1. This is a defendant's appeal arising out of a suit for restitution of conjugal rights. The plaintiff's case was that the defendant No. 1 was his legally wedded wife, that he had come to the house of her father when on the 6feh of June, 1922, her father and brothers forcibly under a threat of injury to his person and life made him sign a document purporting to be a deed of divorce, that accordingly no valid divorce was pronounced by him and that even if there was a divorce it was a revocable one and he revoked it by registered notices on the 17th of June, 1922.
2. The contesting defendant No. 1 in her written statement denied that there had been any coercion or compulsion and pleaded that a valid divorce had been pronounced and that it was an irrevocable one.
3. The Court of first instance although finding that some moral force might have been used in obtaining the document came to the conclusion that even if it was obtained under compulsion it was valid. It thought that a valid and irrevocable divorce had been pronounced, and accordingly dismissed that suit. On appeal the lower Appellate Court has come to a contrary conclusion. It has found that the defendants Nos. 2 to 5 had prepared a plot to secure a deed of divorce and everything was ready from before, that they took the plaintiff to the house of one Abdul Rahim who appears to be a Bad-mash of Benares, that there were some 5 or 10 men sitting with lathis, and that there the plaintiff was forced to execute the deed of divorce. It found that the plaintiff had been forced to sign the document. As to whether there had bean an oral pronouncement by the plaintiff it came to the conclusion that the story of the defendants was quite false. It believed that the plaintiff did not utter the word of divorce orally. It accordingly decreed the claim.
4. The defendants have come up in appeal and on their behalf it is urged that even if the document had been obtained under compulsion it effected a valid divorce. On the other hand the replies on behalf of the respondent are (1) that a divorce obtained by coercion is revocable, (2) that the deed not having been executed in the presence of the wife was inoperative, (3) that the document contains only one pronouncement; and not three, and the divorce on this ground also was revocable, and (4) that it did not amount to a pronouncement of divorce at all but a mere acknowledgment that a divorce had been effected and as a mare acknowledgment it is invalid.
5. It is true that the majority of the Hanafi jurists have taken an extremely narrow view that a divorce pronounced under compulsion also is effective, though the opinion is by no means absolutely unanimous. The Shafai lawyers on the other hand hold such a divorce to be altogether invalid. In view of the opinion which I have formed on the terms of the document itself it is unnecessary for ma to consider whether by the opinion that the divorce under compulsion is effective, it is meant that it is wholly valid and irrevocable, or whether that though it is not null and void yet it is revocable. Nor is it necessary to consider whether the view of the Hanafi lawyers is against the public policy as has been suggested by some commentators. The question of revocation also therefore does not arise.
6. The deed, however, is not defective merely because it was not signed in the presence of the wife, vide the case of Mt. Waj Bibi v. Azmut Ali 8 W.R. 23.
7. The objection that the deed does not contain three pronouncements of divorce is also of no avail to the plaintiff. It is true that the lower Appellate Court has found that the word 'three' in it is a subsequent interpolation. But when the language of the document clearly indicates that the intention was to make an irrevocable divorce it is not necessary that the triple form should be used.
8. The plea of divorce however falls to the ground because of the finding that the plaintiff did not pronounce the divorce orally but merely signed the deed Exhibit A. The operative portion of it may be translated as follows:
While in full possession of my senses and having divorced my wife Mt. Nur Bibi in the presence of several persons, I declare and put it down in writing, etc., etc.' The language of the document makes it clear that the divorce had taken place before the document was signed and the document itself contains a declaration that such divorce has been effected. The finding of the lower Appellate Court is that the signature on this deed was obtained under compulsion. All that is proved then is that under compulsion the husband acknowledged that he already divorced his wife. This is quite a different thing from actually pronouncing the divorce itself.
9. On the question as to whether an acknowledgment of a divorce, as distinct from the pronouncement of the divorce itself, obtained under compulsion is binding on the husband, there is a perfect unanimity of opinion even among the Hanafi lawyers. Such an acknowledgment is wholly ineffective if it is proved that it was in fact untrue.
10. It follows that the view of the lower Appellate Court that no valid divorce has in the eye of the law taken place was correct.
11. In view however of the strained relations between the parties I would direct under Order 21, Rule 33(1), Civil Procedure Code that the decree against the wife shall not be executed by her detention in prison. It will be open to the plaintiff to take any other step that may be allowed to him by law. The injunction against the other defendants will of course hold good. With the above remarks the appeal is dismissed with costs including in this Court, fees on the higher scale.