7. IV : 35. It maybe recalled that in the Yemen- Arabic Republic the judge is called Hakim, and not Qadi as elsewhere 8. II : 216 economic ties may yet bind. The curious alchemy of sex plays a vital part in the conception of consortium, emphasizing the special urge and close intunacy ; .but no less important strands in its warp and woof are mutual affection, mutual comfort, mutual service, mutual companionship. The British 1971 Act provides for the recognition of overseas divorces, in view of the growing overseas population, where either spouse was resident in or a national of the country in which the divorce was obtained (section 3). An overseas divorce is defined in section 2 as one which is obtained by `judicial or other proceedings' and is effective under the law of the country in which it was obtained. Section 6 preserved the common law recognition rules for persons domiciled overseas. The Domicile Act, 1973, however, abolished the dependent domicile of the wife ; further it introduced special rules for divorces obtained in foreign countries where both the parties are habitually resident in the United Kingdom for one year immediately preceding the institution of the suit. It will be instructive at this stage to Hate the common law decisions as to foreign and mixed marriages... Here the English Courts have spoken with remarkable ambivalance. They have been unable to resolve the conflict which ensues when persons governed by varying laws inter-marry. The antinomy between the personal status and the domiciliary principle has not been easy to resolve. The stamp was placed on this line of cases by the dictum of Lord Penzance in Hyde v. Hyda and Woodmanse,9 that the only kind of marriage which will find recognition in the English Courts f'or the purpose of divorce, is the Christian marriage, and that by this is understood "the voluntary Union of one man and one woman to the exclusion of all others". It conti nued the trail laid by Warrender v. Warrender10, wherein it was said that even potential. polygamy" is barbarous. The decision imports a value-judgment which has cast a spell over latex Judges. Acrording to Lord Brougham, an Englishman carried his domicile to Turkey, so that, the English, and not -the Turkish, law governed the incidents and effects of his marriage there to But was there to be no reciprocity which is the soul of international law, whether public of private ? Then there was the morass of In re: Ullee,14 where the Nawab Nazim of Bengal continued to replenish his store of wives even in England. A Muslim marriage and the resulting status were not deserving of recognition. It was like observations which provoked Lord `Watson to 9. (1896). L. R. I. P. & D. 130. 10. (1835) 2 Cl. & F. 488. 11. In fact most Ivluslim marriages are monogamous till death. A Muslim marriage is at its inception a marriage for life. A temporary marriage mutaa--is valid only according to a small' braxch of the Shia School. 12. For instance, see Ohuchuku v. Ohuchuku {1960) 1 All F. R. 253, although the persrms were Nigerian Christians. The fact, and not the potentiality, of polygamy decided cases like a the Sinha Peerage Claim (1939) 171 Lords Journal 450, Chetti v. Chetti (1904) 67, Baindial v. Baindial (1946) 122, and others. 13. At 535. 14. (1885), 532 T. (N. S.) 711. issue the warning, in i.e Mesurier v. Le Mesurier,ls that the institution of marriage has its roots in social customs and it is reasonable and just that matrimonial matters should be adjusted according to the laws of the community to which the parties belong. Status, as Otto Gierke considered, may be a social affair ; still it is a legal condition imposed by the operation of law, as distinct from rights and duties acquired by a person's own voluntary act.16 Personal law, and not the domicile or nationality, was after all the rule following the break-up of the Rcrman system, as picturesquely related by Savigny :17 "It often happens that five men, each under a different law, could be found walking or sitting together." Like customary law, the law of Islam is personal law, and a man carries it with him wherever he goes. This is because Islam is not merely a religion, but a din18 and embraces a man's life from cradle to the grave. It is a whole way of life. The talaq divorce was held ineffective by all the Judges in R. v. Supdt. Registrar of Marriages, Harnnersmith, ex parte Mir Anwaruddin19. So also, more recently, in Maher v. Maher,20 even though much earlier the