Recent developments in family law: aligning Hindu marriages with the Constitution

1. Recent developments in family law: aligning Hindu marriages with the Constitution Miller Du Toit Cloete family law conference Jennifer Williams

2. 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

3. 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:

4. 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.”

5. 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 gender-neutral, it is clear that in substantive terms they benefit mainly widows rather than widowers.

6. 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)

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.