Kuwait Court of Cassation principle number 24

Summary: - Taking back a divorced wife is the husband’s right during the waiting period. Condition thereof. - Taking back is valid by words or conduct. Condition thereof: the wife’s knowledge of it and having it witnessed. - A husband’s taking back his divorced wife without her knowing of it and without having it witnessed. The judgment’s recognition of that taking back on the ground that notifying the wife of the taking back and having it witnessed are not required, although the majority of jurists require this, renders the judgment defective and requires its cassation. Rule: It is established under Sharia that: “Divorce gives rise under Sharia to rights and prohibitions whose observance God has made obligatory. Accordingly, neither spouse is believed in denying it after it has occurred. Taking back is the husband’s right during the waiting period, a right established for him by the Lawgiver, and for this reason he cannot waive it. Taking back is valid by words, such as saying ‘I take you back,’ and by conduct, such as intercourse and its preliminaries, such as kissing and intimate contact with desire. Ibn Hazm, may God have mercy on him, said: If a man has intercourse with his wife, he has not taken her back until he pronounces the taking back, has it witnessed and informs her of it before her waiting period ends. If he takes her back without having it witnessed, he has not taken her back, because Almighty God says: ‘When they reach their appointed term, retain them honourably or part with them honourably, and call to witness 2 just persons from among you,’ Surat al-Talaq, verse No. 2. He, the Almighty and Majestic, distinguished between taking back, divorce and witnessing. It is therefore impermissible to separate these from one another. It is as though whoever divorces without calling just persons to witness, or takes back without calling just persons to witness, transgresses the limits of Almighty God. The Messenger of God, may God bless him and grant him peace, said: ‘Whoever performs an act that is not in accordance with our command, it is rejected.’” End of quotation. Abu Dawud, Ibn Majah, al-Bayhaqi and al-Tabarani reported from Imran ibn Husayn that he “was asked about a man who divorces his wife and then has intercourse with her without having either her divorce or her taking back witnessed. He said: You divorced contrary to the Sunnah and took her back contrary to the Sunnah. Have her divorce and her taking back witnessed, and do not repeat this.” That being so, it is apparent from the papers that the first respondent divorced the appellant by a first revocable divorce on 19/6/2012 pursuant to Divorce Record No. ...... dated 20/6/2012, then took her back on 16/7/2012 pursuant to Fatwa No. ......... before her waiting period ended, without the wife knowing of that taking back and without having it witnessed. The first-instance judgment, upheld by the challenged judgment, recognised that taking back and consequently ruled to annul the appellant’s marriage contract with the second respondent, “the joined party,” No. ...... issued on 23/8/2012, with the resulting effects, on the ground that notifying the wife of the taking back and having it witnessed are not required. However, the majority of jurists require, for proof of taking back, the wife’s knowledge of it and having it witnessed. As the challenged judgment departed from this view, it is defective, requiring its cassation.