Gender commission praises court 'victory', recognition of Muslim marriages

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High Court. (Duncan Alfreds, News24)
High Court. (Duncan Alfreds, News24)

The Commission for Gender Equality (CGE) has welcomed the order by the Western Cape High Court that the state must introduce legislation to recognise Muslim marriages as valid, and to regulate the consequences of these unions.

The application for the recognition of Muslim marriages was brought by the Women's Legal Centre, which said it was aimed at providing Muslim women and their children with legal protection upon divorce.

"We are encouraged by the court’s decision to compel the government to take steps to ensure that the rights of women in Muslim marriages are realised.

"We celebrate this victory and hope that the State take steps to comply and make what the judgment envisages a reality for women in Muslim marriages," the CGE said in a statement on Saturday.

Judge Siraj Desai ruled on Friday that the president and the Cabinet had failed to fulfil their respective constitutional obligations and such conduct was invalid.

The CGE, represented by the Legal Resources Centre as Amicus Curiae (Friend of the Court), said they welcomed the judgment.

"Our intervention was in support of the case as we firmly believe that Muslim women have suffered and continue to suffer serious prejudice in marriages as a result of the State’s inaction," the CGE said.

Desai directed that the president and Cabinet, together with Parliament, "rectify the failure within 24 months of the date of this order as contemplated".

The matter was heard by Judges Desai, Gayaat Salie-Hlophe and Nolwazi Boqwana.

Desai said that, should legislation not be enacted within the next two years, it is declared that a union, validly concluded as a marriage in terms of Sharia law and which subsists at the time that the order becomes operative, may be dissolved in accordance with the Divorce Act and that all provisions of that act be applicable.

The court also made provisions for the dissolution of polygamous marriages in a Muslim marriage.

The Society for the Protection of our Constitution, however, on Saturday argued against the court's order, claiming it was arbitrary, irrational and "nonsensical".

The society said the judgment had worsened the position of Muslim women, and that Sharia law did not recognise the concept of marriage as a "union between two people", but rather the concept of a 'nikaah'.

"Shariah recognizes a nikaah - which is a union between male and female. A nikaah is terminated by the pronouncement of a talaq communicated by the male to the female. There is no provision in shariah for dissolution of a nikaah by a female. The female in a nikaah cannot terminate the nikaah.

"The Divorce Act 70 of 1979 clothes the court exclusively to dissolve a marriage by a decree of divorce. There is no provision in the Divorce Act to dissolve a union without decreeing/ making an order of divorce. It is not competent by law for a court acting under the Divorce Act to dissolve a nikaah that has ended by talaq," the society said in a statement.

Before delivery of the judgment, Muslim women obtained interim relief which enabled them to secure an order for interim maintenance and custody over their children, according to the society.

The order shuts the doors to Muslim women from obtaining interim relief because a court may only dissolve a nikaah that has already been terminated in terms of Sharia, according to the society.

The society also had an issue with the time limit to implement the order, claiming it could not be done in a "mere" 24 months "when the courts themselves could not do so in more than 10 years".

It would also require South African law to recognize the basics of Sharia law nikaah, as the law remainds undefined in South African law, the statement added.

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