Article (52) of the same Act provides that ((the assistance of the experienced specialists shall
be sought with regard to the knowledge of the defect or disease)).
It is legally established as well in the adjudication of the court that ((infertility is a reason to
which the woman may adhere for requesting separation from her husband)).
(1) Please see Review Decision No. 69/2014 issued in respect of Review No. 159/2013
(unpublished).
Whereas the matter being so, and since it has been established according to the
aforementioned medical report that the defendant suffers from preliminary infertility and
needs a treatment for a period more than one year, the elements of the case contained in the
said two Articles are available. The judge should therefore respond to the plaintiff`s request
for divorce which the Court of First Instance has adjudicated and upheld by the Judge of
the General Court and the Court of appeal in the aforementioned manner.
This will also not affect the rejection of the request submitted by defendant`s attorney for the
summon of the medical officer who prepared the report in order to be discussed with him on
the pretext that such rejection violates the provisions of Articles (30) and (31) of Evidence
Act for 1993.
This is because the expert`s report is an official instrument in writing and an authenticity for
whatsoever matters he wrote therein within the limit of his task unless found to be forged
through the legally prescribe ways.
The court is the higher expert and its acceptance of the report is a permissible matter left to
its discretionary authority given to it by law and may adopt whatsoever contained therein
whenever is confident in, leave or reject it.
Whereas the Court of First Instance was satisfied with whatsoever contained in the report
and ignored the appellant’s request for having a discussion with the medical officer who
prepared the report, its decision in question would not invalidate the judgment that based on
such report particularly the report was clear without any ambiguity and confusion and from
a committee composed of three specialist medical officers.
The appellant`s attorney raised that the Personal Status Act for 1991 has not clearly
provided for infertility-based divorce like other diseases and defect which permit divorce as
well as the precedents in respect of which are few and do not agree upon infertility-based
divorce.
With regards to what has been raised by the appellant`s attorney, it should be pointed out
that I was of the opinion that lack of childbearing is not deemed in itself a defect and cannot
be a reason for divorce unless coupled with another defect with which the wife cannot stay
except for harm, because infertility alone neither affects the rapprochement between them,
or forfeits wife`s right to sexual intercourse nor prevents either party to be a dwelling for the
other party or from establishing intimacy and mercy between them.