Federal Supreme Court

Appeal No. 769 of 2024 Personal Status

Summary of the Case

• Case Name: Appeal No. 769 of 2024 Personal Status
• Court: Federal Supreme Court
• Date: September 16, 2024
• Judges: Presided over by Judge Falah Shaye’ Al Hajri, Head of the Circuit, with the participation of Judges Jumaa Ibrahim Muhammad Al Otaibi and Al Tayeb Abdul Ghafoor Abdul Wahab.

Federal Supreme Court

Supreme Federal Court

Session of Monday, September 16, 2024

Presided over by Judge Falah Shaye’ Al Hajri, Head of the Circuit

With the participation of Judges Jumaa Ibrahim Muhammad Al Otaibi and Al Tayeb Abdul Ghafoor Abdul Wahab.

Appeal No. 769 of 2024, Personal Status

Marriage “Effects of Divorce: Custody: Its nature, conditions, and the judge’s discretionary power therein” “Enforcement of visitation ruling by force”.

1. Custody is a manifestation of Islamic law’s care for childhood to protect, care for, and raise the child. It does not conflict with the right of guardianship over the person. Reason: The right of custody does not conflict with the right of guardianship. Basis from the Sunnah.
2. Custody of a child by one parent does not deprive the other of the right to visit, host, or accompany the child. Reason: The child’s need for parental care and affection. The determination of the place, time, and person responsible for bringing the child shall be by a court decision. Condition and reason: Consideration for the child’s best interest and non-prejudice to the custodian’s right. The person wishing to see, visit, or host the child must go to the child’s location. Basis for this.
3. Enforcement of a visitation ruling by force. Condition: That it not be in police stations, security centers, or prisons. Reason: The custodian and the child’s guardian disagreeing on matters other than the child’s service, the matter is up to the guardian. The child’s overnight stay is only with the custodian unless otherwise agreed upon or the court decides otherwise for the child’s benefit. Basis for this. Maliki school of thought and established judicial precedent.

Civil Procedures “General Provisions” “International and Subject Matter Jurisdiction of Courts”.

4. Preliminary matters, incidental requests, and related requests necessary for the proper administration of justice fall within the jurisdiction of the court hearing the original case, as well as urgent and precautionary procedures enforceable in the state.
5. The Code of Civil Procedure. A general procedural law whose mandatory rules are of public order and may not be agreed upon to be violated. Effect of violation: Nullity. Reason:
6. Jurisdiction to hear cases. It is vested in the court designated by the legislator.

Marriage “Effects of Marriage: Independent Financial Capacity of Spouses”.

7. The spouses’ financial capacity is independent. If one spouse shares their funds with the other in developing property or building a house, they have the right to recourse against the other for their share upon divorce or death. Basis: Article 62 of Law No. 28 of 2005.
8. The appealed judgment extended its jurisdiction to the respondent’s claim against the appellant for a sum of money despite the proven lack of connection of the claim to a loan for developing property or building a house during the marriage or for a reason that removes the claim from the jurisdiction of the civil court. Error and violation of the mandatory basic rules related to the organization of litigation requires annulment.

9. Personal Status “Jurisdiction of Courts, Effect of Annulment of Judgment in Personal Status Matters and Exception Thereto”.

• Annulment by the Supreme Federal Court of the judgment in personal status matters. Its effect: Adjudication. Exception to this. Its cases. Article 13 of Law No. 28 of 2005. Proof of guardianship and jurisdiction of civil courts regarding the respondent’s claim against the appellant for a sum of money. Effect of partial annulment of the appealed judgment and ruling on the lack of jurisdiction of the Personal Status Court to hear the claim.

