(COURT OF APPEAL)

AMAL FAKHRI SAAD v. FAYEZ SHUKRI BISHARA

AC-REV-26-1968

Principles

  Personal Law—Divorce—Law applicable is personal law of the parties if domiciled in the Sudan—Civil Justice Ordinance, s.5

  Personal Law—Divorce—insanity as ground for—The Coptic Orthodox Personal Law, s. 52—Proof of incurable insanity

Applicant (a Coptic wife) petitioned the High Court for Divorce on the ground that her husband, respondent, is incurably of unsound mind. The High Court, following the English personal law, dismissed applicant’s claim on the ground that the husband’s insanity was not shown to be definitely incurable and that the husband was not under continuous care and treatment for at least five years preceding the presentation of the petition.
The Court of Appeal, reversing the decision of the court below:
Held: (i) that the personal law applicable to Coptics who are domiciled in the Sudan is their personal law and not the English law.

(ii) that incurable insanity is sufficiently proved if it is shown that there is no prospect of improvement. The Coptic Orthodox Personal Law, s. 52 does not require such formalities as certification or continuous care and treatment as in English law.

Advocates: Hanna George................................. for applicant

                   Fawzi El Tom ……………………for respondent

Judgment

Galal Ali Lutfi J. September 28, 1968 :—This is an application for revision of a decree dated January 6, 1967, of the Acting Judge of High Court, Khartoum, dismissing applicant Amal Fakhri Saad’s claim for divorce on the ground that her husband Fayez Shukri Bishara is incurably of unsound mind.

The parties were married at Khartoum on January 22, 1966, in accordance with the provisions of the Non-Mohammedan Marriage Ordinance 1926. On the same day the marriage was celebrated and solemnised according to the rites of the Coptic Orthodox Church. Both applicant and respondent cohabited at Khartoum and both are domiciled in the Sudan.

The husband became subject to recurrent fits of unsoundness of mind and so the wife petitioned the High Court for divorce on grounds of insanity. Most of the facts were agreed upon and the following two issues were framed:

1. Is respondent a person of unsound mind and subject to recurrent fits of insanity?

 2. Is respondent only suffering from mild nervous disorders to the full knowledge and acceptance to petitioner before marriage?

The finding of the Acting Judge of the High Court regarding the two issues were in favour of the respondent. He dismissed the applicant’s claim for two reasons:

First: That the respondent is suffering from a mental disease known as Schizophrenia the recovery from which is about 25% and the doctors could not tell whether the case before us is a hopeless one or not.

Secondly: The law requires that the respondent must have been under continuous care and treatment for at least five years immediately preceding the presentation of the petition. In this case the first time the husband was seen by a doctor was either in 1963 or 1964 and there is no evidence to show that he was under continuous care and treatment since then and no complete five years have elapsed.

The applicant’s grounds for revision are that the lower court has decided the first issue against the weight of evidence because:

a. It was proved that the respondent was suffering from Schizophrenia which is a serious mental disease; and

b. That he has been under continuous care and treatment for a period of ten years with no improvement which shows that the disease he is suffering from is incurable.

 In the course of this revision two points emerged and they are as follows:

i. Was the personal law applied in this case the proper law of the parties?

ii. If the answer to (i), is Yes, has the court found sufficient facts to warrant the dismissal of the applicant’s claim?

The Coptic Orthodox Personal Law is embodied in the booklet written in Arabic of which section 52 is the relevant provision the translation of which reads as follows:

“If one spouse is suffering from continuous insanity the other may apply for dissolution of the marriage provided that the mental disease has continued for five years and it is proved to be incurable.”

The period of illness was three years in the original law of 1938; but it was increased to five years in 1955. The learned Acting Judge of the High Court has referred to the English law in this connection which provides that:

"….either the husband or the wife may petition for divorce or judicial separation on the ground that the respondent is incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition, but if the neglect or other conduct of the petitioner has conduced to respondent’s insanity, a decree may be refused.”

Rayden, Divorce (10th ed. 1967) p. 244.

