Cassation No. 6 of 2020 - Personal Status
Issued on 03/03/2020
Court Panel: Presided over by Mr. Judge Falah Shayea Al-Hajri, Chief Judge of the Circuit, with Messrs. Judges Juma Ibrahim Muhammad Rashid and Al-Tayeb Abdul Ghafour Abdul Wahab as counsellors.
1- The court has the authority to raise any issue related to public order sua sponte, even if the parties involved did not bring it up
2- The nature of the invalidity of the procedure and its effect.
3- Cases where the invalidity of a procedure may arise.
4- The legislator differentiates between cases where the nullity is legally stipulated explicitly and cases where it is not explicitly stipulated.
5- Defining what is meant by cases where the nullity of the procedure is not explicitly stipulated.
6- It is permissible to waive the invalidity for the person in whose interest the invalidation was enacted, explicitly or implicitly, with the exception of nullity related to public order. It is permissible to waive the nullity by the person in whose interest the nullity was enacted, either explicitly or implicitly, with exceptions for nullity related to public order.
7- The issuance of the contested ruling lacking an authentic endorsement of a member of the judicial panel that rendered the decision, wherein the signature of the secretary is employed as a substitute for the identities of the judges who rendered the decision, results in the absolute nullity of the judgment on grounds pertaining to public order.
8- A party invoking foreign private law must present it to the court in a documented form in accordance with the Evidence Law. Foreign law is considered a material fact, and the party asserting it is obligated to substantiate and provide evidence for it.
9- The court shall annul the appealed ruling and render a new decision, referencing the provisions of national law, as both parties failed to submit a complete, translated, and notarized copy of the foreign law invoked in the Republic of India.
10- The two arbitrators are considered trustworthy in executing their duties, and their statements included in their report are deemed valid. Their decision is a matter of consideration for the judge and is binding on the spouses, except when it contravenes Sharia and the law.
11- The nature of the lawsuit.
12- The burden of proof lies with the plaintiff, utilizing all recognized methods of proof compatible with Sharia and the law. The evidence supporting the existence of the right or the validity of the disputed fact must be established before the judiciary.
13- A right without evidence of its establishment is deemed as devoid of its force.
14- A right whose owner is unable to prove its source is deemed as non-existent.
15- Islamic Sharia emphasizes the preservation of the existing marital bond between spouses, making divorce in the final stage a challenging, severe, and conclusive solution to sever the marital bond in accordance with Sharia controls.
16- The contested ruling on divorce, based on the erroneous decision of the two arbitrators after deciding the separation without any evidence, and lacking proof of abandonment, harm, continuation of the amicable marital relationship between them, or discord in its legal sense, is deemed to have erred in understanding the reality and evaluating the evidence, and it violates the provisions of Islamic Sharia and the law.
1) The Federal Supreme Court. Public order. “Nullity” of a procedure. “Types” “conditions” “nature” “waiver” of nullity. Deliberation. Judges. Ruling “its causes”. The “meritorious” defense. Parties, their “requests”, their “names” and their capacities. Reversal “acceptable reasons.”
- The Federal Supreme Court has the authority to bring up any issue related to public order on its own initiative even if the parties do not raise it.
- Nullity. What is it and its impact?
- The fundamental principle guiding procedures is that they should adhere to legislative prescriptions rather than individual preferences. Nullity occurs when the law explicitly deems a procedure invalid or when a fundamental defect or deficiency exists, hindering the achievement of the procedure's intended purpose.
- Cases of nullity can arise from formal defects affecting procedures, with the legislator making a clear distinction between instances where nullity is explicitly stipulated in the law and cases where it is not. Nullity is explicitly declared as a consequence of not adhering to a prescribed form or when a document contains a defective statement, rendering the procedure invalid.
- Nullity results from a fundamental defect or deficiency in the procedure that prevents the intended purpose from being achieved.
- When referring to cases where nullity is not stipulated, it means the absence of an explicit prohibition or denial. In such instances, nullity can be ruled based on the presence of a defect or fundamental deficiency that hinders the procedure's intended purpose.
