Re: Muslim Divorce and False 498a Case
Gulam Abbas Siddiqui
(Querist) 20 October 2018
This query is : Resolved
I will give you a brief of my situation. I am a Sunni Hanafi Muslim who holds OCI as well as Australian citizenship. I got married on 16 July 2017 to an Indian resident girl. I stayed in India for 12 days and returned to Australia on 1 August 2017. My mother holds Indian Passport and my father holds OCI as well as Australian citizenship as they reside in Australia as well with me. The marriage was conducted under their presence. Once I returned to Australia my wife starting behaving very arrogantly and started demanding huge sums of money for her parents. I tried to explain to her politely the gravity of husband and wife relationship, but she never listened. On 28 January she cut off communications and on 1 April 2018 she sent a text message falsely accusing my mother of talking to her brother-in-law and making dowry demands. Then on 22 May 2018 she went to CCS Women's cell and made false allegations and lodged a false 498a case against us all accusing us of taking 18 tolas of gold and giving 5 Lakhs in dowry and non-consummation of marriage. This all wrong as she and her family lives in a rented house with weak financial background. I had married her without any demands and didn't make any even after marriage. The police officer there had filed FIR only and he is intentionally not filing any chargesheet. I will be thankful if you can please guide me as to how to divorce this woman under following proper Muslim Personal Law and how to quash this false 498a case altogether.
KISHAN DUTT KALASKAR
(Expert) 20 October 2018
Dear Sir,
Just file a quashing petition under section 498A of Criminal Procedure Code. If charge sheet is filed then it can be converted and amended accordingly. Since your marriage last for only 12 days, definitely the court may quash the FIR/CHARGE SHEET.
Further you can marry second wife as law says second marriage permissible if you are ready to maintain first wife.
You can claim divorce on the ground of non-consummation of marriage. Any marriage law do not legalize the marriage if marriage is not consummated. On the above grounds you may seek necessary reliefs.
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Divorce Under Muslim Law
Under the Muslim Law a marriage is dissolved either by the death of the husband or wife, or by divorce. After the death of a wife, the husband may remarry immediately. But the widow cannot remarry before a certain specified period called Iddat expires.
Generally, both the parties to the marriage contract have an opinion for divorce, but the husbands right in this respect is much greater than that of the wife.
The husband can dissolve the marriage tie at his will. A divorce can also take place by mutual agreement.
But the wife cannot divorce herself from her husband without his consent. She can of course purchase her divorce from her husband and can have the marriage dissolved by Tafweez (delegation).
Marriage may also be dissolved by judicial decree under the Dissolution of Muslim Marriage Act, 1939.
Divorce by husband/wife
A Husband may divorce in the following manner-
1. Talaq: which is release from the marriage tie immediately or eventually.
2. Ila: where a husband of sound mind takes a vow that he will abstain from all relationship from his wife.
3. 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-
1. Talaqetafwiz: talaq by the wife under the husbands delegated power.
Divorce by judicial decree under dissolution of The Muslim Marriage Act,1939
Following are the grounds on which a marriage may be dissolved under the Marriage Act.
1. 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.
2. 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-
1. That the whereabouts of the husband have not been known for a period of 4 years
2. That the husband has neglected or has failed to provide for her maintenance for a period of two years.
3. That the husband has been sentenced to imprisonment for a period of seven years or upwards.
4. That the husband has failed to fulfill his marital obligation for a period of three years.
5. That the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease.
6. That the husband was impotent at the time of marriage and continues to be so.
The women, having being 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.
Triple divorce
Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.
Please mark “LIKE” if satisfied by my answer.
Vijay Raj Mahajan
(Expert) 20 October 2018
My dear Australian, firstly try to stay away from India and avoid coming here if you want to safe your freedom and remain out of trouble with Indian legal system.
Once you reach here and if look out circular has been opened by the police than your be arrested at Airport itself and handed over to local police for investigation and all sort of tortures.
Secondly if you had married the Muslim woman according to Muslim form of marriage, Nikah, than better workout for Talaq according to Sharia law with help of local Indian Qazi, he'll help you out with the process, pay her proper amount of Mehar and even prescribed maintenance which is provided under the Muslim Women ( Protection of Rights on Divorce ) Act, 1986.
As far moving quashing petition for FIR is concerned that can be worked out even without your presence in India as is done by Indian lawyers for their foreigner clients.
I have myself got many such criminal and civil matters expedited for my foreigner clients without their coming to India.
