Kuwait Court of Cassation principle number 47

Summary: - Under the Ja‘fari school, where a husband harms his wife and antagonises her without a lawful Sharia basis, she may bring her matter before the Sharia judge to restrain him from harm and injustice and require him to maintain kind marital relations or release her graciously. The husband’s refusal. Consequence: the Sharia judge divorces her. - If marital disobedience, estrangement and discord arise between the spouses and life between them becomes difficult, the judge appoints two arbitrators, one for each side, to reconcile them and remove discord by such reunion or separation as they consider appropriate. - The court’s failure to comply with this. A violation of the applicable Ja‘fari jurisprudence. Consequence: quashing of the judgment. Rule: It is established in the jurisprudence of the Ja‘fari school, applicable to the facts of the case without disagreement between the parties, that, if a man harms his wife and antagonises her without a lawful Sharia basis, she may bring her matter before the Sharia judge to restrain him from harm and injustice and require him to maintain kind marital relations or release her graciously. If he refuses both courses, the Sharia judge divorces her. If, however, marital disobedience, estrangement and discord arise between the spouses until life becomes difficult, the judge appoints two arbitrators, one from the husband’s side and the other from the wife’s side, to reconcile them and remove discord by such reunion or separation as they consider appropriate. That being so, and whereas the appellant brought her action requesting an irrevocable divorce from the respondent for harm, on the basis that he assaults her with abuse and humiliation, does not maintain her, and mistreats her in marital life, making continuation of their marital relationship impossible, two arbitrators should have been appointed, one from the husband’s side and the other from the wife’s side, to reconcile them and remove discord by such reunion or separation as they considered appropriate. Since the court did not follow this approach, thereby contravening the applicable Ja‘fari jurisprudence, and dismissed the action, and the challenged judgment upheld it without taking this procedure, it violated the law and must be quashed.