- Nullity may be waived by the person in whose favour it was enacted, either explicitly or implicitly, except for nullity related to public order. However, the effect of nullity is not limited to the person in whose favour it was enacted; the opponent who caused it may uphold it, and it cannot be waived. The court, in such cases, has the authority to address nullity on its own initiative, prioritizing the public interest over individual considerations.
- Deliberation on rulings is a confidential process among the judges who heard the pleading. Only these judges can participate in the deliberation. The presiding judge follows a structured process during deliberations. Opinions are collected, beginning with the most recent judges and progressing to the oldest. The presiding judge then expresses their own opinion. Rulings are issued either unanimously or by a majority. In cases where a majority is not achieved and opinions diverge into more than two, the team with the smallest number or the one including the most recent judges aligns with one of the two opinions issued by the team with the largest number. After revisiting the opinions, the ruling is issued by the judge or the chief judge of the circuit, depending on the circumstances. This process is in accordance with the regulations outlined in Cabinet Decision No. 57 of 2018 on Federal Law No. 11/1992 regarding the Civil Procedure Law.
- In all cases, rulings shall include the reasons on which they are based and be documented in the case file, bearing the signatures of the presiding judge and the judges, whether electronic or manual. Any violation of the provisions in Paragraphs 1 and 2 of Article 50 of the Regulations of Cabinet Resolution No. 57 of 2018 on Federal Law No. 11/1992 regarding the Civil Procedure Law leads to the nullity of the ruling.
- The judgment must explicitly state the court's identity, issuance date, location, case type, names of judges involved in the proceedings, those participating in the ruling, and attendees during the pronouncement. Additionally, it should include the prosecution member expressing an opinion, names of opponents with their titles, capacities, domiciles or workplaces, and their presence or absence.
- A comprehensive presentation of the case's factual background, opponents' requests, a concise overview of their meritorious defense, the prosecution's opinion, and a discussion of reasons leading to the operative part should be included in the judgment. Any insufficiency, deficiency, or serious error in opponents' names and capacities, as well as a failure to indicate the judges' names, renders the judgment invalid.
- An illustration of a flawed reason for invalidation is when the ruling's copy lacks the signature of a circuit member, serving as legal evidence of inadequate deliberation and ruling absence.
2) The law “its application”. Court of Cassation “reversing the ruling”.
- The Court of Cassation retains the authority to reverse all or part of the contested ruling, addressing the merits. This is based on Article 13 of the Personal Status Law No. 28 of 2005, as amended in 2019.
1- Whereas it is legally prescribed that the the Supreme Court possesses the authority to address issues related to public order autonomously, even if not raised by the involved parties. Nullity, a term denoting the invalidation of a procedure, results from its violation of the law, rendering it ineffectual according to the legislator's intent. The fundamental principle is that procedures must adhere to legislative prescriptions rather than the preferences of involved parties or external influences. Invalidity occurs when either explicitly mandated by law or due to fundamental defects preventing the procedure's intended purpose. Legislative regulation governs instances of nullity arising from formal flaws in procedures.
The legislator has chosen to address cases of invalidation arising from formal defects in procedures. Distinctions exist between instances where invalidity is explicitly stipulated by the law, such as when a particular form or specific statement is mandated, resulting in invalidation as a penalty for non-compliance. Importantly, the legislator has not confined invalidation solely to cases explicitly stipulated; it extends to situations where a procedure contains a fundamental defect or deficiency, hindering the achievement of its intended purpose. This nuanced approach reflects the legislator's comprehensive regulation of invalidity, encompassing both explicit stipulations and broader considerations related to procedural effectiveness.
The absence of an explicit provision for nullity characterizes cases where the law does not clearly specify its conditions. In situations where the law uses terms like "may not" or "shall not" or includes any prohibitive or negative statements, nullity is not automatically declared. However, it remains possible to rule nullity if a fundamental defect or deficiency exists, preventing the intended purpose of the procedure from being realized. This approach underscores that even in the absence of explicit legal constraints, the presence of substantive shortcomings may warrant a declaration of nullity.
