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Jorina Aktar Khatun Vs. HafezuddIn Khan and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal242,90Ind.Cas.633
AppellantJorina Aktar Khatun
RespondentHafezuddIn Khan and anr.
Excerpt:
muhammadan law - hanaft school--divorce, pronounced under compulsion, legality of--pronouncement of divorce contained in compromise deed, validity of. - .....talaqnama, it is undated and found to be unreliable.3. the only question, therefore, is whether a valid divorce was effected by the compromise which has been found to have been executed by the husband under coercion. according to the hanafi school a pronouncement of divorce is effectual although it has been made under coercion hamilton's hedaya, vol. i, page 210; tyabji's principles of muhammadan law, page 134, (para. 123). although the learned author raises the question whether at the present time the courts would give effect to a divorce pronounced under such circumstances.4. the respondent contends, however, that even if a divorce pronounced under compulsion is valid the divorce contained in the compromise is not binding as it is contained in a 'noncustomary' writing that is to say,.....
Judgment:

Ewart Greaves, J.

1. Defendant No. 1 in the suit appeals against a decision of the Subordinate Judge of Mymensingh confirming a decision of the Munsif of Netrakona directing restitution of conjugal rights at the instance of the plaintiff the husband of the appellant.

2. Both parties are Sunnis and governed by the Hanafi School. The marriage took place on the 21st Kartick 1315 and the parties lived together as husband and wife. The appellant left her husband in Aswin 1322 and after this as a result of land disputes between defendant No. 7 and the plaintiff criminal proceedings under Section 147 of the Indian Penal Code were instituted, these were settled by a compromise which was reduced to writing, one of the terms of the compromise was that the plaintiff should divorce his wife. The compromise was subsequently set aside at the husband's instance and both Courts have found that the plaintiff signed the terms of compromise under compulsion and the question is whether according to the Hanafi School a divorce extorted by compulsion is binding and if so, whether a divorce in writing in the form in which it was contained in this suit is binding. Subsequent to the compromise the wife is said to have married defendant No. 2 in nikah in Aswin 1325. No reliance can be placed upon another document which was produced, namely, an unregistered talaqnama, it is undated and found to be unreliable.

3. The only question, therefore, is whether a valid divorce was effected by the compromise which has been found to have been executed by the husband under coercion. According to the Hanafi School a pronouncement of divorce is effectual although it has been made under coercion Hamilton's Hedaya, Vol. I, page 210; Tyabji's Principles of Muhammadan Law, page 134, (para. 123). Although the learned author raises the question whether at the present time the Courts would give effect to a divorce pronounced under such circumstances.

4. The respondent contends, however, that even if a divorce pronounced under compulsion is valid the divorce contained in the compromise is not binding as it is contained in a 'noncustomary' writing that is to say, in a writing not addressed and directed to any person. And we are referred to Bailie's Digest of Muhammadan Law, Vol. I, 2nd Edition, page 235, where it is stated as follows:

A man is compelled by beating and imprisonment to write the repudiation of his wife and he writes that his wife such an one, the daughter of such an one, the son of such an one, is repudiated, but his Wife nevertheless is not repudiated.

5. This passage is 1 think explained by the foot note in the same page. The writing here is treated as an acknowledgment of repudiation which if written under compulsion is not binding but I do not think that it can be taken as an authority for anything else or to effect the rule that a written repudiation is valid provided it is addressed to the person to be repudiated. In the case referred to in Ballie, ubi supra, there was no repudiation but merely an acknowledgment of one which is not enough.

6. On an examination of the authorities I think the law according to the Hanafi School is clear that a written divorce is valid, provided it is addressed to the person to be divorced. It remains, therefore, to see the nature of the compromise. It is in these words:

I release you the 3rd party Akhtar Khatoon from the marital bond by giving you three talaqs according to the Muhammadan scriptures.

7. The compromise was signed by the husband and by the wife and it was registered and was addressed by the husband to the wife. It seems to me to be not an acknowledgment but a document which actually effects the divorce.

8. As I have already stated to my mind the law is clear that according to the Hanafi School, which governs the parties, a divorce pronounced under compulsion is valid and that such divorce is nonetheless valid because it is contained in a written document provided this document is addressed to the party to be divorced and provided it actually pronounces the divorce and is not merely an acknowledgment of something agreed to under compulsion which in my view the compromise is not.

9. The appeal accordingly succeeds and we set aside the decree of the First Court which was confirmed on appeal and the appellant will be entitled to her costs here and in the Courts below.

Cuming, J.

10. I agree.


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