• Divorce as per Muslim law

I got married in May 2014 according to Muslim Rites. I served three legal notices to my wife for pronouncement of the TALAQ. I sent first notice on 26 July'18, second notice on 04 Sep'18 & third/last notice on 16 Oct'2018 with registered speed post. All three notices were well delivered to her. After that I filed a suit for declaration to get Decree of Declaration for Divorce.

My divorce is final on the basis of three legal notices or I have to wait for Decree of Declaration for Divorce.

I just want to know whether I followed a correct procedure or not..
Asked 5 years ago in Family Law
Religion: Muslim

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26 Answers

See the divorce is final based on notices but since you sought for declaration of same with court the the same would give validity to your divorce.

Since in muslims for man there is no court procedure for divorce same has to be done as per the personal law so by sending the notice you have correctly followed the procedure.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

In talaq e ehsan, once the husband pronounces talaq, there has to be a three-month iddat period to factor in three menstrual cycles of the woman. This time is meant for reconciliation and arbitration. During this period, if any kind cohabitation occurs, the talaq is considered to have been revoked.

As per Shariah law your marriage is dissolved and you had divorced your wife. 

 

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

If you have followed the norms of Sharia law then you will get the decree of divorce. Civil court can't interfere in your personal laws

Prashant Nayak
Advocate, Mumbai
31930 Answers
179 Consultations

4.1 on 5.0

1) No, it's not correct procedure, you have to pronounce in front of your wife or in absence of wife in the front of kazi or Maulana we can note it down and as per Muslim Personal Law grant a divorce certificate. After saying Talaaq words three times.

Ganesh Kadam
Advocate, Pune
12928 Answers
255 Consultations

4.9 on 5.0

Was divorce preceded by attempts at reconciliation? 

 

Were reasons mentiined for divorce in the notice ? 

 

Did you pay  wife meher amount and maintenance during iddath period ? 

Ajay Sethi
Advocate, Mumbai
94695 Answers
7528 Consultations

5.0 on 5.0

As per Sharia law, the husband has to pronounce talaaq to wife when she is in tuhr ie when she is pure and not menstruating

Then he should not have a sexual intercourse with her till she gets her periods 

If this is done in three successive tuhrs, and the divorce pronounced each time to her was communicated to her, then the divorce is complete and irrevocable 

The above form of giving talaq is known as talaq e ahsan which is the most prescribed form for divorcing the wife

The talaq will be valid if the number and time rules are followed

That is for number - 3 pronouncements

For time - pronounced when she is in tuhr

There are rules also for cases in which the marriage is consummated or not consummated

That is the rules slightly differ if the couple had physical relationship and when they did not have any physical relationship (meaning the marriage was not consummated) 

 

Yusuf Rampurawala
Advocate, Mumbai
7509 Answers
79 Consultations

5.0 on 5.0

1. Divorce among Muslims is governed according to Shariah. A Muslim man does not require a decree of divorce. After triple talaq is pronounced according to Shariah through a registered qazi it results in dissolution of marriage.

2. If you get a decree of declaration from the civil court then it will further fortify the dissolution of marriage. However, this does not take away the remedy available in the hands of your wife to assail the talaq.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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. Taalq should be given only after conciliation attempts by husband and wife failed. No such attempts were initiated here so the petitioner is not entitled to get the declaration as prayed for

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.

 

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.

So from your query it could be seen that the talaaq which you have done is not a valid one.

Ajay N S
Advocate, Ernakulam
4072 Answers
111 Consultations

5.0 on 5.0

Dear client, 

Get it verified by quazi than no declaration from court required. Valid talaaq.

Yogendra Singh Rajawat
Advocate, Jaipur
22630 Answers
31 Consultations

4.4 on 5.0

See you need to return the amount of Meher as per the personal law.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

You can exercise your right if sharia law.

Prashant Nayak
Advocate, Mumbai
31930 Answers
179 Consultations

4.1 on 5.0

Pay your wife Meher amount and maintenance during iddath period 

 

your divorce would then be valid as per provisions of Muslim personal law 

Ajay Sethi
Advocate, Mumbai
94695 Answers
7528 Consultations

5.0 on 5.0

Dear Sir,

You have to wait till civil court decree, your declaration suit because Supreme Court invalidated the divorce by way pronouncement of Talaq for three times.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

Your Taalaq is not legally sustainable in the eye of law

Ajay N S
Advocate, Ernakulam
4072 Answers
111 Consultations

5.0 on 5.0

The ahsan talaq involves a single revocable pronouncement of divorce and sexual abstinence during the waiting period. The hasan divorce involves three pronouncements made during the wife's state of ritual purity with menstrual periods intervening between them, and no intercourse having taken place during that time.

 

The talaq ahsan: 

This form of talaq becomes irrevocable on the expiry of the period of iddat.

Such a talaq can be revoked before it becomes irrevocable either- expressly or impliedly by resumption of cohabitation.

