Cassation Nos

Family as the Primary Cornerstone of Society:

- Pursuant to Article 15 of the Constitution, the family is accorded the preeminent status as the foundational cornerstone of society, thereby substantively contributing to its robustness and stability. Conversely, the societal framework experiences erosion when the familial unit undergoes dissolution. The underpinning of the family is predicated upon sentiments of affection, compassion, benevolent treatment, and mutual commitment between spouses..

Nature of the Marriage Contract:

- Marriage is defined under Sharia as a contract that permits one spouse to enjoy the companionship and rights of the other. Its primary objective is the protection and establishment of a stable family under the husband's guardianship. This arrangement is designed to ensure that the burdens of family life are borne with affection and mercy.

Rights of Spouses:

- The spousal entitlements of the wife extend to financial support, the freedom to pursue educational endeavors, unimpeded access to her ascendants, descendants, and siblings with reciprocal visitation rights conducted in a reasonable manner. She is further afforded autonomy in the management of her private finances, protection from both material and moral harm, and equitable treatment in instances where the husband maintains multiple spouses. Concurrently, the husband is vested with certain rights vis-à-vis his wife, encompassing her reasonable obedience within the bounds delineated by judicious legislation. The conjugal duties imposed upon the wife involve the oversight of the household, the protection of its assets, and, unless impeded by extenuating circumstances, the provision of breastfeeding to their offspring.

Marital Housing and Its Legal Conditions:

- The husband is obligated to provide for his wife and furnish her with suitable housing at his place of residence that aligns with their circumstances. Housing, being an integral aspect of normal life, is essential for the well-being of the family unit. The wife is expected to reside with her husband in the dwelling he has prepared and relocate with him when he moves, unless otherwise specified in the contract or the relocation is intended to cause harm. Sharia conditions for the housing include: Firstly, the residence shall be arranged in the husband’s place of residence to foster cohabitation, affection, and mercy. Secondly, the dwelling shall be appropriate, taking into account the spouses' conditions, whether comfortable or challenging, in accordance with customary norms, including the furnishings. It is impermissible for any individual in the house to be a source of harm, animosity, or discord. Marriage is regarded as a sacred bond grounded in affection, compassion, empathy, concealment, adornment, stability, and contributing to the formation of virtuous individuals in society. These values can only be realised through positive interaction and the exchange of respect within the confines of legal cohabitation.

Reasons for Abatement of Alimony and Its Conditions:

- The wife's alimony shall abate upon specific circumstances: If she denies herself to her husband, abstains from moving to the legal marital home without a valid excuse, leaves the marital home without a valid excuse, prevents her the husband from entering the marital home without a valid excuse, or refrains from travelling with her husband without a valid excuse, or if a court ruling is passed imposing a custodial sentence in respect of a right not belonging to the husband and is being executed.

Khul’, Its Nature, a Consensual Contract for Rescinding the Marriage Contract, and Its Circumstances:

- In accordance with the provisions delineated in Islamic Sharia and the Personal Status Law, khul' is recognized as a consensual contractual arrangement between spouses. Within this agreement, both parties mutually agree to terminate the marriage contract, and compensation is tendered by the wife or a third party. This contractual mechanism is invoked when discord arises between the spouses, and each party perceives that the other is not fulfilling the rights expected through kind and equitable treatment within the ambit of marital obligations. Khul' constitutes a dissolution of the marriage contract. In instances where the husband rejects the wife’s request for khul', reconciliation becomes unattainable, and the marital discord escalates to a juncture where adherence to divine limits is questionable, and the husband persists in refusing khul', the court intervenes by imposing khul' and determining compensation deemed appropriate guided by the principle of selecting the lesser of two harms. However, if the husband does not obstinately refuse khul' and there is an absence of substantiated evidence of harm or discord between the spouses, the court adjudicates to reject the khul' request.

Compensation for Khul', Matters Impermissible to Agree on Their Forfeiture:

- The compensation for khul' is equivalent to what is recognized as the dowry. It is strictly impermissible to agree to waive child support or custody. If the compensation for khul' is deemed invalid, the khul' takes effect, and the husband retains entitlement to the dowry. The validity of the compensation in khul' necessitates the eligibility of the person offering the compensation and the husband's eligibility to effect the divorce.