(Appeal No. 769 of 2024, Personal Status, Session of 2024/9/16)

1. It is established in the provisions of the noble Islamic Sharia that custody is a manifestation of Islamic law’s care for childhood, as a person in childhood is in dire need of someone to care for them and prepare them for life. Custody is the protection, upbringing, and care of the child, provided that it does not conflict with the guardian’s right of guardianship over the person. Thus, the text in the chapter on custody states that it is taking care of everything related to the child’s person - which falls under guardianship over the person - and that it is the duty of the child’s father, then other guardians over the person, even if the child is with their mother, so that the right of custody does not conflict with the right of guardianship, in fulfillment of the care referred to by the Prophet Muhammad, peace and blessings be upon him, when he said: (Every one of you is a shepherd and is responsible for his flock, and the woman is a shepherd in her husband’s house and is responsible for her flock).
2. Article 154 of the Personal Status Law affirmed that if the child is in the custody of one parent, the other has the right to visit, host, and accompany the child as determined by the judge, provided that the place, time, and person responsible for bringing the child are specified. Seeing, hosting, or having the child overnight is a right for each parent at any time and under conditions established by judicial rulings and principles, as long as this right does not conflict with a right of the child or one of their interests, because the child needs the care of both parents and to feel their affection. It is not permissible to deprive either parent of seeing their child, but this right should not be used as a pretext to prejudice the custodian’s right, detract from it, reduce their comfort, or harm them. Consequently, the judge is the one who determines the right of visitation, hosting, or overnight stay if agreed upon, taking into account the best interest of the child and the distance between the child’s residence and their guardian; and estimates its method by direct meeting and by traditional or modern methods, within the framework of the child’s best interest, without oversight from the Court of Cassation. If one of the child’s parents is deceased or absent, the child’s close relatives have the right to visit them as determined by the judge. If the child is with someone other than their parents, the judge appoints the eligible visitor from among their close relatives. The ruling is enforced by force if the person with whom the child is refuses to implement it. The Minister of Justice shall issue a regulation specifying the procedures for seeing, handing over, and visiting the child. The explanatory memorandum of the law clarified that the custodian may not prevent the father from seeing his child if the child is with them, and the father may not prevent the mother from seeing her child if the child is with him after the expiry of her right to custody or the end of the custody period, according to the Almighty’s saying in the Holy Quran: (Mothers shall breastfeed their children for two complete years for whoever wishes to complete the breastfeeding. And upon the father is their provision and their clothing according to custom. No soul shall be burdened except to its capacity. No mother shall be harmed because of her child, and no father because of his child. And upon the inheritor is like that. But if they both desire weaning, by mutual consent and consultation, there is no blame upon them). Because the bond must remain between the child on the one hand and both parents on the other hand, even if the parents are separated. There is no doubt that distance is estrangement, and refraining from visiting affects the soul and may cause moral, emotional, and psychological disturbance if the child moves from the custody of one parent to the other for some reason, if they have not become accustomed to them before to some extent. Likewise, the obligations of kinship include the right to visit and host, especially if one of the child’s parents is deceased, absent, missing, imprisoned, captive, and so on. Then the child’s close relatives on the side of the deceased, missing, etc., have the right to visit the child and check on them. The judge is the one who determines the method and time of the visit, whether the child is with the present parent or with someone other than their parents. The origin of this article is what the jurists have decided, that the wife has the right to go out to visit her parents or one of them, even without the husband’s permission, once a week, and he has no right to prevent her from doing so, and that she has the right to go out to visit other close relatives once a year. To avoid disputes in exercising this right, as disagreement often occurs due to malice or abuse of the right, regarding the realization of visitation, hosting, or accompanying the child for a period of time, the legislator indicated that the court is the one that determines the periodic date, appropriate place, and appropriate manner by saying as the court deems appropriate, to prevent harm and prejudice. It must be noted here that the mother during the custody period is not compelled to send the child to the father, just as the father is not compelled to send the child to the mother after the end of custody. Therefore, the person wishing to see, visit, or host the child must go to the child’s location. Therefore, seeing the child during the custody period takes place in the country where the custody actually occurs, and the guardian is the one who goes to that country. However, after the end of the custody period, the person requesting visitation or the mother is the one who goes to the child’s location with the father. The legislator emphasized that the judicial ruling on visitation is enforced by force. However, police stations, security centers, or prisons may not be a place for visitation, to preserve the child’s feelings and the psychological effects of frequenting those departments. The principle is that visitation takes place in the place agreed upon by the parents. If they do not agree, the court determines the method, place, and periodic date. If the custodian and the child’s guardian disagree on matters other than the child’s service, the matter is up to the guardian, such as directing them to a craft or a specific type of education, or keeping them away from bad company and places of corruption, so that there is no conflict between the custodian and the guardian over the person, when each of them performs the duty dictated by the child’s right, while the child is still of custody age. However, the practice in the Supreme Federal Court has been established, within the framework of legislative, judicial, and jurisprudential interpretation, and adopting the Maliki school of thought and what is applied in the state, that the child does not spend the night except with their custodian unless the parties agree otherwise. Thus, the text in Article (148) of the explanatory memorandum states that the child’s overnight stay is only with their custodian, unless the court decides otherwise in consideration of the child’s best interest, and to avoid conflict and animosity in disputes, and not to fragment the custodian’s right and harm their legal and Sharia status in custody, and not to harm the child. Since this was the case, and it was established from the case file that the procedures in all their aspects were carried out correctly within the framework drawn by the legislator and in the manner clarified by the appealed judgment, with the court’s appreciation of the mother’s legal and Sharia right to see and accompany her children without overnight stay, the appeal is unfounded, which necessitates its rejection.

