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Al-Qamar, Volume 4, Issue 3 (July-September 2021)
179
OPEN ACCESS S
Al-Qamar
ISSN (Online): 2664-4398
ISSN (Print): 2664-438X
www.alqamarjournal.com
Legal Forum Shopping (
Takhy
yur and Talfīq) in Islamic
Family Law
Sunbal Islam Chaudhary
Assistant Professor, School of Law and Policy, University of Management
and Technology, Lahore
Dr. Usman Hameed
Associate Professor/Director, School of Law and Policy, University of
Management and Technology, Lahore
Dr. Kashif Imran Zadi
Assistant Professor, School of Law and Policy, University of Management
and Technology, Lahore
Abstract
Forum shopping refers to the practice of choosing the most favorable
jurisdiction or court in which a claim may be heard. Actors can often
choose between several legal forums and prepare the platform they
perceive as best to survive their interests. This paper is an overview of
the concept and scope of legal forum shopping and how it helps the
parties choose the forum that serves their interest in the best way.
Furthermore, this research sheds light on the application of Talfiq by
traditional Islamic scales and the practice of various religious
institutions in the Muslim world. Primarily it discusses some
significant cases that the courts have decided in Pakistan in the light
of the Muslim Family Law Ordinance.
Keywords: Shopping,
Takhyyur, Talf
ī
q
, Islamic Family Law,
Shar
ī
'ah
180
Legal Forum Shopping (
Takhayyur and Talf
īq) in Islamic Family Law
1. An Overview of Legal Forum Shopping
Forum shopping is the technique of selecting the forum or jurisdiction with
the best laws or regulations for the claimed stance. When there is authority
over a dispute in more than one court, parties may forum shop, choosing the
court that gives them an advantage over the other. The platform that is most
useful to the party's cause is not always the most relevant to the topic. For a
variety of reasons, the Parties forum shop is available. Due to lower
transportation expenses and the possibility that the actuality will be
sympathetic to a local claimant, many plaintiffs would want to proceed in
their native jurisdiction. When the rules, proceedings, or inclinations inside
one region are more favorable than in another, a party will select the
jurisdiction that will implement the more beneficial legislation or norms to
the matter. The different jurisdictions have varying alternatives, and a party
may use a venue that gives the highest damages awards, as well as the
possibility of equitable remedies or financial penalties, which, for instance, are
not obtainable at the “US Patent and Trademark Office's Trademark Trial
and Appeal Board (USPTO)”. The courts also handle issues at different
timeframes. Thus a claimant may select one jurisdiction over another as cases
move more quickly there, while a defendant may use the reverse strategy to
slow down hearings. Despite the motivation for forum shopping, the goal is
invariably to gain a perceived or practical advantages in a lawsuit by
exploiting differences in the rules, procedures, and tendencies of the
authorities with control over the matter. However, the framework for
effective forum shopping is built years before litigation or opposition actions
commence in trademark issues. It stems from the restriction of trademark
claims to countries where security has been achieved by legal authorization or
other methods in regimes where trademark rights are not required to be
registered.
1
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Al-Qamar, Volume 4, Issue 3 (July-September 2021)
2. Examination of the Conceivably Deleterious Impacts of Forum Selection
It is useful to refer the publications of experts who have explored the subject
of forum shopping when seeking to evaluate the future detrimental
implications of forum selection. The notion of “forum non-convenience”
empowers a court to dispose of a matter despite if it would otherwise have
authority so because the designated venue is "inconvenient" or improper. In
actuality, this aggravation is the same as the adverse repercussion of forum
shopping.
2
Several analysts would deny that transnational disputes should be
impartial and that the plaintiff's choice of venue should not interfere with
this core goal. Professor Maloy contends that the characteristic differentiate
the forum shopping from ordinary forum choosing is injustice. When it
comes to forum shopping, U.S. courts have agreed that it can lead to biased
decisions, mainly because it violates the principle of equal protection under
the law. Non-convenience judgments in forums also indicate that forum
selection may be prejudiced.
