Haque v Haque

[1962] HCA 39

HIGH COURT OF AUSTRALIA

Dixon C.J., Kitto, Menzies and Owen JJ.

HAQUE v. HAQUE

(1962) 108 CLR 230

2 August 1962

Private International Law

Private International Law—Domicil—Indian resident in Western Australia for twenty-nine years apart from three visits to India—Muslim—Carrying on family business in Western Australia—First wife and two children residing in family home in India—Second wife and two children residing in Western Australia—Indian domicil of origin retained.

Decision

August 2.
THE COURT delivered the following written judgment:-
The proceeding before us consists in an appeal and a cross-appeal from a judgment of the Supreme Court of Western Australia given on 7th November 1961. The judgment was given in an action which, as it began, presented features that were unusual, but was not complicated; such complications as there are it acquired as it proceeded. It was a claim by two infant children of one Abdul Haque deceased, a son named Saiful and a daughter named Farida, and by Azra Haque, their mother, against Nural Haque, the deceased's brother, to whom probate of his will had been granted as the executor named therein. The will constituted him universal legatee and devisee subject only to some precatory words imposing no trust but expressive of a desire on the part of the testator that Nural should distribute one third of the property amongst charities according to Islamic law and dispose of the other two thirds according to Islamic law. The claim was based upon an agreement under seal made between the deceased Abdul and the plaintiff Azra immediately before their marriage, which was celebrated at Perth on 23rd September 1951 according to the rites of the Muslim faith. Nural Haque was sued upon the agreement as executor but he was also named as defendant in his personal capacity: for the agreement provided in effect that the plaintiff Azra and her children should be entitled to all the rights to the deceased's property which Muslim law allowed and these rights would override the defendant's title under the will. The defendant Nural Haque resisted the enforcement against him of the agreement on various grounds. He said that the Muslim marriage at Perth was no marriage and the agreement thus contemplated cohabitation outside matrimony and accordingly could not be enforced by the Courts of Western Australia. He said that, however that might be, Abdul had divorced Azra according to Muslim law and therefore the agreement according to its true construction would not avail her: for Muslim law, though it entitled a wife to share in her deceased husband's property, gave no share to a wife whom her husband had divorced in his lifetime. In the course of the proceedings in the action in the Supreme Court it appeared that, before his marriage in Perth to Azra, Abdul had married a first wife in India. Her name is Kulsum Bibi and there are two daughters issue of the marriage: they are named respectively Sufia Ahmed and Jebon or Jabonessa Begum. The learned Chief Justice caused these parties…