• Remarriage after not registered Islamic verbal marriage and divorce

Hi
I am Indian Punjabi holding UK citizenship and legally divorced. I am seeing a Girl who is of same caste and was previously married to a Muslim guy. The marriage was solemnized in 2007 as per shariah law in presence of maulana qazi and two witnesses. The girl was given temporary Muslim name (after reciting a line) which was not advertised in newspaper or any other legal document. 
The marriage was never registered in any council or court, neither the Nikkahnama was issued. 

In 2013 the couple decided to have a mutual divorce as per triple talaq system, there was no talaaknama made and it was a verbal seperation.

In the same year they both signed a 100Rs notarized document called 'Deed of Divorce' and as per shariah act,1937 in which the guy has mentioned the original date of 2007 when the marriage solomonized. (please note that the marriage was not registered in any govt document or council). The ex husband also mentioned that he is seperating by means of triple talaq in front of witnesses and thereby ending a marriage with mutual consent.
The agreement also states that now none of party have any right to interfere in each other's life and both of them are at liberty to get married again with their will and none of the parties can claim any maintenance or alimony and any legal action for any future decisions in india or abroad. (The description of document was article 29 divorce.) The deed of divorce document carries the original sikh name and her Muslim alias. There were no joint bank accounts and the girl has also always used her regular sikh name and signatures on any other govt documents (adhaar card or PAN card etc).


Questions:
1. Without any formal documentations and signatures (on nikahnaama or in court), is this really a marriage as per special marriage act in India? 

2. If this is not a marriage, should i apply for her uk spouse visa as single/unmarried?

3. Is the Notorized document with signed deed of divorce sufficient to prove the legal seperation in future (if needed)?

4. Should a girl apply for a passport as single and never married, as the previous marriage was not registered and nikahnaama not signed or issued. Will UK govt or Visa issuing authority can ever question her previous marriage if not disclosed as there is no legal/court proof or certificate?

I am seeking a genuine opinion which should not become a bottleneck at later stage. I am open to discuss and know in the forum if anyone has experienced similar case. 

Thank you in Advance.

Suhaas Kher
Asked 4 years ago in Family Law
Religion: Sikh

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11 Answers

Hi Suhaas,

1) She has married as per Muslim law and got divorced accordingly.

2) You can apply for uk visa as single mentioned that she is divorcee so you will be not in trouble in future.

3) Actually the divorce documents should be signed by kazi.

4) see point no 2.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

hello

the girl married a Muslim guy and then adopted a Muslim name and converted to Islam as is the norm. now they got divorced in 2013. the girl is technically a Muslim as she converted to Islam when she got married. therefore if you wish to marry her, you can do so but only under the SMA.

if she reconverts to Hindu (Sikh) then you can perform Arya samaj marriage followed by a registered marriage.

the divorce took place in 2013 when triple talaq was still legal in India, therefore, it is the intention of the parties which alone matters and in this case the parties have wilfully stated that.

the first marriage of the girl was not under the special marriage, it was a nikaah as she converted to Islam.

yes, the document is sufficient as there are 2 witnesses too.

the present status of the girl is of a divorcee, she is a Muslim. you should not apply for a visa as single and unmarried.

regards

Rahul Mishra
Advocate, Lucknow
13755 Answers
65 Consultations

5.0 on 5.0

Marriage was solemnised as per Islamic law and not as per special marriage act

2) notarised deed of divorce proves that marriage is dissolved

3) she should in her passport application mention she is divorced

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

Firslty, Sir, as per the Hindu law marriage is the sacred one in our country.

Secondly, but, in Muslim religion, it is considered to be a contract rather than a sacred one.

Thirdly, triple takeaway is still in force in India, and the notarised document is truly valid.

Fourthly, and, she should fill the form as un married as once the girl is divorced then she considers to be as an unmarried.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

1. Since they married as per Muslim religion rites, their marriage was governed by Muslim personal law hence the triple talaq even pronounced orally will be a valid form of dissolution of their marriage.

The deed of divorce , if the contents in it are as what you have narrated here then it is a valid divorce between them.

2. You can apply for her visa under marital status 'divorcee'

3. Yes, it is valid.

4. Since their marriage was solemnised as per Muslim religious rites, this can be treated as valid marriage and the talaq given by a deed of divorce is a valid divorce or dissolution of marriage.

Hence she has to give marital status as divorcee.