3
The US Supreme Court held in its earliest
judgment explicitly dealing with this issue where a claimant's choice of the
forum must not be harassing to the defendants by imposing expenses and
inconvenience not required to his entitlement to prosecute his remedy.
Similar principles have been employed, and to some extent continue to be
applied, by courts in the United Kingdom and Australia. Despite the fact that
forum shopping is frequently associated with the notion of "unfairness,"
neither judicial judgments nor academic debates yet clarified what such term
entails. To further appreciate how forum selection can "unfairly" favor the
defendant and the types of unfairness that can occur, it's crucial to begin with
the primary concept of impartiality, which implies that all parties are treated
equally. There are two dimensions to equitable therapies that may be
identified. First, the stakeholders should be on fair footing regarding the
substantive and procedural laws that apply. Second, they must be equivalent
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Legal Forum Shopping (
Takhayyur and Talf
īq) in Islamic Family Law
to various other characteristics that may make a given forum choice somewhat
"convenient" from a practical standpoint.
4
a) Inequity in the Application of the Relevant Substantive and Procedural Laws
Regarding regulating legislation, it is well understood that the forum
selections unfairly benefit the plaintiff and harm the respondent.
Dissimilarities among disagreement of legislation standards of potential
forums that also occur in the implementation of distinctive substantive rules,
or even the incentives of particular jurisdictions' legal principles, are generally
deemed as the justifications underpinning a considerable fraction of forum
shopping contexts.
5
Consequently, there may be times when the outcome of a
given forum selection appears to be unjust at an initial glance. This might be
the case If an inhabitant of country A is injured in country A and initiates a
litigation in country B even though he failed to submit a lawsuit into the
timeframe established by state A's statutes. Following an aircraft accident in
state A involving an aircraft operated by an operator from state B, the
deceased' descendants may file products responsibility cases in country C,
mostly to escape the usually relevant penalties limit.
b) Unfairness in Terms of Unequal Convenience
It is indisputable that the chosen venue can be lesser advantageous for the
adversary than for the claimant under various situations. This can happen
when a plaintiff sues a foreign defendant in their home territory or when the
forum selection results in significant financial or logistical problems, such as
the inability to get visas required for entry into the forum countries. Various
courts assessing forum inconvenient allegations have recognized that the
forum selection may unduly inconvenience the defendant. These are the court
system that have ruled that a case might be rejected for “forum non-
convenience” if the plaintiff's choice of venue is frivolous or repressive to the
defender. However, it is not often evident whether a rejection is predicated on
such unjust annoyance or efficient concerns in a legal setting. In general, the
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Al-Qamar, Volume 4, Issue 3 (July-September 2021)
emergence of the “forum non-convenience” shows that even a considerable
disparity in respect of the actual ease of a venue for the parties has a minor
influence. The "vexatious and oppressive" standard has been abolished in the
UK and Canada.
6
c) Inefficiency as a result of the Plaintiff's Forum Selection
The forum chosen by a plaintiff could harm "efficiency." This word relates
to the effectiveness of the procedures in the first instance. It means that the
policies are, or should be, handled in a way that saves money and time. It also
suggests that the court has the authority to make a "just" judgment. As can be
seen, forum selection can impact the effectiveness of the procedures. For
instance, if the hearing is held in a region only tangentially related to the
circumstances, this could result in a slew of further fees and delays. Issues in
gathering and evaluating available facts may make the court's fact-finding
duty more demanding and, as a result, impact the decision's reliability.
d) Lack of Uniformity of Decisions
Professor Ferrari thinks as the forum shopping is incompatible with the
concept of uniformity of results, which is plainly a key foundation of
practically any regulatory structure, but does not express a firm position on
its unacceptability. Professor Juenger concentrates solely on the topic of
"decisional harmony," meaning that this is the only disadvantage. Decisional
variances, according to Grignon-Dumoulin, are associated with "inequalities"
and "a threat to legal security." It is vital to establish the nature of the events
in question before examining why it possible that an incompatibility is
harmful? i.e., what advantages might be compromised? It's important not to
misinterpret a lack of decisional uniformity as the occurrence of two
contradictory decisions in the same case. A forum shopper typically selects
the most advantageous platform as well as prosecutes there. A forum
consumer typically selects the highest beneficial platform and files suit
exclusively in that venue.