Judicial Comrnittee of the Privy Council had, in Sasson v. Sasson,21 adverted to the validity of an extra judicial divorce. In Harshefi v. Harshefi22 divorce by a letter (get.)23 of an Israeli husband; according to his personal law, was held operative. In Yzrsuf v. Yusuf and EI-Riyani v. E., 25 Mr. Commissioner Glaaebrook, Q C. and Mr. Commissioner Latey, Q. C. respectively recognized the effectiveness of the three talaq divorce, although the women involved were English and the marriages had been celebrated in England. So also Russ (Orse Geffers) v Russ (Orse de Waele)26, wherein the talaq was duly recorded, dnd no more was done by the Egyptian Court of the husband's domicile: 15. (1895) A. C. 517. 16. C. K. Allen, "Status and Capacity", an inaugural lecture reproduced in (1930) 46 Law Quarterly Review 277. 17. A Treatise on the Conflict of Laws, 1st ed. 1869, Vol. II, Ch. 3, quoting Bishop Agobardus. 18. It imports the sense of obedience to Allah's Commandments. 19. (1917) 1. K. B. 634 ; (1916-17) All E. R. 464. 20. (1951) P. 342 ; (1951) 2 All E. R. 37. An escape route was nevertheless found for Mrs. Maher which could not be with Mrs. Anwaruddin. 21. (1924) A. C. 1007. 22. This is the "bill of divcarcement" in the Book of Detronomy. 23. The Times, London, 1 August, 1957. 24. The Times, London, 1 April, 1958. 25. Compare also Ratanchezi v. Ratanchai (divorce by mutual consent by Thai Student), the Times, London, of 4 June 1960 ; Manning v. Manning (divorce Hallowed by a Norwegi'.an administrative authority), 2 W. L. R. 318, (1958) All E. R. 291. 26. (1964) P. 315 ; (1960) 3 All E. R. 193. In the instant case the Court obligingly summarized its own conclusions27:-- (a) Neither the khula nor the talag are divorces obtained by judicial or other proceedings within the meaning of section 2(a) of the Recognition of Divorces and Legal Separation Act, 1971, and therefore are not entitled to recognition under section 3. (b) At the time of the khula` the parties were domiciled in Thailand, but the husband has failed to prove that it was an effective or valid divorce by Thai law. (c) At the time of the talaq the husband (and probably the wife) was domiciled in England, so that it cannot be recognized under section 6 as valid divorce in this country. (d) Neither- the khula` nor the talaq is proved to be an effective and valid divorce by the law of Pakistan. Each of those propositions is deserving of careful consideration. On the foreign law the Court was advised by two experts, Dr. Pearl for the husband and Mr Qureshi for the wife. Dr Pearl is a lecturer in Islamic law at Cambridge, and has written a thesis entitled The Inter-personal Conflict of Law in India and Pakistan". Mr Qureshirs an LL. B. from Karachi University and a member of the English Bar. However, they were not familiar with the khula` form. Neither appears to have been of great assistance to the Court ; and certain concessions28 seem to have been made which were not in accordance with the true state of Muslim law in Pakistan. In this situation the lack of appreciation by the Court of the nicer points of the Islamic law, as it prevails in Pakistan, is perfectly understandable. First, the talaq As stated above, in the Qur'anic type (hasan or approved), two pronouncements during two consecutive tuhr are necessary ; at the end of the third tuhr the talaq matures without further pronouncement. The wife remains in the husband's home during three consecutive tuhr, without sexual intercourse, so that if there are pieces left to be gathered the marriage would be saved. If the intercourse, or any act of connubial familiarity, like kissing with desire, takes plate, the process if the husband is adamant has to begin anew. The husband may of course revoke the talaq during this period, which is substantially that of iddat, by speech also. No re-marriage is then necessary. Once the talaq matures after three pronouncements, re-marriage between the couple is barred unless the woman takes another husband, lives with him and then happens to be divorced by him. Only then can she re-marry the first husband, the process being called halals. The hasan form has this superiority .over the ahsan most approved) form entailing a single pronouncement that the mind is directed twice to the matter. Silence is easily come-by, while speech requires some effort. Three pronouncements at one time, as in the instant case, belong to a form which though generally disapproved by Muslim Jurists, nevertheless in British India, with respect to the Sunnis, resulted in an irrevocable talaq, necessitating halals for re-marriage with the same husband. The Pakistan Ordinance of 1961 treats such pronouncements as a single act of divorce, whereafter the procedure before the Arbitration Council ensues. Two witnesses to divorce are considered necessary by some schools of Muslim Law, and at all events they were, present in the instant case. 27. At 438. 