(The Court)

Whereas the facts of the case are summarized in that the plaintiff/respondent filed her initial lawsuit against the appellant, requesting a ruling obliging the defendant/her ex-husband to allow her to see the children [children’s names] with accompaniment and overnight stay, and a ruling for her to recover the amount of two hundred thousand dirhams, the value of a loan the defendant/appellant borrowed from her.

In the session of 2024/4/16, the Court of First Instance ruled to oblige the defendant/appellant to allow the plaintiff to see the children [children’s names] with accompaniment and to oblige the appellant to pay the amount of two hundred thousand dirhams, the value of a loan to the respondent.

The appellant appealed this judgment. In the session of 2024/6/11, the Court of Appeal ruled to reject the appeal and uphold the appealed judgment, with the appellant bearing the costs.

The plaintiff/appellant appealed this judgment. When the appeal was presented to the consultation chamber, the panel found the appeal worthy of consideration and set a session for its consideration with notification of both parties.

Whereas the appellant’s objection to the appealed judgment in the first reason is the error in applying the provisions of the noble Islamic Sharia and the law by ruling in favor of the respondent with the right of visitation and accompaniment without considering the best interest of the children [children’s names] and that the mother/respondent is of bad character and was previously convicted in a criminal judgment of facilitating immorality with a strange man, which necessitates its annulment.

