Kuwait Court of Cassation principle number 22

Summary: - A judgment granting the appellant a single irrevocable divorce from the respondent on grounds of harm, and the upholding of that judgment on appeal. The appellant is regarded as a stranger to the respondent. There is no basis for requiring the appellant to submit to the respondent’s marital obedience. The Court adopts this ground and rules upon it of its own motion because it concerns lawfulness and unlawfulness and the right of Almighty God. The challenged judgment’s departure from this renders it defective and requires its cassation. Rule: It is established—in the jurisprudence of this Court—that the Court of Cassation may rule of its own motion on grounds relating to public policy, even if they were not previously raised before the court of the merits or in the petition for cassation, provided that the ground relates to the challenged part of the judgment. A divorced woman owes no marital obedience to the man from whom she has been divorced, whether the divorce was effected by the husband or by the judge on his behalf. A divorce effected by a judge through a final judgment on grounds of harm dissolves the matrimonial bond and extinguishes marital entitlement. The divorcing man may not lawfully enjoy intimacy with his divorced wife and has no right to take her back, even if she is within the waiting period. He may restore her to his marriage only with her consent and under a new contract and a new dower. That being so, it is established from the papers that, in Action No. 2911 for the year 2011, Farwaniya Personal Status, a judgment was issued granting the appellant a single irrevocable divorce from the respondent on grounds of harm, and that judgment was upheld in Appeal No. 1226 of 2012, Personal Status. The appellant thereby became a stranger to the respondent because the marriage had ended and its bonds between the spouses had been severed pursuant to the aforementioned final judgment. There is therefore no basis for requiring the appellant to submit to the respondent’s marital obedience. The Court adopts this ground and rules upon it of its own motion because it concerns lawfulness and unlawfulness and the right of Almighty God. As the challenged judgment departed from this view and upheld the first-instance judgment requiring the appellant to submit to the respondent’s marital obedience, it is defective and must be quashed on this ground, without any need to examine the 2 grounds of cassation.