28. E. g. at 430. It was also oral here, for though divorce by writing is disapproved by some schools, the oral form is accepted by all. There is a difference of opinion also as the necessity of the communication of the divorce to the wife, but it is now requisite under the Ordinance which applies irrespective of the school to which a person belongs. This was complied with in this case. The question, then, arises as to whether the divorce itself and what thereafter took place before the Arbitration Council constituted `judicial or other proceedings' within the meaning of the British 1971 Act.. `Judicial' they clearly was not. But were they not proceedings other than judicial ? The learned Judge had this to say on the subject: "We think that the apposition of the words `other .proceedings' to `judicial', `proceedings' here means that the efficacy of the divorce depends in some way (sic) on the authority of the state29 xpressed - in aformal manner, as provided by the law of the state . He was also influenced by the fact that The Hague Convention of 1968, which led to the enactment had a two-fold limitation-overlooked or ignored in the latter. One, it was a convention made for the mutual recognition of divorces obtained in the contracting states Pakistan was not a signatory. The Act eliminated the mutuality. Two, Article I of the convention I had contained the words "officially recognized" in the State, which were ignored in the Act. The learned Judge seems to have interpreted these words as an official grant of divorce, as if these were words of limitation. With great respect, there was no reasonable basis on which this conclusion could be reached. There was no warrant for interpreting `other proceedings' almost as `ejusdem generic' with `judicial'. The whole object of the Convention and the Act was to eliminate the scandal which results from the situation of a pair being regarded as man and wife in one country and not in another. This purpose could not be furthered by a narrow construction. It would look as if, in Britain, the shades of the Warrender and the Anwaruddin cases30 continue to bedevil the approach to foreign marriages. The word `proceedings', it is agreed, is general and imprecise, and tha there is no way but to interpret it in its' original and natural sense. Why, thin, should the notion `of some form of adjudication or other official act be read into it ? Any form of activity would spell proceedings. This very word is used to describe the activity of the Arbitration Council under the Rules made in pursuance of the Pakistan Ordinance. The learned .Judge relied on a judgment of the Lahore High Court' to the effect that the function of the Council is merely to conciliate the parties, if possible, and not to approve or disapprove the talaq. But .considerable activity takes place therein, and the effort to reconciliate may indeed succeed. Moreover, the true proceedings have already preceded this activity. The process of tataq itself is elaborate--the intention, the preparation, the gathering of witnesses, -the pronquncemeat Why should these solemn acts be not considered `proceedings' ? Turning to the khula, the expert witnesses agreed that the alleged (sic) 29. At 430. 30. Supra. 31. Fahmida Bi6i v, Mukhtar Ahmad P L D 1972 Lah. 694. khula` form is not recognized in Pakistan', to which the Thai (domiciliary) law was referential because- of the nationality of the parties. Here too the experts on Thai Law33 this time failed to be of assistance to the Court. Fortunately an official English translation of the Thai "Act on the conflict of Laws, B. E. 281" was forthcoming. The wife had desired khula` from her husband as she wanted to put an end to her married life and to live among her relatives. The husband accepted this position in a document. It is not stated how this feDl by the road-side. Does it mean that the manner of it was not of the approved type ? Or is it that the impulse was not adequate ? The Court was further influenced by the fact that the parties had continued