CASE HISTORIES

THE law concerning religious marriages has evolved over the years.

In the 1983 case of Ismail v Ismail, the judge held that Muslim marriages do not enjoy the same status as marriages in civil law. The reason: the marriages are potentially polygamous and against public policy.

But in another case that year (Moola and Others v Aulsebrook and Others) the judge ruled that Muslim marriages were putative. The decision was good for children born out of Muslim unions. The law was changed accordingly, making children born out of such marriages legitimate.

In the case of Daniels v Campbell and Others in 2004, the Constitutional Court held that a Muslim spouse in a monogamous marriage had the right to inherit and to claim maintenance from a deceased spouse who died intestate.

In the 2005 case, Khan v Khan, a landmark decision was made. The court said in Muslim marriages, whether monogamous or polygamous, the partners owed each other a duty of support and had the right to claim maintenance from one another.

Newcastle teacher Rhia Moola initiated an application which was at one stage dubbed a landmark case against her ex husband, Nazir Jamaloodeen, to have their Muslim marriage declared valid.

Moola, however, did not pursue the matter fully in the Pietermaritzburg High Court.

Meanwhile, a Hindu marriage dubbed a test case in the Durban High court ended with local medical doctor Jailall Ramparsad victorious.

His estranged wife, Suchrita Singh, a university lecturer, had sought an order for their religious marriage to be declared valid.

Setting a precedent last year, a local Muslim mother of two, divorced from her husband, won her legal fight for the payment of maintenance.

The ruling by Judge Fikile Mokgohloa in the Durban High Court offered hope to Muslim women, even though Muslim marriages are currently not recognised in terms of South African law.

The court ordered the woman’s ex-husband to pay her R20 000 maintenance every month and R5 000 each month for their children aged 10 and 13.

The judge rejected the submission by the man’s counsel that because Muslim marriages are not recognised in South African law he should not be liable for the payment of maintenance.

“With the advent of democracy the courts started changing their approach to Muslim marriages.”