Tuesday, April 6, 2010

Shoaib’s ‘first marriage’ not valid under international law

Wednesday, April 07, 2010
LONDON: International expert in foreign marriages, Barrister Amjad Malik commenting on Test cricketer Shoaib Malik’s alleged marriage with Ayesha Siddiqui has said that any nikah if it is conducted on phone is automatically not valid under international and Pakistani law if, its construction is not clear and parties are not identifiable and if it is not registered at local registrar’s office within limited time frame by nikah registrar who performed the nikah ceremony under the Family law ordinance.

Amjad said if the nikah was not registered, it was not valid under Pakistani law. He spelled out five scenarios with regard to Shoaib’s betrothal to Ayesha.

A) It is not clear whether parties were present in one identifiable assembly and offer and acceptance was exchanged in front of two witnesses who could witness parties to marriage offering free consent and where an amount of dower was set as per Islamic law (if both are Muslims). As no witnesses to marriage have come forward, it raises concerns on the construction. If the requirements have not met then that may make the construction of marriage more doubtful.

B) If the requirements are met but nikah is not registered, then it may confine it to a mere ‘Shariah marriage’ but not recognised as valid under Pak law thus in international law as if a marriage is not recognised in the eyes of law where it was conducted then it is not valid in the eyes of international law (as both are living in two different countries).

C) If the marriage is conducted properly, and it is consummated, however in the absence of registration mere ‘shariah talaq’ will end the marriage.

D) If the nikah is conducted properly, and is registered within time frame but it not consummated, then each party may claim nullity that marriage is not consummated. That will be through a court of law where jurisdiction is not disputed. In current case Sialkot (Lahore) or Hyderabad High Court could be the court where matter may be brought for adjudication of (1) construction of marriage, (2) nullity, and or (3) divorce.

E) If nikah is conducted properly, construction is not disputed, and registered locally within time, and consummated only then a court divorce is required to dissolve a marriage. Court would be where both parties are habitually resident and or a high court of a party initiating process. In the absence of consensus high court where nikah was performed, it is a pure civil question.

The barrister further stated that in the Shoaib-Ayesha situation, hearing both statements in media, Nikah forms were signed but both parties were not present in one assembly. Shoaib says he never met his intended wife. He is doubtful about the identity, if he is doubtful then evidence of witnesses and imam conducting nikah is crucial whether they could identify the bride in that nikah forms, so construction is an issue. Secondly there is a doubt of the identity of the bride whether it is Ayesha or Maha. This needs to be clarified.

Thirdly, as claimed, if Shoaib has never met the girl in nikah, then consummation is doubtful too, and fourthly from statements it appears Shoaib has not got the original nikah form which he signed, which makes registration doubtful too so registrar office statement will be required where nikah was allegedly performed, and as both parties are resident of two different countries, then jurisdiction of which court will conduct adjudication of civil issue of facts will also be an issue as both parties may dispute and international law requirements will have to be met on who will hear the civil case.

Barrister Malik said any court having jurisdiction may have to find on facts on the issue of construction of marriage, parties to marriage, whether the marriage was conducted at all and if it did, whether it is valid under law of the land, then under international law whether it was registered and consummated, and what will be the process to end it if the finding is that the marriage is not shariah but a valid one if that stage arrives at all. 

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