to live under the same roof, though separately and without sexual contact. But since when has the parties' idea of law been its decisive criterion ? They would not have been the first pair to live in sin under a genuine or false sense of legality. The Muslim jurists have been .much exercised about a false sense of legality about marital life, and have sought to ease the intolerable burden of the reproach of illegitimacy in children and children's children. But they never made the error of regarding illegal cohabitation as lawful. There is nothing comparable in Islam to a common law wife. A khula properly. made results in a single irreversible divorce, so that neither consensus nor sophisticated legal reasoning can make sub sequent cohabitation lawful. As to the nature and manner of khula, it is instructive to trace its development. According to Jama Itamooz, it means to dig up, draw off or remove. In passing it may be remarked that it is distinct from mubara34, which proceeds frrom the basis of mutual aversion. Its genesis rests in shigaq (breach) mentioned earlier in this article, coupled with the further injunction in Al-Bagara ;as ". And if ye fear that she may not be able to kcep the limits of Allah,:it is no sin for either of them if the woman ransom herself." The earliest practical application of this principle occurs in the tradition related by Ibn-Abbas :-- "The wife of Sabit bin Qais came to the Prophet and .said, `O Messenger of Allah 1 I do not find fault in Sabit regarding his 32. At 436. 33. At 435. 34. Some judges have equated at with khula. This is like the equation between the Muslim dower (mater) and the sadaga, made for instance in Qareshi v. Qureshl (1971) 1 All E R 325, 333. The English dower is the part of husband's .property given to the wife. Mater is the consideration for the wife's surrender of -her person (bidaa), and is a necessary adjunct of marriage. Jahez (dowery) is what she brings .with her. Sadaga is a voluntary gift made to her Isy the husband. 35. II 229, Earlier in this verse it is said that it is not lawful to take from the woman aught of what you have given her. The limits of Allah are disgbodienoe (nushooz), adultery (zina) and generally the breach of wifely duties, the counterpart of her rights. 36. Ahadis compiled by Bukhari, 68:12. Other compilers give more detailed versions. morals or faith, but I hate simulation in Islam'. The Prophet said, `Will thou return to him his orchard' ? She replied, `yes' and she yielded the garden. The Prophet said Ito Sabit), `Accept the garden and) release her', and he divorced her." Poor Sabit ! He was unfortunate in the matter of his wives. His previous marriage with Habiba (literally, companion) was dissolved by the Prophet on the ground of cruelty, when he broke her bone. Now Jamila (literally, beautiful) was released. The orchard was a gift given to her by Sabit, and she offered more, but the Prophet said, `no more'. Jamila said that Sabit was physically repulsive to her, the shortest and ugliest among men, and that if she remained joined in wedlock to him, she might transgress the limits of Allah. That is the test : is the aversion so real and absolute that if the marriage continues, not only would its purpose remain unfulfilled, but the limits of Allah may be, transgressed. Jamila's word was accepted, and Sabit was given no choice in the matter. That is how the tradition has been interpreted, in the light of the Qur'anic injunctions and as a matter of marital policy. Granted the aversion, divorce must follow. In case of dispute as to `ransom', the Qadi will decide as to whether the wife must surrender all or a portion of what was received by her from the husband. Again it is the Qadi who will effect the dissolution of the marriage if the husband refuses, after investigating the. reality of the aversion. In the instant case the husband agreed in a written document to -the wife's request. Apparently he was satisfied as to the aversion and the `ransom'. So much for the distinction made by the Court between `judicial' and `consensual' khula`. As to the case-law on the point, in undivided India the Lahore High Court rejected the basic idea of khula` altogether and could see no distinction between it and mubara.37 If the husband refused to divorce, the wife was much to be pitied, but there was no help. Subsequently a larger Bench of--the same Court came to a different conclusion in Mst. Bilgis Fatima v. Najmul Hasan Qureshi.38 Indeed the