When we compare these two provisions we notice that though in general tenns the two laws are the same yet the English text is more detailed than the Coptic Orthodox Personal Law. So what law are we to follow, the personal law of the parties which has provided for the matter in general terms or the detailed English law with the technicalities and niceties? The case of Bamboulis v. Bamboulis, AC-REV-58-1953 Cases in High Court and Court of Appeal Digest p. 76, which laid down the rule that in such cases it is the English personal law which is to be applied and that the word “custom” in the Civil Justice Ordinance, s. cannot be interpreted to mean the personal law of the parties, became a doubtful authority. In the case of Kattan v. Kattan (1957) S.L.J.R. 35 the Court of Appeal commented on the principles adopted by Bamboulis as follows:

“Bamboulis V. Bamboulis thought to lay down a principle of its own, the efficacy of which it is not for us to consider in this case, and it is our respectful opinion that until an opportunity for an exhaustive analysis of the principles underlying it arises, this case should be cited with great reserve.”

It is evidently clear from Kattan’s case and the decisions which followed that the word “custom” in the Civil Justice Ordinance, s. , includes the personal law of the parties provided that they are domiciled in the Sudan and therefore the applicable law is their personal law and not the English law.

Having decided what law is to be applied, we come to the next point concerning the facts. In order to grant a divorce the personal law of the parties requires that there must be continuous insanity for at least five years. It does not require such formalities as certification or continuous care and treatment as in English law.

According to the evidence before us it is established that the respondent was still suffering from schizophrenia which is a serious mental disease. The doctors who gave evidence as to his illness are not sure about the possibility of his complete recovery. In my opinion what the doctors have said is sufficient proof of the incurability of the respondent’s mental disease. The law does not require a definite statement as to complete recovery. It is sufficient proof that the disease is incurable if there is no prospect of improvement (see Rayden, Divorce (10th ed. 1967), p. 248). In this case the respondent was under treatment for a long time and still there is no improvement.

So, in my opinion, as regards this point of incurability the applicant has succeeded in discharging the burden of proof on her.

Having been satisfied that the respondent is incurably of unsound mind we come to the next question of whether the mental illness was continuous for a period of five years. The learned Acting Judge of the High Court in his judgment said:

the requirement of the law is that the respondent must have been under continuous care and treatment for at least five years immediately preceding the presentation of the petition. The first time he was seen by a doctor was either 1963 or 1964. There is no evidence at all to convince me that he was under Continuous treatment since then, and even so five complete years have not elapsed.”

It is true as the learned Acting Judge of the High Court has said that the first time the respondent was seen by a doctor was either in 1963 or 1964, and so five complete years have not elapsed. According to the English personal law which was followed by the court below, the applicant will not be entitled to the relief claimed. But as I have pointed out before the applicable law is the parties’ personal law and not the English law. The Coptic Orthodox Law requires that the disease must have been continuous for five years. It did not mention any medical care or treatment and it did not make it a condition that the patient is certified as of unsound mind. In this case the continuation of the disease is proved by adequate evidence. The respondent’s first witness Sami Zaki testified that he was suffering from the said mental disease since about eight years ago (page 41 of the record). The priest who celebrated the marriage in his statement on oath made it clear that he knew that the respondent was suffering from such a disease but he thought that the respondent was cured at the time of the wedding ceremony. The respondent himself admitted on oath that he was suffering from this mental disease since 1957 (page 38 of the record).

So, for the above reasons, I am of opinion that the applicant must succeed in her claim and the Acting Judge of the High Court’s decree must be reversed and a divorce decree must be entered in her favour.

If you agree, a decree nisi shall be passed which will become absolute after a waiting period of three months. I did not discuss the question of pregnancy in connection with the waiting period for two reasons:

First: the applicant is not pregnant and secondly: the case is different from other cases governed by Sharia law where the waiting period is counted according to whether there is pregnancy or not. Farran in his book Matrimonial Laws of the Sudan p. 121 commenting on this waiting period said:

“Unlike the Sharia idda the period is not based on, or connected with, pregnancy, nor extended by it.”

Mohamed Yousif Mudawi J. September 28, 1968 : —I agree.

M. E. A. Gassouma J. September 28, 1968 :—I concur.