AI English Translation, Pages 526-550
See articles
⟦line⟧
18 - 19 - 20 - 21 - 22 - 23
of the Mixed Courts System 1918
Also
I believe that the one who legislated in this regard is that
the wife's agent, the lawyer Mr.
Larifa Zana, be summoned to consult with him on this matter
since the case has been returned to the Court of First Instance
to be considered anew, and the lawyer can convince the court
of his point of view, so it insists on its previous decision
Drobier
I am ready to meet the Council's agent if
His Excellency the President summons him for this purpose
Adly
( 7 )
In the name of God, the Most Gracious, the Most Merciful
And the establishment of the fact that the custody of the girl remains with her mother until the age of marriage, with reference
to the response letter received from the Presidency of the Sharia Court numbered 8127 and dated
12/21/1954, and because it has become clear from the response of the Medical Court dated
that the girl, although afflicted with epilepsy, it does not affect her mental state
and due to the plaintiff's failure to prove the inability of medicine to cure the girl or the impossibility of her continued living
and upon inspection and deliberation, it appeared that the lawsuit has lost its functions according to the Mejelle (Civil Code)
and nothing remains of the written issues except the question of when the custody of girls whose custody period has expired ends
and since Article 166 of the Mejelle states that there is no difference in the rulings of
custody between the mother and the grandmother and between other custodians and between the husband and the guardian, and accordingly
the plaintiff, in his second capacity, states that the defendant is afflicted with epilepsy
which prevents her from performing the duty of custody, while the personal matters are sound in this regard despite
the issuance of the judgment for the plaintiff and the re-filing of the claim except for the control of the lawsuit according to the laws
in force and the divine laws.
Accordingly, we have decided the following:
1- Dismissal of the plaintiff's lawsuit
7 / 6 / 1945
⟦illegible⟧
His Eminence, the Head of the Jewish Community in Baghdad, the Respected,
We present to your Excellency today a case of importance and gravity - a case that touches the core of social life
and the family unity of the Jewish community - a case that, although simple in appearance, contains everything related
to the Jewish group in terms of good and evil, or vice and virtue -
O President - you know that the Court of Cassation previously issued on 23 / 5 / 1945, under
cassation file number (26 / 45), a decision involving the forfeiture of the Jewish mother's right to custody if
the girl reaches nine years of age, following the Hanafi Sharia - this is the summary of the decision -
It appears that the Court of Cassation did not give our Sharia any significant importance in resolving this issue, which requires
the continuation of the mother's right to custody of the Jewish girl until marriage for reasons and considerations of importance in
our Mosaic Law as everyone knows it - and specifically, the Court of Cassation also did not notice the Sharia
rules, the observed laws, and the proclamations issued in this regard that are in force at the present time
and supported by several previous cassation decisions - and here I list Proclamation No. (6) which clarifies what we mentioned
above, which is the proclamation issued by the Commander-in-Chief during the occupation, and it is among the set of proclamations observed
at the present time and issued from March 11, 1917, until September 30, 1923, and we find
items No. (13) and (16) of the aforementioned proclamation refer to our subject, and here I list
these two items verbatim:
1- Item 13 of the aforementioned proclamation, its text is as follows:
(If issues related to basic personal matters appear in lawsuits filed in the Civil Court
as explained above - the court shall rule according to the personal law - or the customs observed at
the time the incident occurred between the two parties, provided that such personal law or custom is
consistent with justice, equity, and conscience and has not been changed or abolished by a competent authority.
2- Item 16 of the aforementioned proclamation, its text is as follows:
(If the lawsuit or transaction presented to the Civil Court requires a ruling on matters that must
be resolved according to Item 13 of this aforementioned proclamation under a personal law or custom - and it is not
within the jurisdiction of the Islamic Sharia Court - the court shall send these matters to one of the ⟦...⟧ spiritual
scholars, provided that he is competent and has knowledge of that - but if the entire lawsuit needs
to be resolved according to that personal law or custom, the court may entrust ⟦...⟧ that lawsuit to
the aforementioned scholar.
