Cassation
No. 6 of 2020 - Personal Status
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.
UAE-LC-En_1992-02-24_00011_Kait,art,178
UAE-LC-En_2018-12-09_00057_Karmaj,art,10
UAE-LC-En_2018-12-09_00057_Karmaj,art,13
UAE-LC-En_2018-12-09_00057_Karmaj,art,10
UAE-LC-En_2018-12-09_00057_Karmaj,art,10
UAE-LC-En_2018-12-09_00057_Karmaj,art,10
UAE-LC-En_2018-12-09_00057_Karmaj,art,11
UAE-LC-En_2018-12-09_00057_Karmaj,art,50
UAE-LC-En_2005-11-19_00028_Kait,art,1
UAE-LC-En_1985-12-15_00005_Kait,art,13
UAE-LC-En_2005-11-19_00028_Kait,art,1
UAE-LC-En_2005-11-19_00028_Kait,art,117
UAE-LC-En_2018-12-09_00057_Karmaj,art,16
UAE-LC-En_1992-01-15_00010_Kait,art,1
UAE-LC-En_1992-01-15_00010_Kait,art,1
UAE-LC-En_1992-01-15_00010_Kait,art,1
UAE-LC-En_2005-11-19_00028_Kait,art,99
UAE-LC-En_2005-11-19_00028_Kait,art,117
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.
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.