Nikah and Special Marriage Act
Kindly enlighten me with the answer for the below query.
I got married in the form of Nikah in 2011 and we both are Muslim by birth .
In 2013 , for the passport document purpose I registered the marriage in special marriage act ( as FIL advised that time ). Certificate says marriage celebrated in other forms. The procedure I followed was filling application, waited 30 days , then provided all the Nikah related documents with 2 witness and then got the marriage certificate documents
Kindly clarify if Talaq is sufficient for the dissolution of the marriage or should I go for court divorce since a lawyer from her side called me and threatened that Talaq is not valid as we registered our marriage under SMA. Please let me know how to proceed since I need to remarry .
Asked 10 months ago in Family Law from Chennai, Tamil Nadu
Since your marriage has been registered under provisions of SMA mere talaq would not be sufficent to dissolve your marriage
2) you have to file fir divorce on any of the grounds mentioned in SMA
3) you cannot remarry unless court grants you divorce
Since you have registered your marriage under special marriage act,1954 under the provisions of Sec.!5 which the registration of marriages deliberated in other forms.
The marriage will be guided under the special marriage act and divorce, children and thier property rights are guided under special marriage act.
So you both have to approach court for a divorce proceedings.
Her lawyer was right.
if you two are agreeable file a petition for Mutual Consent divorce and end the dispute in 6 months time.
Divorce is sufficient as talaaq pronounce by husband as per Islamic Law, because the marriage is registered under the special marriage act and solemnized.
Feel free to call
Advocate, New Delhi
Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. The concept of 'marriage' among Muslims from the very beginning itself (is) regarded as a contract. Muslim marriage has been defined as a civil contract for the purpose of legalizing sexual intercourse and procreation of children. It is not a sacrament but a contract, though solemnized generally with the recitation of certain verses from the Quran. Muslim law does not prescribe any religious service essential for solemnization.
In your case marriage registered under SM Act . So mere Talaq would not sufficient to dissolve your marriage. You have to approach court for a divorce.
If the marriage was registered under Mohammedan law then talaq is sufficient sometimes asking for declaration from court. But you have registered ur marriage under spl marriage act, so getting divorce from competent court is necessary. So either can approach court for divorce.
Since the marriage has been registered under SMA the shariah is inapplicable. So if either spouse wants to end the marriage he/she has to file a petition for dissolution of marriage on the grounds set out in SMA. If there is a positive agreement among both spouses then a petition for mutual consent divorce can be filed. Unless you obtain decree of dissolution of marriage from the competent court you cannot remarry.