Distinctions exist between cases where nullity is explicitly stipulated and those where it is not. In cases where the law explicitly requires specific forms or statements, non-compliance results in invalidity. However, nullity is not confined solely to explicit provisions; it may be declared if a fundamental defect or deficiency hinders the procedure's intended purpose, even in the absence of an explicit provision. The legislator underscores the possibility of waiving nullity by the party for whose benefit it was enacted, either explicitly or implicitly, except in cases related to public order. Importantly, nullity may not be waived in instances related to public order, and the court retains the prerogative to address it independently, reflecting a prioritization of public interest over other considerations.
Given these circumstances, and in accordance with the regulations outlined in Cabinet Decision No. 57 of 2018 regarding Federal Law No. 11/1992 on the Civil Procedure Law, which dictates that deliberation on rulings must remain confidential among the judges who heard the pleading, it is imperative that only those judges participate in this process. The presiding judge is responsible for collecting opinions, commencing with the most recent judges and progressing to the oldest. Subsequently, the presiding judge expresses their opinion, and rulings are issued either by consensus or by a majority of opinions.
In cases where a majority is absent, and opinions are divided into more than two factions, the team with the smallest number, or the team comprising the most recent judges, is required to align with one of the two opinions issued by the group with the largest number. After revisiting the opinions, the ruling is then issued by the judge or the chief judge of the circuit, as applicable. Regardless of the decision-making process, all rulings must include the reasons on which they are based and be deposited in the case file, signed by the presiding judge and the judges, whether through electronic or manual means.
Violations of the provisions articulated in paragraphs (1) and (2) of Article 50 of the organizational regulations of Cabinet Decision No. 57 of 2018 on Federal Law No. 11/1992 regarding the Civil Procedure Law will result in the invalidity of the ruling. Furthermore, the ruling must explicitly indicate the court that issued it, the date of its issuance, its location, the case type, the names of the judges involved in the hearing and ruling, and those present during its pronouncement. Additionally, it should specify the member of the Public Prosecution who expressed their opinion on the case, if applicable, and provide details regarding the opponents, including their names, titles, capacities, domiciles or places of work, and whether they were present or absent.
The ruling must encompass a comprehensive presentation of the case's facts, the requests made by the opponents, a succinct summary of their meritorious defense, and the prosecution's opinion. Additionally, the ruling should outline the reasons behind its decision and state the operative part. Any deficiencies in the factual reasons, substantial errors in the names and capacities of the opponents, and the omission of the names of the judges who issued the ruling will render the ruling null and void. The judges are required to sign the copy of the ruling containing the case facts, reasons, and operative part, and this signed document should be retained in the case file. The pronouncement of a judgment in contravention of the regulations specified in Cabinet Decision No. 57 of 2018 pertaining to Federal Law No. 11/1992 on the Civil Procedure Law results in its nullification.
Whereas, the contested ruling was issued invalidly, as the copy of the ruling lacked the signature of a member of the circuit that issued the ruling. Instead, the secretary's signature was used in place of the names of the judges who issued the ruling. This absence of a signature from the circuit members raises a legal presumption of the lack of deliberation and the absence of a valid judgment. Such a deficiency constitutes a violation and derogation from the established rules of issuing judgments, impacting the fundamental principles of the litigation system and undermining the guarantees of justice. This violation of peremptory procedural rules, including those governing judgment issuance, results in the absolute nullity of the ruling.
This nullity cannot be rectified by subsequent procedures after the ruling's issuance, and it is considered a breach of public order due to its infringement upon the provisions of both primary and subsidiary legislation. The court is obligated to address this nullity on its own initiative, and rule the nullity of the contested decision.
2- Whereas in accordance with the provisions of Article Thirteen of the Personal Status Law No. 28 of 2005, as amended in 2019, if the Court of Cassation reverses all or part of the contested ruling, it is obligated to adjudicate on the merits of the case.
