ELGIN — A state appeals panel has overturned a Lake County judge’s dismissal of a divorce petition, saying the judge wrongly accepted a divorce decree from India, issued under Muslim law, which the appellate justices said violated Illinois law and the wife's "fundamental rights."
In April 2018, Judge Raymond Collins determined the marriage of Tanveer Basith and Abuzaffer Basith was already dissolved in India and dismissed Tanveer’s petition for dissolution of marriage.
The Illinois Second District Appellate Court ruled on her appeal of that ruling in an order issued April 15. Justice Mary Schostok wrote the opinion; Justices Joseph Birkett and Susan Hutchinson concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule.
In Tanveer’s divorce petition, filed Sept. 29, 2017, she said she and Abuzaffer married in 1979 in India and had six children. On Dec. 28, 2017, Abuzaffer moved to dismiss the petition, saying their marriage had been dissolved in India the preceding May and that Tanveer had accepted a divorce settlement of about $447. On March 22, 2018, Tanveer filed a response alleging she was never served notice of the divorce filing in India, nor did she consent to the terms.
In his ensuing reply, Abuzaffer said Tanveer requested the divorce, so he went to India, in compliance with Muslim Sharia law. Although Abuzaffer acknowledged in a hearing with Collins that Tanveer didn’t get the notice customary for American legal proceedings, Collins agreed with Abuzaffer’s argument the Muslim law under which they were married should take precedence over their divorce.
The appellate panel disagreed, saying the Indian tribunal never gained jurisdiction over Tanveer because she wasn’t afforded the opportunity to appear. Further, Schostok wrote, Collins’ opinion “constituted an abuse of discretion because the Indian tribunal’s decision violated the laws and public policy of” Illinois, as the marital property wasn’t divided equitably, nor was Tanveer awarded anything to compensate for the fact she earned substantially less than Abuzaffer during their 37 years of marriage.
“Abuzaffer cites numerous authorities in support of his argument that the trial court’s decision should be affirmed,” Schostok wrote. “However, none of those authorities provide that a foreign decree should be recognized if a party did not have notice and an opportunity to defend her interests in the foreign tribunal.”
The panel also pointed out how during appellate proceedings Abuzaffer said the record was ambiguous regarding the notice given Tanveer of the divorce proceedings in India, but that since his attorney had already acknowledged at the April 11 hearing she didn’t have “formal notice,” Abuzaffer isn’t allowed to suggest ambiguity as a defense.
“In dismissing Tanveer’s petition, (Collins) did not consider American law and fundamental precepts of due process such as the right to notice and the right to defend one’s interests,” Schostok wrote. “Rather, the trial court’s reasoning indicates that its decision was based on what it assumed the law was in India for pious Muslims. The trial court’s carelessness in rendering its decision has caused an unnecessary year-long delay in the proceedings as Tanveer has had to needlessly wait for her equitable rights. …
“We therefore strongly encourage (Collins) to be more cognizant of the parties’ fundamental rights and controlling case law before dismissing an action.”
The panel reversed Collins’ judgment and remanded the case for additional proceedings.