Kuwait Court of Cassation principle number 43

Summary: - Disagreement between spouses over receipt of the portion of the dower that has fallen due. Before consummation, the wife’s statement prevails; after consummation, the husband’s statement prevails, unless there is contrary evidence or custom. - The requirement that a witness be free from suspicion of bias in Maliki jurisprudence. Its meaning: the testimony of an ascendant for a descendant, or a descendant for an ascendant, is inadmissible, whether the ascendant is on the paternal or maternal side. - Testimonial evidence concerning proof of whether the dower has been received. Its required complement: 2 upright men, or 1 upright man and 2 upright women. - The challenged judgment’s order requiring the appellant to pay the respondent—with whom the marriage had been consummated—her prompt dower, relying on her 2 witnesses, the first being her son, whose testimony is inadmissible as a descendant of his mother. The testimony of the other witness thus stands alone and does not complete the required complement of Sharia testimonial evidence. Effect thereof: the oath must be tendered to the husband. The judgment’s failure to tender it, considering that evidence sufficient, renders it defective for error in applying the law and requires its cassation. Rule: The meaning of Article 60 of Law No. 51 of 1984 concerning Personal Status—as established in the jurisprudence of this Court—is that, if the spouses disagree over receipt of the portion of the dower that has fallen due, the wife’s statement prevails before consummation, and the husband’s statement prevails thereafter, unless there is contrary evidence or custom. It is established in Maliki jurisprudence that a witness must be free from suspicion of bias; accordingly, the testimony of an ascendant for a descendant, or a descendant for an ascendant, is inadmissible, whether the ascendant is on the paternal or maternal side. Testimonial evidence concerning proof of whether the dower has been received requires 2 upright men, or 1 upright man and 2 upright women. That being so, it is established from the challenged judgment that it ordered the appellant to pay the respondent—with whom the marriage had been consummated—her prompt dower, based on accepting the testimony of her 2 witnesses, although her first witness was her son. His testimony is therefore inadmissible as a descendant of his mother, requiring its exclusion. The testimony of her other witness consequently stands alone and does not complete the required complement of Sharia testimonial evidence in the present action, namely the testimony of 2 upright men, or 1 upright man and 2 upright women. The respondent has therefore failed to prove her claim by testimonial evidence. At that point, the husband’s statement prevails upon his oath, if he swears that the wife received her prompt dower. As the challenged judgment departed from this view, relied on the respondent’s deficient testimonial evidence, and consequently did not tender the oath to the appellant concerning his payment of the prompt dower, it is defective for error in applying the law and must be quashed in this respect.