• Joint divorce petition by a couple who married under Islamic way

Born and brought up in Muslim families, my wife and I got married under Muslim custom of Nikah over 30 years ago. Now we mutually decided to secure legal divorce through a court decree. Both of us don't want to resort to existing laws governing personal laws of Muslims such as the Dissolution of Muslim Marriage Act, 1939 and the Muslim Personal Law (Shariat) Application Act, 1937. Is it possible for us to file a joint petition in the Family Court as citizens of this country as we don't want to uphold our religious identity as both of us are no longer practising Muslims?
Asked 4 years ago in Family Law
Religion: Other

3 answers received in 10 minutes.

Lawyers are available now to answer your questions.

19 Answers

Hello

Although your objectives are laudable...but the law says that if you were married as per the Islamic laws...divorce can only be granted by following the procedure as prescribed in the Dissolution of Muslim Marriage Act, 1939 and the Muslim Personal Law (Shariat) Application Act, 1937.

Therefore you can get divorce as per the Muslim laws only.

Regards

Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

Hello,

Since your marriage was solemnized as per muslim personal laws therefore marriage will only be dissolved as per the personal laws. In case you have left practising Islam then the marriage is automatically dissolved.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1) Yes, you both can get divorce under the Special Marriage Act.

2) You both should apply for the divorce in the court under Special Marriage Act.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

[Quran 4:35] If a couple fears separation, you shall appoint an arbitrator from his family and an arbitrator from her family; if they decide to reconcile, God will help them get together. God is Omniscient, Cognizant.

[Quran 2:226-227] Those who intend to divorce their wives shall wait four months (cooling off); if they change their minds and reconcile, then God is Forgiver, Merciful. If they go through with the divorce, then God is Hearer, Knower.

Under Muslim Law, there are two forms of mutual consent divorce, namely: Khula and Mubarat.In both these forms, the wife agrees to part or let go of her dower or a part of some other property.As per Muslim Law in a case of mutual consent divorce, the wife needs to pay some compensation for dissolving the matrimonial union.

Under Khula, the wife gives or agrees to give a consideration to the husband for her release from the marriage tie. Relieving the husband from payment of Mahr to the wife is also a consideration.

Under Mubarat, both husband and wife are against the continuation of marriage and want to separate.

Either the husband or the wife can make the offer.

The other must accept it.

When accepted, it becomes irrevocable

Iddat period necessary

Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end. However, the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaq, otherwise no divorce would result.

In both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both these forms, a divorce is essentially an act of the parties, and no intervention by the court is required..

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

you are Muslims by birth and have been married under Muslim personal law

2) divorce has to be obtained by you only under laws governing Muslims

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Sir since married under the muslim laws the proper forum and jurisdiction lies as per the Muslim law. Since the marriage in muslim law is as a contract so you both can sign mutual divorce agreement and then file a declaration suit in family court to declare your divorce mutually.,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Not Possible.

As your marriage is solemnized under Muslim rituals same shall be dissolved under Muslim law.

And no court can entertain any diovrce petition not filed under specific act governs that marriage.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Dear,

Yes it is possible to file joint petition in the family court.

In one decision in Chennai judge ordered that Muslim couple also

entitled for mutual divorce.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

Conversion won`t dissolve marriage automatically, court order will required.

The relevant date on which marriage solemnized both parties were Muslims, so marriage will dissolved under personal law only.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

If you both change your religion than you are govern by that particular custom.

So if you adopt Hindu religion then your divorce is commence through Hindu religion.

No boundation of Muslim law then.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

Yes still the governing law shall be the Muslim law as the marriage is solemnise under the muslim law. No your changing religion wont nullify your marriage. A simple agreement for divorce for mutual divorce is enough under the muslim law.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1)merely because you are non believers now does not help your case

2) you were born and brought u as Muslims and your marriage was solemnised under Muslim personal law

3)even if you convert you should divorce your wife under Muslim personal law

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

You can get divorce through law under which your marriage was registered. So you have to get divorce under Muslim Law only.

Even if you convert your religion you will need to file divorce under muslim personal law.

Abhilasha Wanmali
Advocate, Nagpur
1022 Answers
1 Consultation

4.8 on 5.0

As soon as you change the religion, your marriage becomes a nullity and you are not even required to take a divorce.

though there is no statutory provision to that effect in any of the personal laws, under the Islamic law, a husband who renounces Islam is an apostate, and as such,, his marriage with his Muslim wife is dissolved ipso facto.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

even if you change your religion, you cannot file for divorce under the new religion as you married under the old religion. but yes, Islam says that if one of you renounces his/her religion, the marriage becomes null and void.

regards

Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

1. One may have renounced his religion and embraced another religion or become an atheist, but in so far as the dissolution of marriage is concerned he is governed by the personal law under which he either married or was governed subsequent to marriage. So if you do not want to end the marriage under Shariah law then you may file a petition for mutual divorce under the Dissolution of Muslim Marriage Act, 1939. There is no uniform civil code in India.

2. The Supreme Court has made it clear that even if a person converts to another religion he is still governed by the personal law under which he married. So while you are free to convert to any religion of your choice the dissolution of marriage has to be under the Islamic law.

3. You are free to live separately, but becoming a non-believer will not nullify your marriage ipso facto.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Since your marriage was solemnised under Muslim personal law, the dissolution also should be via the same route.

The decision to renounce your religion cannot make any impact on this because of the fact that the matrimonial disputes cannot be solved without legal interference, it will not be recognise as valid divorce.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

The legal fact is that the marriage solemnised under Muslim law can be dissolved via the same law only even if you both convert into some other religion

The automatic cancellation is again via Muslim personal law only.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

1) In court one can go with Muslim law or special marriage act and can get divorce.

Why don't you apply as per Special Marriage Act and get divorce from court.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Ask a Lawyer

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