Kuwait Court of Cassation principle number 37

Summary: - Compatibility in marriage in Islamic jurisprudence: equality or proximity in specified matters. The husband must not be below the wife, so that neither she nor her guardians are disparaged. Jurists have differed in determining the elements of compatibility. - Compatibility through righteousness in religion. Article 35 of Law No. 51 of 1984 concerning Personal Status. The Explanatory Memorandum to the aforementioned Law indicated that considering religion alone in compatibility is the jurisprudence of Imam Malik. The basis thereof. - The import of Article 31 of Law No. 1984 concerning Personal Status. - Preventing a woman from marrying. Its meaning. - Determining compatibility between spouses and whether the guardian has prevented the girl under his guardianship from marrying. A matter for the court of fact. The condition therefor. - The first respondent’s institution of her action seeking to be married to the second respondent because her father, the appellant, had obstructed her and unjustly prevented her from marrying him, without submitting evidence thereof and her failure to prove it. The challenged judgment’s ruling that she be married to the second respondent by means of a vague statement that does not in itself indicate, or lead by logical necessity to, the correctness thereof. This vitiates it by inadequacy of reasons and defective reasoning, which led it to err in applying the law, requiring its cassation. Rule: Compatibility in marriage, in the terminology of the jurists, means equality or proximity in specified matters, so that the husband is not below the wife, lest she or her guardians be disparaged. Jurists have differed in determining the elements of compatibility. Article 35 of Law No. 51 of 1984 concerning Personal Status provides that: “The criterion for compatibility is righteousness in religion.” The Explanatory Memorandum indicated that considering religion alone in compatibility is the jurisprudence of Imam Malik and what is transmitted from Umar, Ibn Mas‘ud, Ibn Sirin, Umar between Abd al-Aziz, and Hammad, and that al-Bukhari supported it in his Sahih. It is supported by the Almighty’s words: “Indeed, the most honourable of you in the sight of Allah is the most God-fearing of you,” and the Prophetic saying: “If someone whose religion and character you approve proposes marriage to you, marry him; if you do not do so, there will be strife on earth and widespread corruption.” Thus, outward uprightness suffices in marriage, and a chaste woman is not to marry a wanton evildoer. Article 31 of the aforementioned Law provides that: “If the guardian prevents the girl from marrying, she may refer the matter to the judge to order or not order the marriage, ......”. Preventing a woman from marrying means unjustly barring her from marriage, as in the Almighty’s words: “Do not prevent them from marrying their husbands.” The Explanatory Memorandum disclosed that, where the guardian prevents marriage, the matter is entrusted to the judge, not to the more remote guardian, following what the Maliki and Shafi‘i jurists stipulated, since the judge, as the holder of authority, may supervise holders of special guardianships to secure a benefit or avert injustice or harm. That being so, the jurisprudence of this Court has established that the claimant is charged with proving his action and submitting evidence supporting what he alleges, and that the court of fact has the power to ascertain the facts of the action, assess the evidence, and determine compatibility between the spouses and whether the guardian has prevented the girl under his guardianship from marrying. This is, however, conditional upon its basing its judgment on cogent reasons with an established basis in the papers. The grounds of a judgment are tainted by defective reasoning if they contain a defect affecting the soundness of the inference, including where the court, in forming its conviction, relies on evidence objectively unsuitable to support that conviction, fails to understand the factual elements established before it, or there is a contradiction between those elements, as where the conclusion it reached does not logically follow from those elements established before it, or where it infers a fact from a nonexistent source or from an existing source that contradicts what it established. A judgment must be based on clear, substantive reasons, containing within itself what reassures its reader that the court has scrutinised the evidence submitted to it, weighed it against one another, and preferred what it is satisfied should be preferred, in a manner demonstrating an informed and insightful examination and study of the case papers, so as to permit oversight of the judge’s work, verification of his proper comprehension of the facts of the dispute and the parties’ defences, and ascertainment of the reasons for the court’s ruling therein. That being so, it is established from the papers that the first respondent brought the action seeking an order that she be married to the second respondent because her father, the appellant, had separated her and unjustly prevented her from marrying him. However, she did not submit evidence recognised under Sharia and law establishing the truth of her allegations, despite her parents’ dispute as to the compatibility of the man seeking to marry her. The court of first instance afforded her the opportunity to prove her action and referred it for evidentiary investigation so that she could establish the reason for her father’s refusal to marry her off. However, she failed to furnish proof. The court of second instance then again referred the appeal for evidentiary investigation so that she could establish that the second respondent was a compatible match for marriage to her, but she did not produce her witnesses for proof. Accordingly, she—being charged with the burden of proof in this respect—failed to prove her allegation that the appellant had prevented her from marrying despite the compatibility of the man seeking to marry her. Nevertheless, the challenged judgment concluded that the second respondent was compatible through a general statement comprising the mere assertion “that a Muslim’s condition is presumed to be righteous, which is not impaired by a difference of sect.” On that basis it reached its ruling ordering that the first respondent be married to him, through a general statement that does not in itself indicate, or lead by rational necessity to, the correctness of what the judgment inferred from it, nor justify the conclusion reached in its ruling. This vitiates it by inadequacy of reasons and defective reasoning, which led it to err in applying the law, and requires its cassation without the need to examine the remaining grounds of challenge.