Whereas on the merits of the appeal.
the appellants raised objections regarding the application of Indian law to them. As per Article 2/1 of the Personal Status Law, this law applies to all nationals of the United Arab Emirates, with specific provisions for non-Muslims of different sects and religions. Moreover, its provisions extend to non-nationals unless they explicitly invoke the application of their own law. In such cases, the person invoking foreign law must submit it to the court documented in accordance with the Evidence Law. Foreign law is considered a factual matter, and its invocation necessitates proof and evidence. Given that neither party provided a complete, translated, and authenticated copy of the foreign law invoked in the Republic of India, the court is mandated to annul the appealed ruling and rule again, referencing the provisions of national law.
Turning to the merits of the original lawsuit, Islamic Sharia, as expressed in the divine revelation, mandates the appointment of arbitrators from both parties' families in case of fear of a breach. The goal is reconciliation, as stated: "If you fear a breach between the two, appoint an arbitrator from his family and an arbitrator from her family. If they desire reconciliation, Allah will restore harmony between them. Allah is Knowledgeable, Expert."
As per the ruling of the Federal Supreme Court and in accordance with Article 117 et seq. of the Personal Status Law, each spouse has the right to request a divorce due to harm that renders it impossible for them to live together amicably. This right is not forfeited unless reconciliation is proven. The Family Guidance Committee, under this law, is responsible for attempting reconciliation between the spouses. In case reconciliation is not achieved, the judge endeavors to reconcile them. If reconciliation remains elusive, and the harm is proven, a divorce ruling is issued. If harm is not substantiated, the lawsuit is rejected. Should discord persist, the aggrieved party may file a new lawsuit. In the event that both the Family Guidance Committee and the judge cannot reconcile the spouses, the judge appoints two arbitrators from their families, provided it's feasible, with each spouse nominating an arbitrator from their family if possible in the next session. Alternatively, someone experienced and capable of reconciliation may be appointed.
The court is mandated to administer an oath to both arbitrators, ensuring the fair and honest execution of their duties. These arbitrators are then tasked with investigating the causes of discord and making sincere efforts to reconcile the spouses. The non-attendance of one spouse at the arbitration session does not impede the arbitrators' work once they are notified of the specific session or subsequent sessions, even if interruptions occur between them.
1- If the two arbitrators fail to reconcile the spouses, the court must present their recommendations to the spouses and invite them to reconcile before issuing the separation ruling. If reconciliation occurs after the arbitrators recommend separation but before the ruling is issued, the court must verify and confirm the reconciliation.
2- If reconciliation is not possible, and the entire harm lies with the husband, and the wife seeks separation, or both parties request it, the two arbitrators will recommend an irrevocable separation without compromising any marital rights resulting from marriage or divorce.
3- In cases where reconciliation is not achievable, and the entire harm is on the part of the wife, the two arbitrators will recommend separation with an appropriate allowance estimated by them to be paid by the wife unless the husband waives it. The court will consider the family's interests in this matter.
4- If reconciliation is not possible, and the harm is shared between the spouses, the two arbitrators will recommend separation without compensation or with compensation proportionate to the percentage of harm.
5- In situations where reconciliation between the spouses is unattainable, and the responsible party is unknown, if the husband seeks separation, the two arbitrators will propose rejecting his claim. If the wife requests separation or both parties seek it, the arbitrators have the discretion to either recommend separation without compensation or reject the separation based on what they deem suitable for the family and children.
The two arbitrators submit their reasoned recommendations to the judge, detailing the extent of harm caused by either spouse. The judge follows the recommendations if there is an agreement. In case of disagreement between the arbitrators, the judge appoints another arbitrator or adds a third one, whose opinion prevails over one of the two. The judge may amend the recommendations if they contradict the provisions of the law.
Judge Abu Bakr Muhammad bin Asim Al-Andalusi Al-Gharnati, may God have mercy on him, articulated in Al-Tuhfa:
If harm is proven for a wife and recurs, two arbitrators should be appointed between the spouses in accordance with the Qur’an, preferably chosen from their families; otherwise, individuals from other families may serve as arbitrators. The arbitrators' decisions are valid and binding on the spouses.
