Court Rules That Local Emirati Laws And The Personal Status Laws Of An Expatriate's Home Country Must Not Be Applied Simultaneously While Adjudicating A Matter

Case Summary: A divorce case between a Christian couple wherein the wife requests for a divorce from her husband due to desertion and lack of financial support from the husband for a period of five years. The wife also requests for child custody, child support, alimony, and other maintenance charges from the husband. The wife states that the husband was physically abusive towards her and demanded money from her even though the husband earned a high salary. A few years into their marriage, when the wife was working in a leading bank in the UAE, the husband maliciously tricked the wife and child to travel to their home country India, after which the husband took away her passport and abandoned her in India. When the wife returned back to UAE, the husband refused to join her in matrimony and did not grant the No Objection Certificate to enable her to apply for a visa for their daughter.

The husband denied all the allegations made by the wife and stated that it was the wife who abandoned him and their matrimonial home. He further alleged that while in India, the wife had assaulted his mother and caused her injury, due to which there were criminal charges pending against her in India. The husband stated that the wife had absconded from the country and had reached UAE after changing her name and religion. He also stated that his wife had broken into his house in Sharjah and stolen money from him. She was subsequently charged for theft and was sentenced to 1 year imprisonment. The husband requested the court to quash the divorce proceedings initiated by the wife, deny custody of the child and reject her request for alimony. In an additional memorandum, the husband requested the court to apply their personal laws in the case.

First Instance Court findings: Upon hearing the claim and counter claim filed by both parties, and the statements of witnesses, the court held that as the husband had stated that the wife had converted to Hinduism, both parties do not belong to the same religion, due to which the UAE Federal Personal Status Law No. 28/2005, will apply in this case. The court also held that the husband had ignored his duties towards his family, as per Article 19, Article 54 and Article 55 of the personal status law, and as a result the wife was entitled to a divorce as per Article 117 of the same law. As the husband was not able to satisfy the court as to the reason why he travelled with his wife and child to India, which led the wife to losing her job in the UAE, the court was convinced of the husband’s abandonment of the family. The wife satisfied the requirements of a custodian as per article 143 and 144 of the applicable law. The court also held that the criminal charges against her were all pending before the court of law, and as she was not convicted of the charges, she is eligible for custody. The court thus granted her divorce, custody, alimony, child support and all the ancillary allowances due to her as per the UAE Federal Personal Status Law No. 28/2005.

Court of Appeal findings:the husband appealed the judgement issued by the first court, and requested that the divorce proceedings initiated by the wife be quashed. The wife in her counter claim, requested for an increase in alimony and maintenance charges granted by the first court.

The court held that as the husband had claimed that the wife converted to Hinduism and the wife had in turn denied such conversion, the Christian laws of the couple would be applicable in the case. As per article 10 and 15 of the Indian Christian Divorce Law No. 4 of 1869, in case of desertion of a spouse for more than two years, the marriage contract is liable to be dissolved. The husband’s claim that the wife abandoned the marital home in India was not accepted by the court as it stated that the marital house is one where the spouse resides.

Article 41 of Section 11 on Child Custody of the Indian Christian Law allowed the Court to issue decisions as it deems appropriate regarding the custody, maintenance and education of minor children whose parents’ marriage is subject to divorce case before the Court. Articles 36 and 37 of the Indian Divorce Act of 1869 also have similar provisions. The court also added that the husband had failed to submit an explicit request to be granted custody of the child, in addition to not providing for the child for the past five years. The court thus re-ruled to grant the custody of the child to the wife, as per the couple’s personal laws, and increased child support and related charges imposed on the husband.

Court of Cassation findings: The appeal before the Court of Cassation was filed by the husband after the wife was convicted on charges of theft, and the divorce case in India was rejected due to insufficient evidence. The appeal was filed on the ground of miscarriage of justice and application of the law, lack of causation, and invalidity of evidencing in its ruling to dissolve the marriage contract based on the provisions of the Indian Christian law while disregarding the husband’s argument that the case should not be heard due to it being previously adjudicated. Although the court held that the outcome of the case will be altered due to the altered facts of the case, upon re-examination of the facts presented before it, the court remained satisfied that the husband had deserted the wife and child and refused to provide for the family. The husband pointed out that due to the wife being convicted, she is unfit to receive custody of the child. This argument was also rejected by the court stating that it is in the best interest of the minor daughter to be in custody of the mother as opposed to the father who failed to seek custody in his claims filed before the court. The court also took into consideration the testimonials of witnesses that appeared on behalf of the husband. Both witnesses had agreed that the wife is eligible for custody. With regard to the husband’s claim that the previous court had applied the wrong law in the case, the Court of Cassation held that the alimony fixed by the lower court was as per the local laws of Dubai even though the applicable law in this case is the personal law of the couple. Accordingly, the court ruled to partially quash the ruling regarding the estimation of alimony, reducing the amount, and its due date. The court charged the husband with the payment of housing rent for the waiting period, custody charges, and alimony prior to filing the case. Further, the Court ruled to reject the remaining requests made by the husband.

In conclusion, the Court of Cassation held that a court cannot simultaneously apply the personal laws of the expatriate’s country and the local Emirati laws when adjudicating a component in the case. The court also underscored the importance of the role of the mother in raising a minor child.

Citation: Cassation Appeal No. 299 of 2023, Personal Status Appeal

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