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babloo27071985 (employee)     24 May 2015

Without wife knowledge can i file talaq

can i give talaq to my wife without her presence, iam from hyderabad



Learning

 13 Replies

SAINATH DEVALLA (LEGAL CONSULTANT)     25 May 2015

She can challenge talaq given by you on ground that it was done without going through arbitration and presence of witness.

babloo27071985 (employee)     27 May 2015

hello sir , iam a sunni muslim,
i got married as per muslim personal law, in  march 2013 actually its a forcefull marriage,
the brides family one fine day, they came to my house and asked my mom for their daughter marriage proposal initially my family members said ok (i did not saw bride ), in a 04 days my engagement was fixed and in that ceromony i saw her for the first time, she was not at all according to my thought, they had given (jodey ki rakham) what we call in urdu as some amount but we didnt took that amount, immediate day after my engagement we called their family members to my home and said the boy (groom)is against this marriage so the bride family has filed a case against my family and all my relation,as we took the amount and had escaped after undercovered for 5 days i got anticipatory bail to all my family members including me soon after we got bail bride family came to my home and again started to harrasing to marry their daughter, or they will ruin our life, due to pressure i agreed to marry later. As earlier i spoke regarding jodey ki rakham amount they have given us and had taken written statement of the amount they had given us dowry they bluffed us by saying that this document has to be submitted in order to get rid of the FIR and case, we blindly believed and has signed on that document. 
In my home, i , my wife and my mom lives (dad expired) sister married and lives out of town and after marraige things started to get worse, the bride is a bit psychic she started to argue with me to get seperated with my mom but i cant do that iam only son and source to look after my old age mom, groom started to harras me by attempting to suicide three to four times so, i decided to call the muslim elders for councelling but no use she has not changed her behavior, her family is harrasing that they will put in jail by placing a false case as asking additional dowry and abbusing and harrasing her for dowry etc...by using all their influence(as they got good police officers in their family itself)
last year on 26th jan 2014 she started harassing me to live her at her home and she promised me that she will be back by tomorrow for which i agreed and dropped her, but later she started telling that she wont come back unless and until i agree to her demands for which i filed a petition in LOC adalath Legal Cell in the 1st week of feb 2014 and summons were communicated to her but instead of coming to court she went to Mahila P.S in the last week of may 2014 and filed a complaint that i and my mother are torturing her for additional dowry .. i guess 498a 3/4 DP act....etc but Fir was not registered, later i secured A.B for both myself, mother and sister on 2nd june 2014 and then she started to come to court for attending counselling sessions in legal cell authority... even then she started her demands and continuously complaining that i used to beat her regularly and mother used to torture her ... etc due to which i withdraw my petition from legal cell in the month of nov 2014. but from then onwards their is no communication with my inlaws iam very much worried about my old aged mother iam worried that they will come to my house make galata and lodge DV. therefore ive decided to divorce her by talaq.
please help me & my family how to get rid of this problem what are the chances of getting arrested and what will be the sentence if got arrested how can i get rid of this please help me sir.
from the date of my marriage she lived with me around 50 days hardly.
please sir tell me the actual process of getting divorce as per muslim personal law i reside in andhra pradesh, hyderabad
thanks for reading all my worries..... thank you.

eagerly awaiting for your reply sir

SAINATH DEVALLA (LEGAL CONSULTANT)     27 May 2015

Divorce in Islam: Lal Mohd

Many people of other religions believe that a married Muslim man can dissolve his marriage at any time by saying to his wife: "Talaq, talaq, talaq" at one occasion of his own free will and desire. ("Talaq" means "I divorce you.") This motivated me to study the the actual existence of this method of dissolution of a marriage in Islam.

After solemnization of marriage between parties, if some problems arise, the husband may divorce his wife. The question is how he divorces his wife, and whether pronouncement of divorce three times at one occasion is valid.

Zeenat Shaukat Ali, Professor of Islamic Studies St. Xavier's College, Mumbai published an article in the Indian Express with title: "Divorce, Divorce, Divorce." He attempted to clear up misconceptions by Muslims and others about the triple pronouncement of Talaq.

The main points in his article were:

Talaq and divorce are strongly condemned within Islam.

In case of difficulties within a marriage that the husband and wife cannot solve by themselves, each shall appoint an arbitrator or conciliator to resolve the matter.