7
Techniques that involve starting processes in many
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Legal Forum Shopping (
Takhayyur and Talf
īq) in Islamic Family Law
forums are unusual and do not form part of the fundamental notion of forum
shopping.
8
3. Legal Forum Shopping Under Islamic Legal System
Numerous institutions or madhabs have observed the use of Muslim shari'a.
Different ways of interpreting religious scriptures from the "Quran" and
"Prophetic sayings or Hadiths" were used to apply divine regulations in
Islam. Religious scriptures were interpreted based on specific historical
trajectories that across each school to the next. Every technique of perception
symbolized a diverse school. Every school has its own reasoning for
accomplishing its own lawful goal, whether through defined legislative criteria
or a basic understanding of Muslim Shari'a. It was once common to invoke
the authority of several Muslim schools at the same time. However, every
school was not given the same opportunity to apply. It used to be determined
by a school's prestige and distinction, as well as the country's finances. As a
result of distinct authority of Muslim schools, takhayur and talfiq procedures
evolved. Traditional Islamic schools organized takhayur and talfiq in different
ways.
9
3.1 Principle of Takhayur under Islamic Law
Takhayur indicates "selection." It denotes the procedure of selecting among
several Islamic experts' and madhabs' viewpoints, without restriction on the
number of Muslim schools. It is founded on the renowned theory that "an
average layman" or "Al-'amy la' mazhab lahu" means "an ordinary layperson
is not a school follower”. It explains that any normal person who is neither a
researcher nor a follower of any experts or sheiks has the liberty of choosing
between the several viewpoints and selecting the one that best relates to his
specific situation.
10
In Islamic shari'a, the idea of takhayur was universally
recognized. Most Religious sects did not deny a person's right to use
takhayur as long as they were dedicated to the sect's viewpoint. For example,
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Al-Qamar, Volume 4, Issue 3 (July-September 2021)
if you follow the Hanafite School in marriage, you must consider the
Hanafite School in all aspects of your weddings and divorces.
3.2 Principle of Talfiq under Islamic Law
Talfiq refers to merging, combining, or joining different schools' viewpoints.
To form a new opinion, a muslim may mix the views of many Islamic schools
and madhabs. This is known as talfiq, which synthesizes two juristic
perspectives to arrive at a third, more favorable solution. As a result, takhayur
is the first step on the path to talfiq. The talfiq technique, unlike takhayur,
was contested in ancient Muslim schools. Since the deployment of talfiq has
generated in novel legislative requirements that may be incompatible with the
rationale of regular schools. In general, Islamic schools were eager to
implement their interpretation of shari'a, but talfiq resulted in new composite
viewpoints that do not reflect a single school of thought.
3.3 Utilization of “Takhayur and Talfiq” by Conventional Muslim
Schools
To comprehend the debate, it is necessary to know that in Islamic Shari'a,
there is a distinction between interpersonal relationships, or Moa'amalat, and
one's relationship with God, or A'aebadat. The Islamic rules are implemented
in both cases in the shari'a interpretation. As a result, takhayur and talfiq can
organize religious responsibilities like prayers and intra-personal relationships
like contracts and marriage. Individuals might utilize takhayur and talfiq
tactics among themselves or God in the past, but this did not apply to
government officials, unlike the contemporary pattern of legislative officials
using them. Varied Islamic schools adopted diverse approaches to the
implementation of talfiq. Some schools imposed stringent limitations on the
applicability, while others expanded it. To grasp the conventional meaning of
talfiq, it's necessary to distinguish between two sorts of amalgamation or
talfiq: those involving Shari'a branches and those involving specific
difficulties relating to one of the shari'a branches. Taqlid, or the "following"
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Legal Forum Shopping (
Takhayyur and Talf
īq) in Islamic Family Law
of academics, is when an individual employs one scholar's beliefs in personal
praying and another scholar's thoughts in his business operations. There is no
talfiq or amalgamation. Hence it is just regarded as a type of takhayur.