Moreover, it is established in jurisprudence that the two arbitrators are entrusted with their mission, and their statements included in their report are considered valid. Their role is that of judgment, distinct from testimony, agency, or prosecution. The decision of the arbitrators is a matter of consideration for the judge, even if he disagrees with their opinion. It is also binding on the spouses, irrespective of their preferences, unless it contravenes Sharia and the law. This is because God Almighty referred to them as two arbitrators in the decisive revelation.
Given this context and the established provisions of Islamic Sharia and the law, a lawsuit is considered a means to seek protection for a legitimate or legal right or position that has been violated. In such instances, the plaintiff is obligated to prove the claim through all recognized methods of evidence that align with Sharia and the law. Establishing evidence before the judiciary regarding the existence of the right or the validity of the disputed fact is crucial to achieving specific legal outcomes. Evidence must be established for every material or factual aspect, as a legal claim requires substantiation or rebuttal by the defendant. Proof is the lifeblood of the right, and a right devoid of evidence loses its efficacy. Therefore, it is imperative to furnish evidence for every material or factual aspect, as the inability to prove the source of a right renders it equivalent to nonexistence.
Indeed, this principle is succinctly expressed in the following sayings:
"The evidence is the strength of truth."
"A non-existent right is equal to a right for which there is no evidence."
"Indeed, that for which there is no evidence and non-existence are the same."
The noble words of Prophet Muhammad, peace and blessings be upon him, further affirm this foundational principle in his hadith:
“If people were to be given according to their claim, some people would claim the blood and wealth of others, but the proof is on the claimant," emphasizing the importance of evidence in substantiating claims”.
The contested ruling failed to acknowledge one of the notable strengths of Islamic law, namely its commitment to preserving the marital bond between spouses, recognizing it as a crucial foundation for societal well-being. This commitment is in alignment with Article Fifteen of the Constitution, emphasizing the family's significance as the cornerstone of society, rooted in Islamic values, morality, and patriotism. Islamic law, while acknowledging the severity of divorce, presents it as a last resort, subject to stringent Sharia controls.
In this context, the contested ruling, by deciding on divorce without due consideration of these principles and relying on an erroneous report from arbitrators, deviated from the tenets of Islamic Sharia and legal provisions. The ruling failed to establish evidence of harm, abandonment, or discord, thus departing from the foundational requirements for such a consequential decision. Consequently, the ruling's deficiencies in reasoning and reliance on insufficient grounds led to the violation of the provisions of the noble Islamic Sharia and the law and call for its annulment in regards to the divorce and its associated implications. The case should be remanded for further consideration.
The Court
Whereas in the facts, the plaintiff-respondent initiated legal proceedings by filing a lawsuit before the court of first instance against the appellant. The plaintiff sought a divorce on the grounds of harm and requested the court to compel the appellant to provide maintenance and associated expenses for both her and the child (Name). Additionally, she sought orders for the preparation of a custodial residence, payment in accordance with Hindu law and national law, and the return of personal belongings. The plaintiff asserted that she is the legally wedded wife of the appellant, and she suffered harm due to abandonment, prompting her recourse to legal channels.
Furthermore, the appellant submitted a counterclaim, urging the respondent to obey and return to the marital home, advocating the application of Hindu law to the case. Despite the court's attempt to facilitate reconciliation between the spouses, these efforts proved unsuccessful, with the wife maintaining her stance on seeking a divorce. Subsequently, the Court of First Instance appointed two arbitrators who presented a report concluding that reconciliation was unattainable due to the wife's persistent desire for a divorce.
During a session on 27/6/2019, the Court of First Instance issued its verdict, opting to apply Hindu law to certain aspects of the case and national law to address specific requests. The ruling included the separation of the spouses with a portion of the deferred dowry, custody of the children, and an obligation on the part of the appellant to provide maintenance and related expenses for the wife and child. Additionally, the appellant was directed to arrange a custodial residence for the wife, along with the payment of specified amounts for various services, such as electricity, internet, and telephone. The counter-claim submitted by the appellant was rejected by the court.