From these two items, it is mandatory for the Personal Status Court, when adjudicating its personal lawsuits,
(To be continued)
(2)
By applying the basic personal law of that sect, the inquiry regarding these matters to be resolved
among the spiritual scholars of that sect -
We also note that the phrasing of these two items ⟦from the declaration⟧ above came in an absolute form and did not refer to the necessity of following
religious legal rules when resolving these personal matters - which makes, in this case,
the decision of the aforementioned Court of Cassation in the custody case ⟦contrary⟧ to the aforementioned statement in total contradiction
considering that it is not based on an established legal rule and does not agree with the basic legal provisions and conditions specific
to the Israelite law that must be followed in this regard, which states (that
the right of custody of a Jewish girl is not forfeited from her mother except upon her marriage) - and although the cassation decision
mentioned above is indeed correctable by the known legal method (and to prevent the aforementioned decision from being taken
as a general rule that must be followed in the future in the courts, it was found ⟦necessary⟧ to entrust the resolution of this
case to your leadership, hoping that your Eminence will take interest in this serious subject after presenting this petition of mine
to the community council for study and directing it to a special committee from the aforementioned council to take what is necessary legally and religiously
in this regard as quickly as possible, and then reviewing the competent departments, especially the Ministry of Justice, regarding this
matter by your leadership directly or by whoever represents you in the committee collectively - and by this you will record
in the page of the Israelite community a great service that will be remembered and thanked, and you will save Israelite girls from misery
and frightening deterioration and pull them from darkness to light, and this is not too much for you as you enjoy the seat
of judgment and justice -
This is what I had ⟦to present⟧ in my capacity as a member of the Israelite community who is jealous for its interests and monitors
its social ailments closely - this, and you have from me much gratitude and veneration.
The Petitioner - Sincerely
Lawyer Isaac Levy
Iraqi Government
Ministry of Justice
⟦emblem⟧
Please refer to the general number:
Editorial Department:
General Number: 4 / 47 - 47
Telegraphic Address: Justice:
Date: May 19 / 1945 AD
Subject Summary: The case of Saleh Rubin Sabti
and his son Saleh
To " -
The Jewish Religious Court in Baghdad
After your court decided the recalcitrance of the wife of <del>Saleh Rubin</del> ⟦Rubin Saleh⟧ Sabti and issued a ruling
permitting the husband to marry another woman, it went back and issued a contradictory decision, and this
is a matter that violates the principles and foundations of Sharia and the law and robs people's confidence in the justice of
the court. This is from one side, and from another side, the court has violated the provisions of
Sharia and logic in its second decision, where it stated in the justifying reasons
that the wife was stalling her husband in obedience, then it decided to obligate the husband to pay alimony in the amount of
(25) Dinars per month. If the wife is stalling and not obeying, how can it be permissible for the court
to decide alimony for her?
This decision contains anomalies and Sharia and legal violations, so it must be
reconsidered.
⟦signature⟧
Minister of Justice
A copy of it to " -
Judicial Inspection Department - reference to the report numbered Sh / T / 13 / 1945
and dated 4 / 29 / 1945.
Presidency of the Jewish Community in Baghdad - reference to its letter numbered
133 and dated 2 / 14 / 1945.
S. M.
Justice
The court has <del>issued</del> its judgment in this case
under its <del>rule</del> and in accordance with the provisions of Mosaic Law
As for the review of the decisions of the religious courts, it is carried out
in the manner stipulated in paragraph 2 of Article
fifteen of the Community Law No. 77 of 1921
and no ⟦illegible⟧ ⟦illegible⟧ ⟦illegible⟧
President of the Court
⟦illegible⟧
⟦line⟧
⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧
⟦line⟧
⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧ | ⟦illegible⟧
its judgment in this
case
⟦illegible⟧
⟦illegible⟧
Number ⟦illegible⟧
Date ⟦illegible⟧
Subject ⟦illegible⟧
⟦illegible⟧
⟦illegible⟧
⟦illegible⟧
⟦illegible⟧
⟦illegible⟧
⟦illegible⟧
⟦illegible⟧
⟦illegible⟧
⟦illegible⟧
⟦signature⟧
⟦illegible⟧
⟦illegible⟧
Building of the Jewish Community
23 / 7 / 942
22 May 945
The Honorable Ministry of Justice
Baghdad
⟦line⟧
Our court has issued its judgment in this case according to
its conviction and in accordance with the provisions of Mosaic Law. As for the reconsideration
of the decisions of the religious courts, it is carried out in the manner stipulated
in paragraph 3 of Article 15 of the Community Law No.
77 of the year 931.
