Divorce Final Can Cancel it?

[mustafa1232 3]

But he is in USA and I am not sure if USA has a separate Islamic law for Muslims. He is seeking legal advice not religious.

hi hindustani 24 and this details is for primerosepk about your divorce case you can cotact usa There are Muslim scholars in USA who have authority to grant a divorce to a Muslim couple. Divorce granted by them will be Islamically legal. You can find such authorized Muslims through Islamic Society of North Amricas. Following is the address of the headquarters of ISNA in Indiana:

contact isna indiana

:Mailing address

Islamic Society of North America(ISNA)

P.O. Box 38

Plainfield, IN 46168, USA

Shipping Address:

ISNA Office for Interfaith and Community Alliances(IOICA)

110 Maryland Avenue Ne, Suite # 304

Washington, DC 20002

Phone & Fax:

Phone: (317) 839-8157

Fax: (317) 839-1840

[mustafa1232 3]

But he is in USA and I am not sure if USA has a separate Islamic law for Muslims. He is seeking legal advice not religious.

hi hindustani24 I THINK There is a real need among the American Muslims to develop what we call legal literacy. There is really not much knowledge among the Muslim population in the United States about the law in the United States. And as a result of that, very often unfair situations could have been avoided had the person known about American law. So I would like to sensitize you to some of the issues relating to family law and tell you what courts have said about them. Essentially these apply in some cases to males and females, not just only to females.

Divorce

For example, in the case of Aziz v. Aziz, which is a New York case in 1985, the court looked at the Islamic marriage contract as a pre-nuptial agreement. That’s fine. And then it says, can we enforce a pre-nuptial agreement in this court? The problem was that the pre-nuptial agreement here was a religious agreement, and yet the courts in the United States are secular--they’re not supposed to enforce religious agreements. So the way they handled it in New York, because they’re very familiar with the kutuba, under the Jewish law, was to say that they would enforce the secular aspects of the agreement, rather than throw out the whole agreement. So, things like mahr will be enforced in New York.

Well, let’s see what happened in another jurisdiction, in a case called Dajani v. Dajani. This is an Orange County case, 1988. In Dajani v. Dajani--this is a case of a Jordanian couple--the wife asked for divorce. We have no idea from the record why she asked for divorce. The court looked at her demand and listened to some experts, and decided that she is not entitled to her deferred dowry, mahr muta’akhir. You need to know this because, by the way, even if you’re not living in the U.S., if you go or any person to the U.S. for a few months, or permently basis there might be a jurisdictional basis for bringing a case in the United States to resolve issues of this sort. Why did the court in Orange country decide that the woman is not entitled to her mahr? Well, because they brought experts on Jordanian law and Muslim law, and we don’t know where these experts came from because, as you know, different people bring different experts. And this is what they said, I’m reading from the case itself. The court says that, based upon the testimony:

the law in existence would be that of the Jordanian or Moslem law, and it finds that if the wife initiates a termination of the relationship [if she asks for divorce], she forgoes the dowry and the court so finds that in this case the wife initiated the termination of the marriage, and common sense and wisdom of Mohamed [sic] would dictate that she forgo the dowry, unless the parties agree otherwise. . . .

This statement, by the way, jurisprudentially, is wrong. First of all, under Islamic law, it’s true that if there is no reason to ask for divorce, the wife forgoes the dowry but, for example, if her husband is harming her, there is the principle of darar (harm) which is in the jurisprudence of Muslims, and she can go and seek a judicial decree of divorce because of harm. That does not release the man from the payment of deferred dowry, or else you would be rewarding him for the darar or the harm he caused the woman. Plus, the parties cannot agree otherwise as to the basic laws of Islam. You cannot supersede Islamic law by agreement. So the court is quite confused here. The court continues:

Public policy considerations are appropriate here.

Look why--now you’ll see the understanding of the court of what an Islamic kitab is. It says:

Pre-nuptial agreements [and it considers a kitab to be a pre-nuptial agreement] which "facilitate divorce or separation by providing for a settlement only in the event of such an occurrence are void as against public policy."

In other words, if you have an agreement that encourages you to divorce, that’s against public policy. The court says that a kitab, an Islamic marriage contract, encourages the woman to divorce. Why? Because that kitab says that if she divorces, she will get money. So, in other words, to get money, she will be motivated to divorce. I would argue that by their logic, a kitab also encourages a woman to commit murder, because she will also get money upon the death of her husband (if she is not discovered). This is ridiculous. But that is exactly what the court says. I’m reading from the court opinion:

Jordanian marriage contract must be considered as one designed to facilitate divorce. . . wife was not entitled to receive any of the agreed-upon sum unless the marriage was dissolved or husband died.

