257 F.

2d 306

Matter of the Petition for Review of Mirza M. SHIKOH,

Petitioner-Appellant,
v.
John L. MURFF, as District Director of the Immigration and
Naturalization Service for the District of New
York, Respondent-Appellee.
No. 377, Docket 25013.

United States Court of Appeals Second Circuit.

Argued May 9, 1958.
Decided June 27, 1958.
1

Marchetti & Ehrlich, New York City (Joseph A. Marchetti, New York City, of
counsel; Ira Ehrlich, New York City, on the brief), for petitioner-appellant.

Paul W. Williams, U.S. Atty. for Southern District of New York, New York
City (Roy Babitt, Sp. Asst. U.S. Atty., New York City, of counsel), for
respondent-appellee.

Before WATERMAN and MOORE, Circuit Judges, and GALSTON, District

judge.

GALSTON, District Judge.

Petitioner appeals from two final orders of the District Court for the Southern
District of New York. The first of these orders denied petitioner's motion for an
injunction pendente lite and vacated a temporary restraining order contained in
the order to show cause by which the motion was brought on. The second order
granted respondent's cross-motion for summary judgment dismissing
petitioner's complaint. The petition sought to review the action of the
Immigration and Naturalization Service in ruling against petitioner's application
for adjustment of his status from that of a non-immigrant student temporarily in
the United States to that of an alien lawfully admitted to permanent residence
by reason of his marriage to an American citizen. (101(a)(27)(A) and 245 of the
Immigration and Nationality Act, 8 U.S.C.A. 1101(a)(27)(A) and 1255.)

Appellant, a native of India, came to the United States as a non-immigrant

student in 1947. Subsequently that part of India wherein he lived became
Pakistan, and consequently appellant is now considered as a citizen and
national of Pakistan. Prior to arrival in the United States appellant married one
Izzat Jahan Begum, a native of India now residing in Pakistan, and there were
three children of said marriage. Since the appellant has been in the United
States he has obtained extensions of his temporary stay in the United States in
order that he might complete his studies. His present stay expires August 15,
1958.

On August 22, 1955, appellant appeared before the Reverend Sheikh Daoud
Ahmed Faisal, Spiritual Head and National Director of the Islamic Mission of
America, Inc., for the propagation of Islam, at his office in Brooklyn, New
York, and declared that he wished to be divorced from his wife. The appellant
thereupon signed his name to a writing declaring that his marriage was
dissolved, which writing was witnessed by two persons and which contained at
the end thereof a declaration by the Reverend Sheikh that in exercise of the
authority vested in him in accordance with the laws of Islam and 'in conformity
of the laws of the Government of the United States of America,' he declared the
appellant and his wife to be divorced. The said writing signed by appellant and
by the Reverend Sheikh was entitled 'Certificate of Divorce' and said certificate
was registered at the Consulate General of Pakistan in New York, and copies
thereof sent to appellant's wife by the Consulate General.

Thereafter, on November 14, 1956, appellant applied for and received a

marriage license from the Clerk of the City of New York and thereupon
married a native of the United States of America on January 11, 1957. In
August 1957 appellant filed an application for adjustment of his status from that
of a non-immigrant student to that of an alien lawfully admitted to permanent
residence predicated upon his marriage to an American citizen. The
Immigration and Naturalization Service required appellant to prove such
relationship and he thereupon produced the marriage record and the Certificate
of Divorce granted by the Reverend Sheikh Daoud Ahmed Faisal in Brooklyn
on August 22, 1955. The District Director of the Immigration and
Naturalization Service denied the application under date of August 22, 1957
upon the ground that the alleged divorce was invalid and that therefore the
subsequent marriage to an American citizen was null and void.

Appellant appealed from the decision of the District Director to the Regional
Commissioner, who affirmed the order of the District Director in October 1957.
Thereafter appellant commenced this action to review the rulings of the

Immigration and Naturalization Service.

10

Article 1, 9, of the Constitution of the State of New York provides in part: '* * *
nor shall any divorce be granted otherwise than by due judicial proceedings; * *
*.' The nature of the judicial proceedings required for a divorce in New York
are set forth in 1147 of the Civil Practice Act of the State of New York
indicating that a divorce will be granted by reason of the defendant's adultery
where both parties were residents of the state when the offense was committed,
or where the parties were married within the state, or where the plaintiff was a
resident of the state when the offense was committed and is a resident when the
action is commenced, or where the offense was committed within the state and
the injured party, when the action is commenced, is a resident of the state.

11

There can be no doubt that the actions of the appellant before the Reverend
Sheikh Faisal in Brooklyn failed to constitute a judicial proceeding within the
meaning of the laws of the state, nor were the conditions of the Civil Practice
Act complied with.

12

The divorce which appellant seeks to sustain is similar to religious divorces

upon which there have been rulings by New York courts.

13

In Chertok v. Chertok, 208 App.Div. 161, 203 N.Y.S. 163, a rabbinical divorce
was obtained in New York by one of the parties to the marriage who was then
residing in New York. Thereafter that divorce was effected in Russia, the
original matrimonial domicile of the parties. The Court held that the rabbinical
divorce obtained in New York by a resident of New York was wholly invalid.
This case differs from the case at bar in that one of the parties was resident of
New York when the divorce was obtained.

14

In Matter of Goldman's Estate, 156 Misc. 817, 282 N.Y.S. 787, a similar
situation, one of the parties to the marriage entered the United States and
became a permanent resident, and while in this state as a permanent resident
obtained a rabbinical divorce in New York. Here again the divorce was held a
nullity.