( 4:35): "If the fear Shiqaq (breach) between the Twain, appoint (two) arbiters, one from his family and other from hers, if they wish for peace, ALLAH will cause their reconciliation."

TALAQ-UL-BIDDAT or triple TALAQ: It is important to understand that the word "biddat" itself means disapproval or something the prophet never did or recommended.

Caliph Umer legitimized this form of divorce as an emergency measure.

Most Muslims believe that there shall be a interval of of one month between each "taliq" pronouncement. If the during these pronouncements, the wife disobeys the lawful order of her husband, he may divorce her. During this time of breach they should take measures to reconcile by themselves or with the help of their relatives etc. All efforts as provided in the Qur'an and Sunna should be made to avoid a breach of the marriage.

The triple pronouncement of TALAQ has been "...banned by law in many nations, including Turkey, Tunisia, Algeria, Iraq, Iran, Indonesia, and Bangladesh. India still permits it." 1 In all such countries arbitration councils and judicial interventions have been introduced to promote reconciliation.

Offices staffed by female police are being established in Punjab state, India to redress grievances, particularly by married women. These facilities promote arbitration to help reconcile the couple. When all efforts fail, the matter is referred for investigation and later to the court for a trial.

I hope that people of the Islamic faith will learn from the above discussion on divorce and become aware of the controversial practice within Muslim marriages of the triple pronouncement of Talaq at one occasion which I believe is Un-Islamic and Un-Qur'anic. Avoiding that practice will create proper respect, honor and adoption of the Holy Qur'an  and Sunna (Observing the path) of Prophet Mohammad.

May peace be upon Him and on us of Almighty ALLAH ! Ameen.
 

Concept of Marriage and Divorce under Muslim Law

Marriage or "Nikah" in Islamic law is a contract pure and simple needing no writing and no scared rites. All that is necessary is offer and acceptance made in the presence and hearing of two male or female witnesses and recording the factum of marriage in the "Nikah" Register maintained in every mosque signed by the parties and attested by witnesses. It is payable to the wife on the dissolution of marriage or death or divorce. In India, there is no need to register the Muslim marriage, as there is no law requiring registration.

There are six forms of divorce recognized under Islamic Law. They are Talaq, Talaq bu Tafweez, Kula and Mubaraat, Illah, Zibar and Lian. Talaq confers on Muslim husband the privilege of being able to discard his wife whenever he chooses to do so for reasons good, bad or indifferent indeed for no reason at all. Talaq-i-Tufeez is the exercise of the right of divorce by the wife by virtue of the power delegated to her husband at the time of marriage or even thereafter, Kula and Maturate are two forms of dissolution of marriage by consent. It is thus a kind of divorce by mutual consent. Illah is a constructive divorce in which the husband swears not to have s*xual intercourse with his wife for 4 months and abstains from doing so. Zihar is a mode of divorce in which the husband compares his wife with his mother or any other female within prohibited degree. Lian is a divorce in which there is imputation of adultery to the wife by the husband and the wife is entitled to file a suit for dissolution of marriage on the false charge of adultery.

The Dissolution of Muslim Marriage Act, 1939 enables a Muslim wife to seek divorce through court on the ground of, whereabouts of the husband are unknowns for 4 years, failure of husband to provide for the maintenance of the wife for 2 years, sentence of imprisonment of the husband for 7 years, failure to perform martial obligations, impotency of the husband, or insanity of the husband, Repudiation of marriage by the wife before attaining the of 18 years cruelty of the husband and any other ground relevant at that point of time.

 

 

Muslim Marriage Laws

Under Muslim personal law a suit has to be filed either by husband or wife on withdrawal from the society of other without lawful ground.

No provision so far enabling parties to the marriage parties to the marriage to seek the remedy of judicial separation.

No provision in Mohammedan Law for declaration of marriage as nullity for it can be annulled, though it may be repudiated by a Muslim wife and husband.

Muslim Law recognizes two forms of divorce by mutual consent khul or khula (divorce at the request of wife) and Mubaraa or mubaraat (dissolution of marriage by agreement).

Section 2 of the Dissolution of Muslim Marriage Act, 1939
  Grounds for Muslim Woman.