This is profiteering by divorce, the court says, and therefore we will not allow it. And the wife lost her dowry. And we don’t even have an idea, maybe she was entitled to it under Islamic law, but the court did not reach that level of sophistication in its analysis. Muslims ought to start engaging in legal education of the court system in the United States, about Islamic law and the personal status codes of Muslim countries, because we’re getting very weird results.

Mahr--it’s like a diamond ring. It’s a gift to show the intentions of the man towards the woman. Even ancient jurists explained it this way--this is not a new feminist way of looking at it. That’s how Islam always regarded it. Islam never looked at the wife as something that you can buy or sell.

[newlyweds2010 208]

Everything is VERY interesting, but the problem is that in the USA you cannot divorce simply by saying words of talak. None of the 50 States allows it. And an Islamic couple, married according to the laws of their islamic country of origin, residing in the USA is still subject to the laws of the State of residence.

Additionally, the OP is asking a different thing: if he has to remarry his wife in order to undo the divorce. The answer is YES, he has to remarry. And the effects of the marriage will start again from the date of the new wedding ceremony.

Here's a little research I did on the subject:

Islamic men who are foreign nationals but American residents often seek to divorce their spouses under the Sharia law prevailing in their country of origin rather than the secular law prevailing in the state of their marital domicile. Their intent is (a) to obtain an instant divorce by merely speaking certain words, (b) to take advantage of the Islamic “marriage contract” pursuant to which a wife receives nothing more than a nominal “deferred dower” payment upon divorce, © to take advantage of child custody laws that discriminate against women and (d) to have the wife labeled as a “bad Muslim.”

A New Hampshire court ruling (In the Matter of Ramadan, ruling dated 2/14/06) shows just how foolish such tactics can be.

The Ramadans had married in Lebanon and had signed a mahr, an Islamic marriage contract. They subsequently lived in Massachusetts, Texas, Egypt and Lebanon, before ultimately settling in New Hampshire. The husband declared “I divorce you” three times in the wife’s presence in New Hampshire. He then telephoned a lawyer in Lebanon, with two witnesses listening, and declared that he had divorced his wife. He promptly went to Lebanon and secured an order from a religious magistrate that he had done so. Meanwhile the wife instituted an action for divorce and ancillary relief in New Hampshire, serving him upon his return from Lebanon.

The husband retained counsel in New Hampshire who informed the court of the prior Lebanese divorce and declared that the husband would ignore the New Hampshire case, which he proceeded to do. The Family Division ultimately entered a divorce decree which adopted in its entirety the terms proposed by the wife. The husband appealed. The Supreme Court of New Hampshire ruled that the Family Division had jurisdiction to enter a divorce decree since the parties were domiciled in New Hampshire. It refused to recognize the Lebanese decree on two separate grounds.

First, a New Hampshire statute (RSA 459:1 (2004)) provides that “a divorce obtained in another jurisdiction shall be of no force or effect in this state … if both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.” The court held that this statute applies to overseas divorces.

Second, the court held that in any event the principle of comity, pursuant to which courts generally give recognition to foreign divorces, would not apply if application of the policy would violate “a strong public policy of the forum state.” The Court ruled that recognition of an ex parte foreign divorce obtained in a jurisdiction in which neither party is domiciled would cause hardship and would be in derogation of sound public policy.

The husband then asked the appeal court to vary the trial court’s division of marital property and award of custody. The New Hampshire Supreme Court held that he was too late. He had failed to provide the trial court with any of the information that it needed in order to make a more balanced award. He now had to live with the consequences, unbalanced as they might be.

The simple moral: If you choose to live in this country you are subject to the laws of this country.

Edited September 27, 2010 by newlyweds2010

[indian guy 13]

This is very interesting. May help a lot of people like me if more cases refereence can be posted

[mustafa1232 3]

This is very interesting. May help a lot of people like me if more cases refereence can be posted

hi pascal i think you are right this is intersting topic there is a more discuss about the islamic marriage i think let discuss about the 1 to 2 3 or 4 marriages in islam why 4 marriages allow in islam Q).why is Polygamy permitted in Islam – and that is why, a man is allowed to marry more than one wife? lets talk about this issue islam and science point of view

