( The National Supreme Court )

Cassation No.266/2016

Issued on 18/4/2016

Judges:

President

Hon Justice: Abdel Rahim Abd Al Sid        Supreme Court Judge

Member

Hon Justice: Fayza Ibrahim Zain Elabdin   Supreme Court Judge               

Member

Hon Justice:Yagob Hamad Abd Al Rahlan Supreme Court Judge

Personal Status Law 1991:

Divorce by judge of unconsummated marriage for discord.

The Principle:

Restricting divorce by judge for discord on a sum of money estimated by the two arbitrators for the consummated wife only according to the provision of Article (168 ) of the Personal Status Law 1991. does not mean that unconsummated wife can not be divorced by a judge for discord on payment of money, because if we fallowed the lower court in this, we will nullify the right of the unconsummated wife on differentiation of this Article which deals with one of the family problems.

Advocates:

Bashir Mohammed Bashir – on behalf of the Challenged against.

Editor's Note: The Article of divorce by a judge for discord from 162 to 169 are based on the Maliki School of Thought, which must be referred to for the interpretation and construction of these Articles as per Article 5/1 of the law. the Maliki did not diffrenciate in divorce for discord between the consummated or unconsummated, the restriction in Article (168 ) and to the two arbitrators in the case of the consummated or unconsummated marriage, the mentioning of consummation in the Article is constructed by the court as not necessary that the unconsummated wife may not be divorced by a judge for discord or harm on             paymeat of money estimated  by the two arbitrators ( See Bediat Al Mugtghid 2/79 and Hashiat Al desoogi ) ( in Arabric ).

The Judgement:

This is a challenge by cassation presented by the challenger against the decision of the court of Appeal Bahri and Sharg Al Neel in its appeal number a.S. Sh./340/2015.

Which summarily quashed the appeal, confirming the decision of Bahri median court of personal status in the case number 383/2015 which divorced the plaintiff from the defendant once for discord on 28/6/2015, as the wife was unconsummated, she had not to await.

The reasons of the challenge are that both the court of Appeal and the court of first instance in reaching the correct interpretation of Article (168 )of the Personal Status Law 1991, the differentiation between consummation and unconsummation in case of divorce for discord or harm, and considering this as a condition for estimation of the money to be paid by the wife.

There is no clear provision in the law, and the decision is           against the opinion of the arbitrators and their suggestions presented by them. He asked for quashing the challenged decision and issuing         a new decision determining the divorce of the plaintiff on payment of the money estimated by the arbitrators, according to the coirect law.

We accepted this challenge and summoned the challenged against her advocated ostag, Bashir Mohammed Bashir replied requesting confirmation of the lower courts decisions as correct in law .

The summary of the facts are that the wife of the challenger raised a case against him saying that she is wife, and was unconsummated wife, and she previously raised a case for divorce for harm and her case was rejected and the discord still going on and she asked for divorce by the judge for harm.

The challenger by his advocate agreed, but denied the discord, and said she is not living with him the marriage dowelling, the couert asked each of them to appoint an arbitrator, and each of the arbitrators submitted a report. The court decided to appoint a third arbitrators and the two prties agreed to appoint  ostag, Sami Abdal Basit as a third arbitrators and the arbitrators failed to solve the problem and recommended divorcing them. The court decided to divorce her for discord on 312/2014 and no waiting for  unconsummation.

By appealin g this decision before the court of Appeal of Bahri and Sharg Al Neel in its appeal number a.s. Sh./99/2014, the court of Appeal quashed the decision of the court of first instance, and returned the papers to it to act according to its memorandum, and the challenge was quashed as a matter of form by the national Supreme Court decision 691/2014.

By returning the papers to the court of first instance in execution of the direction of the court of Appeal, the arbitrators decided that the challenged, against must pay 30 thousand pounds but the court of first instance passed it decision mentioned above, which was confirmed by the Court of Appeal in its challenged decision.

On merits the decision of the lower courts, that the divorce by a judge for discord on condition of payment of money estimated by arbitrators, is not supported by law. The legislature in Article (168 )of the Personal Status Law 1991, restricted the divorce by a judge to consummation of the wife. The silence of the Article does not mean the unconsummated wife can not be divorced on payment of money, because if we follow what was done by the lower courts, this will be an obvious nullification of this Article which deals with one problem of the family problems, relating to the divorce by                a judge for harm or discord, and will enable any unconsummated wife to ask for divorce because of harm, as far as she was not bound to pay, and this will result in a clear corruption. For this we decide to interfere, because it is proved in accordance with the report of the arbitrators attached to the minutes of the case, the wrong of the challenged against which makes her divorce by a judge on payment of money subject to Article  (168 )of the personal status law 1991 as far as the wrong from her and for this the arbitrators decided her divorce on payment of 30 thousand pounds. We are obligated to carry out what was determined by the arbitrators and it is not for us to refuse it or quash it according to the provision of the Article (167) of the same law.

Therefore we decide to pass anew judgement obligating the challenged against to pay 30 thousand pounds to the challenger as a result of her divorce once.

Judge: Faiza Ibrahim Zein Al Al Abdin

Date: 21/3/2016

Judge: Abdel Rahim Abd Al Sid

Date: 28/3/2016

Judge: Yagob Hamad Abd Rahman

Date: 31/3/2016

The Final Order:

1- We confirm the divorce of the challenged against once, for discord dated 28.6.2015, and no waiting.

2- We add new part that the challenged against shall pay to the challenger the sum of thirty thousand pounds in return for this divorce as determined by the two arbitrators and oblige her to pay it to him.

Abdel Rahim Abd Al Sid

Judge of the supreme Court

President of the Court

18/4/2016