15

Other cases to the same effect are In re Cherney's Estate, 162 Misc. 764, 295
N.Y.S. 567; In re Spiegel, D.C., 24 F.2d 605.

16

Conversely it has been frequently held that a religious divorce, valid in the
jurisdiction where granted, is valid here, provided that both parties to the
marriage were properly subject to the jurisdiction of the tribunal granting the

decree. In these circumstances comity requires recognition of foreign religious

divorces. Miller v. Miller, 70 Misc. 368, 128 N.Y.S. 787; Leshinsky v.
Leshinsky, 5 Misc. 495, 25 N.Y.S. 841. See Saperstone v. Saperstone, 73 Misc.
631, 131 N.Y.S. 241. Matter of Rubinstein's Estate, 143 Misc. 917, 257 N.Y.S.
637. In none of these cases was the divorce granted in New York, but rather in
the foreign jurisdiction which permitted a religious divorce. Indeed, in Miller v.
Miller, supra, the court, though acknowledging the validity of a rabbinical
divorce granted in Russia, stated, 70 Misc. at page 373, 128 N.Y.S. at page 790:
17

'A rabbinical divorce granted here would have no validity.'

18

Non-judicial divorces generally have been recognized so long as they were

performed within the foreign jurisdiction which permitted them. For instance,
legislative divorces have been recognized so long as they were obtained by
domiciliaries of states which permitted them and performed within said states.
Starr v. Pease, 1831, 8 Conn. 541; Levins v. Sleator, 1850, 2 G. Green, Iowa,
604; Cabell v. Cabell, 1858, 1 Metc., Ky., 319; Adams v. Palmer, 1863, 51 Me.
480; Clark v Clark, 1839, 10 N.H. 380.

19

Indian divorces have been recognized provided that they were rendered on
Indian reservations by Indians resident therein. Marris v. Sockey, 10 Cir., 170
F.2d 599, certiorai denied 336 U.S. 914. 69 S.Ct. 605, 93 L.Ed. 1078;
LaFramboise v. Day, 136 Minn. 239, 161 N.W. 529, L.R.A. 1917D, 571; James
v. Adams, 56 Okl. 450, 155 P. 1121. (In New York by statute the Peacemakers
Court on certain reservations is given exclusive jurisdiction to grant divorces
between Indians resident on such reservations. McKinney's New York Consol.
Laws, Vol. 25, 46.)

20

Divorce by executive decree has been recognized provided that it is granted in

the jurisdiction permitting said form of divorce between domiciliaries of that
jurisdiction. Sorenson v. Sorenson, 122 Misc. 196, 202 N.Y.S. 620.

21

Lord Penzance in Wilson v. Wilson, L.R. 2 P. & D. 442, said in a comment

quoted extensively by courts in England and in the United States:

22

'Different communities have different views and laws respecting matrimonial

obligations, and a different estimate of the causes which should justify divorce.
It is both just and reasonable, therefore, that the differences of married people
should be adjusted in accordance with the laws of the community to which they
belong, and dealt with by the tribunals which alone can administer those laws.'

23

We agree with this analysis and believe that the purported divorce in the case at
bar could be valid only when granted in Pakistan.

24

Appellant has cited cases sustaining the validity of foreign divorces obtained
while the parties thereto were physically present within the United States. Weil
v. Weil, Dom.Rel., 26 N.Y.S.2d 467; Oettgen v. Oettgen, 196 Misc. 937, 94
N.Y.S.2d 168; Hansen v. Hansen, 255 App.Div. 1016, 8 N.Y.S.2d 655. While
the parties in those cases were physically within the United States, the divorces
were actually granted in the foreign jurisdictions in which the parties were
domiciled. Here, even though the matrimonial domicile of the parties remained
in Pakistan, the divorce was granted in Brooklyn before the Reverend Sheikh
Faisal, who proclaimed the divorce valid not only in accordance with the courts
of Islam but also in conformity with the laws of the Government of the United
States of America.

25

Appellant cites Kapigian v. Minassian, 212 Mass. 412, 99 N.E. 264, as being
decisive of the case at bar. In that case the husband and wife were married in
Turkey and were of the Christian faith. Under Turkish law, whenever a wife
renounces Christianity, embraces the Mohammedan religion and marries a
Mohammedan, by virtue of those acts her previous marriage becomes null and
void. The wife did exactly those things in Turkey, and thereafter the husband
remarried, which remarriage was held valid by the courts of the State of
Massachusetts. This case indicates the willingness of our courts to recognize
foreign divorces, even though they be non-judicial. However, it appears clearly
that the non-judicial divorce recognized by Massachusetts occurred by virtue of
acts which took place in Turkey and the application of the Turkish laws to those
acts.

26

Though a divorce secured in the manner indicated in the case at bar would
appear to be valid when obtained in Pakistan, and if so obtained might well
receive recognition here, nevertheless it was not valid when obtained in the
territorial jurisdiction of New York. While a divorce decree rendered in a
foreign jurisdiction between persons domiciled therein is recognized in the
United States because of the requirements of international comity, nevertheless
this recognition does not extend to divorces obtained within the territorial
jurisdiction of the State of New York between persons not domiciled therein.
Where the divorce is obtained within the jurisdiction of the State of New York,
it must be secured in accordance with the laws of that State. The orders are
affirmed.