Kuwait Court of Cassation principle number 21

Summary: - Establishment of the respondent’s conviction for the offence of adultery in the matrimonial home by a final and irrevocable judgment. Its significance: establishment of discord and mutual aversion between the spouses. Consequence thereof: the husband is entitled to resort to the Sharia judge to remove the harm suffered by him and decree their separation. The challenged judgment’s departure from this and its disregard of the documents submitted by the appellant. A defect requiring its cassation. Rule: It is established under the Ja‘fari school—to which both parties belong—that if marital recalcitrance and mutual aversion occur between the spouses and discord develops between them until their life together becomes difficult, the aggrieved husband may refer the matter to the Sharia judge to separate them. Accordingly, whereas the appellant, in his capacity, submitted before the trial court the judgment issued in Case No. ...... of 2011, Farwaniya Register ...... Felonies, convicting the respondent of the offence of adultery in the matrimonial home, and the judgment became final and irrevocable, this indicates the establishment of discord and mutual aversion between the spouses and entitles the husband to resort to the Sharia judge to remove the harm suffered by him and decree their separation. The challenged judgment departed from this view and disregarded his aforementioned documents, which vitiates it and requires its cassation without any need to examine the remaining grounds of appeal.