11
The
talfiq, or combining the ideas of two separate experts to produce a new
perspective, is the second sort adaption to specific problems. For example, in
the Hanafite School, talfiq is demonstrated when a man gets married without
a custodian or wali; in the Shafiite School, the identical individual needs the
custodian's permission for remarriage. To finish his two marriage contracts,
the exact individual needs two separate and contradicting judgments of
scholars. In general, Islamic scholars divide talfiq into three categories: those
that are rejected, those that are perhaps accepted, and those that are ideally
taken. Several traditional schools confine talfiq to specific situations, hence
expanding the breadth of the disallowed talfiq. Their reasoning for expanding
the refusal range is that talfiq is supposed to make life easier for a Muslim in
areas where multiple Muslim schools exist. Still, it isn't supposed to trash the
substance of Muslim rule by digging for exclusions or rukhas from various
points of view.
12
3.4 Application of Takhayur and Talfiq by Religious Institutions
Dar el-e'ftaa, Egypt's official fatwa institution, defines the talfiq as an
acceptable instrument as long as it does not act beyond the agreement of
experts or the “ijmaa” because it is an instrument of comfort and growth of
the public's benefit. This institute symbolizes a novel paradigm in Islamic
thought by broadening the scope of talfiq's use to meet everyday needs. This
is in line with dominant contemporary views on Shari'a in advanced
legislation. “Dar el-e'ftaa” places one restriction on the use of talfiq. It must
not conflict with Ijmaa' or the consensus of intellectuals and legal scholars of
a particular generation. As per this interpretation of “Dar el-e'ftaa”, each era
has its distinct unique “Ijmaa” that must be obeyed. As a result, the Ijmaa's
applicability is limited to a few consensus perspectives in modern times,
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Al-Qamar, Volume 4, Issue 3 (July-September 2021)
allowing for more talfiq implementation.
13
Takhayur and talfiq are Islamic
procedures for resolving issues related to the multi-jurisdiction of Islamic
schools within similar communities and equal authorities. Although they
accept takhayur, most schools restrict the extent of talfiq, the modern
religious institution of “Dar el-e'ftaa” has broadened the ambit in favor of
modernity.
14
4. Judicial Cases
4.1 Māriņa Jãtoi v. Nuruddian Jatoi
A Regent Pakistani Supreme Court decision, Marina Jatoi v. Nuruddin
Jatoi
15
, has highlighted two significant problems of Pakistani law regarding
personal laws of Muslims :
▪ The application, in Pakistan, of the internationally recognized choice of law
rules.
▪ The internal conflict of law rules, as applied in Pakistan.
The facts were not in dispute. In May 1959, Marina and Nuruddin Jatoi
were married at a Registry Office in London. Marina was a Christian
domiciled in Spain at the marriage, and Nuruddin Jatoi was a Muslim
domiciled in Pakistan. The wedding was not a success, and within a year, the
husband had returned to Pakistan, leaving his wife and their newly born son
behind him. In March 1961, Nuruddin Jaoti married a second wife. This
time, his spouse was a Swedish girl who had converted to Islam before the
religious marriage ceremony, according to the evidence presented to the court.
Suspecting that an order for maintenance would be enforced against him, the
husband then proceeded to address a bill of divorcement to his first wife. She
received the letter in May 1961. Undeterred by these developments, Marina
petitioned the English magistrate's court for a maintenance order, and in
1963 she succeeded notwithstanding the defendant's argument that he was no
longer married to Marina because he had addressed a bill of divorcement to
her, valid by his law.
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īq) in Islamic Family Law
The order was registered in Pakistan and confirmed by the Karachi district
magistrate's court in 1964. This, of course, was not the end of the affair. The
husband failed to remit any maintenance, and so, in 1965, the wife traveled to
Karachi intending to seek enforcement. While she was in the city, Nuruddin
repudiated his wife for a second time. Still, on this occasion, he endorsed a
copy of the talaq for the register of the chairman of the local union council,
as required by the newly enacted Muslim Family Laws Ordinance, 1961.