every non muslim asked that question , that why is Polygamy permitted in Islam, that is why… is a man is allowed to marry more than one wife, in Islam. The Polygamy actually means that… ‘A person who has more than one Spouse’. It is divided into two categories – ‘Polygeny’… in which, a man has more than one wife, and ‘Polyendry’… in which, a woman has got more than one husband. People normally, think Polygamy means… ‘A man can only… man can marry more than one wife’ – Polygamy means both… ‘A person having more than one spouse’. If a man has more than one wife, it’s called ‘Polygeny’… and if a woman has more than one husband, it is called ‘Polyendry’. But since the sister has mainly asked the question… ‘Why is a man allowed to marry more than one wife?’ I will answer, why is Polygeny allowed in Islam. Qur’an happens to be the only Religious book on the face of the earth, which says… ‘Marry only one’. There is no Religious book on the face of the earth, which says… ‘Marry only one’.<br style="padding-top: 0px; padding-right: 0px; padding-bottom: 0px; padding-left: 0px; margin-top: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; ">You read the hindu book Geeta, you read the hindu book hindu book Veda, you read the hindu book Ramayana, you read the Mahabharta, you read the Bible – No where it is mentioned… ‘Marry only one’ – Its only mentioned in the Qur’an. In fact if you read the Hindu Scriptures, most of the kings… most of the kings had several wives – King Dashrat had more than one wife, Lord Krishna had several wives. If you read the Jewish Scriptures, the Jewish law allowed ‘Polygeny’ in the 11th century. It was only when Rabi Gurdshom Benjahuda, he passed a Signord and said… ‘Polygeny should not be allowed’. Still, it was practiced by the Septranic Jewish community, in the Muslim countries… until in 1950, the chief Rabainite of Israel, put a ban on it. The Christian Bible allows Polygeny – only a couple of centuries ago, the Church put a ban on it. Even if you analyse the legal aspect of India, the Indian law allowed a Hindu man to have more than one wife. It was only in 1954, when the Hindu Marriage Act was passed, and if I am wrong Justice Kazi can correct me – When the Hindu marriage Act was passed in 1954, which put a ban, and prohibited the Hindu man to marry more than one wife. If you see the statistics, according to a committee report on ‘The status of women in Islam’, which was published in 1975, on page No. 66 and 67, it states the percentage of Polygamous marriages. And it said that… ‘The percentage in which the Hindus did Polygenous marriages, it was 5.06, and the percentage of Muslim Polygenous marriages, was only 4.31’. Let us leave the statistics, aside… let us come to the main point – why did Islam allow Polygeny? As I mentioned earlier, Qur’an is the only Religious book on the face of the earth which says… ‘Marry only one’. It is mentioned in Surah Nisa, Ch. No. 4, Verse No. 3, that…

‘You can marry women of your choice, in twos, threes or fours, but if you can not do justice, marry only one’.

This statement… ‘Marry only one’, is only given in the Qur’an –QURAN mean which is muslim book it is not there in any other Religious books. In pre-Islamic Arabia, men had several wives… Some people had hundreds of wives. Islam put an upper limit to Polygamy – Maximum four. And if you can have more than one wife, only on the condition, that you can do equal justice between the two, or between the three, or four – otherwise only one. And the same Surah… Surah Nisa, Ch. No. 4, Verse No. 129, says that…,

‘It is very difficult for a man to be just, between his wives’.

So Polygamy is an exception… it is not the rule – Many people think that Islam says…, you should compulsory marry more than one wife. There are five categories of do’s and don’ts, in Islam. 1st category is compulsory, which is ‘Farz’, the 2nd category is ‘Recommended’ or ‘Encouraged’, the 3rd category is the ‘Permissible’ category, the 4th category is the ‘Discouraged’ category, and the last is prohibited or ‘Forbidden’ – Polygeny, falls in the middle category of, ‘Permissible’. There is no statement in any Hadith, or in the Qur’an which says that… ‘If a man marries more than one wife, he is a better Muslim than a person who marries only one wife’. Let us analyse logically, why does Islam allow a man, to marry more than one wife? By nature, men and women are born… male and females are born, in equal proportion. But medical science tells us that… ‘The fetus… if it’s a female, it is more stronger than the male fetus.’ Pediatric knowledge tells us, that… a female child has got more resistance, than the male child – A female child can fight germs and disease, much more stronger and a better way, than the male child. *** Medical science tells us, that the female is health wise a stronger sex, than the male – so in the Pediatric stage itself, the female ratio is higher than the male ratio. Wars take place in the world, and during wars, more males are killed than the female. Even the recent war which took place… in the recent war which took place in Afghanistan, approximately more than one and a half million people were martyred, out of which most of them were men. Statistics tells us that accidents take place – More of the men die in accidents, than female – More male death takes place due to cigarette smoking, than female death. Therefore, we have more females in the world, as compared to the male. India is one of the country, besides the few of the Asian countries, and Africa, in which the female population is more than the male population. And the reason I have given you … because more than one million fetuses are… female fetuses are being aborted, every year. And because of the high rate of infanticide… female infanticide – that is the reason, that females are less than the male. Otherwise, you stop this evil practice, and within a few decade, you’ll have that the male population is… will become much less than the female population. In New York alone, there are 1 million females more than male – In US, alone there are 7.8 million females more than males, and out of the male population of New York, 1/3 are Gay. They are Sodomites – That means, they can not find female partners – And there are more than 25 million Gays in America. In Britain alone, there are more than 4 million females, more than males – In Germany alone there are 5 million females more, than males – In Russia alone, there are 7 million females, more than males – And God knows, how many million females are there more than the males, in this whole world. If suppose my sister happens to live in America, and suppose the market is saturated, every man has found a female partner for himself – Still there will be more than 30 million females in USA alone, who will not be able to find husbands. And suppose my sister who is living in America, happens to be amongst the unfortunate ladies, who has not found a partner yet – The only option remaining for her is, that she either marries a husband… she marries a man who already has a wife, or she becomes public property – There is no third option. And believe me I have posed this question to hundreds of Non-Muslims, and every one opted for the first – No one so far, has opted for the second. But there are some people who are smart, and he said that… ‘I would prefer my sister or any one sister remaining a virgin’. Believe me, medical science tells us, that a man or woman cannot remain a virgin, throughout her life. She cannot remain a virgin, throughout her life, without indulging in illicit sex or sexual perversion, because daily, sex hormones are being liberated in the body. And those great men, who claim to have renounced the world, for example the Sages and the Sants, who go to mountains and Himalayas… behind them, you find the devadasis going – for what? According to a report… according to a report… ‘Out of the Priests and the Nuns of the Church of England, the majority indulge in fornication and homosexuality’ – there is no option… there no third option. The only option is, that you marry a husband who already has a wife, or you become a public property

