Recent developments in family
law: aligning Hindu marriages
with the Constitution
Miller Du Toit Cloete family law conference
Jennifer Williams
Introduction
• Religious marriages without a civil law
component not recognised in SA law
• Marriage in terms of religious rites only not given
same protection as those in terms of civil
ceremonies
• Marriage in law gives rise to various rights: claims
for loss of support; claims for maintenance; right
to inherit in intestate situations
• Paper examines cases where Hindu marriages
considered by courts
Discrimination
• Lack of recognition of religious marriages has led to the
marginalisation of women, particularly within the Hindu
and Muslim communities.
• In the absence of legislation recognising religious
marriages, the law has been developed by the courts
through the cases. Muslim women have been at the
forefront in bringing these religious marriage cases before
the courts.
• Con Court in Daniels v Campbell has recognised that the
historical religious marginalisation coincided strongly with
racial discrimination, social exclusion and political
disempowerment.
• In particular Sachs J, in a typically poetic statement
observed:
Discrimination
“Gandhi
refers to 'the terrible judgment' in the Cape
Supreme Court setting aside the practice of 40 years,
which '. . . thus nullified in South Africa at a stroke of the
pen all marriages celebrated according to the Hindu,
Musalman and Zoroastrian rites. The many married Indian
women in South Africa in terms of this judgment ceased to
rank as the wives of their husbands and were degraded to
the rank of concubines, while their progeny were derived
of their right to inherit the parents' property. This was an
insufferable situation for women no less than men, and the
Indians in South Africa were deeply agitated. The shock to
Indian women was so great that for the first time they
joined in the Satyagraha campaign.”
Discrimination
• It was argued in the case that the lack of recognition of
such marriages also discriminates against women in
particular on the basis of both gender and sex equality.
• In finding that the failure of the ISA and MSSA to include
Muslim widows was unconstitutional, the court noted:
• An important purpose of the statutes is to provide relief to
a particularly vulnerable section of the population, namely,
widows. Although the Acts are linguistically genderneutral, it is clear that in substantive terms they benefit
mainly widows rather than widowers.
Hindu Marriage case law
• In large part, Hindu women have benefited from
the previous successful judgments related to
Muslim marriages.
• However,
the
first
challenge
to
the
constitutionality of the Marriage Act for the
exclusion of Hindu marriages was unsuccessful.
• Singh v Ramparsad (High Court, Durban 2007)
Singh
• The parties were married according to the Vedic Hindu tradition
in March 1987. The couple never registered their union as a civil
marriage.
• In December 2000 the parties separated as they "could no longer
live according to the tenets of their religious vows."
• Singh sought a declaration by the court that: (1) under a
constitutional analysis, the provisions of the Marriage Act must
apply to all religious marriages; or (2) S. 11(3) of the Marriage
Act is unconstitutional because it unfairly excludes religious
marriages.
• Alternatively, Singh requested that the court read the term
"marriage" in the Divorce Act of 1979 as inclusive of religious
marriages. Accordingly, she requested that the court recognize
her marriage to Mr. Ramparsad for purposes of divorce, and to
grant such divorce.
Singh
• Court found that the requirements of the Marriage Act are not
unreasonable and do not discriminate on the basis of religion.
• Whereas plaintiff argued that non-recognition of Hindu
marriages was discriminatory as unregistered marriages were
recognized under the RCMA, the court held that customary
marriages are distinct from Hindu because the former are
potentially polygynous and excluded from Marriage Act.
• Judgment has been widely criticised as failing to take into
account the jurisprudence in relation to discrimination.
• Also failed to consider discrimination on basis of gender and
sex equality
• However, it was not taken on appeal.
Govender v.
Ragavayah (2009)
• Application in the Govender case was primarily concerned
with the interpretation and constitutionality of certain
provisions of the Intestate Succession Act (ISA).
• Justice Moosa in the High Court found in favour of the
Applicant, ruling that the word “spouse” as used in the
Intestate Succession Act, includes the surviving partner to
a monogamous Hindu marriage.
• The Court held that the only requirement for the Applicant
to succeed is that she persuade the Court that she be
regarded as a “spouse” of the deceased for the purposes of
the Act.
Govender v. Ragavayah (2009)
• The Court also held that an extension of the ambit of the
Intestate Succession Act was necessary in light of the
objectives sought to be fulfilled by the Act and the
fundamental right to equality.
• The court in Govender cited Daniels where it was
emphasized that the word „spouse‟ should be given its
ordinary meaning.
• The Court also determined that the legal recognition of a
marriage was not a prerequisite in order for the Applicant
to qualify as a “spouse” under the Act.
• The court accepted the argument of the amicus curiae that
a failure to interpret “spouse” in the Act, so as to include
persons in Hindu marriages, will result in an infringement
of the Applicant‟s religious and cultural freedoms and
rights.
Prag v. Prag (2009)
• In a Magistrate‟s Court level decision, the maintenance
Magistrate recognized that Mr. Prag had a duty to maintain his
wife in terms of their religious marriage in accordance with
Hindu Personal Law, and an order for R3250 in monthly
maintenance was granted.
• This decision is in line with the Constitution recognizing freedom
of religion, right to equality, and dignity by acknowledging the
duty of support in a religious marriage.
• Has been publicised in order to encourage women in Hindu
marriages to apply for spousal maintenance.
Conclusion
• With 1.25 percent of South Africans who are
followers of the Hindu faith, the Govender and
Prag judgments acknowledge protections for a
significant portion of the South African
community.
• These judgments have started the process of law
reform for another group of women that have been
historically marginalised.
• Though the legislature has been slow at passing a
law that recognizes religious marriages, this is
what it will take to see actual change.
Conclusion
• The SALRC is presently working on the
Hindu Marriages Project.
• The aim of this investigation is to identify
shortcomings or deficiencies that need to be
rectified in relation to the recognition of
Hindu marriages in order to afford these
marriages full legal recognition and confer
on them the same status as marriages
concluded in accordance with civil rights.