• Divorce under current Muslim law

Hello,
Under current Indian muslim law, can an Indian man residing out of India legally divorce his wife through a Qazi without entering India?
Asked 4 years ago in Family Law
Religion: Muslim

4 answers received in 10 minutes.

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30 Answers

Yes,

You may give her the divorce as per the personal laws and later file a declaration suit and get a declaration that the divorce is valid, for filing the declaration suit you will have to come to india.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Yes he can divorce his wife as per Muslim personal law without coming to India

Divorce notice should be preceded by attempts at reconciliation

3) fix date and time for reconciliation meeting

4) your virtual presence through Skype is sufficient

5) issue 3 consecutive monthly divorce notice

6) contact a local lawyer in India

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Any foreign country court order of divorce is valid as per mutual consent divorce.

If it is granted as per Muslim Law, still wife's file for divorce litigation under Special Marriage Act.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

You will have to check with the local court if they allow for your presence through video conferencing,

Otherwise ask her to file a divorce petition, and thereafter you do not appear and the court will pass ex-parte order.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Deed for dissolution of marriage by mutual consent can be drafted by your lawyer

2) it should be attested by 2 witnesses

3) pay wife settlement amount

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Deed should mention that all efforts at reconciliation have failed

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

You can get divorce through Muslim personal law through a Qazi without entering India.

Talaq-e-Hasan" is the 'proper' form of talaq. In this form, three successive pronouncements of talaq are made by the husband in three successive tuhrs (when the woman is not menstruating). In case of a non-menstruating woman, its pronouncement may be made after the interval of a month or thirty days between the successive pronouncements. This form of talaq can be revoked any time before the third pronouncement.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

If your wife has agreed for settlement, you can go for mubarrat. In Mubarrat, the aversion is mutual and both sides desire separation. In this mode of divorce, the offer may be either from the side of wife or from the side of husband. When an offer Mubarrat is accepted, it becomes an irrevocable divorce and iddat is necessary.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

You will have to get a talaqnama crafted by some lawyer and get it executed by taking signatures of your wife and yourself.

After that, you will need to approach court by filing a suit for declaration in order to get a valid decree of divorce dissolving your marriage.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

If you don't want to be personally present in court you can take use of video conferencing facility by filing an application for the same or can give power of attorney to some person in India to represent you in court.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

You can execute POA in favour of family member to execute deed of divorce by mutual consent

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1) Why don't u pronounce triple talak to her which is as if now prevelant & exceptable in Sunni laws u can dissolve ur marriage as per dissolution of Muslim marriage act 1939. There r no of points on which u can prepare ur case & file the suit.

2) You can divorce as per Muslim law which will take 3 months , and on certain date fixed you will divorce your wife saying that you are giving talaq , then on next month after 30 days you will again say that and then again after 30 days you will do the same in front of qazi and 2 witnesses. The whole proceeding be drawn on paper each month. In between you can resolve your dispute with your wife and if you cannot you can proceed. After the whole proceeding you can get the said talaq be declared by Court by filing a suit for declaration in family court.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Hello

The divorce proceedings can only be initiated when you come to India.the triple talaq has now been declared illegal and hence physical presence is necessary for the divorce.

Regards

Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

If wife is agree then she can dissolve the marriage by following a procedure of khula (arbitration). in case if she is not agree then husband can Divorce talaq wife through Qazayath Daftar Qazi, but in This procedure husband and wife need to stay together 3months 10days in same house after completion only marriage will be Dissolved.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

Hello,

Under current Indian muslim law, can an Indian man residing out of India legally divorce his wife through a Qazi without entering India?

And. You need to send 3 divorce notices to your wife, each in a month. The divorce will become final with you giving the last ad final notice of divorce to your wife in the 3rd month. No need to involve a Qazi.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Three pronouncements of talaq 1 each in 3 successive months (menstrual cycles) with abstinence throughout that period. How it works is like this: : If the husband says Talaq but the couple make up within the first month, talaq is revoked. If the husband doesn't follow up by pronouncing talaq in the following month, the divorce is again considered void. And the same goes for the third month. Essentially, the husband has to pronounced talaq for three consecutive months for, divorce to be irrevocable.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Pronounce talaq through a notice of talaq, which can be given from abroad as well.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Dear Sir,

Now Supreme Court directed the sub ordinate courts that is family court to record mutual divorce by way of video recording if one the spouse is residing abroad. In this background your divorce by any of the following recognized methods is acceptable without your presence in India. The relevant judgment and various procedure of divorce by Muslim are as follows:

Lower courts to use video conferencing to hear divorce, custody cases

The Supreme Court has asked lower courts to use video-conferencing facility in divorce, custody and other matrimonial cases when the estranged couple live in different cities, an order aimed at speedy disposal of such disputes.

Disagreement between a husband and a wife over the place of hearing is one of the biggest reasons for delays in matrimonial cases.

Typically, the woman’s choice is given a priority and the case moved to the place where she lives.

But transfers can only be ordered by the Supreme Court, which is flooded with such petitions that can take years to be resolved.

“... the litigants have to travel to this court and spend on litigation. Question is whether this can be avoided,” said a bench of justice AK Goel and justice UU Lalit in the order issued last week, adding technology ought to be utilised to avoid delays in such cases.