  1. Not heard for 4 years.
  2. Failure to provide maintenance for two years.
  3. Husband sentenced for 7 years imprisonment or upwards.
  4. Failure to platform martial obligations for three years.
  5. Impotency at the time of marriage and continuation.
  6. Insanity for two years or suffering from leprosy or a virulent venereal disease.
  7.  Marriage before attaining age of 15 years and repudiation before attaining the age of 18 years.
  8. Cruelty in the form of habitually assaulting, associating with women of evil repute, force to lead an immoral life, interfering into the wife’s property, obstruction to observe her religious practice, not equally treating with other wives etc.,

 

 

Dissolution of Muslim Marriages Act, 1939

 

An Act to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

Whereas it is expedient to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by woman married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by married Muslim woman on her marriage tie; it is hereby enacted as follows:

  1. Short title and extent:
    1. This Act may be called the Dissolution of Muslim Marriages Act, 1939.
    2. It extends to the whole of India except the State of Jammu and Kashmir.
  2. Grounds for decree for dissolution of marriage - A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
  3. that the whereabouts of the husband have not been known for a period of four years;
  4.  that the husband has neglected or has failed to provide for her maintenance for a period of two years;
  5. that the husband has been sentenced to imprisonment for a period of seven years or upwards;
  6.  that the husband has failed to perform , without reasonable cause , his marital obligations for a period of three years;
  7.  that the husband has impotent at the time of the marriage and continues to be so;
  8.  that the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral disease;
  9. that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years., repudiated the marriage before attaining the age of eighteen years;

Provide that the marriage has not been consumated;

  • that the husband treas her with cruelty, that is to say.—
    1. habitually assaults her or makes her life miserable by cruelty of conduct does not amount to physical ill-treatment, or
    2. associates with women of evil repute or leads an infamous life, or
    3. attempts to force her to lead an immoral life, or
    4. disposes of her property or prevents her exercising her legal rights over it, or
    5. obstructs her in the observance of her religious profession or practice, or
    6. if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;

on any other ground which is recognised as valid for the dissolution of marriages under Muslim law;

Provide that—

  1. no decree shall be passed on the ground (iii) until the sentence has become final;
  2. a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfied the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and
  3. before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

 

3. Notice to be served on heirs of the husband, when the husband’s whereabouts are not known - In a suit to which clause (i) of Section 2 applies--

the names and addresses of the persons who would have been the heirs of the husband under Muslim law if he had died on the date of the filing of the plaint shall be stated in the plaint.

a.                Notice of the suit shall be served on such persons, and

b.                Such persons shall have the right to be heard in the suit;

Provide that paternal uncle and the broker of the husband, if any, shall be cited as party even if he or they are not heirs.

  1. Effect of conversion to another faith - The renunciation of Islam by a married muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage :

Provide that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in Section 2

Provided further that the provisions of this Section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.

  1. Right to dower not to be affected - Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.
  2. Repeal of Section 5 of Act 26 of 1937 - Repealed by the Repealing and Amending Act, 1942 (25 of 1942) Sec. 2 and Sch. i.
Divorce Under Muslim Marriage Act India
 
Divorce By Husband / Wife
 
A Husband may divorce in the following manner-
  • Talaq: which is release from the marriage tie immediately or eventually.
  • Ila: where a husband of sound mind takes a vow that he will abstain from all relationship from his wife.
  • Zihar: where husband sane and adult compares his wife to his mother or any other female within the prohibited degrees.
A wife may divorce in the following manner:
  • Talaqetafwiz: talaq by the wife under the husbands delegated power.
  • Divorce By Judicial Decree Under Dissolution Of Muslim Marriage Act 1939.

Following are the grounds on which a marriage maybe dissolved under the Marriage Act.

  • Lian: Where the wife is charged with adultery and the charge is false.She can file a regular suit for dissolution of marriage as a mere application to the court is not the proper procedure.
  • Fask: The cancellation, abolition, revocation, annulment. Before the passing of the dissolution of Marriage Act, Muslim women could only apply for the dissolution of their marriage under the doctrine of Fask.

Womans Right To Divorce Under The Dissolution Of Muslim Marriage Act. 1939

A Muslim woman may file for divorce on the following grounds:

  • That the whereabouts of the husband have not been known for a period of 4 years
  • That the husband has neglected or has failed to provide for her maintenance for a period of two years.
  • That the husband has been sentenced to imprisonment for a period of seven years or upwards.
  • That the husband has failed to fulfill his marital obligation for a period of three years.
  • That the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease.
  • That the husband was impotent at the time of marriage and continues to be so.

The women, having been given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18.

