Family Law

Divorce Procedure if you are a Muslim:

Divorce is the legal dissolution of the material bond between the parties complying with the requirements of the law. Nevertheless, Islamic law means a distinction between the breakup of the marital relationship by the party filing for divorce. In general, Muslim law provides for two forms of divorce that include:

(i) Extra-judicial divorce and

(ii) Judicial divorce. Extrajudicial divorce consists of three types,

(i) divorce by the spouse (talaaq, ila, zihar),

ii) by the wife (talaaq-e-tawfeez, lian) and

iii) through mutual consent (khula, muba’rat).

Here the talaq classification in

details: 1: Talaq from the Husband Simply ‘Talaaq’ is a divorce by the husband. If the husband pronounces talaaq once during a tuhr that leads to abstinence from sexual intercourse in order to complete the iddat duration, the talaaq will become successful. The tuhr period is the interval between menstruations.

2: Talaaq-e-Tawfeez by Wife Talaaq-e-Tawfeez is a divorce procedure in which the wife may, on her own behalf, renounce her marriage in accordance with the delegation provided by her husband. Now, this is a bit complicated, as the provision of this talaaq has to be drawn up in the niqahnama under section 18 with the permission of the husband.

3: Talaaq through mutual agreement Here both husband and wife through their mutual perticiaption aims for a seperation. It’s also termed as Mubarat. Mubarat is also one kind of dissolution of marriage where both of the parties want mutual separation and the aversion is mutual.

Divorce in Hindu Marriage: Steps towards dissolution of Hindu marriage:

➤ Petition to file for divorce – First of all, a joint petition for dissolution of marriage for a decree of divorce is to be presented to the family court by both husband and wife on the ground stating that they have not been able to live together and have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more. This petition will, then, be signed by both the parties.

➤ Appearing before Court and inspection of the petition- After that, both the parties will have to stand before the family court after the filing of the petition. The parties would present their respective counsels/lawyers The court would gradually observe the petition along with all the documents presented in the court by the counsels of both parties individually. The court may even attempt to bring reconciliation between husband and wife; however, if this is not possible, the matter proceeds for further follow-ups.

➤ Passing orders for a recording of statements on oath- Eventually, the petition is examined by the court and it satisfies, court may order the party’s statements to be recorded on oath.

➤The first motion: The first motion shall be passed and a period of 6 months shall be given before the second motion Then, once the declarations have been made, a decision on the first motion shall be given by the court. After that, all parties will be granted a six-month period of divorce before they can file a second petition. The maximum time period for filing a second request is 18 months from the date of submission of the divorce application to the Family Court.

➤The second motion : Second motion and final hearing of the petition Once the parties have decided to proceed further with the proceedings and to appear on the second motion, they can proceed with the final hearing. It includes the presentation of the parties and the recording of the comments before the Family Court.Recently, the Supreme Court has held that the 6 months period given to the parties can be waived off at the decision of the court. Therefore, the parties who have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties, this six months it can be waived off. Even if the court is of the opinion that the waiting period will only extend their sufferings, the six months can be waived off in this case also.

➤ Decree of Divorce In the case of a joint divorce, the two parties must have given their consent and there must be no discrepancies in the issues relating to the estate, custody of the child, care, property, etc. There must therefore be a complete agreement between the parties on the final decision on the dissolution of the union. If, after hearing the parties, the court is satisfied that the claims in the petition are valid and that there can be no hope of reconciliation and cohabitation, it may pass a divorce decree ordering the marriage to be dissolved. The divorce comes to an end once the divorce order has been signed by the judge.

Divorce in Christian Marriage:

Divorce in Christian marriage can not be induced by a declaration of divorce by either side or by mutual agreement, except by a court order. The provisions for the dissolution of Christian marriage by order of the court was included in the Divorce Act of 1869. Under the provisions of this Act, any husband may make a petition to the District Judge’s court or to the Supreme Court of Bangladesh for the dissolution of his marriage on the ground that his wife is guilty of adultery. Likewise, any woman can make such a petition to either court for the dissolution of her marriage on any of the following grounds:

(i)I that the husband, after marriage, has converted to any religion other than Christianity and has married another woman;

(ii) that the husband is guilty of incestuous adultery;

(iii) that the husband is guilty of adultery with bigamy;

(iv) that the husband is guilty of marriage with another woman and adultery;

(v) that the husband is guilty of rape, sodomy or bestiality;

(vi) that the husband is guilty of adultery;

(vii) that the husband was guilty of adultery combined with desertion for two years or more without a reasonable excuse. If the court is satisfied on the basis of evidence of the alleged ground and is satisfied that the complaint is not collusive or that there is no connivance or condonation of the alleged act of adultery, an order for dissolution of the marriage is issued. A district judge can, subject to approval by the High Court Division, issue a decree for the dissolution of marriage nisei.

The Board of Three Judges of the High Court Division may, by majority opinion, approve such a decision after hearing or further examination or taking further evidence. Following the dismissal by the district judge of the petition for dissolution of the marriage, the petitioner may submit a similar petition to the High Court Division. The three judges of the High Court Division may also, by majority opinion, issue an order for the dissolution of marriage on a petition filed before the High Court Division. Either of the above two courts may also issue an order for the nullity of marriage on any of the following grounds:

(i) that one of the parties was powerless;

(ii) that the parties are within the forbidden degree of consanguinity or affinity;

(iii) that either party is insane at the time of marriage;

(iv) that the former husband or wife of either party existed at the time of marriage, and that marriage was then in effect.

Once, the husband or wife can, without a reasonable excuse, seek a judicial separation order from either court on the grounds of adultery, abuse or desertion for two years or more. Such an order for judicial separation may be overturned by the court on the basis that it was imposed in its absence and that there was a reasonable excuse for the suspected desertion. The court may also issue an order to protect the estate of a deserted woman. Likewise, an order for the restoration of conjugal rights may also be issued if either the husband or the wife has withdrawn from the other’s business without a reasonable excuse.

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