Case Summary: The wife seeks fault-based divorce from her husband and custody of two minor children, on the grounds that the husband mistreated her, committed adultery and abandoned her and their children. She claims that the couple has been separated for the past two years. The wife also claims that the husband has not been providing for the family financially and requests to divorce him under the Indian Hindu law.
The husband denies the allegations made by the wife and expresses his unwillingness to divorce. He claims that the wife had asked him to move out of their marital house, which was paid for by the wife, and upon his refusal to leave, she had cancelled the lease on their house and had begun to live separately. He further claims that the wife had travelled to India for the birth of their second child and had left both children under her mother’s care, before returning to the UAE. He also states that his salary is AED 6000 while his wife earns AED 12,000, with insurance for the family. The husband produced two witnesses, both of whom testified to the fact that the couple had been living separately for almost two years and the two children were with the wife’s mother. The witnesses denied any knowledge of adultery on the part of the husband.
First Instance Court (“CFI”) findings: The court decided to apply the laws of UAE as the copy of the Hindu laws submitted by the wife were found to be incomplete and disorganized. Regarding the wife’s request for a fault-based divorce, the court ruled that the wife had been unable to prove the element of harm as required by article 118 of Federal Law No. 28/2005 on Personal Status and therefore rejected her request. The wife failed to prove that the husband was not providing for her, or that he was involved in physical relations with other women, as per her earlier allegations. Regarding custody of children, since the wife had left the children with her mother, the court ruled to reject her request for custody of children and the subsequent custody charges, as her request for custody was unfounded and lacked any basis in fact or law.
As the wife had abandoned the marital domicile without giving any legal justification, the court ruled that her right to temporary and continued maintenance was forfeited as per article 71 of the Personal Status Law. Her request for a one-time marriage enjoyment charge was also rejected as the couple was still married. The wife’s request for housing charges was rejected as she did not incur any expenses for the housing of her children. Her request for a domestic servant, tuition and transportation charges for the children were also rejected by the court citing the reason that the husband did not have the financial capacity to incur the expenses due to his meagre income. Additionally, the younger child was not eligible for formal education yet. However, the court ruled to charge the husband to pay child support of an amount of AED 600 per child as it was proven that he was not providing for his children since the separation of the couple. Child support for the first child was to be paid from the time the couple was separated, and the child support for the second child was to be paid from the birth of the child.
Court of Appeal findings: Both husband and wife appealed the decision of the Court of First Instance. The wife appealed the lower court’s decision to apply the laws of UAE. This appeal was duly rejected by the appeal court stating that the foreign laws submitted by her were both abridged and incomplete. However, the court quashed the ruling by the lower court in refusing to grant divorce to the wife. The court stated that the husband had failed to provide appropriate marital residence for the wife and child which amounted to a form of abandonment. Therefore, the court ruled to grant an irrevocable fault-based divorce to the wife. Consequently, all the other decisions by the lower court were quashed and re ruled. The wife’s request for the waiting period maintenance was reconsidered by the court. It ruled that although the wife was not eligible for the waiting period maintenance as she was not pregnant, she was eligible for housing charges during the waiting period. Subsequently, the court ruled to grant a lumpsum amount as housing charges for the waiting period.
The husband’s request to be granted custody of the children was rejected by the appeal court as he had not requested custody anytime during the procedures before the Court of First Instance. The wife was given custody of both minor children, as per Article 142 of the Federal Personal Status Law No. 28 of 2005, wherein it is stated that the mother has the primary right to custody of young children. The child support granted by the lower court was also reconsidered by the Court of Appeal. The court determined that the alimony of a minor child is obligatory upon the father despite the fact that the husband and wife’s financial status must be taken into consideration while determining child support. The court added that the differences in living conditions in both India and the UAE must be taken into consideration while determining the amount of child support. Therefore, the court ruled an amount as child support if the children were to live in India, and a higher amount if the children were to move to the UAE. The wife’s request for custody charges were ruled to be invalid as the children were under the care of the wife’s mother.
The court ruled that the father is not obligated to pay the children's school fees, as the children were enrolled in a school in India without his consent or consultation and therefore the fees may exceed the father's financial capacity. However, the court ruled to charge the father to pay transportation charges, again granting two different charges, depending on whether the children will be in India or the UAE. The court also charged the father to renew visa permits, passport and other documents. The court stated that the health insurance must be paid by the wife who received health insurance for her family, through her place of employment. The wife’s request for marriage enjoyment charges was ruled to be invalid as this is only applicable in cases wherein the husband divorces his wife, against her wishes.
Court of Cassation findings: The husband appealed the decision of the Court of Appeal on two grounds. He claimed that the court’s decision to apply the laws of UAE was flawed as both him and his wife were Hindus and their personal law must be applied to the case. This reasoning was rejected by the court stating that the national law is the default applicable law for non-citizens residing in the state, and as the parties had failed to adhere to the correct procedure and format of submitting the foreign laws before the Court of First Instance, the court is under no obligation to apply the foreign law. The husband’s second objection was that the Court of Appeal had violated his right to defense by reserving the case for ruling without allowing him to submit a defense memorandum and prove his financial situation. This argument was also rejected by the court. The decision to reopen a case for pleading after reserving it for ruling, and after giving the parties the opportunity to present their defenses, lies within the discretion of the Trial Court.
In Conclusion, the national law of the country is the default applicable law for everyone residing in the UAE. Although the law provides for the application of personal laws of an individual’s home country in determining cases on personal status, this provision is applied only when the litigants expressly ask for the application of the said laws, and submit the laws in its entirety and in the manner prescribed by law.
Cassation Appeal No. 233 of 2023, Personal Status Appeal
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