• Divorce under Muslim Marriage Act (Shia)

I’ve been married for 7 years now but my wife has left my house & my child since almost 6 months now for reasons absolutely unknown to me. We got married on the basis of Nikahnama in 2014 & thereafter opted for marriage affidavit for changing her last name, however our marriage isn’t registered in the court. I have tried my best to bring her back home but after failure of multiple attempts, I approached a Maulana who suggested to prepare a mutual divorce agreement on a stamp paper which has now been signed by the both of us but she is not ready to sign the Talaqnama due to which our divorce as per the Muslim Marriage Act (Shia) isn’t completed as yet. She is now sending me MOU & another mutual divorce agreement drafts claiming for almost 60 lacs towards alimony & maintenance & other aspects concerning access to our child. Can I please be guided the way forward to obtain a divorce & get rid off this struggle?
Asked 4 years ago in Family Law
Religion: Muslim

7 answers received in 1 day.

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8 Answers

Issue wife arbitration or reconcilation notice fixing date and time of reconcilation meeting 

 

if arbitration fails then you can divorce your wife by issuing 3 monthly consecutive divorce notices 

 

reasons should be mentioned for divorce 

 

pay your wife her Meher amount and maintenance during iddat period 

 

 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

You should give her divorce by pronouncing talaq. She is only entitled to meher promised at the time of marriage.

By pronouncing talaq i don't mean triple talaq but pronouncing talaq once in a month so that after three months talaq is final.

You don't need to sign those papers given by her.

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

- As per Supreme Court judgment, wife is expected to move in with the relatives of their husbands, follow the rules and customs of their home, and ideally, blend in seamlessly as a new daughter. 

- Further, the court granted divorce to a man on the grounds of “cruelty” after his wife refused to share a home with her in-laws.

- Further, If wife is not supporting her husband for the enjoyment of life and denying relation, then the husband can get divorce after filing a divorce petition before the court on this ground.

- Further , if wife is residing separate from her husband without a valid reason then she cannot claim maintenance and alimony from her husband. 

- If she is not interested to live with you , then take her consent for mutual divorce under Muslim Law i.e. Khula or by way of Mubarat. 

- As per Shia , the  mubarat should be followed by the word talaq, otherwise no divorce would result.

- However, In both, Shias and Sunnis, mubarat is irrevocable.

- Further in both the form , the wife must undergo the period of iddat , and in both form , the divorce can take place under the supervision of Qazi , and no intervention by the court is required.

- If she refused then you can either pronounce Talaq in three period and not one time , or file a declaration suit before the court. 

 

You can contact me , if further suggestion needed. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

You have option of giving divorce under  personal law. Talq-ul-Biddat (triple Talaq) is banned by Muslim Women (Protection Of Rights On Marriage)  2019. You can give her Talaq-Ahsan which  is legal. You need to make a single pronouncement of Talaq during Tuhr (period of purity). After single pronouncement wife has to observe three iddat, subsequent  to which  Talaq becomes final.

  1. Visit Kazi of your local Masjid with two male adult Muslim witnesses.
  2. Produce id proof all witnesses wife and husband.
  3. Produce Nikahnama and photographs of all.
  4. Kazi will issue notice of Talaq to wife.
  5. Talaq will become final after three Tuhrs.

But this may trigger her to file criminal cases against you under general law. It is better to settle the matter out of Court. After the child reaches seven years you  have right of full custody of child with visiting rights to mother.

 

 

Ravi Shinde
Advocate, Hyderabad
5125 Answers
42 Consultations

Dear sir,

You can give her divorce under Talaq- Ahsan, which is still legal . In this case, your wife would have to undergo iddat for a period of 3 months subsequent to which the Talaq will be final and you will get the divorce.

Thank You.

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

you will have to file a divorce petition in the Family Court

if she wants to claim maintenance then she can file appropriate proceeding in the Family Court 

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

If you are really not interested to continue this married life with her anymore then you can divorce her as per Sharia law. 

Talaq Ahsan:

This is the most proper form of repudiation of marriage.

The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two menstruations. As such, the period of Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to menstruation, either because of old age or due to pregnancy, a Talaq against her may be pronounced any time.

(b) After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child. During the period of Iddat there should be no revocation of Talaq by the husband.

 

Talaq Hasan (Proper):

This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is a provision for revocation. But it is not the best mode because evil words of Talaq are to be pronounced three times in the successive Tuhrs. The formalities required under this form are as under:

(a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr.

(b) In the next Tuhr, there is another single pronouncement for the second time.

It is significant to note that the first and second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective as if no Talaq was made at all.

(c) But, if no revocation is made after the first or second declaration then lastly the husband is to make the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife has to observe the required Iddat.

Under the Shia Law, an irrevocable Talaq is not recognised.

If the estranged couple chooses separation they must go through with it equitably. There must be two equitable witnesses witness the divorce before God.

Normally divorce is mutually decided by the couple. If the aforesaid laws are observed, there could be a situation where either of the spouse may not give their consent but if the arbitrators from both the families decide that divorce is the best solution for the estranged couple then they would, nevertheless go through divorce.

 

If she is demanding huge money, you may refuse her  and can proceed with the divorce on any one of the above methods.

If at all she wants to challenge the same, let she approach court where you can produce the evidence to  establish your divorce as per Muslim personal law. 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

File a divorce in court under sharia Act or apply Islamic law provision before maulvi in proper manner

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

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