Kuwait Court of Cassation principle number 48

Summary: - Suitability in marriage in juristic terminology. Equality or proximity in specified matters. The husband must not be beneath the wife, so that neither she nor her guardians are reproached. - Article 35 of Law No. 51 of 1984 concerning Personal Status and the Explanatory Memorandum. Suitability consists in religious uprightness. The noble verse. - Article 31 of Law No. 51 of 1984 concerning Personal Status provides that, if a guardian unjustly prevents a girl from marrying, she may refer the matter to the judge to order or decline to order the marriage. - Unjust prevention of a woman's marriage. Preventing her from marrying unjustly. - The judge holds general guardianship and may supervise holders of particular guardianships to secure an interest or avert injustice or harm. - The court must examine a substantive defence. Failure to do so renders its judgment vitiated by invalidating inadequacy, requiring its cassation. Example. Rule: Suitability in marriage in juristic terminology is equality or proximity in specified matters, so that the husband is not beneath the wife and neither she nor her guardians are reproached. Article 35 of Law No. 51 of 1984 concerning Personal Status provides that "Suitability is determined by religious uprightness." The Memorandum indicates that considering religion alone in suitability is the jurisprudence of Imam Malik and is transmitted from Umar, Ibn Mas'ud, Ibn Sirin, Umar ibn 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 before Allah is the most righteous of you," and the Prophetic tradition, "If someone whose religion and character you approve proposes to you, marry him; if you do not, there will be strife and widespread corruption." Apparent uprightness in the husband therefore suffices; a chaste woman shall not marry a flagrantly immoral man. Article 31 of the aforementioned Law provides: "If the guardian unjustly prevents the girl from marrying, she may refer the matter to the judge to order or decline to order the marriage, ...." Unjust prevention of a woman's marriage means preventing her from marrying unjustly, as in the Almighty's words, "Do not prevent them from marrying their husbands." The Explanatory Memorandum states that, where the guardian unjustly prevents marriage, the matter is entrusted to the judge, not to the more distant guardian, adopting what the Maliki and Shafi'i jurists prescribed, since the judge, as holder of guardianship, may supervise holders of particular guardianships to secure an interest or avert injustice or harm. This Court's settled jurisprudence is that, whenever a litigant raises a substantive defence which, if sound, would change the view taken of the case, the court must examine that defence; otherwise, its judgment is vitiated by invalidating inadequacy. Accordingly, the appellant maintained in his memorandum submitted before the Court of Appeal a defence that the second respondent was unsuitable to marry his daughter, the first respondent, supporting this by the statements of his two witnesses in this respect. This defence, if sound, is substantive and would change the view taken of the dispute. Since the challenged judgment failed to perceive its true nature, did not afford it due investigation and scrutiny, and omitted to address it in its reasons by stating and answering it and to give its view on the statements of his two witnesses, it is tainted by invalidating inadequacy, requiring its cassation without need to examine the remaining grounds of challenge.