Deficiencies in Factual Reasoning:

- An illustration of flawed reasoning is evident in the rejection of the claim of obedience, the imposition of divorce through khul', and the directive for separation between the spouses, despite the absence of substantiated evidence demonstrating harm, the continuation of equitable and kind treatment between the parties, or discord in its legal sense, and the absence of evidence substantiating harm to the respondent.

It is stipulated in the tenets of the noble Islamic Sharia and the Personal Status Law that the family holds the paramount position as the primary foundation in society. The stability and rectitude of society hinge upon the well-being of the family, and its dissolution results in the fragmentation of societal structure. This foundational institution is built upon principles of affection, mercy, kind treatment, and mutual commitment between spouses, as emphasised by the Almighty in the decisive revelation, "One of His signs is that He created for you spouses from among yourselves so that you may find comfort in them. And He has placed between you compassion and mercy" (Quran, 30:21). Islamic Sharia accords significant importance to the family, designating marriage as the exclusive means to establish it. It considers the marital bond as the most sacred of ties, uniting children in a manner highlighted by the Divine description in the Mighty Book, where humans are portrayed as having entered into a solemn covenant, as stated: "How can you take it back when you have reached one another (sexually) and they have taken from you a strong covenant!" (Quran, 4:21).

Furthermore, the provisions of Islamic Sharia and the Personal Status Law expressly stipulate that khul' is a consensual contract entered into by spouses. In this contract, the spouses mutually agree to terminate the marriage, and compensation is provided by the wife or a third party. This arrangement becomes applicable in instances where discord arises between the spouses, and each party believes that they are not granting their partner the marital rights essential for a benevolent relationship. The origin of this concept is rooted in the Divine guidance found in the decisive revelation, where it is stated: "Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah - it is those who are the wrongdoers" (Quran, 2:229).

Compensation for khul' is equivalent to what is recognised as dowry, and

It is impermissible to agree to waive child support or custody.

If the compensation for khul' is deemed invalid, divorce takes place, and the husband retains entitlement to the dowry and khul' is characterized as an annulment of the marriage contract.

If the husband obstinately refuses khul' and there is a concern that he will not adhere to God’s limits, the judge may rule for divorce in exchange for an appropriate compensation.

The legal capacity of the person offering compensation and the husband’s legal capacity to effect the divorce are prerequisites for the validity of compensation in khul'.

If the husband adamantly refuses his wife’s request for khul' and it becomes evident to the court that reconciliation is impossible, and there is a fear that they will not adhere to God’s limits, and the husband persists in refusing khul', the court may rule for khul' in exchange for compensation determined by the court as appropriate, based on the principle of choosing the lesser of two harms.

Conversely, if the husband is not obstinate in refusing divorce, and there is no substantiated evidence of harm or discord between the spouses, the court may rule to reject the khul' request.

Certainly, one of the notable virtues of Islamic law lies in its meticulous attention to preserving the marital bond between spouses. This dedication reflects the sophistication inherent in Islamic legal principles, emphasizing the family as a fundamental unit and adhering to the divine commandments. In alignment with Article 15 of the Constitution, which designates the family as the cornerstone of society, Islamic law draws its foundation from the Islamic religion, moral values, and a sense of patriotism. The legal framework not only guarantees the existence of the family but also endeavors to safeguard and shield it from deviating forces. While Islamic Sharia places a premium on preserving marital bonds, it acknowledges that divorce may become a necessary recourse in certain situations. However, divorce is considered a difficult, harsh, and final solution, to be employed only in the ultimate stage and in accordance with the controls set forth by Sharia. Islamic Sharia recognises the right of a woman to seek divorce or Khul' under specific circumstances. An illustrative example, narrated by Al-Bukhari on the authority of Ibn Abbas, recounts the incident where that The wife of Thabit bin Qays came to the Prophet (PBUH) and said, “O Allah’s Messenger! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him).” On that Allah’s Messenger (PBUH) said (to her), “Will you give back the garden which your husband has given you (as Mahr\dowry)?” She said, “Yes.” Then the Prophet (PBUH) said to Thabit, “O Thabit! Accept your garden, and divorce her once.”[1] (Bukhari)

