• Child custody and divorce

Hello 
I am a Hindu girl who got married to a Muslim boy in 1998. I first got converted to Islam and the nikha nama was submitted for marriage certificate we were married for  5 yrs not now I am separated from him past 2 yrs when I checked d marriage certificate it doesn't state special or Muslim marriage act anywhere so is my marriage null n void what is procedure for divorce besides that I have a daughter who is 2.5 yrs old living with her father I have not seen her for a year now I want divorce n child custody I was not allowed to take my daughter with me I have now become an independent women who is fincinally strong now but have no family support can I still get full custody plz help
Asked 2 years ago in Family Law from Pune, Maharashtra
Religion: Hindu
1. In nikahnama there is no mentioning of special marriage of muslim marriage act as marriage is done as per muslim personal law. The marriage is very much valid.
2. You can however apply for divorce under Dissolution of Muslim Marriage Act.
3. File a case under PWDV Act where under you can ask for custody of the child.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Namashkar
though it is not mentioned as muslim marriage act or special act the marriage is valid.Because Nikhanama will be  in only Muslim religion  for diverse a case to be filed before the appropriate court under Muslim law for diverse .For custody of the child a petition is to be filed before the district court under guardians and wards act.
Namavarapu Rajeshwar Rao
Advocate, Hyderabad
13 Answers
0 Consultations
3.7 on 5.0
Dear Client,
You marriage held under Muslim Shariath Law (Mohammadan Law). The Nikkha is very much valid. If you want divorce from your husband, you can send a legal notice to your husband , demanding him for  QULA. If he not comply, you can approach to the family court under Dissolution of Muslim Marriage Act, but it will take much time. You are further advised that, file a DV case  against him which covers not only maintenance , residential order, child custody and  compensation . You can file child custody case also against him. Being a natural mother you have absolutely legal right of child custody under Mohammadan Law.
Mohammad Khaleel Ahmed
Advocate, Hyderabad
184 Answers
1 Consultations
3.9 on 5.0
1. If you embraced Islam before marriage then you could not have married under Special Marriage Act. As a corollary thereto the marriage certificate could not have been issued under Special Marriage Act. Your marriage is legally valid.

2. If you wish to apply for divorce then a petition for divorce is required to be filed by you in the court on the grounds attracted to your case. Since you have not stated as to why you want to end the marriage we cannot advise you on the specific ground on which you can file for divorce.

3. In order to obtain the custody of your child you need to file a case for child custody in the concerned court.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
better first you file case for custody of your child under guardianship & wards act. your marriage is valid as it is held under muslim law
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
Dear Querist
you should filed a child custody case under Guardian And Wards Act along with an interim application for visitation right of the child.
Your marriage is valid as per islamic law and if you want to get divorce then you may file a divorce case against your husband before family court of your area where you are residing or where both of you were residing together.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1) you should before filing for divorce file complaint under DV act seek maintenance, right to stay in matrimonial home or alternative accommodation and child custody 

2)your marriage is valid as you had converted to islam before your nikkah . for divorce you have to file application for divorce under dissolution of muslim marriage act 

3) custody of child would be awarded to you as your daughter is only 2.5 years old
Ajay Sethi
Advocate, Mumbai
23365 Answers
1223 Consultations
5.0 on 5.0
Your marriage is valid as you converted to islam and nikkah-nama is sufficient in muslim marriage Act. As it is not mentioned as a special marriage Act you can file case under desolution of muslim law and seek maintenance for you as well as your child of 2.5 years. You can very well get your child with you by filing case under adoption and maintenance Act.
Brijendra Kumar Vishwakarma
Advocate, Kanpur
117 Answers
0 Consultations
3.3 on 5.0
1. your nikah is valid, there is no any provision in Muslim law that marriage should be solemnized in special marriage act.

2. at the time of your nikah, both parties were Muslim.

3. on divorce a Muslim woman requires to spend iddat period, length of that period is depended upon different condition of divorce.  

4. in Muslim law till the age of puberty or BULUGH,  mother is the guardian of female child.

5. custody of female child is decided by the Muslim personal law.

6. section 2 of The Muslim Personal Law (Shariat) Application Act, 1937 says :- Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariah)

7. if both the parties to the suit are agree then this issue shall be decided by the court according to shariah law.

8. there no maintenance in muslim law after the expiration of iddat period, but a Muslim woman can approach the court for maintenance under sec 125 crpc and got maintenance after iddat period.

9. you have monetary and accomodation relief in domestic violence act.
Shivendra Pratap Singh
Advocate, Lucknow
2771 Answers
41 Consultations
4.9 on 5.0
1. Since you were converted to Islam before marriage, your said marriage was vaid as per Muslim Law,

2. File  Divorce Application under Dissolution of Muslim Marriage Act o get rid of him if you have so decided,

3. Also file an application for the custody of your child.
Krishna Kishore Ganguly
Advocate, Kolkata
12138 Answers
233 Consultations
5.0 on 5.0
First  file complaint under DV Act seeking maintenance, right to stay in matrimonial home or alternative accommodation and child custody or file petition under Guardians & Wards Act, for custody of child and also file application for interim custody or visitation rights which will be allowed being natural guardian.

your marriage is valid as you had converted to Islam before your nikkah . For divorce you have to file petition for divorce under Dissolution of Muslim Marriage Act
S.P. Srivastava
Advocate, New Delhi
703 Answers
13 Consultations
4.8 on 5.0
Since if you have converted file a divorce case under Muslim act and you can seek maintainence under Muslim act. You can file a petition for visitating the rights of meeting your daughter and file a case for custody of the child with cogent reason.
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
Additionally, you can also file DV case to put pressure on your husband to force him to come to a negotiation table.
Krishna Kishore Ganguly
Advocate, Kolkata
12138 Answers
233 Consultations
5.0 on 5.0
1.ur marriage  is valid. File divorce under Muslim dissolution marriage act.

2.u will get custody of ur daughter.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0

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