• Divorce, special marriage act, sharia law, desertion, remarry

First query -marriage took place in Aug 2010 by nikah and one month later for travel formalities court marriage as IN special marriage done in Sept 2010.. So is the court marriage null and void because nikah was already done with the same person. 

Second qstn - marital life not good and wife living separate since Jan 2013 and gone to new York usa... Emails to this effect are with me.. On the advice of lawyers I met I should start divorce procedure on the basis of desertion.. Is there any other way we can proceed with divorce asap apart from desertion... Can a mutual divorce be possible if she is in usa and can't come back but is willing for divorce..? 

Third qstn - now after two years of separation I hav met a woman n would like to be with her.. Can I marry her under sharia law.. Marry by nikah.. The first wife rather ex wife has already sent an email sayin she has no issues if I remarry.. If not marry can I live In with my current relationship... Are these criminal offenses like bigamy and adultery? Thank you please reply. Also please do not tel me fastest way mutual divorce etc because she is not here so her presence is required for mcd which is not possible... Also is there a way where people abroad can appear through video conference Skype etc for mutual divorce... Please read and reply to all three qstns asked above.. Thank you appreciate it.
Asked 2 years ago in Family Law from Thane, Maharashtra
Religion: Muslim
1) your marriage solemnised under provisions of Special marriage act is valid . 

2)you can file for divorce on grounds of cruelty . if wife after service of summons agrees petition can be converted into divorce by mutual consent . 

3) wife can give POA in favour of relative to file for divorce by mutual consent . she can give her consent through video conferencing . 

4)no you cant remarry during subsistence of your earlier marriage as your marriage has also been solemnised under provisions of Special Marriage Act 

5) you cannot have live in relationship with her . your wife can file case of adultery against you .
Ajay Sethi
Advocate, Mumbai
23383 Answers
1228 Consultations
5.0 on 5.0
Hello,

1) If you married under Special Marriage Act it remains a valid marriage despite your earlier marriage by nikah.

2) If you file for divorce on grounds of desertion and cruelty and successfully serve summons on her in the US and if she does not attend the court at all, you can get an ex-parte divorce order. However it will take long.

3) Divorce by mutual consent is a better option.Your wife can give  POA to a third party to file for divorce on her behalf.Some states like Delhi allow statement of one party to be recorded through power of attorney.Some Courts along with power of attorney also conduct video conferencing for Mutual Consent Divorce. Therefore video conferencing is possible to provide consent by one party.

4) You can not marry someone until you have divorced your wife and obtained a Decree of Divorce from the court.

5) You can be tried for adultery if you maintain a new relationship while your marriage is subsisting.As you said if the new relationship has the seal of approval from your wife, you may take the obvious risk of entering into a living in relationship.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1. What was the need to do court marriage when you had married as per the customary law. You could have subsequently registered your marriage if it was required for official purposes. Be that as it may, your nikah remains legally valid even if you subsequently married under Special marriage Act.

2. You may now file for divorce on the ground of cruelty against your wife. The court notice would be  sent to her in US whereupon she will get an opportunity to contest the divorce proceedings initiated by you.

3. You should talk to her to explore the possibility of mutual divorce which would come through very quickly.

4. To get mutual divorce your wife is required to personally appear in the court. Courts do not allow video conferencing in such cases. 

5. You can neither marry this woman nor have a live in with her as this would attract your prosecution for adultery and bigamy.
Ashish Davessar
Advocate, Jaipur
18256 Answers
450 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:

First query -marriage took place in Aug 2010 by nikah and one month later for travel formalities court marriage as IN special marriage done in Sept 2010.. So is the court marriage null and void because nikah was already done with the same person. 
Opinion: Nikah is valid and subsequent marriage under Special Marriage Act has no value, Because the Muslim Women can not remarry without Divorce, even to her husband. 

Second qstn - marital life not good and wife living separate since Jan 2013 and gone to new York usa... Emails to this effect are with me.. On the advice of lawyers I met I should start divorce procedure on the basis of desertion.. Is there any other way we can proceed with divorce asap apart from desertion... Can a mutual divorce be possible if she is in usa and can't come back but is willing for divorce..? 
Opinion:- Pronounce Divorce is Husband's Religious right and nobody can interfere or stop him to do that, divorce proceedings before court is not required for husband. Pronounce Talaaq Before two witness is sufficient and after that send a talaqnama with Mahr(if not paid) and three months Iddat period Maintenance.


Third qstn - now after two years of separation I hav met a woman n would like to be with her.. Can I marry her under sharia law.. Marry by nikah.. The first wife rather ex wife has already sent an email sayin she has no issues if I remarry.. If not marry can I live In with my current relationship... Are these criminal offenses like bigamy and adultery? Thank you please reply. Also please do not tel me fastest way mutual divorce etc because she is not here so her presence is required for mcd which is not possible... Also is there a way where people abroad can appear through video conference Skype etc for mutual divorce...
Opinion: Muslim man can marry till 4 without the divorce from existing wife, hence, you are free to get married with another lady as per Islamic law. Bigamy will not be applicable, even not adultery.
There is no need for MCD, pronounce Talaq Thrice before two Muslim Witnesses.
Contact personally over the phone after getting my detail from admin.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1. Your Nikah is valid if both of you are Muslim,

2. You can divorce her by pronouncing tripple talaq  before two witnesses and send the talaqnama issued by the Quazi strictly following shariat law,

3. You can marry another girl even without pronouncing talaq as per Muslim Law stiil it is suggested that you remarry after issuing Talaqnama to your present wife.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
14158 Answers
128 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23383 Answers
1228 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18256 Answers
450 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2792 Answers
41 Consultations
4.9 on 5.0
Atulay Nehra
Advocate, Noida
444 Answers
15 Consultations
4.7 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
5.0 on 5.0
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0