Head of the Community
Iraqi Government
Conciliation Court
p. 1
Case Number:
Year:
Case Record
| Name and Surname | Occupation | Place of Residence
Plaintiff | Lessor: Koji Murad Ashir | Unemployed | 20/112 Mahdiya Baghdad
Defendant | Lessee: Sabiha wife of Yusuf | — | 20/112 Mahdiya Baghdad
The defendant had rented from me by oral contract a room and a basement in my house where I reside, numbered above,
for the amount of thirty-one dinars for five months ending on April 12, 945, with four dinars of the rent paid monthly. At
the end of the period, she moved without my consent by force to another room, so I warned her through the Notary Public of the necessity to return to
the previous room and pay the current rent or pay one hundred dinars annually for the new room, provided she exercises
her option within a month of the rental notice, and the period has ended and she has not done so. Since this action of hers is considered a breach
of the contract, especially regarding the old room, and her presence in the neighboring room is not based on a legal reason, I request summoning
the defendant and ruling against her to vacate the room and obliging her to pay twelve dinars for three months from (4/22/945)
until 7/22/945 at a rate of four dinars per month, and the remaining claim of the rent for the room.
Copy of the Case Record
The Israeli Religious Court
Baghdad
Number:
Date: 22 May 945
His Eminence Rabbi Sassoon Khedhouri, Respectfully
President of the Jewish Community - Baghdad
Reference to the Ministry of Justice letter No. A / 270 / 43 dated
19 May 945 referred to us.
Our court has issued its judgment in this case according to
its conviction and in accordance with the provisions of Mosaic Law. As for reconsidering
the decisions of the religious courts, it is carried out in the manner stipulated in paragraph
3 of Article 15 of the Community Law No. 77 of the year 931
⟦illegible⟧
President of the Court
8259
24 May 945
6/6
The Honorable Ministry of Justice
Baghdad
Reference to your letter No. A / 270 / 43 dated 19 May 940 to
the Jewish Religious Court in Baghdad and a copy of it to us.
The Jewish Religious Court in Baghdad informed us that it has issued its judgment
in this case according to its conviction and in accordance with the provisions of Mosaic Law. As for
the reconsideration of the decisions of the religious courts, it is carried out in the manner stipulated
in paragraph 3 of Article 15 of the Community Law No. 77 of the year
1931.
Harun
Head of the Community
Justice
8228
10 May 945
His Excellency Mr. Antoine Shammas, Respectfully
Legal Codification - Ministry of Justice
Baghdad
⟦line⟧
After greetings,
Based on your Excellency's request, we provide herewith a photograph of the report
of Dr. M. Hess in Jerusalem regarding the named Nadima Daoud Balash, attached
with the certification of the Iraqi Consulate in Jerusalem. Please return it to us after
finishing with it.
With highest respect to your Excellency;
On behalf of
Head of the Community
⟦signature⟧
Justice
Our court has issued its judgment in this case
based on its conviction and in accordance with the provisions of Mosaic Law
<del>And the Israeli Sharia Court of Cassation can</del>
consider this case according to the followed procedure
So if one of the parties is not convinced of the correctness of the judgment, he has
to appeal through the legal method stipulated in paragraph
2 of Article 15 of the Community Law No. ⟦...⟧
for the year 931, so that the case may be reconsidered by
the competent court
Abd al-Ali
The Israeli Religious Court
Baghdad
Number:
Date: 22 May 945
His Eminence Rabbi Sassoon Khedouri, Respectfully
President of the Jewish Community, Baghdad
Reference to the Ministry of Justice letter No. A/945/16 dated 16 May 945
which was referred to us.
Our court has issued its judgment in this case according to its conviction
and in accordance with the provisions of the Mosaic Law. If one of the parties is not convinced
of the validity of the judgment, he may follow the legal method stipulated
in paragraph 3 of Article 15 of the Community Law No. 77 of 1931
so that the case may be reviewed by the competent court.
