JORINA AKTAR KHATUN Vs. HAFEZUDDIN KHAN

JUDGEMENT

(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 21 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.