• How to obtain divorce & remarry for survival (Shia Muslim couple case)

After being married for 7 years now & having a 5 years old son, my wife suddenly decided to leave the house in the month of April & even after multiple attempts she refused to come back. Every possible way to bring her back home, if not for anything atleast for our son as she left him back, all efforts went in vain. Furthermore, after waiting for four months when I approached a Maulana/Qazi to recite the talaq after being completely helpless, she very cleverly put forth her demands of emptying her entire wardrobe which consisted of things purchased by me & handing over the same to her post which she would sign the talaqnama but after the same was done, she stopped responding to any kind of correspondence made by the Maulana/Qazi. Infact, the articles listed under meher in the nikahnama also were taken away by her when she left the house & I even handed over a cheque towards iddat period of three months to the Maulana/Qazi but she never turned back to collect it as she was told to sign the talaqnama at the same time which for unknown reasons she didn't want to. About a month ago, she sent a draft MOU & mutual consent divorce agreement where she has demanded a huge sum towards settlement & also a handsome amount of maintenance towards iddat alongwith application & expense of divorce decree to be borne by me. It also reads about access to our son with detailed terms & conditions. I have a 76 years old mother who is currently looking after my son & for basic survival of a family, it is imperative for me to remarry but I am not sure how to go about it as I don't want to get into any legal hassle. Although our nikah was never registered in the court, I really don't know if I can be trapped into any legal battle incase I choose to remarry without having a talaqnama in place which she just doesn't want to sign. Is it possible & legitimate that a Maulana/Qazi recites the talaq & sends it to her? Is it possible & legitimate that I remarry by performing a nikah? What would be the ideal way forward to move out of this trap & continue living a normal life?
Asked 1 month ago in Family Law
Religion: Muslim

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7 Answers

You can seek divorce hy applying to the family court by invoking sharia law

Prashant Nayak
Advocate, Mumbai
24933 Answers
58 Consultations

4.4 on 5.0

Issue wife reconcilation/ arbitration notice fixing date and time 

 

2) if reconcilation fails or wife does not attend issue wife 3 consecutive monthly divorce notices 

 

3) reasons should be mentioned for divorce 

 

4) since her Meher amount has already been paid to her pay her 3 months maintenance during iddat period 

Ajay Sethi
Advocate, Mumbai
84936 Answers
5617 Consultations

5.0 on 5.0

 

1.     Even if your marriage is not registered, it is valid and binding marriage. If a Muslim and woman are living together for a considerable time are presumed to be married though no nikah is performed, it is called Khilwat Mubarak.

2.     As a Muslim you can divorce her without her consent. for is the procedure for pronouncing divorce on her…

3.     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.

a.       Visit Kazi of your local Masjid with two male adult Muslim witnesses.

b.      Produce id proof all witnesses wife and husband.

c.       Produce Nikahnama and photographs of all.

d.      Kazi will issue notice  of Talaq to wife.

e.      Talaq will become final after three Tuhrs.

4.     As a Muslim you have a right to go for second marriage. But divorce without her consent can land you in legal trouble as general (Domestic Violence Act, 2005, 498A, Dowry Prohibition Act) law is in favor of wife.

5.     It will be better to negotiate and settle the dispute.

6.     As per Muslim Law , custody of child below seven years will be with mother with visiting rights to father and custody after seven years of age will be with father with visiting rights to mother.

 

 

Ravi Shinde
Advocate, Hyderabad
1590 Answers
19 Consultations

5.0 on 5.0

The moulvi or Qazi cannot recite Talak, it is you who have to pronounce talak as per the acceptable form of talak, i.e., either by talak hasan or talak ahsan or by Khula or mubarath.

She need have to sign the talaknama paper if it is pronounced by you.

She may have to give her consent only for khula or mubarath.

If it is not possible for you to accept her demands, you may refuse to accept her demands, you can proceed with the talaknama as per the procedures prescribed in Sharia Law, by having the witness signed in the communication to be sent to her pronouncing your decision of talak. The witnesses may be Moulvi or Qazi. 

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.

 

You are right that you need not have to obtain her permission for remarriage and can marry another girl during the subsistence of your marriage.

The child can remain with you until  she is filing child custody case after which let the court decide about the custody to be given to whom.

 

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

- 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 the said Nikahnama is not registered from the court even though legally she is your wife , and she having right as a legal wife. 

- Further, being a Muslim you can marry with another girl without taking her consent and no case made out against you for the same. 

- Further, as her demands for mutual divorce is high then you can refuse for the same on the ground of burden of parents .

- Further, as she is living separately without any valid reasons then she cannot demand alimony from you. 

- Further, you can give her Talaqe Ahsan after pronouncing Talaq thrice after a gapping period of at least one month from the first pronouncement. 

You can contact me, if further suggestion needed. 

Mohammed Shahzad
Advocate, Delhi
8498 Answers
92 Consultations

5.0 on 5.0

Dear Querist

Being a Muslim you may solemnized marriage with four girls, if your wife is not able to live with you and demand huge amount which is not accepted by you then follow the divorce rules as per Islamic Shia Law and get divorce from her.

 

if you want to marry then go for it, she has no right to restrain you for solemnization of second marriage, there is no law in India by which she can restrain you for second marriage even without divorce her. Bigamy is not applicable until and unless your marriage was solemnized under special marriage act-1954.

 

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6140 Answers
292 Consultations

4.9 on 5.0

Dear client, 

you will have to get the talaqnama signed or else the marriage is still considered valid as per Muslim law. If you remarry, then you will be punished for bigamy. So, that will lead to even bigger problems. 

Thank you 

Anik Miu
Advocate, Bangalore
3099 Answers
31 Consultations

4.9 on 5.0

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