⟦illegible signature⟧
President of the Court
Supporting evidence | Spent as fees and wages for a record in the presence of Alia instead of ⟦illegible⟧ the fee ⟦illegible⟧ |
| The defendant admitted - personal evidence - ⟦illegible⟧ on the oath |
I certify that the lawsuit I have submitted is as mentioned above and I will prove it by the stated reasons and I will attend the court at
the hour ⟦line⟧ of the day ⟦line⟧ in the month ⟦line⟧ year ⟦line⟧ and the judge has informed me
on ⟦line⟧ year 19 ⟦line⟧ and I have placed ⟦line⟧ in this place
The Plaintiff
The Judge
The Clerk of the Record ⟦line⟧
To ⟦line⟧ residing in ⟦line⟧
Your attendance is required at the court of ⟦line⟧ on the day designated in the form of the record of the lawsuit
attached to it and sent by ⟦line⟧ and the lawsuit will proceed in absentia in the event of your non-attendance
The Judge
24 May 945
The Honorable Ministry of Justice
Baghdad
Reference to your letter No. A/945/16 dated 16 May 945
The Jewish Religious Court in Baghdad has informed us that it has issued
its judgment in this case according to its conviction and in accordance with the provisions of Mosaic Law
If one of the parties is not convinced of the validity of the judgment, they may follow the
legal method stipulated in Paragraph 3 of Article 15 of the Community Law
No. 77 of the year 931 to have the case reconsidered by the competent court
Head of the Community
Presidency of the Jewish Community
in Baghdad
Telephone No. { 3531 President
5452 Secretary
Number:
Subject:
Date: 24 May 945
The Honorable Ministry of Justice ⟦line⟧
Baghdad ⟦line⟧
With reference to your letter No. E 16 / 945 dated 16 May 945
The Jewish Religious Court in Baghdad has informed us that it has issued
its judgment in this case according to its conviction and in accordance with the provisions of Mosaic Law
If one of the parties is not convinced of the correctness of the judgment, they may follow the
legal method stipulated in Paragraph 3 of Article 15 of the Community Law
No. 77 of 1931 to have the case reviewed by the competent court
President of the Community
826
30 May 945
6/6
The Honorable Ministry of Justice
Baghdad
Reference to your letter No. A/1/945 dated 16 May 945
The Jewish Religious Court in Baghdad has informed us that it has issued its ruling
in this case according to its conviction and in accordance with the provisions of the Mosaic Law. If
one of the parties is not convinced of the validity of the ruling, they may follow the
legal method stipulated in paragraph 3 of Article 15 of the Community Law
No. 77 of 1931 to have the case reviewed by the
competent court.
Alwan
Head of the Community
Justice
– 2 –
The aforementioned medical report, written in the English language, after being translated into Arabic, was found to include the following statement:
Text of the medical report: (( Miss Nazima Daoud Balas must remain here in the Kingdom for medical
treatment, and it is impossible for her to go to another kingdom because that would entail a great
danger to her health, and it is necessary for her to marry, and after that she must remain here in
the Kingdom for medical treatment, and thus her health will become good. )) This is the report itself, and the
Bureau considers that such a report cannot be regarded in any way as a medical report upon which
the court can base its judgment, because it is devoid of any statement regarding the illness, its severity, the method of treatment,
and the danger that would befall the patient as a result of leaving Palestine, which indicates that it
was organized for the purpose of assisting the plaintiff's request and nothing else. Therefore, the Bureau leaves the assessment of that to Your Excellency.
On 14 / 5 / 1945
⟦illegible⟧
⟦illegible⟧
⟦illegible⟧ 6/⟦illegible⟧/1945
Iraqi Government
Ministry of Justice
Please refer to the general number
Department: Legal Codification
General Number: A 16 / 45
Subject Summary:
Telegraphic Address: Adliya
Date: 5 Jumada al-Thani / 1364
16 May / 1945
Presidency of the Jewish Community in Baghdad
In response to your letter No. 8238 dated 10/5/1945 and the petition of the applicant Heskel Murad
Shatoub.
You will find below a copy of the decision of the Legal Codification Bureau dated 14/5/1945, and we,
in addition to our support for what was stated therein, believe that forcing a person to leave his homeland to join his wife is a matter that does not agree
with public order and the public interest, especially if that is to a foreign country. Therefore, it must be considered
in this case within the right and the public interest, especially since the report under discussion does not call for
reassurance and its content cannot be considered.
Minister of Justice
⟦line⟧
(( Copy of the Decision ))
His Excellency the Minister
With reference to Your Excellency's margin dated 1/5/945 on the report of the Judicial Inspector, the
President of the Jewish Community was invited to this Bureau along with the President of the Religious Court, and after seeking clarification from them regarding
the case of the judgment issued against the complainant Heskel Murad Shatoub, the President of the Religious Court replied that
the court, based on the lawsuit of Nazima bint Dawood which she filed against her fiancé, the complainant, looked into the request
and decided as a result to give the complainant the choice of the following matters:-
1 - To join her in Palestine
2 - Or to pay her the legal alimony
3 - Or to divorce her if he refuses the first two options.
