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Rahman v. Hossain

June 17, 2010

ARIFUR RAHMAN, PLAINTIFF-RESPONDENT,
v.
OBHI HOSSAIN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-964-08G.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 14, 2010

Before Judges Sabatino and J. N. Harris.

Defendant Obhi Hossain ("the ex-wife") appeals certain aspects of a Final Judgment of Divorce ("FJD") entered by the Family Part on June 19, 2009, following a default proceeding. In particular, the ex-wife seeks to vacate the trial court's disposition of equitable distribution, specifically its directive that the ex-wife refund to plaintiff Arifur Rahman ("the ex-husband"), the sum of $12,500 that had been paid to the ex-wife at the time of their wedding. We affirm.

The pertinent facts may be readily summarized. The parties were married in the State of Maryland on September 9, 2006. It was an arranged marriage, with both parties being of Bangladeshi descent. The ex-husband was from New Jersey and the ex-wife was from South Carolina. At the time of the marriage, both spouses agreed to be united "under the law of Islam." Pursuant to Islamic customs, a sum of $12,500 was paid to the ex-wife as an initial payment of "sadaq" or "mahr" by the ex-husband or his family.*fn1

The marriage was short-lived, and the parties cohabitated only briefly. According to the ex-husband, the ex-wife would sleep throughout the day, frequently take anti-depressants, refused to look for a job, refused to engage in marital relations, and did not sufficiently attend to her personal hygiene. About one year into the marriage, the ex-wife moved back to South Carolina and did not return to New Jersey.

The ex-husband filed a complaint for divorce or annulment in the Family Part in December 2007. The ex-wife, then represented by counsel, filed an answer and counterclaim, but her pleadings were ultimately suppressed and she ended up in default status. The default was not cured and the matter was scheduled by the court for a default hearing, pursuant to Rule 5:5-10, on issues of equitable distribution.

On April 6, 2009, the trial court conducted a default hearing. At that hearing, the ex-wife and her then-attorney*fn2 were present, but, because of the default posture, they did not present proofs or otherwise participate.

The ex-husband presented at the default hearing expert testimony from a New Jersey attorney knowledgeable in Islamic law. The court accepted him as an expert. Among other things, the expert testified that under Islamic law a marriage is a civil contract and that the payment and retention of the sadaq is contingent upon neither party having fault that leads to the termination of the marriage.*fn3 The expert opined that, under Islamic law and customs, the court would have the authority to order the $12,500 initial payment of sadaq to be returned, if it made a finding that the ex-wife was "at fault" in precipitating the divorce. The court also heard testimony from the ex-husband describing the circumstances that preceded the marriage and those which led to its demise.

Following the default hearing, the trial judge issued a letter opinion. In that opinion, the judge denied the ex-husband an annulment, finding that there were no misrepresentations that would suffice to satisfy the statutory grounds for such relief under N.J.S.A. 2A:34-1(1)d. The judge did grant a judgment of divorce to the ex-husband, because of the ex-wife's "failure to engage in marital relations, her unilateral move out of state, and her alleged failure to care for her personal hygiene[,]" all of which the judge determined to constitute extreme cruelty under N.J.S.A. 2A:34-2c.

The judge then turned to the question of the refund of the sadaq. Relying specifically on the uncontroverted testimony of the expert, the court found that the ex-wife's "undisclosed mental illness constituted an impediment to the marriage under Islamic law." Accordingly, the judge granted a judgment of divorce, with a finding of fault on the part of the ex-wife. The judge also found that the ex-wife had "omitted information of grave consequence at the time the marriage was entered into." For these reasons, the judge ordered the ex-wife to return the $12,500 within sixty days.

Lastly, the judge's opinion dealt with other incidental issues of equitable distribution. The judge concluded that the ex-wife was entitled to keep jewelry--which was valued by the parties at $15,000--that was given to the parties' as a joint present at the time of their wedding. However, the ex-wife was required to pay the ex-husband one-half of an appraised value of the jewelry.*fn4

On appeal, the ex-wife raises two arguments in an effort to set aside the trial court's ruling concerning the repayment of the $12,500 and the court's associated finding that she was at fault in precipitating the divorce. First, she contends that the ex-husband's expert on Islamic law had an undisclosed conflict of interest that disqualified him from testifying at the default hearing. Second, she asserts that the trial judge erred in finding that she was at ...


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