KARIM

                                                   Interim Decision #2222




                             MATTER OF KARIM

                        In Visa Petition Proceedings

                                  A-19168493

                    Decided by Board August 20, 1973
While there are several methods to obtain a legal divorce under Pakistani law,
 irrespective of the method followed, certain procedures outlined in sections 7
 and S of the Muslim Family Laws Ordinance (1961), XIV The Pakistan Code 67
 (1967), must be complied with (1) the husband (or wife, if she initiates the
 divorce; or the court, if the wife seeks a khula divorce in court) must notify the
 Chairman of the Arbitration Council in writing of the desire for a divorce; and
 (2) within 30 days after receipt of this notice, the Chairman must begin
 reconciliation proceedings. In the absence of evidence in the instant case
 showing that beneficiary's first wife complied with the above procedures in
 obtaining the purported Pakistani divorce from beneficiary, the legal termination of beneficiary's first marriage and, hence, the validity of his subsequent
 marriage to the United States citizen petitioner have not been established for
 immigration purposes.

  The United States citizen petitioner applied for immediate
relative status for the beneficiary as her spouse under section
201(b) of the Immigration and Nationality Act. The District Director denied the application in a decision dated August 7, 1972 on the
ground that the beneficiary's previous marriage- had not been
legally terminated. The petitioner appeals from that decision. We
agree with the District Director; the appeal will be dismissed.
   The petitioner and the beneficiary; a native and citizen of
Pakistan, were married in the State of Washington on August 23,
1971. The beneficiary was previously married in Pakistan. He has
submitted an affidavit in which he states that he and his first wife
were divorced by mutual consent through an exchange of letters
on July 25, 1970. He has also submitted three affidavits by his
former wife in which she states that she divorced him. In one of
these affidavits she states that the divorce took effect on November 5, 1967, while in the other two the effective date is given as
July 25, 1970.
   In response to our request, Mr. Krishan S. Nehra, Legal Specialist, American-British Law Division of the United. States Library of
Congress, has prepared a memorandum on divorce law in Paldstan, dated July 11, 1973. According to this memorandum, there

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 are several ways to obtain a legal divorce under Pakistani law. We
 shall discuss only those that are applicable to the case at hand.
   There are two types of divorce by mutual consent. One, called
khula divorce, involves an offer, made by the wife and accepted by
her husband, to compensate the husband if he releases her from
her marital duties. Once the offer is accepted, the divorce is
immediately effective; its operation is not postponed until the
execution of the written document called the deed of khula or
khulanama, Library of Congress memorandum, supra at 4. (If the
husband refuses to grant a khula divorce, the wife may seek one
from the court, id. at 9.) The other divorce by mutual consent is
called mubara't. It is obtained when both parties desire separation, instead of at the instance of the wife. Otherwise it is like the
khula, id. at 5.
   Whether either of these mutual consent divorces can be obtained through an exchange of letters is questionable. Among
Sunni Muslims the divorce (talaq) may be written or oral and need
not be pronounced in the presence of the wife. However, without a
written document, proof of such a divorce is difficult, id. Among
Shia Muslims the talaq must be pronounced orally in the presence
of the wife and two competent witnesses in a set of Arabic words,
id. at 5-6. Such a divorce communicated solely in writing is not
valid unless the husband is physically incapable of speech, id. at 6.
It is not known whether the beneficiary or his wife is a member of
either of these groups.
   Although' there is a discrepancy in the date of the purported
divorce in the wife's three affidavits, she clearly states in all three
that she divorced her husband. Nowhere does she mention.divorce
by mutual consent or any exchange of letters. Under Pakistani
law, IX The Pakistan Code 716 (1966), a wife may divorce her
husband on certain grounds, none of which appears to be applicable in this case or is mentioned in her affidavits. Under Muslim
personal law, a wife may divorce her husband if he has delegated
that power to her. No proof has been offered that such a delegation of power was made in this case.
   No matter which of these or other methods of divorce is resorted
to, certain procedures, outlined in section 7 and section 8 of the
Muslim Family Laws Ordinance, 1961, XIV The Pakistan Code 67
(1967) (See Appendix), must be followed; (1) the husband (or wife, if
she initiates the divorce; or the court, if the wife seeks a khula
divorce in court) must notify the Chairman of the Arbitration
Council in writing of the desire for a divorce; and (2) within 30 days
after receipt of this notice, the Chairman must begin reconciliation
proceedings. The divorce does not become effective until the


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expiration of 90 days from receipt of the notice by the Chairman,
Library of Congress Memorandum, supra at 3, 4, 5, 9 & 10.
   The record is ambiguous as to the method by which the purported divorce was obtained, and there is no evidence tending to
show that the above procedures were followed. Without this
evidence, we are in no position to conclude that the marriage
between the beneficiary and his first wife has been legally terminated in accordance with Pakistani law. Consequently, we cannot
recognize as valid for immigration purposes the subsequent marriage between the beneficiary and the petitioner, upon which the
visa petition depends.
   Although we must dismiss the appeal, the beneficiary is not
precluded from seeking a divorce from his first wife under local
United States law, remarrying the petitioner, and having the
petitioner submit another visa petition in his behalf.
   ORDER: The appeal is dismissed.

                            APPENDIX

          THE MUSLIM FAMILY LAWS ORDINANCE, 1961
          ORDINANCE NO. VIII OR 1961 [2d MARCH 1961]




  7. Talaq [divorce]—(1) Any man who wishes to divorce his wife
shall, as soon as may be after the pronouncement of talaq in any
form whatsoever, give the Chairman [of the Union Council of the
Ward where the wife resides] notice in writing of his having done
so, and shall supply a copy thereof to the wife.
  (2) Whoever contravenes the provisions of sub-section (1) shall be
punishable with simple imprisonment for a term which may
extend to one year or with fine which may extend to five thousand
rupees or with both.
  (3) Save as provided in sub-section (5), a talaq unless revoked
earlier, expressly or otherwise, shall not be effective until the
expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
  (4) Within thirty days of the receipt of notice under sub-section
(1), the Chairman shall constitute an Arbitration Council for the
purpose of bringing about a reconciliation between the parties,
and the Arbitration Council shall take all steps necessary to bring
about such reconciliation.
  (5) If the wife be pregnant at the time talaq is pronounced, talaq
shall not be effective until the period mentioned in sub-section (3)
or the pregnancy, whichever be later, ends.

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Interim Decision #2222—Appendix
   (6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the
same husband, without an intervening marriage with a third
person, unless such termination is for the third time so effective.
   8. Dissolution of marriage otherwise than by talaq—Where the
right to divorce has been duly delegated to the wife and she wishes
to exercise that right, or where any of the parties to a marriage
wishes to dissolve the marriage otherwise than by talaq, the
provisions of section 7 shall, mutatis mutandis and so far as
applicable, apply.




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