Both parties contested the judgment, leading to an appeal. On 8/12/2019, the Court of Appeal decided to modify the original ruling, specifically adjusting the maintenance amount between the two parties while upholding the divorce ruling and its consequences. Concerning the counter-claim, the court determined it was not eligible for appeal and deemed it a request overlooked in the original ruling.
Subsequently, the appellant pursued a cassation appeal. Upon presentation to the Council Chamber, the panel found the cassation valid for a hearing and scheduled a session to consider it, with both parties duly notified.
Whereas it is legally prescribed that the the Supreme Court possesses the authority to address issues related to public order autonomously, even if not raised by the involved parties.
Nullity, a term denoting the invalidation of a procedure, results from its violation of the law, rendering it ineffectual according to the legislator's intent.
The fundamental principle is that procedures must adhere to legislative prescriptions rather than the preferences of involved parties or external influences. Invalidity occurs when either explicitly mandated by law or due to fundamental defects preventing the procedure's intended purpose. Legislative regulation governs instances of nullity arising from formal flaws in procedures.
The legislator has chosen to address cases of invalidation arising from formal defects in procedures. Distinctions exist between instances where invalidity is explicitly stipulated by the law, such as when a particular form or specific statement is mandated, resulting in invalidation as a penalty for non-compliance. Importantly, the legislator has not confined invalidation solely to cases explicitly stipulated; it extends to situations where a procedure contains a fundamental defect or deficiency, hindering the achievement of its intended purpose. This nuanced approach reflects the legislator's comprehensive regulation of invalidity, encompassing both explicit stipulations and broader considerations related to procedural effectiveness.
The absence of an explicit provision for nullity characterizes cases where the law does not clearly specify its conditions. In situations where the law uses terms like "may not" or "shall not" or includes any prohibitive or negative statements, nullity is not automatically declared. However, it remains possible to rule nullity if a fundamental defect or deficiency exists, preventing the intended purpose of the procedure from being realized.
The legislator underscores the possibility of waiving nullity by the party for whose benefit it was enacted, either explicitly or implicitly, except in cases related to public order. Importantly, nullity may not be waived in instances related to public order, and the court retains the prerogative to address it independently, reflecting a prioritization of public interest over other considerations.
Given these circumstances, and in accordance with the regulations outlined in Cabinet Decision No. 57 of 2018 regarding Federal Law No. 11/1992 on the Civil Procedure Law, which dictates that deliberation on rulings must remain confidential among the judges who heard the pleading, it is imperative that only those judges participate in this process. The presiding judge is responsible for collecting opinions, commencing with the most recent judges and progressing to the oldest. Subsequently, the presiding judge expresses their opinion, and rulings are issued either by consensus or by a majority of opinions. In cases where a majority is absent, and opinions are divided into more than two factions, the team with the smallest number, or the team comprising the most recent judges, is required to align with one of the two opinions issued by the group with the largest number. After revisiting the opinions, the ruling is then issued by the judge or the chief judge of the circuit, as applicable. Regardless of the decision-making process, all rulings must include the reasons on which they are based and be deposited in the case file, signed by the presiding judge and the judges, whether through electronic or manual means. Violations of the provisions articulated in paragraphs (1) and (2) of Article 50 of the regulations of Cabinet Decision No. 57 of 2018 on Federal Law No. 11/1992 regarding the Civil Procedure Law will result in the invalidity of the ruling. Furthermore, the ruling must explicitly indicate the court that issued it, the date of its issuance, its location, the case type, the names of the judges involved in the hearing and ruling, and those present during its pronouncement. Additionally, it should specify the member of the Public Prosecution who expressed their opinion on the case, if applicable, and provide details regarding the opponents, including their names, titles, capacities, domiciles or places of work, and whether they were present or absent. The ruling must encompass a comprehensive presentation of the case's facts, the requests made by the opponents, a succinct summary of their meritorious defense, and the prosecution's opinion. Additionally, the ruling should outline the reasons behind its decision and state the operative part. Any deficiencies in the factual reasons, substantial errors in the names and capacities of the opponents, and the omission of the names of the judges who issued the ruling will render the ruling null and void. The judges are required to sign the copy of the ruling containing the case facts, reasons, and operative part, and this signed document should be retained in the case file. The pronouncement of a judgment in contravention of the regulations specified in Cabinet Decision No. 57 of 2018 pertaining to Federal Law No. 11/1992 on the Civil Procedure Law results in its nullification.