Islamic Sharia places restrictions on a woman's request for divorce or Khul', permitting it only under justified circumstances, such as instances of ill-treatment from the husband. This is substantiated in the narration reported by Abu Dawud, Al-Tirmidhi, and Ibn Majah on the authority of Thawban, where the Messenger of God, may God’s prayers and peace be upon him, is quoted saying: "Any woman who asks her husband for a divorce without reason, forbidden to her is the scent of Paradise." This narration has been authenticated by Al-Albani in Sahih Abi Dawud.

Furthermore, both Islamic Sharia and legal provisions affirm that marriage is a contract that grants each spouse the legal right to enjoy the other. The primary objective of this marital contract is the promotion of chastity and the establishment of a stable family under the guardianship of the husband. This framework is designed to ensure that the burdens of family life are borne with affection and mercy.

Additionally, the husband is obliged to provide for his wife and furnish her with a suitable residence at his place of residence, aligned with their circumstances. Housing, being an essential component of normal life, is considered a fundamental necessity.

Therefore, husband is obligated to provide suitable housing for his wife, adhering to specific legal conditions:

1- The housing must be prepared in the husband’s place of residence to facilitate cohabitation, affection, and mercy. This is in accordance with the Quranic guidance in Surat Al-Talaq: "Place them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth. But if they breastfeed for you, then give them their payment and confer among yourselves in the acceptable way; but if you are in discord, then another woman may breastfeed for the father." (Quran, 65:6)

2- The housing must be suitable and in line with the conditions of the spouses, taking into account ease or hardship, as determined by custom. This extends to the furnishings within the residence. It is impermissible for anyone in the house to be the cause of harm, hatred, or strife. The sanctity of marriage, as a sacred bond between husband and wife, is founded on principles such as affection, mercy, sympathy, compassion, concealment, beautification, stability, and the contribution to societal goodness. These values are realized through good relations and mutual respect fostered by legal cohabitation, as advocated by the Prophet, may God’s prayers and peace be upon him, his family, and companions.

The rights of the wife over her husband encompass the entitlement to financial support, the freedom to pursue her education, unimpeded visits to and from her ascendants, descendants, and siblings in a reasonable manner, the autonomy to manage her private finances, protection from material and moral harm, and equitable treatment in cases where the husband has multiple wives.

Simultaneously, the husband possesses certain rights over his wife, including her reasonable obedience within the limits set by wise legislation. The wife’s duties towards her husband involve overseeing the household, safeguarding its assets, and, unless there exists an impediment, having his children breastfed by her.

The wife's alimony shall abate upon specific circumstances: If she denies herself to her husband, abstains from moving to the legal marital home without a valid excuse, leaves the marital home without a valid excuse, prevents her the husband from entering the marital home without a valid excuse, or refrains from travelling with her husband without a valid excuse, or if a court ruling is passed imposing a custodial sentence in respect of a right not belonging to the husband and is being executed.

Furthermore, the wife is expected to reside with her husband in the dwelling he has prepared. She should move from this residence when he relocates, unless the marriage contract specifies otherwise or the move is intended to harm her.

Given the circumstances outlined, the contested ruling failed to consider crucial elements, including the family situation, the conditions of the eight children [Names], their welfare, the provision of marital housing, the appellant's generous financial support given his condition and limited income, and the legal, moral, and social duties of the head of the family. Furthermore, it did not appropriately take into account the presented legal evidence, both written and substantiated proofs. The contested ruling, by rejecting the claim of obedience, divorce by khul', and separation without sufficient grounds, overlooked the provisions of Islamic Sharia and the law. It did so in the absence of evidence of harm, the continuity of a friendly relationship, or legal discord between the parties. The respondent's claims lacked substantiated evidence, and the contested ruling failed to establish a legal or rational justification for divorce by khul'. The alleged harm appeared to be a minor and passing disagreement, rather than a fundamental cause warranting khul'. Additionally, the previous ruling in Appeal No. 109/2020, issued on 8/6/2020, had already established the non-existence of harm, further undermining the current ruling's basis. Consequently, the contested ruling demonstrated errors in understanding the reality, evaluating evidence, and assessing the family's best interests. It exhibited deficiencies in reasoning and relied on insufficient grounds, leading to a violation of both Islamic Sharia and legal provisions, warranting its reversal.