 

 

babloo27071985 (employee)     27 May 2015

thank you sainath sir it is in detail sir can u plz give me the details of a police after recieving a dv

and plz advise me is it good to talq now at this stage 

T. Kalaiselvan, Advocate (Advocate)     29 May 2015

In DV case police will not appear.  They will come into picture only when there is a complaint lodged with them for cruelty and dowry harassment offences. She may even opt for maintenance under section 125 cr.p.c.. 

SAINATH DEVALLA (LEGAL CONSULTANT)     30 May 2015

Rightly adviced by mr.Kalaiselvan

babloo27071985 (employee)     30 May 2015

Kalaiselvan sir,  thank u for reply..... sir my wife is not with me from last jan 2014, can she still file DV and after marg. she was only for 40 - 45 days with me.

sir, yesterday i has visited to my advocate and he advised me not to give talaq untill and unless the oposite party come for MCD but my problem is that the opp. party is not at all concerned about this and are not discussing about and even not taking any steps regarding MCD or registration of any Case etc... what should i do should i divorce o not but it is cklear with me that marg is broken far beyond repair and i cant get her back home. ( im in AB right now,... but till date no case has been registeed against me)

SAINATH DEVALLA (LEGAL CONSULTANT)     30 May 2015

After so much of discussion U are mentioning that U are on AB, and no case yet registered against U.Do U know that there is a time limit of AB,has UR lawyer appraised U about that,once the time elapses U have to apply for regular bail.

babloo27071985 (employee)     30 May 2015

sainath sir below is my AB conditions and their is no time limit mentioned on it, and even my lawyer has not informed me about any think.

sir plz tel me what will be the validity of an AB which i secured.

thank you


Attached File :
  • downloaded: 110 times
  • babloo27071985 (employee)     30 May 2015

    sir actually the image is not uplaoding here

    sir  the conditions are:

    1. that the petitioner A1 to A3 ( me mom and sis) are directed to surrender before SHO women PS within a week days from the date of this order and on such surrender sho women PS sahall release the petitioners A1 to A3 on obtaining a bond for RS. 10,000/- with two suritiesfor a like sum and the petetioners shall be released in the event of arrest

    2. that the petitioners A! to A3 shall make themself available for interrogtion by the police concerned as and when required.

    3. that they shall not directly or indirectly make nay inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police office

    4. further the petitioners shall not leave india without previous permission of the court.

    babloo27071985 (employee)     30 May 2015

    this is a petition filed under sec.438 of CRPC for grant of AB to the Petitioners.

    it is the case of the prosecution that defacto complainant is a resident of .............. and her marriage with the 1st petitioner took place on.............. further it is the case of the procesution that petitioner have demanded additional dowry from the defacto complainant and harrased her physically and mentally as such on a compliant by the defacto complaint.

    now the point for consideration is whether there are just and valid grounds for grant of AB to the petitioners A1 to A3?

    heard the learned PP as well as the learned defence counsel.

    learned Addt. PP has filed counter objecting granrt of AB to the petitioners on the ground that the issue is pending before the counselling centre. the defacto complianant as well as her husband/A1 appeared before the counselling center women PS warangal A1 and his wife have to appear before the counselling center on DT.............. for counselling and no cause has been registered against the petitioners there is no hurry for the petitioners to seek the relief of AB in the absence of registration of any crime.

    having regard to the aforesaid rival submissions and on perusal of the material papers available on records, since the issue between the parties is still pending before the counselling centre, like wise pendency of  a PLC filed against the defacto complinant for RCR, if the petitioners are granted apprehended by the respondent/police there is every scope for strained relations and a concialiation efforts also may not yeield expected results, further petitioners are likely to face hardship and there is also every scope for the first petitioner to loose his govt. job.

    in the results, this petition is allowed as prayed for, by granting AB to the petitioners, subject to the following conditions"

    sir conditions are in my above post

     

    T. Kalaiselvan, Advocate (Advocate)     30 May 2015

    There is nothing to worry about this present case against you.  The false cases can be challenged by properly contesting it. The DV case can be filed at any moment.  Going for Talaaq is your choice, you need not worry or wait for the developments in other cases filed by her for this.  

    1 Like

    babloo27071985 (employee)     31 May 2015

    T. Kalaiselvan sir thank you for your reply.

    sir is my AB valid till trail ends or is only valid till 30 days actually there is no such time limit mentioned on my AB and if it is valid only for 30 days then does its time starts from date of arrest or registration of FIR or simply from the date of issue of AB?

    plz reply me in detail sir.


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