Whereas, the contested ruling was issued invalidly, as the copy of the ruling lacked the signature of a member of the circuit that issued the ruling. Instead, the secretary's signature was used in place of the names of the judges who issued the ruling. This absence of a signature from the circuit members raises a legal presumption of the lack of deliberation and the absence of a valid judgment. Such a deficiency constitutes a violation and derogation from the established rules of issuing judgments, impacting the fundamental principles of the litigation system and undermining the guarantees of justice. This violation of peremptory procedural rules, including those governing judgment issuance, results in the absolute nullity of the ruling. This nullity cannot be rectified by subsequent procedures after the ruling's issuance, and it is considered a breach of public order due to its infringement upon the provisions of both primary and subsidiary legislation. The court is obligated to address this nullity on its own initiative and rule the nullity of the contested decision.
Whereas in accordance with the provisions of Article Thirteen of the Personal Status Law No. 28 of 2005, as amended in 2019, if the Court of Cassation reverses all or part of the contested ruling, it is obligated to adjudicate on the merits of the case.
Whereas on the merits of the appeal, the appellants raised objections regarding the application of Indian law to them. As per Article 2/1 of the Personal Status Law, this law applies to all nationals of the United Arab Emirates, with specific provisions for non-Muslims of different sects and religions. Moreover, its provisions extend to non-nationals unless they explicitly invoke the application of their own law. In such cases, the person invoking foreign law must submit it to the court documented in accordance with the Evidence Law. Foreign law is considered a factual matter, and its invocation necessitates proof and evidence.
Given that neither party provided a complete, translated, and authenticated copy of the foreign law invoked in the Republic of India, the court is mandated to annul the appealed ruling and rule again, referencing the provisions of national law.
Turning to the merits of the original lawsuit, Islamic Sharia, as expressed in the divine revelation, mandates the appointment of arbitrators from both parties' families in case of fear of a breach. The goal is reconciliation, as stated: "If you fear a breach between the two, appoint an arbitrator from his family and an arbitrator from her family. If they desire reconciliation, Allah will restore harmony between them. Allah is Knowledgeable, Expert."
As per the ruling of the Federal Supreme Court and in accordance with Article 117 et seq. of the Personal Status Law, each spouse has the right to request a divorce due to harm that renders it impossible for them to live together amicably. This right is not forfeited unless reconciliation is proven. The Family Guidance Committee, under this law, is responsible for attempting reconciliation between the spouses. In case reconciliation is not achieved, the judge endeavors to reconcile them. If reconciliation remains elusive, and the harm is proven, a divorce ruling is issued. If harm is not substantiated, the lawsuit is rejected. Should discord persist, the aggrieved party may file a new lawsuit. In the event that both the Family Guidance Committee and the judge cannot reconcile the spouses, the judge appoints two arbitrators from their families, provided it's feasible, with each spouse nominating an arbitrator from their family if possible in the next session. Alternatively, someone experienced and capable of reconciliation may be appointed.
The court is mandated to administer an oath to both arbitrators, ensuring the fair and honest execution of their duties. These arbitrators are then tasked with investigating the causes of discord and making sincere efforts to reconcile the spouses. The non-attendance of one spouse at the arbitration session does not impede the arbitrators' work once they are notified of the specific session or subsequent sessions, even if interruptions occur between them.
1- If the two arbitrators fail to reconcile the spouses, the court must present their recommendations to the spouses and invite them to reconcile before issuing the separation ruling. If reconciliation occurs after the arbitrators recommend separation but before the ruling is issued, the court must verify and confirm the reconciliation.
2- If reconciliation is not possible, and the entire harm lies with the husband, and the wife seeks separation, or both parties request it, the two arbitrators will recommend an irrevocable separation without compromising any marital rights resulting from marriage or divorce.
