The Position of the Court of Cassation on the Proof of Desertion Claims
An Analytical Study
DOI:
https://doi.org/10.35246/k7h6ay49Keywords:
Separation Claim, Desertion Incident, Discretionary Power, Proving a Legitimate ExcuseAbstract
This research discusses the position of the Federal Court of Cassation regarding the proof of a claim of abandonment as one of the delicate personal status claims that affect the stability of the family and require careful and balanced judicial treatment. It focuses on explaining the direction of the judiciary in interpreting the concept of abandonment, identifying its legal elements, and distinguishing it from other forms of separation, while linking this to the provisions of the Personal Status Law and the Iraqi Civil Procedure Law in force.
The research also analyzes the court's methodology in assessing evidence, particularly personal testimony and circumstantial evidence, and their sufficiency to convince the court of the fact of abandonment without legitimate excuse. We adopted a comparative analytical approach by reviewing Iraqi judicial applications and comparing them with Emirati and Jordanian legislation, while also drawing on aspects of comparative jurisprudence.
The research showed that the Court of Cassation tends to be relatively strict in proving a claim of abandonment and imposes careful control over the conviction of the lower court in concluding the fact of abandonment. It also showed that the judiciary is not satisfied with the mere claim, but requires clear evidence proving the continuation of abandonment for a considerable period with the absence of a legitimate justification according to the circumstances of each case. This research concluded that the burden of proof falls on the plaintiff, while granting the court broad discretionary power in weighing and prioritizing evidence in accordance with the reality of the case and its circumstances. This revealed to us a general convergence between Iraqi and comparative jurisprudence in the stringency of evidentiary requirements, with only minor differences in the flexibility of acceptable means of proof.
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References
I. Iraqi Personal Status Law No. (188) of 1959, as amended. (1959).
II. Iraqi Evidence Law No. (107) of 1979, as amended. (1979).
III. Federal Court of Cassation Decision No. 158/General Assembly. (1979).
IV. Algerian Family Law No. 84-11 of 1984. (1984).
V. Federal Court of Cassation Decision No. 276/ A Wide Consultations (1984).
VI. Federal Court of Appeal of Baghdad/Rusafa Decision No. 829/2001 (2001).
VII. Federal Court of Cassation Decision No. 358/First Personal Status Panel (2011).
VIII. Federal Court of Cassation Decision No. 356/2015 (2015).
IX. Federal Court of Cassation Decision No. 6742/T7013 (2016).
X. Jordanian Personal Status Law No. (15) of (2019).
XI. UAE Personal Status Law No. (41) of 2024. (2024).
XII. Decision No. (10) of 2025 supplementing Law No. (1) of 2025. (2025).
XIII. Federal Court of Cassation Decision No. 17111. (2025).
XIV. Federal Court of Cassation Decision No. 7115. (2025).
XV. Federal Court of Cassation Decision No. 7115-7071. (2025).
XVI. Ibrahim Al-Mashahdi. (1989). Legal Principles in the Jurisprudence of the Court of Cassation: Personal Status Section. Asaad Press.
XVII. Ibrahim bin Ali Al-Shirazi. (n.d.). Al-Muhadhdhab in Fiqh Al-Imam Al-Shafi'i. Dar Al-Qalam.
XVIII. Abu al-Qasim Muhammad ibn Juzayy al-Maliki. (1982). Legal Principles. Arab House for Books.
XIX. As'ad Fadil Mandil. (2019). The Subjective Nature of Moral Harm Resulting from Abandonment of the Wife: An Analytical Study. Al-Kufa Journal, 24(2).
XX. Ismail Shindi. (2015). Rulings on Abandonment of the Wife in Islamic Jurisprudence. Al-Quds University Journal for Research and Studies, 36(1).
XXI. The Holy Quran. (n.d.).
XXII. Harith Ali Ibrahim and Sulaiman Muhammad Hilal. (2021). The Judge's Discretionary Authority in Resolving Judicial Separation Disputes. Special Issue for Faculty Research with Graduate Students, 36.
XXIII. Haidar Hussein Kadhim Al-Shammari and Muhammad Abdul-Razzaq Muhammad Al-Shouk. (n.d.). Evidence for Separation Due to the Husband's Abandonment or Absence: A Study in Islamic Jurisprudence and Comparative Legislation. Ahlulbayt Journal, 21.
XXIV. Khalil bin Saleh Abdul-Sami Al-Abi. (1992). Jewels of the Crown. Dar Al-Kutub Al-Ilmiyah.
XXV. Siham Hamid Majeed. (2023). Rules of Shared Civil Liability between Civil Law and Iraqi Personal Status Law. Journal of the College of Education, Wasit University.
XXVI. Ala' al-Din Abu al-Hasan al-Muradawi. (n.d.). Al-Insaf fi Ma'rifat al-Rajih min al-Khilaf. Dar Ihya' al-Turath al-'Arabi.
XXVII. Ala' al-Din Abu Bakr ibn Mas'ud al-Kasani. (n.d.). Bada'i' al-Sana'i' in Tartib al-Shara'i'. Dar al-Kutub al-'Ilmiyya.
XXVIII. Ali al-Husayni al-Sistani. (n.d.). Minhaj al-Salihin. Beirut.
XXIX. Farouk Abdullah Karim. (2004). A Concise Explanation of the Iraqi Personal Status Law No. 188 of 1959 and its Amendments. University of Sulaimani.
XXX. Fatima Nizam Ali Al-Shalah. (2026). The Legal System of Divorce Due to the Absence or Loss of the Husband. Retrieved from https://share.google/poe0h9hPMb8Yxkt8x
XXXI. Muhammad Al-Bayoumi Al-Rawi Bahnasi. (2015). Abandonment and Related Rulings: A Jurisprudential Study. Al-Dirayah Journal, 15(4).
XXXII. Muhammad Amin Zain Al-Din. (n.d.). The Word of Taqwa. Dar Al-Qalam.
XXXIII. Muhammad ibn Mukarram ibn Manzur. (1984). Lisan al-Arab. Qom, Iran.
XXXIV. Muhammad Husayn Mansur. (2003). The Legal System of the Family in Non-Islamic Laws. Dar al-Jami'a al-Jadida Publishing House.
XXXV. Murtada al-Husayni al-Zabidi. (2001). Taj al-'Arus min Jawahir al-Qamus. Ministry of Information – National Council for Culture, Arts and Letters.
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