|Originally posted by : Airoli Estates
||how is muslim(sunni) divorce filed and where does one go, is it the regular family court?
Firstly, the facts that you have put forward are very vague. Is it a man divorcing a woman or a woman divorcing a man?
So, I will just give a general answer.
As you might know, among the Sunnis, talaq may be express, implied contingent constructive or even delegated.
Here are the essential elements of a valid talaq.:
Capacity: Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaaq pronounced by him during "lucid interval" is valid. The guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.
Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.
Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.
According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is required to constitute a valid talaaq. Any expression which clearly indicates the husband's desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.
One of the ways to file for a divorce or 'perform' a divorce would be Talaq-ul-Sunnat;-
This form of Talaq is based on the Prophet’s tradition (Sunna) and as such is considered as most approved form of Talaq. Talaq was in-fact considered as an evil and in case it became/becomes impossible to avoid this evil then the best method is Talaq-ul-sunnat, wherein there is a possibility of revoking the effects of this evil. It is also called as revocable Talaq for the reason that Talaq does not become final at once and there always remain a possibility of compromise between the husband and wife. Only this kind of Talaq was in practice during the life of the Prophet. This mode of Talaq is recognized both by Sunnis as well as by the Shia’s.
Another option is Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently . A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, "this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India".
Since it is a religious divorce that you are doing, I suppose you might have to follow religious proceedings. However, it is advised that you go to the Family Court.
Hope this helps!