3- In cases where reconciliation is not achievable, and the entire harm is on the part of the wife, the two arbitrators will recommend separation with an appropriate allowance estimated by them to be paid by the wife unless the husband waives it. The court will consider the family's interests in this matter.
4- If reconciliation is not possible, and the harm is shared between the spouses, the two arbitrators will recommend separation without compensation or with compensation proportionate to the percentage of harm.
5- In situations where reconciliation between the spouses is unattainable, and the responsible party is unknown, if the husband seeks separation, the two arbitrators will propose rejecting his claim. If the wife requests separation or both parties seek it, the arbitrators have the discretion to either recommend separation without compensation or reject the separation based on what they deem suitable for the family and children.
The two arbitrators submit their reasoned recommendations to the judge, detailing the extent of harm caused by either spouse. The judge follows the recommendations if there is an agreement. In case of disagreement between the arbitrators, the judge appoints another arbitrator or adds a third one, whose opinion prevails over one of the two. The judge may amend the recommendations if they contradict the provisions of the law.
Judge Abu Bakr Muhammad bin Asim Al-Andalusi Al-Gharnati, may God have mercy on him, articulated in Al-Tuhfa:
If harm is proven for a wife and recurs, two arbitrators should be appointed between the spouses in accordance with the Qur’an, preferably chosen from their families; otherwise, individuals from other families may serve as arbitrators. The arbitrators' decisions are valid and binding on the spouses.
Moreover, it is established in jurisprudence that the two arbitrators are entrusted with their mission, and their statements included in their report are considered valid. Their role is that of judgment, distinct from testimony, agency, or prosecution. The decision of the arbitrators is a matter of consideration for the judge, even if he disagrees with their opinion. It is also binding on the spouses, irrespective of their preferences, unless it contravenes Sharia and the law. This is because God Almighty referred to them as two arbitrators in the decisive revelation.
Given this context and the established provisions of Islamic Sharia and the law, a lawsuit is considered a means to seek protection for a legitimate or legal right or position that has been violated.
In such instances, the plaintiff is obligated to prove the claim through all recognized methods of evidence that align with Sharia and the law. Establishing evidence before the judiciary regarding the existence of the right or the validity of the disputed fact is crucial to achieving specific legal outcomes.
Evidence must be established for every material or factual aspect, as a legal claim requires substantiation or rebuttal by the defendant. Proof is the lifeblood of the right, and a right devoid of evidence loses its efficacy.
Therefore, it is imperative to furnish evidence for every material or factual aspect, as the inability to prove the source of a right renders it equivalent to nonexistence.
Indeed, this principle is succinctly expressed in the following sayings:
"The evidence is the strength of truth."
"A non-existent right is equal to a right for which there is no evidence."
"Indeed, that for which there is no evidence and non-existence are the same."
The noble words of Prophet Muhammad, peace and blessings be upon him, further affirm this foundational principle in his hadith:
“If people were to be given according to their claim, some people would claim the blood and wealth of others, but the proof is on the claimant," emphasizing the importance of evidence in substantiating claims”.
The contested ruling failed to acknowledge one of the notable strengths of Islamic law, namely its commitment to preserving the marital bond between spouses, recognizing it as a crucial foundation for societal well-being. This commitment is in alignment with Article Fifteen of the Constitution, emphasizing the family's significance as the cornerstone of society, rooted in Islamic values, morality, and patriotism. Islamic law, while acknowledging the severity of divorce, presents it as a last resort, subject to stringent Sharia controls.
In this context, the contested ruling, by deciding on divorce without due consideration of these principles and relying on an erroneous report from arbitrators, deviated from the tenets of Islamic Sharia and legal provisions. The ruling failed to establish evidence of harm, abandonment, or discord, thus departing from the foundational requirements for such a consequential decision. Consequently, the ruling's deficiencies in reasoning and reliance on insufficient grounds led to the violation of the provisions of the noble Islamic Sharia and the law and call for its annulment in regards to the divorce and its associated implications. The case shall be remanded for further consideration.
Based on the foregoing.

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