---

IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

CASE NO. 564/2002

In the matter between:

SUCHITRA SINGH PLAINTIFF

AND

JAILALL RAMPARSAD FIRST DEFENDANT

MINISTER OF HOME AFFAIRS SECOND DEFENDANT

DIRECTOR-GENERAL OF HOME AFFAIRS THIRD DEFENDANT

MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT FOURTH DEFENDANT

J U D G M E N T

Delivered on 22 January 2007

PATEL, J. :

[1] Akhand saubhagyavati bhave (May you always be the one whose husband is alive, may you remain safe from the curse of widowhood). This is the blessing a Hindu bride who marries according to the North-Indian tradition receives as soon as the Hindu nuptial ceremony is complete. According to Hinduism, marriage is a sacred relationship, a divine covenant and a sacrament. No provision is made in the scriptures for its dissolution on personal grounds. This is so irrespective of whether the parties are married according to the two broad traditions extant amongst the descendants of those who came from the north of India, namely the Sanathan tradition or the Vedic or Vaidik tradition.

[2] No evidence was led as to the customs extant in the South of India. In my view, despite there being differences in ceremonies, it can be accepted that divorce is not sanctioned even if a Hindu marriage is entered into according to Dravidian ritual or ceremony.

[3] On the 21 March 1987 the Plaintiff, Suchitra Singh married the First Defendant, Jailall Rampersad according to the Vedic tradition. It is common cause that by agreement between the parties, the marriage was not registered according to the provisions of the Marriage Act No. 25 of 1961 (“The Marriage Act”). According to the plaintiff the parties chose not to register their marriage in terms of the Marriage Act so that the First Defendant would not be saddled with an obligation to pay tax on a lump sum of approx R8000.00 which the Plaintiff was to receive arising from her cessation of employment as a teacher. The First Defendant on the other hand disputed this and contended that the parties had made a decision from the outset not to register their marriage.

[4] The parties decided not to air in Court the reasons for the breakdown of the marriage since it was common cause that the parties could no longer live as husband and wife according to the tenets of their religious vows. The parties separated in December 2000 and have led separate lives since then, with each engaged in his or her respective profession.

[5] The Plaintiff seeks the following relief:

“1.1 An Order declaring that, on a constitutional interpretation, the provisions of the Marriage Act No. 25 of 1961 (‘the Marriage Act”) countenance and recognize the solemnization and legal validity of marriages concluded under the tenets of a religion alternatively do not preclude the recognition of the solemnization and the legal validity of such marriages.

Alternatively to prayer 1.1;

1.2 (a) An Order declaring that Section 11(3) of the Marriage Act is unconstitutional to the extent that the said section precludes the solemnization and legal validity of marriages concluded under the tenets of a religion, other than on the terms prescribed by the Marriage Act.

(b) An Order directing that section 11(3) of the Marriage Act shall read as follows:

“Nothing in subsections (1) and (2) contained shall apply to any marriage ceremony solemnized in accordance with the rites or formularies of any religion.”

1.3 An Order declaring the marriage concluded and solemnized between the Plaintiff and First Defendant, on 21 March 1987, according to the tenets of the Hindu religion, to be a legally valid marriage in law.

Alternatively to prayers 1.1, 1.2 and 1.3;

1.4 An Order declaring that, on a constitutional interpretation of the Divorce Act No. 70 of 1979 (“the Divorce Act”), the word “marriage” as it is used in the Divorce Act includes marriages concluded and solemnized in accordance with the tenets of a religion.

1.5 An Order declaring the marriage concluded and solemnized between the Plaintiff and First Defendant, on 21 March 1987, according to the tenets of the Hindu religion, to be a marriage for purposes of the Divorce Act.

2. An Order declaring the Plaintiff to be entitled to seek a decree of divorce against the First Defendant. “

[6] Consequent upon the grant of the relief foreshadowed above the Plaintiff seeks the following further relief against the First Defendant :

“3. A decree of divorce.

4. An Order directing the First Defendant to pay maintenance to the Plaintiff in the sum of R1,00 per annum.”

[7] The Plaintiff abandoned an order that the Defendant forfeit all the patrimonial benefits of the marriage in Community of Property in favour of the Plaintiff. This relief no doubt was foreshadowed on the assumption that a Hindu marriage is without further ado automatically a marriage in community of property.

[8] I do not propose going through the evidence of the expert on Hindu Marriage law, Dr B Rambilass called by the Plaintiff nor the expert called by the First Defendant Pundit Roshan Singh since both were in agreement that although separation is envisaged in terms of Hindu law no divorce is permissible. Further Dr Rambilass was constrained to admit that there is no clear authority or customary practice to show that a Hindu marriage performed according to Hindu law is a marriage in community of property. If there is any ancient thinking on the proprietary consequences of such marriages it appears to point to the contrary. It follows that if divorce was not contemplated the question of proprietary consequences would not arise. I shall however because of the paucity or rather inclusive evidence presented not making any definitive finding on this aspect.

[9] It is common cause that in India, The Hindu Marriage Act 25 of 1955 was promulgated to ameliorate the position of spouses married according to Hindu customary Law. Section 4 of the latter Act provides :

“Save as otherwise expressly provided in this Act :-

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately in force before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.”