It was not possible to ignore the problems a husband faced in contesting a case at a place convenient to the wife, the court said.

“We are thus of the view that it is necessary to issue certain directions which may provide alternatives to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred, it will result in denial of justice,” it said.

Trial courts should use video-conference calls for recording evidence instead of insisting on personal appearances during hearings.

The direction came on a three-year-old transfer plea by a woman who wanted her divorce case to be moved from Jabalpur in Madhya Pradesh to a court in Hyderabad, where she lived with her minor daughter. The two cities are at least 700km apart.

The case was filed in Jabalpur where her estranged husband resided.

The bench directed high courts to issue orders to regulate the use of video conferencing for trial courts.

If any or both sides ask for the facility, proceeding should be conducted through video conferencing, the court said.

Judicial process in India is painfully slow as courts are saddled with a huge backlog. At the last count, around 28 million cases were pending in various court of the country.

DIVORCE BY MUSLIM HUSBAND

Modes of Divorce:

A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq only in form, not in substance. A wife cannot divorce her husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. Under an agreement the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the court.

There are two categories of divorce under the Muslim law:

1.) Extra judicial divorce, and

2.) Judicial divorce

The category of extra judicial divorce can be further subdivided into three types, namely,

• By husband- talaaq, ila, and zihar.

• By wife- talaaq-i-tafweez, lian.

• By mutual agreement- khula and mubarat.

The second category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.

Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means “setting free”, “letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words. In other words talaaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law.

The following verse is in support of the husband’s authority to pronounce unilateral divorce is often cited:

Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower) . When the husband exercises his right to pronounce divorce, technically this is known as talaaq. The most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and the Shias recognize it differing only in some details. In Muslim world, so widespread has been the talaaq that even the Imams practiced it . The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaaq; how he does it, when he does it, or in what he does it is not very essential.

In Hannefa v. Pathummal, Khalid, J., termed this as “monstrosity” . Among the Sunnis, talaaq may be express, implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated forms of talaaq.

Conditions for a valid talaaq:

1) Capacity: Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.

2) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.

Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.

Shia law:

Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.

3) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is required to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.

According to Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be pronounced in the presence of two witnesses.

4) Express words: The words of talaaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

Express Talaaq (by husband):

When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express talaaq, falls into two categories:

• Talaaq-i-sunnat,

• Talaaq-i-biddat.

Talaaq-i-sunnat has two forms:

• Talaaq-i-ahasan (Most approved)

• Talaaq-i-hasan (Less approved).

Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.

The ahasan talaaq: consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has not been consummated. The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected expressly or impliedly.

Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I have retained thee” the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce.

The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this form, for human nature is apt to be mislead and to lead astray the mind far to perceive faults which may not exist and to commit mistakes of which one is certain to feel ashamed afterwards”

The hasan talaaq:

In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaaq, becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr. Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the first pronouncement by express words. Then again, when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters her third period of purity and before any intercourse takes place H pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat.

Talaaq-i-Biddat:

It came into vogue during the second century of Islam. It has two forms: (i) the triple declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

Let the wife go for the divorce application and you having for the diamonds the current changes a bit different in The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 then the Sharia law and the Talaq in any form is void and punishable.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Hello,

I would like to suggest you to present for the day when the court will pass the final decree.

Hope this helps.

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

Sir first issue her a notice for her behaviour and cruelty. A notice can be sent then with the qazi and a local lawyer after 3 months of notice you can give her a divorce in accordance to Muslim personal law. This can be done from UK.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

The efforts of mediation though is required after notice for that you can fix a date and come to India or if wife or mediator agrees you can do same through skype.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Then if the wife is ready a deed of the divorce can be made and she can sign same and notarise in India and then same can be sent to you in UK and you can sign it.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Sir it would be better you mutually decide the settlement amount sign a deed of divorce and then file a declaration of divorce in India through a POA in the family court,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Hi,

To avoid any complication, the better is that the husband visits India and gives divorce as per personal law.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

You can execute POA in fovor of relative than he can execute talaqnama on your behalf. No need to come india.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Talaq-e-Ahsan" is the 'most proper' form of talaq in which the husband expresses divorce in single sentence - "I have divorced thee" - during the period of tuhr (when the wife is not menstruating) and then has to wait till the iddat period is over. ... "Talaq-e-Hasan" is the 'proper' form of talaq.

You can send the communication to this effect from abroad

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

is there any other way out without coming to India. The wife agrees to the settlement.

If the wife agrees for divorce why dont you go for khula?

No doubt for this you both have to agree together before a witness.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

here wife is not against divorce. she is being given money and happy with it. just the husband does not want to come to India for this. What is the way to do this?

The government has amended the Muslim Women Protection of Rights on Marriage Bill to take the Opposition parties on board. The Bill outlaw instant triple talaq but triple talaq still stays valid and legal.

Talak e ahsan is the valid form divorce.

The Supreme Court in August 2017 declared talaq-e-biddat unconstitutional and not an essential part of Islam. But triple talaq was not banned. It is still legal and valid.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

all reconciliations efforts have failed.

You can follow the procedures for Talak e Ahsan, which is the valid form of divorce and acceptable, this communication can be sent to her from abroad also but with a witness.

You do not have to come to India for this purpose especially if she is not having any objection to this.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

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