After ninety days, he has applied to the district magistrate to rescission the
English tenancy order because he was no longer the Marina. The district
court refused his petition, but on appeal High Court of West Pakistan, the
lower court's ruling reversed. Marina appealed to the Supreme Court of
Pakistan. The appeal was rejected by the majority, including Mr. Chief
Cornelius. Mr. Justice Yaqub Ali, however, gave a dissenting the majority
took the view that the second talaq issued husband in 1965 and registered
following the Family Ordinance was effective to dissolve the marriage
between Nasruddin Jatoi. Consequently, the husband had no obligations in
Islamic law to render maintenance to his ex-wife. Both the majority and the
minority judgments agree that the appropriate choice of law rule to test the
validity of the divorce is the lex domicile of the husband. To this extent, the
case provides us with one more nail for the almost complete coffin, which is
being prepared for the ceremonial burial of the lex loci celebrations. As Mr.
Justice Rahman said: “Under the rules of private international law, the lex
loci celebrations as such has nothing to do with the question of divorce which
is a matter solely for the law that happens to be the lex domicile of the
parties, at the time of the suit. This may well be different from the law that
governed the solemnization of marriage". In the present case, the Supreme
Court has upheld the correct choice of law rule and has refused to be drawn
by arguments in favor of the English marriage ceremony's immutability. Jatoi
v. Jatoi is a logical continuation of the line of cases based on Har Shefi v. Har
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Al-Qamar, Volume 4, Issue 3 (July-September 2021)
ShefP (as long as the lex domicilii recognizes the divorce, it is irrelevant to an
English court that the divorce has been issued in England by a unilateral
declaration of the husband) and Russ v. Russ (a marriage celebrated in
England is not necessarily dissolvable only by a judicial decree). Therefore,
there is nothing revolutionary in the reference by the Supreme Court to the
lex domicile, Pakistan. The majority judgment and the minority dissent of
Mr. Justice Yaqub Ali Part Company are in their interpretations of Pakistani
law which had to be applied to the facts of the case. To decide the efficacy of
the talaq, and hence the validity or otherwise of the English maintenance
order, the judges had to take upon themselves a further choice between two
conflicting legal regimes, the personal law of the wife and the private law of
the husband. Therefore, they were faced with the second choice of law, which
involved the legal system of any other country other than Pakistan. The
conflict between two laws, equally binding as legal regimes within one unitary
jurisdiction, is an internal conflict of laws. In the present case, the validity of
the talaq depended upon whether the Court chose to apply the Islamic law
principles or the regime of law directly intrinsic to the Christian Marriage
Act, 1872. Section 4 of this Act suggests that any marriage between a
Christian and a non-Christian will be void unless the parties marry in
compliance with the Act, or its mother statute, the British Marriage Act.
However, it must not be read to invalidate all marriages between Muslim
males and non-Muslim scriptualist females10, celebrated in Muslim form.
Suppose a scriptualist female were to enter into such a marriage. In that case,
the courts will consider her to have consented to the Muslim incidents of her
marriage status, and the provisions of the Christian Marriage Act, 1872 and
the Divorce Act, 1869 will stand excluded. The situation directly relevant to
the case under discussion occurs when a Muslim male marries a Christian girl
in a ceremony under the Christian regime and then marries a second wife in
Islamic law, without first divorcing his Christian wife by the provisions of the
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Legal Forum Shopping (
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īq) in Islamic Family Law
Divorce Act. The opinion is divided on the validity of the second marriage.
The present writer believes that the second marriage would be perfectly valid
if his personal law permits it. The capacity to acquire a second wife is a
question of status and has nothing to do with the formal classification of
monogamy by the lex loci celebrations. The writer would cite the three
following cases as evidence of this point of view.
4.2 “John Jiban Chandra Datta v. Abinash Chandra”
In “John Jiban Chandra Datta v. Abinash Chandra”
16
, the legal problem was
presented concisely. Dukhiram, an Indian Christian, married a Christian girl
called “Sudakshina”. Dukhiram afterwards converted to Islam and married a
Muslim woman named "Alfatanessa" at a mosque. Mr. Justice Anderson and
Mr. Justice Latifur whether this remarriage was legal in India. In deciding
affirmative, the court said: “After his conversion, Dukhiram was governed by
Mohammedan law. There can be no question that under that law he was
entitled to contract a valid marriage with Alfatanessa”.