decision goes too far, inasmuch as it regards mere incompatibility of temperament as a sufficient ground. That is too elastic, and if enforced would render the marriage-ties altogether fragile. Aversion is more real, and as a matter of policy it is not sensible to keep the pair in wedlock after the marriage has beep shattered. What good is the shell when the kernel is gone ? However, that does not end the matter. The question remains, was notice to the Chairman of the Arbitration Council still necessary ? Section 8 of the Pakistan Ordinance applies where a party desires to dissolve the marriage otherwise than by talaq, specifically where the wife possesses the delegated power of divorce (tafweez? In that case the provisions of section of the Ordinance apply mutatis mutandis. There are some varieties of dissolution of marriage which could be drawn into the provision ; 1 mubara. But khula` is a very different proposition. First, the object of --this provision in the Ordinance is to effect reconciliation. But how can a `fixed aversion' be reconciled away ? 37. Mst. Umar Bibi v. Muhammad Din AIR 1945 Lah. 51, D.B confirmed in Mst. Sayeeda Khanum v. Muhammad Sams P L D 1952 Lah 113, F. B. 38. P L D 1959 Lah. 516, F. B. (Kaikaus, J.). Second, an immediate irrevocable divorce ensues once khula is finalized. What thereafter remains for reconciliation ? In this situation what meaningful role has the procedure before the Council to play, even mutatis mutandis ? Third, khula is the right of the wife, and, on the face of it, the provision in the Ordinance applies only where there is an untrammelled power in the husband or his delegatee, if any ? Section 6 of Title I, General Provisions of the Thai law says: Whenever by application of the law of nationality, the local law, the communal law or the religious law, as the case may be, is to apply, such law shall govern. The affidavit of the husband's experts stated that in consequeYiee the Muslim Law of Thailand would apply, for here the reference was to the Muslim Law of Pakistan which, apparently by assimilation to the doctriae of renvoi, led to the local law. The Thai authorities had issued a certificate of divorce under the Thai Muslim law. It is not clear what is the distinction between the Muslim law of Thailand, .the law of domicile, and the Muslim law of Pakistan, the law of nationality. The husband's experts were for the Muslim law of Thailand, while Mr. Jaran for the wife was for that of Pakistan. But admittedly Mr. Jaran knew nothing about the law of Pakistan.40 The learned Judge remarked41 on the confusion, adding that the view that religious law is the law of Pakistan is erroneous. It is submitted, with due deference, that the law of Pakistan, in the Muslim matrimonial. field, is the law of religion. In truth the law of Islam is international. Allah, the Qur'an and the Prophet are all One to Muslims across the world. This is what is meant by saying that Islam has no sects, only schools ; that is to say, there are no differences as to fundamental principles (ustd), but only as to the branches thereof (furu). This is all the, more true after the recent Islamic renaissance in the Muslim countries in the wake of the end of colonialism and protectorates and trusteeships. Surprisingly the West Pakistan Muslim Law (Shariat) .Application Act, 1962, was not presented to the Court. Section 2 of this Act makes the Sharia law applicable to the Muslims of Pakistan42 in all questions regarding, inter alia, marriage and divorce, notwithstanding any custom or usage to the contrary. This situation is stressed in some valuable judgments of the Lahore. High Court.43 Accordingly the Thai certificate could not be simply brushed aside. It needed closer examination, It could have been that there were only shades of difference between the Muslim law as applied in Mumtaz ltiai v. Ghulam Nabi P L D 1959 Baghdad-ul-Jadid 5, was relied upon by Wood, J. in this behalf, but rejected by Ormrod L. J. because of contrary holding therein. Similar was the fate of Muhammad Nawaz v. Faiz Ilahi P L D 1978 Lah, 328. Reliance was placed on Ali Nawaz Gardezi v. Muhammad Yusuf P L D 1963 S C 51 (Rahman, J.), but admittedly the discussion of section 8 in this aspect was considered speculative (at 75). 40. At 435. 41. At 436. 42. West Pakistan, the whole of western Pakistan, became syngnymous with Pakistan when East Pakistan became Bangladesh. 