uMhlanga wife fights back after Hindu marriage leaves her empty-handed

For nearly two years, a woman from uMhlanga has persisted in her legal battle to claim what she believes she is entitled to, after being left “empty-handed” following the dissolution of her Hindu marriage — currently not recognised under South African law.

According to a report in POST, the case challenges the constitutionality of existing marriage and divorce legislation, arguing that Hindu marriages deserve the same legal recognition and protection as civil and Muslim marriages.

Represented by attorney Avir Maharaj and advocate Matthew Rudling, the woman has brought legal action against her former husband, the Minister of Home Affairs, and the Minister of Justice and Constitutional Development in the Durban High Court.

According to her court papers, the couple were married according to Hindu rites in 2009 and had a child in 2013. She stated that during the marriage, they lived together as husband and wife and jointly raised their child. Both parties, she claimed, contributed income, resources, skills, and labour for their mutual benefit. She primarily managed the household and cared for the child at the behest of her former husband, contributing her efforts for the partnership’s joint benefit.

The woman said she periodically contributed financially to the household, but her responsibilities as a caregiver eventually prevented her from continuing this. She argued that she is entitled to half of her former husband’s marital estate and claimed that provisions of the Divorce Act 70 of 1979 and Section 11 of the Marriage Act 25 of 1961 were unconstitutional, as they infringed her rights under the Constitution.

Among other assertions, she argued that her rights under Sections 2 and 7(2) of the Constitution were violated, alleging the State had failed to uphold the rights to equality, dignity, and access to courts for individuals in unregistered Hindu marriages. She pointed out that those married under civil law or in unregistered Muslim marriages officiated by either registered or unregistered Imams enjoy certain legal protections not extended to Hindu marriages.

She contended that Hindu marriages are excluded from the equal protection and benefit of the law, depriving individuals in such unions of the full rights and freedoms afforded to those married under the Marriage Act. She requested monthly maintenance of R20,000 for herself and R11,700 for the child, along with the appointment of a liquidator to determine and equally divide the assets accumulated during the partnership.

She also sought amendments to the relevant legislative provisions, along with their subsequent publication.

Marriage Act Challenge

In response, the woman’s former husband submitted a legal exception through his attorneys, challenging the validity of her claims. He argued that the woman relied on the precedent set in Women’s Legal Centre Trust v President of South Africa and Others to support her case.

However, his court papers stated: “The Women’s Legal Centre Trust case is distinguishable from the plaintiff’s circumstances, as it concerned the application of the Marriage Act to polygynous (Muslim) marriages. The plaintiff must factually demonstrate that the relief she seeks does not conflict with the religious tenets of the Hindu faith, which she has failed to do.”

He further contended that the current legal framework does not discriminate against children born of unregistered Hindu marriages, as both the Children’s Act and Maintenance Act provide safeguards for dependent children regardless of the marital context.

“As such, the plaintiff’s allegations are bad in law,” the court papers stated.

He also challenged the woman’s assertion that Section 11 of the Marriage Act was inconsistent with Sections 9 and 10 of the Constitution. Her claim that the Act fails to recognise Hindu marriages performed by unregistered priests—while allowing exceptions for Imams—was, he argued, “vague and embarrassing”.

He pointed out that Section 3 of the Marriage Act explicitly allows any person holding a responsible position in a religious denomination, including those of Indian religions, to be designated as a marriage officer. Therefore, a Hindu priest could have registered as a marriage officer and conducted a valid civil marriage alongside the religious ceremony.

“There were no legal impediments to the solemnisation of a civil marriage between the plaintiff and the defendant. They deliberately chose not to conclude a civil marriage under the Marriage Act,” the court papers read.

On Tuesday, Judge Murray Pitman dismissed the exceptions and reserved the matter of legal costs for the trial court. He ordered that the former husband file his plea in accordance with the rules of the High Court.

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