4.3 “Farooq Leivers v. Adelaide Bridget”
Farooq Leivers v. Adelaide Bridget
17
applied the same principles in the
Pakistani case. In this case, the husband and the wife have initially been
Christians who had entered into marriage through a Christian ceremony.
Sometime after the wedding, the husband converted to Islam, asked his wife
to join him in embracing Islam, and, on her refusal, purported to divorce her
by talaq. The suit arose out of a petition to the court by the husband for a
declaration that he was no longer the husband of his wife. Mr. Justice
Changez refused the husband's petition but suggested obiter that he thought
the incidents of the marriage were converted into Islamic incidents at the
point of time when he embraced Islam: “It cannot be disputed that as soon as
a person embraces Islam, he at once becomes subject to the Muslim personal
and religious law and is completely cut off from his past. He accepts a new
mode of life and enters a new domain where his deeds, words, and actions are
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Al-Qamar, Volume 4, Issue 3 (July-September 2021)
governed by the laws of his new religion. So far as his individual personality is
concerned, there cannot be any doubt about it, that his future in all aspects of
his life becomes amenable to Muslim law, from the conversion to Islam”.
5. Concluding Remarks
Due to the obvious discrepancies between Islamic and modern law, the use of
“takhayur and talfiq” as a mediation mechanism to establish an “Islamized
modern legal system” has not achieved the desired results. In some Islamic
legal systems, the deeds, words, and actions are governed by the misconstrued
laws of the new faith. The provenance of each design's foundations of rationale
are discussed in the modern legal system, as are the variations in how takhayur
and talfiq are applied in each. Similarly to how a contemporary judicial structure
is concerned with the individuality of it's own rules, Shari'a is concerned with
the multiplicity of its domains. Apart from the distinct sources of authenticity in
the Muslim and contemporary regulatory frameworks, Sharia is divine, whereas
non-divine measures are used to validate advanced systems. Both systems have
very distinct approaches to the creation of legal rules. As a result, the Islamic
legal system adopted takhayur and talfiq as logical solutions for resolving the
issue of plurality. They are more commonly utilised as instruments in current
law to disguise modernity in an Islamic shape in order to be ethically
appropriate. The extraordinary challenge of establishing such a mixed legal
system has eluded the goals of modernity in legal practise. Judges, jurists, and
attorneys struggled to understand the essence of the legal system, adding to the
uncertainty of the legal process. The presence of Islamic schools in several laws,
particularly personal standing and family law, has an impact on the legal system's
hybridity.
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1
David Weslow, "Features Forum in the US and Europe,"
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Legal Forum Shopping (
Takhayyur and Talf
īq) in Islamic Family Law
2
Ann Laquer Estin, “Marriage and Divorce Conflicts in International Perspective,"
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1(2016):485-497.
3
Ibid.
4
Michael J.T. McMillen, “Islamic Law Forum
," SSRN E-Journal
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5
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Anthony Fitzsimmons, “Forum Shopping: A Practitioner’s Perspective,"
The
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7
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8
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9
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10
Moeen N Cheema, “Beyond Beliefs: Deconstructing the Dominant Narratives of
Islamization of Pakistan’s Law
," SSRN E-Journal,
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https://www.jstor.org/stable/41721691.(Last accessed:4th November 2021).
11
Imani Jaafar-Mohammad, "Women's Rights in Islam Regarding Marriage and Divorce,"
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12
David Pearl, “INTERNAL CONFLICT OF LAWS IN PAKISTAN (A comment on
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13
Aly Abdulrahman Ahmed, “Dilemma of applying Islamic shari'a through takhayur and
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https://fount.aucegypt.edu/etds.(Last accessed:9th November 2021).
14
Sally Engle Merry, “Legal Pluralism,"
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15
PLD 1967 SC 580.
16
[1953] 2 All E.R. 373.
17
[1962] 3 All E.R.
