Sharjah: The Court of Cassation in Sharjah ruled not to accept a wife's appeal against an appellate ruling that rejected her divorce on the grounds of harm, after she accused her husband of causing her organic diseases as a result of his actions towards her, considering that the continuation of married life between them had become impossible. The court confirmed that the case file lacked evidence proving the husband's responsibility for her contracting the diseases she claimed, and that the testimony of her two brothers and the fact that she had previously been divorced with a revocable divorce and then returned to his custody, were not sufficient to prove harm.In detail, a wife filed a personal status lawsuit against her husband, requesting a divorce due to harm and obligating him to pay the financial rights resulting from the divorce, including the deferred dowry, maintenance during the waiting period, and compensation, in addition to proving her custody of their children, obtaining custody fees and housing allowance including utility bills and furniture allowance, and handing over the children’s identification papers and residence permits, as well as claims related to expenses and the maid’s wages.The wife based her claim on the harm she suffered as a result of her husband’s actions, which she said caused her to develop organic diseases. She presented the testimony of her two brothers to prove the harm, and she also insisted on the husband’s admission that he had previously divorced her with a revocable divorce and then brought her back into his custody, considering that this represents an implicit admission of the harm she claims to have suffered.The Court of First Instance ruled for divorce due to harm, but the Court of Appeal overturned the ruling in this regard, after concluding that the alleged harm was not proven, and that the evidence and indications presented were insufficient to prove it, in accordance with the legal and Sharia legislation. It also rejected the financial demands resulting from the divorce, related to the deferred dowry, maintenance during the waiting period, and compensation.The wife did not accept the appeal ruling, so she appealed it before the Court of Cassation in Sharjah, adhering to the evidence and proofs she had presented regarding the occurrence of harm, and objecting to what the ruling had concluded regarding divorce, custody, and expenses.The Court of Cassation explained that the appealed ruling was based on the insufficiency of the testimony of the wife’s two brothers to prove the harm, as the testimony of one of them was hearsay, relayed from his sister, while the testimony of the other alone was not sufficient to reach the legally required threshold, which resulted in not relying on that evidence.It emphasised that the basis of testimony is that it should be direct, based on what the witness saw himself or heard with his own ears, and that statements of the witness that are transmitted from the person for whom he is testifying are not valid, because they are considered as if they were the statements of that person himself, and it is not permissible for a person to testify for himself.Regarding the organic diseases that the wife relied upon, the court indicated that the documents lacked any proof that the husband caused her to contract them, and therefore what she claimed in terms of health damages is not sufficient to prove that serious harm occurred from him that would make it impossible to continue the marital relationship.The court also refused to consider the husband’s admission that he had previously divorced his wife with a revocable divorce, and then brought her back into his custody, as evidence of harm, explaining that he denied the harm she had attributed to him, and that his admission of the previous divorce did not constitute an acknowledgment of the validity of her claims.It pointed out that either spouse has the right to request a divorce due to harm that makes it impossible to continue living together amicably, whether the harm is material or moral, and its assessment varies according to the couple’s environment and their social and cultural level, but proving it is subject to the legal and Sharia rules, and to the discretionary authority of the court of the subject in examining the evidence and documents.Regarding the wife’s request to prove her custody of the children, the court affirmed that the principle of custody, as long as the marital relationship exists, is that it is exercised jointly between the father and mother, and neither of them may have it alone or demand that it be taken away from the other, unless it is proven that there are legal impediments or serious harm to the children.It explained that canceling the divorce ruling due to the lack of proof of harm means the continuation of the marital relationship between the two parties, and consequently, the custody of the children remains shared between them, which resulted in the rejection of the wife’s request to prove her independent custody, and the claims related to it, including custody fees, housing fees, utility bills, furniture allowance, and the handover of the children’s identification papers and residence permits.Regarding expenses, the court clarified that their assessment depends on the financial situation of the person obligated to pay them, his degree of affluence, and the circumstances of the beneficiaries and their social and cultural level, taking into account the economic conditions, and not less than the minimum level of sufficiency.It confirmed that the Court of Appeal upheld the ruling of the Court of First Instance regarding the assessment of expenses and wages, after it saw that they were commensurate with the husband’s income and degree of financial means, according to the documents submitted in the case.It also supported the rejection of the request for the maid's wages, because the wife did not provide proof that the children needed a maid, or that the family had previously provided a maid, considering that assessing these claims falls within the discretionary authority of the court of first instance.The Court of Cassation concluded that the appeal ruling was based on sound reasons with a proven basis in the documents, and that the wife’s objections relate to the assessment of evidence and facts, which are matters within the exclusive jurisdiction of the trial court, and do not constitute an acceptable reason for appeal by cassation.The court, in chambers, decided not to accept the appeal, and ordered the wife to pay the expenses and Dh1,000 for attorney fees.
