In the name of God, the most gracious the most merciful
NATIONAL SUPREME COURT
Personal Status Circuit
Cassation Decision No. 171/2016
Issued by Supreme Court panel - Personal Status Circuit - 3rd Circuit on 17/03/2016
presided by Mr. Al Tayeb Abdul Ghafoor Abdul Wahab and membership of Dr. Sittana
Abdul Galil Mohamed and Ms. Fadya Ahmed Abdul Qader, judges at the Supreme Court.
Papers of both Appeal No 168/Appeal/2018 /Omdurman North Appeal Court/PSC/ and
No. 212156/Q/2014/Omdurman North Court were submitted under the registration No.
Appellant: Hamed Youssef Hamed
Appellee: Omaima Saber Ahmed
The facts conclude to the extent necessary for the settlement of such appeal that the plaintiff
Omayma Saber Ahmed has filed against the defendant Hamid Yousef Hamid the Case No.
2156/Q/2014 before Omdurman North Personal Status Court for fault-based divorce.
The hearing of the case has been deliberated before Omdurman North Personal Status
Court sessions in the manner shown in the minutes thereof.
The plaintiff`s attorney who was present explained that “the plaintiff is a lawful wife of the
defendant under his protection and matrimonial authority. She exposed herself to him but
found to be defective and infertile lacking the ability to bear children. She fears of missing
childbearing at this age, which caused harm to her. We therefore request for her to be
irrevocably divorced from him as fault-based divorce since such harm is not fit for her and is
impermissible under Sharia law.
The sessions also were attended by the defendant`s attorney who replied to the claim
ratifying the marriage and the existence of the husband`s protection but denied the harm
described in the explanation of the Case in all aspects.”
He added that they have evidences ensuring the defendant`s health and soundness. He went
on to say that the plaintiff herself was inflicted with polycystic ovary and uterus polyp
preventing her from childbearing.
He said that the judicial precedent No. 42/Appellate/1984 has established the following
((Infertility is not an affirmative harm for divorce)) as well as the two verses no (49) and (50)
of Surah Al Shurah of the Holy Quran.