• Divorce in a Hindu and Muslim marriage

My fiancee is currently registered married to a Muslim woman.They have not been staying together since Jan 2013.
He has been asking her for a divorce but she has not been complying even after not being in contact for 1.5 years.Recently she stopped attending his calls and responding to messages.

They are yet to file papers in court but both of them are currently working in the US.

What are the likely legal courses of action she can take to fight in court?How can my fiancee avoid this?He is not looking for a mess.
She is not agreeing for mutual.
Asked 2 years ago in Family Law from Bangalore, Karnataka
Religion: Hindu
Dear Querist
If the marriage was registered under special marriage act then filing the contested divorce case is only option to get  divorce. As both the parties are residing in US then either party may file the divorce petition before US court.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1) if marriage has been solemnised under provisions of special marriage act for obtaining divorce you will have to file for divorce in family court . 

2) since they have been staying separate for 18 months your fiancee can file for divorce on grounds  of cruelty 

3) contested divorce proceedings take  over 5 years to be disposed of . 

4) since wife is working in USA she wont get maintenance . 

5) your fiancee  can file for divorce in USA also . divorce in USA is faster process but it should be on grounds recognised under SMA . it i s also necessary that his wife participates in divorce proceedings
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
1) Your fiancee should go for divorce by mutual agreement, or

2) File a case under Irretrievable Breakdown i.e. divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. 

In 1945 in Umar Bibi v. Md. Din , it was argued that the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux , again an attempt was made to grant divorce on the ground of irretrievable breakdown of marriage. 

In Muslim law of modern India, there are two breakdown grounds for divorce: (a) non-payment of maintenancy by the husband even if the failure has resulted due to the conduct of the wife, (b) where there is total irreconcilability between the spouses.
Deepak Tiwari
Advocate, New Delhi
40 Answers
8 Consultations
4.7 on 5.0
Since they have register the marriage .if they are married from us registration of marriage act of us applies if from india special marriage act applies. She can try to divorce mutually if not it will take years to complete.if he is not ready then ask her yo file a divorce case for cruelty not maintaining and desrtion
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
you have to file your divorce under special marrige act. it is you to decide wheather go for MCD Or regular divorce mind it regular divorce take a lot of time.
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
Hi, if you married under special marriage act you have to file divorce by way mutual consent before the jurisdictional court.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
hello, you have to file a petition for divorce under section 27 of special marriage act. The case should be filed before the jurisdictional court which comes under, where you have got registered your marriage. Thanks.
Javeed S
Advocate, Bangalore
4 Answers
0 Consultations
Not rated
Hi,

Your friend can file the divorce either in India or in US as they both are in U.S.to go ahead with a divorce proceedings the options are following:-
1.  He can file an independent divorce on grounds of cruelty , provided that he should prove cruelty. it is obvious that it was a love marriage since it was an inter religious marriage. The same way with the divorce under under adultery grounds, there should be relevant evidence to proof the allegation.
2.To file a petition under desertion  ground there should be  a separation of two years. 
3. The next option is your friend has to get his wife to agree for a mutual consent divorce, for this he should talk to her , get friend or family to convince her. If she agrees decide the terms of alimony or other exchanges of thins if any and  file a joint petition.
4. If his wife is not agreeing to any of his terms , he should file divorce on any of the grounds mentioned above, and fight the matter, during the pendency of the proceedings, there will be occasions foe settlement and can be converted the same petition into mutual consent divorce. 
Involve an advocate or attorney and see how he  can  further proceed . let him try the possibility of a divorce in US, it is faster and convenient for  both of them and she will not be able to evade .
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
He has to file a divorce petition in the family court.  Find an advocate in US. It will be faster.  Since she is in US, she will not get any maintenance.
Girish HT
Advocate, Bangalore
21 Answers
2 Consultations
4.7 on 5.0
If the marriage is registered under special marriage act, then your friend have to file divorce under Section 27 of special marriage act. Section 27 is reproduced here under for your understanding:
Divorce.—1[
(1) ] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent— 2[(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); 3[***]
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or 4[(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,—
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form]; or
(g) has 5[***] been suffering from leprosy, the disease not having been contacted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; 6[***] 
Based on your facts, your friend can file divorce on the ground on cruelty. It is to be noted cruelty herein  does not refer to physical cruelty, mental cruelty can also be a ground of divorce.
As your friend is working in USA, so she will not be entitled for maintenance. Further, we suggest if she can file divorce in US, as the procedure will be faster.
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0
Hello,
Since the marriage was uder Special Marriage Act and since they have been living apart for  an year and a half the husband can certainly file for divorce either in a family court in India or in US.
Although Divorce can be filed under cruelty clause the process would be protracted and can take long as it is a contested divorce.

Even though she is not responding now ask him to talk to her and get her to consent for a mutually consented Divorce.
Since they both are employed in the US it would be preferable to file for divorce in the States.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1. If the said marriage has been registerede as per Special Marriage Act, then they are legally married couple,

2. Without divorcing his wife, your fiancee can not mnarry you,

3. His wife can bring adultery charge against him if his extra marital affair with you can be established by her and in that case he will be punished by jail term,

4. He can file Divorce suit showing acceptable grounds,

5. Such divorce cases take minimum 4/5 years in India if contested fittingly by the opposite side,

6. If at all he files Divorce case, he should file it in the USA where the law is not inclined towards women like India and where the case will be didposed off much faster.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
I Agree with Ajay Sethi and KK Ganguly.  It is better to take divorce in US as it is easy procedure. After taking divorce in US, you have to adopt the same and get the divorce here in India. 

First you tell me that Where is the marriage took place (in india or US). Whether the muslim woman is ready to give consent for divorce. Since it is a marriage of hindu boy and muslim girl, special Marriage Act will be attracted. As per this Act he will not get divorce so easily. Only option is mutual consent divorce or annulment of marriage.  After giving the above details, I can give correct legal status.
Ravinder Pasula
Advocate, Hyderabad
316 Answers
68 Consultations
4.9 on 5.0
query is resolved
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0

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