• Marriage Act

I am Buddhist by birth. I got married in 2006 with a Muslim guy under Muslim Law I.e. first I accepted Islam and then the Nikha / marriage formalities were carried out as per Muslim Law. Then we were blessed with two kids. Later in 2013 we applied for marriage certificate which was required for passport. The marriage certificate has been issued to us as per Fifth Schedule (under section 16). Now we mutually want to get separated. 
My query is that now which law prevails in our case, Shariat Law or Special marriage Act law? Please guide me with your valuable legal opinion.
Asked 4 years ago in Family Law
Religion: Muslim

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17 Answers

if marriage is registered under provisions of special marriage act you would be governed by provisions of special marriage act

2)provisions of Muslim personal law would not prevail

Ajay Sethi
Advocate, Mumbai
87915 Answers
6207 Consultations

5.0 on 5.0

1. The subsequent registration of marriage under Special Marriage Act has no force of law as by that time you had already converted your religion and no marriage between two Muslims can be can be registered under SMA.

2. In that event your previous marriage under Sharia Law holds good and hence you will have to seek divorce under the said law only.

3. To do so you can file a suit for dissolution of marriage under Muslim Marriage Dissolution Act.

4. The marriage certificate issued under SMA is a non est under the eye of law.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

As you professed to islam and married according to islamic tradition, it is the shariat law which governs the separation of the parties to the marriage.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

Dear Client,

Conversion to islam for marriage is not valid.

Your married is effected and registered under special marriage act and subject o same act.

Dissolution of marriage and other relief like Alimony pendente lite, Permanent alimony and maintenance,Custody of children, will govern by SMA.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

As the certificate is issued under Special marriage act the application of same will be there. And since there is a mutual.consent divorce there is no conflict with the marriage certificate you can file a joint petition under section 28 special marriage act.

Section 28. Divorce by mutual consent

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the avertments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Hi, If your marriage is registered under Special Marriage Act then you have to apply for divorce under the Special Marriage Act.

2. Suppose, if it is not registered under Special Marriage Act, then the marriage is not valid one.

Pradeep Bharathipura
Advocate, Bangalore
5395 Answers
310 Consultations

4.5 on 5.0

Shariat law will be applicable in your Case. Special marriage Act is only applicable in cases in which marriage is solemnized under the said Act.

Prashant Nayak
Advocate, Mumbai
27245 Answers
88 Consultations

4.4 on 5.0

1. Special law does not prevail, since the marriage took place as per the personal laws.

Therefore, divorce shall take place as per the shariat laws and not otherwise.

Contact a local lawyer for the same.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Your Marriage comes under The Special Marriage Act and you have to file for divorce under same act.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

In case of yours the Shriya law will be applicable as you have converted before the marriage you need to apply for the divorce as per the Sharia law

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Since your were originally married under Sharist law, that is the valid marriage, The subsequent registration of marriage under special marriage act is mere confirmation of the marriage.

However you can obtain divorce under Shariat law, if it is by mutual consent, then by 'Khula' or you can apply for divorce under the provisions of section 2 of the dissolution of muslim marriage act, 1939;

Alternately you can file a divorce suit to declare the marriage solemnised under the Muslim personal law as dissolved for the reasons stated therein and the marriage registered under special marriage act declared as cancelled owing to the dissolution of the marriage originally solemnised under Shariat law.

You can discuss with a local lawyer on all such further issues and proceed as per the advise rendered.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

1. You were married following Sharia i.e. Muslim Law being converted to Islam.

2. Your divorce also should be as per Sharia.

3. You can pronounce talaq thrice after the prescribed period and then send the talaqnama through the local Quazi.

4. Alternatively, she can seek Khulla as per Sharia and get the divorce as per Sharia involving the local quazi and obtaining the appropriate Quazinama.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

You can very well go under Special Marriage Act.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Shariat Law will apply to you regarding the divorce, if both of you are ready to dissolve your marriage then first of executing a Talaq-E-Mubarat(Mutual Consent Divorce by Islamic Law) and then file the civil suit for the declaration before the Family Court based on your Talaq-E-Mubarat.

the Court may pass an order regarding the declaration of divorce within a week.

Feel Free to call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

In my opinion, it will be under the Special Marriage Act as it has an overriding effect on the personal law of the parties.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

Hello,

File a suit under section 28 of the special marriage act .

Hope this helps .

Regards.

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

Hi,

In your case Shariat law is applicable.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

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