Kuwait Court of Cassation principle number 53

Summary: - Proof of harm in divorce on grounds of harm. Acceptance of the testimony of a person of strong affection, even an ascendant testifying for his descendant. The degree of kinship or connection between the witness and the person in whose favor testimony is given, whatever it may be, does not by itself prevent acceptance of the testimony where its conditions are satisfied. Rule: Article 135 of Law No. 51 of 1984 concerning Personal Status provides: "The testimony of a relative and of a person connected with the person in whose favor testimony is given shall be accepted where they are competent to testify." This provision appears among the provisions concerning proof of harm in divorce, and its explanatory memorandum states that the degree of kinship or connection in this regard between the witness and the person in whose favor testimony is given, whatever it may be, does not by itself prevent acceptance of the testimony where its other conditions are satisfied. This means that the legislature resolved the disagreement concerning proof of harm in an action for divorce on grounds of harm by accepting the testimony of a person of strong affection, even an ascendant testifying for his descendant. It is also established in this Court's jurisprudence that, as a rule, testimony by common repute is accepted to prove a husband's harm to his wife. This consists of testifying to something which, although the witness did not personally see with his eyes or hear, is widely transmitted, in that he heard it from a group whose collusion in falsehood is inconceivable, and it became well known and widespread, reports of it repeatedly reached him, and he became inwardly convinced of their truth, because what is established by widespread transmission is equivalent to what is perceived by the senses. Testimony by common repute is original testimony, distinguished by its own controls and grounds, and has its evidentiary force. The court of merits has full authority to understand the facts of the case, assess proof of harm warranting separation and the evidence, including the arbitrators' reports in an action for separation between spouses and witness statements, weigh them against each other, assess the grounds for separation between the spouses, determine whether wrongdoing lies with either or both of them, and infer the husband's verbal and actual harm to his wife such that continued married life between them is impossible, provided that it bases its judgment on sound reasons having an established basis in the case papers, sufficient to support the judgment, and containing an implicit response defeating what contradicts them. Article 130 of the aforementioned Law 51 of 1984 specifies the rules to be followed concerning the spouses' financial rights, taking proof of either spouse's wrongdoing against the other, their mutual wrongdoing, or the inability to identify the wrongdoer as the criterion for determining those rights for each of them. If the wrongdoing is by the husband, he is liable for all rights arising from marriage and divorce, unless he is the party seeking separation, in which case his action is dismissed. If the wrongdoing is entirely by the wife, she must return the dower she received, and all her financial rights arising from marriage and divorce lapse. If wrongdoing is found to be mutual, separation shall be without compensation or for compensation proportionate to the wrongdoing. If the wrongdoer cannot be identified and the husband seeks separation, his action is dismissed; if the wife seeks separation, divorce shall be without compensation. That being so, the first-instance judgment, upheld by the challenged judgment, addressed the facts of the case and encompassed the parties' defenses and documents. It based its decision to divorce the respondent from the appellant without compensation on what was established in the case papers, the evidence in which the court had confidence, and the arbitrators' reports: that wrongdoing was mutual between the parties, that maintaining and continuing the marriage between them offered no prospect of good, and that the court had been unable to reconcile them. These are sound reasons sufficient to support the judgment, have their established basis in the case papers, and contain an implicit response defeating every contrary argument. What the appellant raised is therefore no more than argument concerning the court of merits' authority to understand the facts and assess the evidence, which may not be invoked before the Court of Cassation. Accordingly, the criticism is unsupported and the appeal must be dismissed.