The Court

Whereas in the facts of the case, the plaintiff in the original lawsuit, now the appellant in Cassation No. 130-2021, [Name], initiated legal proceedings against the defendant in the original lawsuit, seeking a court order compelling the wife's obedience. Concurrently, the appellant in Cassation No. 104-2021, who is the plaintiff in the counterclaim, [Name], filed a lawsuit against the husband, the defendant in the counterclaim. The counterclaim sought a Khul' ruling with custody granted for the eight children [Names], and further demanded financial obligations from the appellant, including expenses and accessories for both the wife and children. The claim also sought the preparation of housing for the wife during custody, along with allowances for furniture, electricity, water expenses, and additional support for a maid, driver, car, and associated expenses. The basis for these demands rested on the claimant's status as the appellant's wife, requesting a divorce through Khul', thereby leading to the involvement of the judiciary.

The court attempted reconciliation between the spouses, resulting in the husband's agreement to reconcile. However, the wife rejected the reconciliation efforts, and the court was unable to convince her otherwise.

Subsequently, in a session held on 27/10/2020, the Court of First Instance issued a ruling to separate the spouses through Khul'. The ruling included the abatement of the deferred dowry and the rights arising from the Khul'. The court also acknowledged the plaintiff's wife's custody of the children [Names] and ordered the payment of alimony and child support with custody fees, housing allowances, furniture allowances, and electricity and water expenses. Also, the court rejected the plaintiff's original claim for obedience.

In the legal proceedings, both parties lodged appeals against the ruling.

In a session dated 20/1/2021, the Court of Appeal modified the contested ruling, adjusting the expenses while maintaining the khul' decision.

Subsequently, the plaintiff in the original claim filed cassation No. 130-2021, and the plaintiff in the counterclaim similarly pursued an appeal in cassation, designated as No. 104-2021. The court convened in a Council Chamber, acknowledged the validity of both cassations and opted for a consolidated hearing. A session was scheduled for deliberation, recognising the interrelated nature of both cases, and both parties were duly notified.

The appellant in Cassation No. 130-2021 challenges the contested ruling on the grounds of violating Islamic Sharia and the law, breaching documented facts, and drawing flawed inferences. Specifically, the objection highlights the ruling's decision to grant separation through khul' without a legitimate reason and without established harm to the respondent wife. The appellant contends the absence of a legal and rational justification for the khul' divorce, emphasising the husband's commitment to his family, including his eight children [Names], and his wife, the respondent. The appellant asserts the lack of obstinacy and legal discord and questions the rejection of the claim of obedience without adequate legal justification, which constitutes a meritorious defence that the trial court failed to properly investigate, rendering the ruling deficient in reasoning and in breach of the right of defence. As such, the appellant calls for the reversal of the ruling,

This objection is considered to have merit, since it is stipulated in the tenets of the noble Islamic Sharia and the Personal Status Law that the family holds the paramount position as the primary foundation in society. The stability and rectitude of society hinge upon the well-being of the family, and its dissolution results in the fragmentation of societal structure. This foundational institution is built upon principles of affection, mercy, kind treatment, and mutual commitment between spouses, as emphasised by the Almighty in the decisive revelation, "One of His signs is that He created for you spouses from among yourselves so that you may find comfort in them. And He has placed between you compassion and mercy" (Quran, 30:21). Islamic Sharia accords significant importance to the family, designating marriage as the exclusive means to establish it. It considers the marital bond as the most sacred of ties, uniting children in a manner highlighted by the Divine description in the Mighty Book, where humans are portrayed as having entered into a solemn covenant, as stated: "How can you take it back when you have reached one another (sexually) and they have taken from you a strong covenant!" (Quran, 4:21).