In the name of Allah, The Beneficent, The Merciful
The National Supreme Court
Department of Personal Status law
Cassation Decision/172/2016
Issued by the Bench of the Supreme Court of the Third Cycle of the Personal Status
Department, on 17/03/2016 under the Chairmanship of Mr. Al-Tayeb Abdul Ghafoor Abdul
Wahab and the membership of the Honorable Judges of the Supreme Court Mrs. Sitanna
Abdul Jaleel Mohammed, and Mrs. Fadia Abdulgadir.
The appeal papers number 141/S/2015 are filed with the Appeal Court of Northern State –
Dongula along with the claim documents number 250/Ghaf/2015 with the Court of Dongula
filed under number 8/cassation/2016.
Appellant: Abu Baker Mahdi Fathi
Respondent: Ablaa Gissm Al-Saeed
The Facts
The Appeal Court of the Northern State issued ruling number AS SH/141/2015 on which it
ruled against the judgement of the Trial Court, that it turn, ruled against the respondent’s
right to custody of her daughter and ruled to the dismissal of the claim.
On 21/12/2015, Mr. Abdul Rahman Mahmoud Hassan filed an appeal against the said
judgment on behalf of the appellant Mr. Abu Baker Mahdi Fathi. The appellant was notified
of the contested judgement on 17/12/2015. Therefore, and according to articles 159-190 of
the 1983 Civil Procedures Code and its subsequent amendments in 2009, the appeal is
accepted in form on which the court based its arguments on the fact that the Appeal Court has
erred on its judgment on the case in question, where it mentioned that negligence is
presumptive and that care and caution should be applied for the right of the minor since the
minor is only two years of age. The appeal petition added that the Appeal Court failed to take
into account the nature of the work of the respondent at the hairdresser and that such work is
harmful for the minor because her mother takes her to such places and for all that, the
appellant requested to revoke the decision of the Appeal Court in favor of the judgment
passed on by the Trial Court which ruled to drop the respondent’s right to custody.
The Reasoning
The Appeal Court of the Northern State, the Muslims’ Personal Status Department issued a
valid judgment in accordance with the laws and based on correct interpretation of the facts
presented by the appellant regarding dropping the respondent’s right to custody, where the
Appeal Court toke under consideration the reasons to drop the mother’s right to custody of
the minor and concluded through its appealed judgment that to revoke the judgment of the
Court of the First Instance to drop the right of custody of the respondent and the inclusion of
the minor to her appellant Father. Custody, according to the definition of jurists/scholars is
defined as rearing if the minor and to see to its affairs and wellbeing at a certain age by
whoever owns the right from his incest to raise him, whereas article 109 of the Personal
Status Act of 1991 stated that custodianship is the upbringing, education and care of the
minor, in a way that does not contradict or conflicts with the right of the guardian and the
interests of the minor. The appellant failed to prove any form of negligence to be deemed
sufficient grounds leading to such a degree of dropping the custody of the minor and that the
assessment issues of the degree of damage and negligence are discretional of the Trial Court

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