The aforementioned explained that this decision is what the Jewish law requires if it is proven to it that
the fiancée is afflicted with a disease that makes it impossible for her to come to Baghdad, and since it has been confirmed to the
aforementioned court by the result of the medical report received from Palestine, the court relied on it to issue this decision.
The Bureau was promised that the medical report, which is a photograph, would be sent, and on ⟦illegible⟧ it arrived.
- To be continued -
L 966 / 9
Iraqi Government
Ministry of Justice
Bureau of Legal Codification
Number / <del>⟦illegible⟧</del>
Date: June 5 / 1945 AD
Subject - Amendment of the Jewish Community Law.
Secretariat of the Council of Ministers
We are sending you herewith several copies of the draft law amending the
Jewish Community Law No. 77 of / 1931 and the same number of its explanatory notes,
hoping that they will be considered urgent drafts and presented to the Council of Ministers
for approval and to take the necessary steps for their legislation as quickly as possible.
Minister of Justice
A copy to:
Head of the Jewish Community in Baghdad - with reference to their letter No.
8206 dated 22 / 4 / 1945
Article 29 of the Sharia Courts Regulation of 1918 as amended by the Amendment Regulation of
the Courts Regulations of 1941.
"It is not permissible to object to the decisions or rulings of the Court of Cassation unless
there is ambiguity, a clear error, or an apparent contradiction in them, or if they were obtained <del>by</del> through forgery or
deception; in such cases, the Court of Cassation may re-examine them at the request of one of
the two parties and after obtaining permission from the Minister of Justice. The Minister of Justice may also
return the ruling to the Court of Cassation on his own initiative for re-examination if there are
justifiable reasons for that."
⟦line⟧
Commentary
⟦line⟧
The Minister's authority to re-examine the rulings of the Court of Cassation is unlimited
because he can request that whenever it appears to him that there are justifiable reasons for it, but <del>⟦illegible⟧</del>
the difference between this article and the specific article of the Sect Law Amendment Law
is that the reconsideration here is carried out by the same Court of Cassation, whereas there it is carried out by another council.
Article 29 of the Sharia Courts Regulation of 1918 as amended by the Court
Regulations Amendment Regulation of 1941.
"It is not permissible to object to the decisions or judgments of the Court of Cassation unless
there is ambiguity, an obvious error, or a clear contradiction in them, or if they were obtained through forgery or
misrepresentation. In such cases, the Court of Cassation may undertake their review upon the request of one
of the parties and after obtaining permission from the Minister of Justice. The Minister of Justice may also
refer the judgment back to the Court of Cassation on his own initiative for re-examination if there are
justifying reasons for that."
⟦line⟧
Commentary
⟦line⟧
The Minister's authority to re-examine the judgments of the Court of Cassation is unlimited
because he can request it whenever it appears to him that there are justifying reasons for it, but
the difference between this article and the specific article of the Community Law Amendment Law
is that the review here is carried out by the same Court of Cassation, whereas there it is carried out by another council.
Iraqi Government
Ministry of Justice
Please refer to the general number
Department: Legal Codification
General Number: 4/12/95
Telegraphic Address: Justice
Date: May 6 / 1945
Subject Summary: ⟦line⟧
Head of the Jewish Community in Baghdad
You and the head of the Religious Court are requested to appear before the Consultation Department in the Legal Codification Bureau
at nine o'clock on the morning of Wednesday, May 9, 1945, for a discussion
regarding the case of the complainant Heskel Murad Shantoub.
Minister of Justice
Justice
Kingdom of Iraq
Ministry of Justice
Please refer to the general number
Personnel Matters
Number: 42 /
In: Justice
Date: 24 Rabi' II / 1364 AH
7 April / 1945
Subject Summary:
The Israelite Court of Cassation
It has appeared to us from the judicial inspection report numbered Sh A T / 11 / 45 and dated 19 / 2 / 945
that you have issued two judgments in the lawsuit formed between Mr. Salim Saleh Bayous and his wife
Mrs. Simha daughter of Ibrahim Nawi, and the latter judgment was the correct one.
Accordingly, we draw the court's attention to the error that occurred in the first judgment and we request deliberation and observance of
religious rulings when considering lawsuits.
⟦illegible⟧
Minister of Justice
A copy of it to -
Presidency of the Israelite Community
A copy in the file A / 350 / 944.
Justice