Whereas this appeal is unfounded, as it is established in the provisions of the noble Islamic Sharia that custody is a manifestation of Islamic law’s care for childhood, as a person in their childhood is in dire need of someone to care for and prepare them for life. Custody is the protection, upbringing, and care of the child, provided that it does not conflict with the guardian’s right of guardianship over the person. Thus, the text in the chapter on custody states that it entails taking care of everything related to the child’s person—which falls under guardianship over the person—and that it is the duty of the child’s father, then other guardians over the person, even if the child is with their mother, so that the right of custody does not conflict with the right of guardianship, in fulfillment of the care referred to by the Prophet Muhammad, peace and blessings be upon him, when he said: (Every one of you is a shepherd and is responsible for his flock, and the woman is a shepherd in her husband’s house and is responsible for her flock). Article 154 of the Personal Status Law affirmed that if the child is in the custody of one parent, the other has the right to visit, host, and accompany the child as determined by the judge, provided that the place, time, and person responsible for bringing the child are specified. Seeing, hosting, or having the child overnight is a right for each parent at any time and under conditions established by judicial rulings and principles, as long as this right does not conflict with a right of the child or one of their interests, because the child needs the care of both parents and to feel their affection. It is not permissible to deprive either parent of seeing their child, but this right should not be used as a pretext to prejudice the custodian’s right, detract from it, reduce their comfort, or harm them. Consequently, the judge is the one who determines the right of visitation, hosting, or overnight stay if agreed upon, taking into account the best interest of the child and the distance between the child’s residence and their guardian; and estimates its method by direct meeting and by traditional or modern methods, within the framework of the child’s best interest, without oversight from the Court of Cassation. If one of the child’s parents is deceased or absent, the child’s close relatives have the right to visit them as determined by the judge. If the child is with someone other than their parents, the judge appoints the eligible visitor from among their close relatives. The ruling is enforced by force if the person with whom the child is refuses to implement it. The Minister of Justice shall issue a regulation specifying the procedures for seeing, handing over, and visiting the child. The explanatory memorandum of the law clarified that the custodian may not prevent the father from seeing his child if the child is with them, and the father may not prevent the mother from seeing her child if the child is with him after the expiry of her right to custody or the end of the custody period, according to the Almighty’s saying in the Holy Quran: (Mothers shall breastfeed their children for two complete years for whoever wishes to complete the breastfeeding. And upon the father is their provision and their clothing according to custom. No soul shall be burdened except to its capacity. No mother shall be harmed because of her child, and no father because of his child. And upon the inheritor is like that. But if they both desire weaning, by mutual consent and consultation, there is no blame upon them). Because the bond must remain between the child on the one hand and both parents on the other hand, even if the parents are separated. There is no doubt that distance is estrangement, and refraining from visiting affects the soul and may cause moral, emotional, and psychological disturbance if the child moves from the custody of one parent to the other for some reason, if they have not become accustomed to them before to some extent. Likewise, the obligations of kinship include the right to visit and host, especially if one of the child’s parents is deceased, absent, missing, imprisoned, captive, and so on. Then the child’s close relatives on the side of the deceased, missing, etc., have the right to visit the child and check on them. The judge is the one who determines the method and time of the visit, whether the child is with the present parent or with someone other than their parents. The origin of this article is what the jurists have decided, that the wife has the right to go out to visit her parents or one of them, even without the husband’s permission, once a week, and he has no right to prevent her from doing so, and that she has the right to go out to visit other close relatives once a year. To avoid disputes in exercising this right, as disagreement often occurs due to malice or abuse of the right, regarding the realization of visitation, hosting, or accompanying the child for a period of time, the legislator indicated that the court is the one that determines the periodic date, appropriate place, and appropriate manner by saying as the court deems appropriate, to prevent harm and prejudice. It must be noted here that the mother during the custody period is not compelled to send the child to the father, just as the father is not compelled to send the child to the mother after the end of custody. Therefore, the person wishing to see, visit, or host the child must go to the child’s location. Therefore, seeing the child during the custody period takes place in the country where the custody actually occurs, and the guardian is the one who goes to that country. However, after the end of the custody period, the person requesting visitation or the mother is the one who goes to the child’s location with the father. The legislator emphasized that the judicial ruling on visitation is enforced by force. However, police stations, security centers, or prisons may not be a place for visitation, to preserve the child’s feelings and the psychological effects of frequenting those departments. The principle is that visitation takes place in the place agreed upon by the parents. If they do not agree, the court determines the method, place, and periodic date. If the custodian and the child’s guardian disagree on matters other than the child’s service, the matter is up to the guardian, such as directing them to a craft or a specific type of education, or keeping them away from bad company and places of corruption, so that there is no conflict between the custodian and the guardian over the person, when each of them performs the duty dictated by the child’s right, while the child is still of custody age. However, it is established practice in the Supreme Federal Court, within the framework of legislative, judicial, and jurisprudential interpretation, and adopting the Maliki school of thought and what is applied in the state, that the child does not spend the night except with their custodian unless the parties agree otherwise. Thus, the text in Article (148) of the explanatory memorandum states that the child’s overnight stay is only with their custodian, unless the court decides otherwise in consideration of the child’s best interest, and to avoid conflict and animosity in disputes, and not to fragment the custodian’s right and harm their legal and Sharia status in custody, and not to harm the child. Since this was the case, and it was established from the case file that the procedures in all their aspects were carried out correctly within the framework drawn by the legislator and in the manner clarified by the appealed judgment, with the court’s appreciation of the mother’s legal and Sharia right to see and accompany her children without overnight stay, the appeal is unfounded, which necessitates its rejection.