 

Talaq Hasan is the second best form which consists of three pronouncements- one during each of the three successive Tuhars.

This form of talaq becomes irrevocable on the third pronouncement and can be revoked prior thereto -expressly or impliedly- by withholding the second or the third pronouncement or by resuming sex.

 

Since it appears that you have opted for the second form of divorce as stated above, and there is no revocation taken place, the talaq is valid and the declaration of dissolution of your marriage by this method should be held as valid by the court of law.

T Kalaiselvan
Advocate, Vellore
84896 Answers
2191 Consultations

5.0 on 5.0

Even you have not paid the Mehr amount, she may claim the same at a later stage if you still are giving her the same.

In fact she may even apply for maintenance under section 125 cr.p.c. if there arises a necessity for her to avenge you on this.

T Kalaiselvan
Advocate, Vellore
84896 Answers
2191 Consultations

5.0 on 5.0

- Divorce is permitted in Islam as a last resort if it is not possible to continue a marriage.

The Prophet Muhammad (pbh) once said, "Of all the lawful things, divorce is the most hated by Allah."

- When a divorce is initiated by the husband, it is known as talaq.

- The pronouncement by the husband may be verbal or written, and should only be done once.and the wife has full rights to keep the dowry (mahr) paid to her.

- The Quran says, "When you divorce women and they fulfill the term of their iddat, either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them, (or) to take undue advantage. If anyone does that, he wrongs his own soul.

- Thus, the Quran encourages a divorced couple to treat each other amicably, and to sever ties neatly and firmly.

- As per Sharia law, the husband can pronounce talaaq to wife when she is pure and not menstruating and further the said divorce should be for a reasonable cause.

- Since, you have already send her three notices and dully received by her , in this way the Divorce has already compeleted and further you have already tried for reconciliation. 

- The legal procedure may be sufficient for an Islamic divorce if it also satisfies Islamic requirements.

- The Supreme Court, regarding the right of a husband to unequivocally divorce his wife (triple talaq) has laid down that such a divorce, if contested by wife, will not be valid if-

  1. It was not given for a reasonable cause.
  2. There was no attempt for reconciliation between the parties.

- Finally, you should return /paid her the Mehr amount immediately to compelete the Divorce.

Mohammed Shahzad
Advocate, Delhi
13211 Answers
198 Consultations

5.0 on 5.0

The divorce is final as per the trees notices.

It is correct procedure as there is no legal way for muslim man to divorce.

The divorce is based on notice so court can invalidate the notice therefore they have given this opportunity.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

See it is better to follow the court and seek declaration. As you can deny in mediation to agree and it can end. On challenging it it will take lot of time.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Mediation is just  formal attempt to settle the issues if possible.  You can not agree to it and proceed further in the said suit

Prashant Nayak
Advocate, Mumbai
31930 Answers
179 Consultations

4.1 on 5.0

Muslim law pertaining to divorce does not contemplate filing of any declaratory suit after pronouncement of divorce as per law

If the divorce is pronounced as per the canons of Muslim law, then why do u need a declaration for that from the court?

Your divorce stood completed,then what it is the use of obtaining a declaratory decree from court?

I suggest you withdraw the suit

Yusuf Rampurawala
Advocate, Mumbai
7509 Answers
79 Consultations

5.0 on 5.0

Your divorce is final 

 

2) you have followed the correct procedure 

 

3) mediation is not required 

Ajay Sethi
Advocate, Mumbai
94695 Answers
7528 Consultations

5.0 on 5.0

Your wife must have objected to petition filed by you for declaration 

 

since tiu you did not pay her Meher amount note maintenance during iddath period court may not pass orders for declaration that marriage is dissolved 

Ajay Sethi
Advocate, Mumbai
94695 Answers
7528 Consultations

5.0 on 5.0

The three notices given by you intimating and confirming your decision to dissolve your marriage by talaq is very much valid as per Shariah law. 

You need not have filed a declaration suit to confirm this.

However since you approached court for this,  the court is following the regular procedure on this which you cannot refuse. 

You may tell strictly tell before the mediators that there is no change in your decision to divorce her and she is no more your legally wedded wife as triple talaq has been pronounced in the legally valid manner and it is confirmed,  hence the declaration suit filed before court is for just a mere formality. 

You don't accept any advice from mediators except confirmation of divorce. 

 

T Kalaiselvan
Advocate, Vellore
84896 Answers
2191 Consultations

5.0 on 5.0

Why u approached court, in Muslims easiest forms of divorce available . Uselessly made issue complicated . Ila or on more was available to u. Declare diovrce under it and marriage will dissolve.

Yogendra Singh Rajawat
Advocate, Jaipur
22630 Answers
31 Consultations

4.4 on 5.0

The divorce was full and final, and you just approached the Family Court to seek a declaration as to your marital status.

It appears the Court has wrongly fixed the case for mediation. Challenge this order in the High Court. 

Vibhanshu Srivastava
Advocate, Lucknow
9600 Answers
303 Consultations

5.0 on 5.0

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