Cassation No

(1) A lawsuit for separation due to harm shall be proven through methods prescribed by Islamic Sharia, following the doctrine of Imam Malik. Testimony by hearing is the reputation within the couple’s environment. The assessment of harm falls within the authority of the trial court.

(2) The contested ruling's rejection of the divorce request due to harm is valid, as the appellant's claim lacked supporting evidence, and the respondent denied the allegations. Additionally, the testimony of the two witnesses presented by the appellant is what they heard from her. This renders the objections based on deficiencies in reasoning, alleged breach of the documented testimonies, and the respondent’s admission unfounded.

(3, 4) Maintenance "Alimony for the wife and child support."

(3) Spousal alimony is a financial obligation owed by the husband, and it remains outstanding until discharged or paid. This obligation arises from the date of abstention and is legally binding on the husband to the wife, upon consummation of the marriage, based on his financial capacity. Forfeiture of spousal alimony may occur in specific cases. Child support, for a child without financial means, rests upon the father until the daughter is married, or the son becomes financially self-sufficient, unless the son is a student with regular success. A judicial claim serves as valid evidence on the lack of spending by the father.

(4) The contested ruling has erred by rejecting the appellant's lawsuit seeking alimony for herself and child support from the respondent, solely on the grounds of his denial and defence of spending without providing proof.

1- In light of Article 122 of the Personal Status Law, which delineates the procedures for separation due to harm, it is stipulated that the establishment of harm must adhere to Sharia-endorsed methods of proof and judicial decisions against one of the spouses. The legislative rationale, as elucidated in the explanatory memorandum to the law, expounds that a lawsuit for separation due to harm is substantiated through proof methods dictated by Islamic Sharia, encompassing testimony and evidence. Consistent with the doctrine of Imam Malik, testimony is deemed admissible, even if based on hearsay, with the proviso that it pertains to the reputation within the spouses' milieu. The assessment of harm is left to the discretion of the court.

2- Given the circumstances, the appealed ruling, which is confirmed by the contested ruling, dismissed the appellant's claim for separation due to harm on the grounds that her assertion lacked substantiated evidence that the court could rely on. This is particularly so since the respondent refuted the claim, and the testimony of the two witnesses relied on statements heard from the appellant. The conclusion drawn by the ruling is valid and well-supported by the documents, rendering the appellant's objection in this regard unfounded and warranting rejection.

3- Whereas this objection holds merits, since it is legally prescribed, as per Article 67 of the Personal Status Law, that the wife's alimony accrues from the date of abstention from spending. It is an undisputed debt owed by the husband, not contingent on judicial intervention or mutual consent. This obligation can only be waived through payment or release. This entitlement persists unless specific conditions, such as shared meals or unjustifiable denial of sexual intercourse or leaving without permission and inability to bring her back through personal or legal means, are met. Additionally, Article 78 of the Personal Status Law dictates that child support remains the responsibility of the father until the daughter is married, or the son achieves financial independence, except for cases where the son is a student with regular academic success. A valid judicial claim serves as evidence to prove lack of spending.

4- Considering these legal principles, the appellant contends that the respondent fails to provide for her and her children, seeking alimony and child support. The respondent denied this claim without providing adequate proof of ongoing support. However, the contested ruling rejected the entire case, introducing a flaw that necessitates partial reversal in this matter.

Whereas in the facts - as apparent pursuant to the perusal of the contested ruling and other documents - the appellant initiated lawsuit No. 391 of 2020 against the respondent. In her claim, she asserted her status as his wife and detailed the respondent's failure to support their children for a year, his prolonged absence from the home, engagement in curses, insults, and involvement in magic and sorcery. She sought a divorce on grounds of harm, comprehensive support for the children, and provision of a furnished home. The respondent counterclaimed, urging the dismissal of the lawsuit, expressing his commitment to the marriage, and denying any desire for divorce. He contended that, despite his debts, he remains dedicated to supporting the household and children. The respondent claimed that he works in [Name], earning a salary of 8,700 dirhams, with 3,100 dirhams deducted by the bank, leaving him with 500 dirhams. The remaining amount, he asserted, is provided to the appellant for family support. Additionally, he stated that he has been excluded from the bedroom for two years, with the appellant residing in another room in the dorm.

Upon the court's request for evidence substantiating the claim of harm, the appellant presented two witnesses. Following their testimonies, the Court of First Instance, in a session on 08/12/2020, ruled to dismiss the case. Dissatisfied with this decision, the appellant filed Appeal No. 980 of 2020. However, in the session of 22/2/2021, the Court of Appeal accepted the appeal in form but rejected it on the merits.

The appellant filed an appeal in cassation against the contested ruling, disagreeing with its affirmation of the dismissal of her divorce request and the denial of marital maintenance and child support. The Public Prosecution submitted a memorandum, deferring its opinion to the court. Following the hearing of the cassation in a Council Chamber, the court found it valid for consideration and scheduled a session for deliberation.

In the first objection, the appellant contends that the contested ruling violates the law, breaches documented facts, displays deficiencies in reasoning, and errs in inference. Specifically, she argues that the ruling rejected her divorce request due to harm, citing a lack of evidence despite the presence of witness testimony and the respondent's admission that could support her claim.

The court, however, deems this objection to lack merit, since In light of Article 122 of the Personal Status Law, which delineates the procedures for separation due to harm, it is stipulated that the establishment of harm must adhere to Sharia-endorsed methods of proof and judicial decisions against one of the spouses. The legislative rationale, as elucidated in the explanatory memorandum to the law, expounds that a lawsuit for separation due to harm is substantiated through proof methods dictated by Islamic Sharia, encompassing testimony and evidence. Consistent with the doctrine of Imam Malik, testimony is deemed admissible, even if based on hearsay, with the proviso that it pertains to the reputation within the spouses' milieu. The assessment of harm is left to the discretion of the court.

Given the circumstances, the appealed ruling, which is confirmed by the contested ruling, dismissed the appellant's claim for separation due to harm on the grounds that her assertion lacked substantiated evidence that the court could rely on. This is particularly so since the respondent refuted the claim, and the testimony of the two witnesses relied on statements heard from the appellant. The conclusion drawn by the ruling is valid and well-supported by the documents, rendering the appellant's objection in this regard unfounded and warranting rejection.

Whereas the appellant contends, in the second ground, that it contravenes the law by refusing to grant her marital alimony and child support, to which they are entitled, rendering the ruling defective and necessitating its reversal.

Whereas this objection holds merits, since it is legally prescribed, as per Article 67 of the Personal Status Law, that the wife's alimony accrues from the date of abstention from spending. It is an undisputed debt owed by the husband, not contingent on judicial intervention or mutual consent. This obligation can only be waived through payment or release. This entitlement persists unless specific conditions, such as shared meals or unjustifiable denial of sexual intercourse or leaving without permission and inability to bring her back through personal or legal means, are met. Additionally, Article 78 of the Personal Status Law dictates that child support remains the responsibility of the father until the daughter is married, or the son achieves financial independence, except for cases where the son is a student with regular academic success. A valid judicial claim serves as evidence to prove lack of spending.

Considering these legal principles, the appellant contends that the respondent fails to provide for her and her children, seeking alimony and child support. The respondent denied this claim without providing adequate proof of ongoing support. However, the contested ruling rejected the entire case, introducing a flaw that necessitates partial reversal in this matter.