n continuation… in continuation of that question, we have got a question on the slip.

(Q) Can you enumerate the various conditions in which, ‘Polygamy’ is permitted? -<br style="padding-top: 0px; padding-right: 0px; padding-bottom: 0px; padding-left: 0px; margin-top: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; ">This is from sister Samina Can you enumerate the various conditions in which, ‘Polygamy’ is permitted?

– i enumerate the various conditions, in which Polygeny is permitted. The only condition which allows a man to marry more than one wife is that, he should do justice between the two wives. If he can do justice between the two or three or four wives that he has, he is allowed to take more than one wife – If he can not do justice he should suffice with only one wife. But there are several conditions, in which it is more advisable for a man to take more than one wife. One of the examples I gave is – because of the surplus women which can not find husbands, Islam has allowed Polygeny… to protect the modesty of the women. There are several other conditions – For example, suppose a young lady, she gets married, and within may be… or approximately a few months of her marriage, she has an accident, and she gets handicapped and she cannot satisfy the husband. The only option for the husband is, that he either keeps his first wife, who is handicapped and takes another wife, or divorces the first wife, and marries a new wife. I am telling you, suppose your sister happens to be that unfortunate lady, who gets handicapped – which would you prefer? Would you prefer your brother-in-law to divorce her, and to marry a new wife, or would you prefer your brother-in-law to keep that first wife, and to take another wife? There are situations in which the wife can become seriously ill – She can have a disease in which she will not be able to look after the children, or look after the husband. Under such conditions, it is more advisable that, that wife shares the husband with another lady, who will not only look after the husband… will also look after her, as well as the children. Many people may argue that… ‘Why can not you keep a maid servant or a nurse, who will look after the children?’ I do agree with you – You can very well keep a maidservant, who will look after your children and your wife – But who will look after you then? Very soon, that maidservant will start looking after you also. So the best option is, that you keep your first wife, and take another wife, and treat both of them equally. There can be conditions such as… after several years of marriage, you have got no children, and may be both the husband and wife, they yearn for the child. The wife can very well give permission to the husband, to marry another wife, and they can have more children. Some people may argue that… ‘Why do not you adopt a child?’ Islam does not allow adoption, for which there are several reasons, I will not go into. The only option remaining here is, that he either divorces the first wife, and takes another wife, if he wants children – or he keeps the first, and takes another wife, and treats them both of them equally – I hope these are sufficient reasons.

[Ban Hammer 13,342]

[Otto 83]

** Can we please refrain from overloading this topic with information not really being asked for? I'm not seeing where the OP is asking for religious content (certainly not in the amounts being copy/pasted here). If you'd like to have a separate discussion, there is a Politics & Religion forum here on VJ.

Thank you in advance.

Edited September 28, 2010 by Otto und Karin

[newlyweds2010 208]

** Can we please refrain from overloading this topic with information not really being asked for? I'm not seeing where the OP is asking for religious content (certainly not in the amounts being copy/pasted here). If you'd like to have a separate discussion, there is a Politics & Religion forum here on VJ.

Thank you in advance.