43. Mst. Khurshid Jan v. Fazal Dad P L D 1964 Lah. 558, F. B., Haji Ni'zam Din v. Additional District Judge, Cyallnur P L D 1976 Lah. 930, Fida Hussain v, Mst. Nasim Hussain and another P L D 1977 Lah. 328. Thailand and Pakistan. The khuia was final in itself, but to the learned Judge the certificate could well have leant force, support and credence to the transaction between the parties. Next, as to the husband's domicile. The Court, as said above, found this to be British. The Court was influenced by two factors: (i) Purchase of the house by him in London wherein he lived ;and (ii) `Clearest intention' to remain in the United Kingdom indefinitely. The first factor, if of decisive import, would today make a large number of Arabs of British domicile. Pakistanis do work abroad, but that does not imply an intention to remain there indefinitely. Most came back for the sake of their children, if for no other reason. In Qureshi v. Qureshi" the. husband was found to be of Pakistan domicile, though he was a practising doctor in London. He continued to hold a Pakistani passport, married an Indian girl in London and divorced her there.. This was held valid. Mr. Quazi seems to have been in a like situation. Ha had. applied for a British passport, but had not obtained it. In any event many Pakistanis hold .dual nationality, for reasons, of convenience and prestige. But that does not necessarily attach British domicile to them. Rejected was his statement he proposed to return to Pakistan, s (animus revertendi). Rejected also was the wife's statement to the immigration authorities that she had come to London temporarily to escape the Karachi beat. Since- she was living in her busband's London home, her `probable'' British domicile was inferred. Incidentally in the Qureshi case, the head of the Chancery. of the Pakistan Embassy in London assumed the functions of the Chairman of the Arbitration Council. This assumption of power without authority was nevertheless held to be a mere technicality. This is with reference to the notice to the `right ; chairman'" doubted by the Court in the instant ease. A decisive authority may be formed in R. v. Registrar General of British, 'Deaths and Marriages, ex parse Minhas.48 Mr. Minhas held .dual.. Pakistani. and British nationality. He married in 1956. Leaving his wife in Pakistan, he arrived in London in 1961. His wife refused to follow .him in 1973 ; he pronounced three talaq in London and notified the wife and the Chairman of the Arbitration Council at her place .of residence. Dr: Pearl filed an expert witness affidavit in this case also. A strong Court held that had the ta/aq been pronounced in Pakistan, it would undoubtedly. -have been valid,". but the case failed because there was no foreign element in it sous to bring it within the British 1971 .Act. Ail .the essential acts the taiag itself, the writing period took place while the husband was in London. Clearly. these acts were regarded as `proceedings'. 44. Supra. 45. The trial ,edge had found. that there was a return to the domicile of the country of origin i.e. India, a conclusion stated by the Court of Appeal to be manifestly unreal and unsatisfactory', at 434. 46. At 438, conclusion (c). 47. At 438. 48. (1977) Q. B. 1. ; (1976) 2 All E. R. 246, 248, Q. B. Park, J. wrote the judgment, with whom Ld. Widgery, C. J. and May, J. agreed.. 49. At 248. The conclusions may succinctly be summed up as follows :-‑ (1) The khu'a` in the case was legal, valid and decisive, according to the law both of Thailand and Pakistan. It completely severed the connection between the parties, and any doubt in this respect was of no consequence. (2) The matrimonial domicile could well be considered Pakistani, and if so found, the talaq was valid under section 3 of the British 1971 Act, in accordance with the Mi has case. (3) The taiag and the subsequent proceedings before the Arbitration Council under the 1961 Pakistan Ordinance were each `proceedings' within the meaning of section 2(a) of the 1971 Act. The four propositions reached by the learned Judge, it is submitted with the utmost respect, are not therefore so final. It is a matter of regret that the case, instead of advancing with the times and furthering the purposes of the relevant enactments and the law in the matrimonial field, is in truth a throw back to earlier decisions in this regard. The clock has been turned back. Have not the gains of a century of common law development, international comity conventions and enactments bcen thrown overboard by the decision ?