And regarding what the appellant objects to in the appealed judgment in the second reason, the error in applying the law by ruling on the subject matter jurisdiction regarding the civil loan claimed by the respondent without any basis in fact or law, with his challenge of forgery on the customary document and his assertion that the respondent is poor and destitute and was living with the appellant on his gifts and donations, and that she exploited the appellant’s old age, exceeding eighty years, with his weak eyesight and the surgeries he underwent on his eye, and that she has no money at all to lend, with the proven lack of jurisdiction of the Personal Status Court and considering that the original jurisdiction lies with the Civil and Commercial Court, which necessitates its annulment.

Whereas this appeal is well-founded. It is established in the Code of Civil Procedure that the courts have jurisdiction to decide on preliminary matters and incidental requests related to the original lawsuit within their jurisdiction. They also have jurisdiction to decide on any request related to this lawsuit that requires, for the proper administration of justice, to be considered with it. The courts also have jurisdiction to order urgent and precautionary procedures that are enforceable in the state, even if they do not have jurisdiction over the original lawsuit. It is also established in the jurisprudence of the Federal Supreme Court that the Code of Civil Procedure is a general law and a reference for judicial bodies. It is a procedural law, and its mandatory rules are of public order. It is not permissible to agree to violate them because the rules related to the judicial system, such as the formation of courts, rules of jurisdiction, deadlines for appealing judgments, and procedures for issuing judgments, relate to the public interest in organizing the work of the judiciary, litigation procedures, and justice. Violating them results in absolute nullity, meaning that its purpose is to define the framework of procedural work for the courts to ensure the stability of the system and achieve justice and equality to prevent the spread of chaos in the courts without control or favoritism. It is also established as a general rule in procedural law that the jurisdiction to hear lawsuits is vested in the court designated by the legislator. Article 62 of the Personal Status Law stipulates that an adult woman is free to dispose of her funds, and the husband may not dispose of her funds without her consent, as each of them has an independent financial capacity. If one of them participates with the other in developing property or building a house, etc., they have the right of recourse against the other for their share in it upon divorce or death. Whereas the respondent’s claim is based on the allegation of a civil loan unrelated to the development of property or building a house, etc., during the marriage, and it is not based on a reason that removes it from the jurisdiction of the civil and commercial court to the Personal Status Court. Since the appealed judgment did not realize this and extended its jurisdiction to a lawsuit outside its jurisdiction, considering that the jurisdiction is vested in the civil or commercial court, it erred in understanding the facts, which led it to violate the law by violating the mandatory basic rules related to the organization of litigation, the system, and the rules of justice, which necessitates its annulment.

Whereas it is established by the provision of Article 13 of Personal Status Law No. 28 of 2005 that “If the Court of Cassation overturns the appealed judgment in whole or in part, it must address the merits. The following are excluded from the rule of the previous paragraph: 1- If the appealed judgment was annulled due to its invalidity, and this invalidity is due to a reason related to the service of the statement of claim, the court shall rule, along with the annulment, to return the case to the Court of First Instance for consideration after notifying the litigants, provided that filing the appeal against the ruling on the service is considered with the requests presented in the lawsuit. 2- If the appealed judgment ruled on lack of jurisdiction or acceptance of a subsidiary plea that resulted in preventing the proceedings in the lawsuit, or upholding the appealed judgment on these two matters, and the Court of Cassation ruled to overturn the appealed judgment, it must refer the case to the court that issued the appealed judgment, unless it sees its consideration before a panel formed of other judges, or refers it to the competent court to decide on it anew. The court to which the case is referred is bound by the cassation judgment on the matter it decided on….”. In view of the foregoing, and the proven guardianship and the establishment of the inherent jurisdiction of the specialized civil courts, the appealed judgment is partially annulled regarding what it ruled on the loan, and it is ruled that the Personal Status Court lacks jurisdiction to consider the claim for the civil loan.