Kuwait Court of Cassation principle number 372

Summary: - The rules of the Ja‘fari school must be applied if both parties are its adherents. If their schools differ, Law No. 51 of 1984 concerning Personal Status applies. Article 346 of the aforementioned Law. - Matters relating to religious belief. Rulings therein are based on verbal acknowledgment so long as the apparent circumstances do not contradict it. The judiciary is precluded from examining their motives and is confined to examining their consequences. - Mere authentication of marriage and divorce. Does not in itself indicate a particular school for the litigants. - The female appellant’s maintaining that she was Sunni throughout all stages of the proceedings, without the papers establishing that she changed her school. The challenged judgment’s departure from this and application of the Ja‘fari school, and its ruling rejecting the claim for consolatory compensation on the basis of the rules of that school. A defect requiring its cassation. Rule: It is established in the jurisprudence of this Court that the provision in the first paragraph of Article 346 of Law No. 51 of 1984 concerning Personal Status that: “This Law shall apply to those to whom the school of Imam Malik was applied; otherwise, their own rules shall apply to them,” indicates, by its express wording, that the rules of the Ja‘fari school must be applied if both parties are its adherents. If their schools differ, even if one of them is Ja‘fari, the aforementioned Law is the law that must be applied. Rulings on matters relating to religious belief are based on verbal acknowledgment so long as the apparent circumstances do not contradict it, and the judiciary should not examine their motives but must confine itself to examining the consequences arising therefrom in accordance with the rules of the religion or school professed by the person. Mere authentication of marriage or divorce does not in itself indicate a particular school for the litigants. That being so, and whereas it is established in the papers that the female appellant brought her action before the Sunni Circuit, before which she maintained that she was Sunni throughout all stages of the proceedings, acknowledged this in her defence memoranda and her statement of appeal, and maintained it throughout the stages of litigation, denying the respondent’s assertion that she was Ja‘fari, and the papers did not establish that she had changed her school to the Ja‘fari school; and whereas the judgment appealed from, upheld on its grounds by the challenged judgment, proceeded to apply the rules of the Ja‘fari school to both litigants, relying on the parties’ marriage contract because it had been issued by the Ja‘fari Authentication Department, and on the issuance of judicial judgments in litigation between them in other cases brought before the Ja‘fari Circuits, and consequently ruled that she was Ja‘fari and rejected her claim for consolatory compensation on the ground that the jurisprudential rules of the Ja‘fari school contain no provision establishing a right to consolatory compensation for a divorced woman whose marriage was consummated, this renders it defective and requires its partial cassation insofar as it ruled to reject the claim for consolatory compensation.