For further clarifications you can contact any lawyer of this forum and have a proper discussion by booking a consultation with the selected lawyer.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

1) you cannot show lady status as single

2)lady has to file petition for declaration under section 7 of family court act that marriage is dissolved by deed of divorce

3) your understanding is correct that she got married as per religious rites

4) for valid marriage lady needed a conversion certificate issued by quazi for conversion into Islam

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

Hi,

Instead of showing her single, you may show her divorcee. The said divorce may be valid in India. Your understanding is correct but today also many marriage remain unregistered.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

1. You cannot produce a certificate which is non-existent.

Instead you can show her as single or unmarried for getting visa provided there is no complication from her husband side...

3. Deed of divorce is not a valid divorce as per Indian laws.

4. It is your understanding

5. You are getting confused by putting complicated questions.

As per Muslim personal law this marriage is valid, if you want to dissolve her marriage then she has to approach court with a petition seeking to dissolve the marriage under section 2 of dissolution of muslim marriage act.

The court decree of divorce will be valid anywhere.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

Hello

If you are showing that your wife is a single there is nothing wrong in that. But if they ask for further details you have to mention about her marriage conversion and the subsequent talaq/divorce. Tgere is no such thing a judicial proof. The process of registration only tells that a marriage has been performed and it has been registered in the govt records. In your case the marriage was performed but it was not registered as they didn't feel the need to. Now the divorce was also not registered.

The Muslims never marry outside their religion and they convert anybody who wants to marry them and then only they marry him/her.

Therefore your wife is a Muslim for all practical purposes as you have stated that she was given a name.

The marriage was legal as of now she is a Muslim. The marriage and the divorce should be registered and then she can apply for a visa.

In case you want to disclose these issues to the Authorities that is your call but her former spouse or his relatives or anybody may complain to the Uthorities and then you may get into trouble.

It is a decision you have to make...depending upon the situation there.

Regards

Rahul Mishra
Advocate, Lucknow
13755 Answers
65 Consultations

5.0 on 5.0

1. She had not married the Muslim man as per Special Marriage Act at all. She had married as per Sharia after getting converted to Islam which has been recorded by the Moulavi as per the practice in his records. The Moulavi might also have issued the Nikahnama which is in custody of her husband. May be that the formal Nikahnama has not been collected by the husband. She can now met the Moulavi and collect the copy of the Nikahnama from him as an evidence of her marriage to that man. Without first establishing her marriage which might have ben recored by the Moulavi as per the practice followed, she can mot claim that talaq was given by her the then husband.

2. It can not be stated that it was not a marriage. if it is ever established that she had married as [per sharia to the other person then you can not apply for her spouse Visa and she also can not apply for Visa as a single/unmarried person. If ever caught otherwise, she will never get Visa in her lifetime. So, she should get her records straight first as per law.

3. Legal separation is not called divorce. Moreover, decree of separation or divorce can not be mutally obtained by notarising statements.The divorce shall have to be either though Talqnama endorsed by the Moulavi or as per decree of divorce passed by the appropriate Court of law.

4. The girl should meet her Muslim ex-husband and the Moulavi and collect the Talaqnama appropriately issued/endorsed by the Moulavi as per Shariat and then apply mentioning her status accordingly. If she can not get the talaqnama endorsed by the Moulavi then she can get the said endorsement of the Moulavi (if possible putting the appropriate back date) on the affidavit she and her ex-husband had notarised affirming their triple talaq in presence of witnesses.She should never claim to be never married while filing application for Visa.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. As per practice, ordinarily the Quazi records the marriage in his register but may or may not issue the Nikahnma and such absence of Nikahnama does not nullify the sid marriage. However, since she requires court paper to establish her marriage and tlaq, she should now file a Declaratory Suit before the Civil Court annexing the said affidavit affirmed by herself and her ex-husband praying for a declaration that they were married and also divorced as per Sharia for which neither any Nikahnama nor any talawnama was issued formally by the concerned Quazi/Moulavi. Once you get the said court order, it will suffice your purpose.You can thereafter apply for her spouse Visa.

2. There is nothing called Deed of divorce as per law in india.

3.It was a religious married which is valid as per law even if no formal Nikhnama was issued.

4. As per Hindu Marriage Act and also as per Sharia both the bride and the groom shall have to be of the same religion to make their marriage valid. Her name was changed i.e. she was converted to Islam which might have been recorded in the register of the Moulavi and such conversion can not be denied by her. She should also get reconverted to her earlier religion by following the procedure laid by the Gurudwara or temple as the case might be, before further proceeding, otherwise there might be legal problem in future. Her claim that the Quazi had not given her the certificate of conversion does not make her said conversion invalid.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

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