Kuwait Court of Cassation principle number 52

Summary: - Article 195 of Law No. 51 of 1984 concerning Personal Status. Its import: the guardian of a child in custody is entitled to attend to the child and ascertain the child's circumstances. Necessary consequence: the female custodian may not reside with the child in a place other than the guardian's locality without his permission. Establishment of custody for the female custodian. Its condition: that she reside in the same locality as the father. Contravention thereof. Its effect: forfeiture of custody, and the father may remove the child from her. Source of this provision: the Maliki school. - The female custodian's permanent departure from the country to her homeland, cancellation of her residence in the country, enrollment of the children in basic education schools in Kuwait and their regular attendance, thereby serving their interests, and their father's maintenance and care of them. Effect thereof: forfeiture of her right to custody, and she has no basis for claiming their maintenance, including rent for the custody residence. Rule: The import of Article 195 of Law No. 51/84 concerning Personal Status, as disclosed by the Explanatory Memorandum to that Law, is that the guardian of a child in custody is entitled to attend to the child and ascertain the child's circumstances, and this is not possible if the female custodian resides with the child in a place other than the guardian's locality without his permission. This rule is derived from the school of Imam Malik, which requires, for custody to be established for the female custodian, that she reside in the same locality as the father; if she does not, her custody is forfeited and he may remove the child from him. That being so, the appellant relied on the letter of the General Department of Immigration and Ports as evidence that the respondent had permanently left the country for her homeland, the Arab Republic of Egypt, and that her residence in the country had been cancelled since 29/9/2013, before the date the action was brought. This makes her residence in the Arab Republic of Egypt intended to sever the connection between the children in custody and their guardian, rendering her unfit to have custody of her 3 young children, since they reside with their father in the State of Kuwait, where he works, and are enrolled in basic education schools in Kuwait and regularly attend their studies, thereby serving the interests of the children in custody, which take precedence over the female custodian's right. He has also been maintaining them and providing them with full care since the respondent in the appeal left the State of Kuwait without returning, without Sharia or legal justification, as established by the court's questioning of the 3 children at the examination hearing, thereby extinguishing her right to custody. Since maintenance depends upon the hand holding custody, and the papers establish that the appellant has maintained his children, who have been in his custody and care since before the action was brought, the respondent has no basis for claiming maintenance for the children in custody, including rent for their residence, pursuant to Article 197 of the Personal Status Law.