[10] This Act preserves the solemnization of a Hindu marriage in accordance with the customary rituals, rites or ceremony of the parties. The parties are however required to register such a marriage for the purpose of facilitating proof of such marriage and the attendant consequences. Section 13 further provides for the dissolution of the marriage, something not contemplated by Hindu Law.

[11] Legislatures all over the world require registration of a marriage for the purpose of proof thereof and to afford parties an opportunity to select the proprietary regime that will attend their marriage. In South Africa the Marriage Act similarly accommodates for the registration of marriages either after the celebration of a Hindu marriage according to rites and rituals chosen by the parties or the parties can choose to have their marriage performed according to Hindu Law and custom by a marriage officer who is registered in terms of the Marriage Act and who is in a position to perform a civil marriage in tandem with the customary marriage and to issue the parties with a marriage certificate in terms of the Marriage Act.

[12] The Plaintiff not having availed herself of this opportunity now seeks to have her Hindu marriage declared to be legal in terms of the Constitution of the Republic of South Africa, Act 108 of 1996 (‘the Constitution’) and seeks a consequent amendment to the Marriage Act and the Divorce Act. The Minister of Home Affairs (‘Second Respondent’) and the Director-General of Home Affairs (“Third Respondent”) together with the First Respondent oppose this relief. The Minister of Justice and Constitutional Development, the Fourth Respondent has elected to abide the decision of the Court. In essence the Plaintiff’s argument is that the non recognition of a Hindu customary marriage violates her right to equality and dignity in terms of the Constitution.

[13] The plaintiff relies specifically on the following provisions of the Constitution :

Section 7 which bears the heading “Rights” which reads :

“This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”

Section 7 (2) reads :

“The state must respect, protect, promote and fulfill the rights in the Bill of Rights.”

[14] Section 8 bears the heading “Application” and subsection (1) thereof reads:-

“The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.”

[15] Section 9 deals with equality and subsection (1) thereof reads :

“Everyone is equal before the law and has the right to equal protection and benefit of the law.”

Section 9 (3) reads :

“The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

[16] Section 10 bears the heading Human dignity and reads :

“Everyone has inherent dignity and the right to have their dignity respected and protected.”

[17] Section 15 deals with Freedom of religion, belief and opinion and subsection (3) thereof reads :

“(a) This section does not prevent legislation recognizing –

(i) marriages concluded under any tradition, or a system of religious, personal or family law; or

(b) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.

(c) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.”

[18] Section 39 deals with the Interpretation of the Bill of Rights and subsection (1) thereof carries the following preamble :

“When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.”

Section 39 (2) reads :

“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

[19] Before analyzing, if necessary, these constitutional provisions relied upon by the Plaintiff, I might mention that the Plaintiff’s claim for token maintenance was postponed for later determination in the event I was disposed to finding that the marriage of the parties was legally valid. In the event such a declaration was forthcoming, the Plaintiff undertook to pursue her claim for token maintenance and adduce any necessary evidence in support thereof. The corollary to this agreement was that the Plaintiff would abandon her claim for token maintenance in the event that it was held that the marriage was not legally valid, or that a declarator to that effect was not an essential pre-requisite to the plaintiff’s claim for token maintenance.

[20] I acceded to the request of the parties that the matter would so proceed. To the extent that I may have omitted in making a ruling in accordance with the provisions of Rule 33(4) of the uniform Rules of Court, I confirm that the matter so proceeded.

[21] I shall briefly traverse the evidence of the parties. It was common cause that the parties had agreed that they would enter into a Hindu religious marriage. According to the Plaintiff she was fully alive to the consideration that until registration of the Hindu marriage it would not be recognized as a marriage in terms of the Marriage Act and hence not legally valid. It was the Plaintiff’s evidence that irrespective of the Hindu priest who was to marry them she had agreed with the First Defendant that they would defer the registration of their marriage until after the expiry of the 1987/1988 tax year in order to ensure that the First Defendant’s tax obligations for that year were not burdened by the pension pay-out that the plaintiff was due to receive on resignation from her employment.

[22] She was alive to the fact that a Hindu marriage did not countenance divorce. Contrary to the pleadings as enlarged by the responses given to request for further particulars she only requested the First Respondent on one occasion to register the marriage. Formal registration did not occur because of the abuse which the First Defendant subjected her to. Despite this abuse she stayed in the relationship and did not take any steps to secure the registration of the marriage. She did not institute any proceedings for breach of promise to marry or sought an order compelling the First Defendant to register the marriage in accordance with his undertaking.

[23] During the subsistence of their marriage each pursued their respective professional careers and accumulated substantial but separate estates. By December 2000 she was reconciled with the fact that they could not live together. They separated and she decided to bring this action because she wanted closure especially since in terms of Hindu law she could not be divorced from the First Defendant.

[24] According to the First Defendant there was an express agreement between the parties that they would not register their marriage nor would they have any children. He was and is an atheist and only agreed to go through the religious ceremony in order to satisfy their respective families. Both he and the Plaintiff recognized the consequences of their agreement and, in particular, the fact that their marriage would not be regarded as being valid unless it was registered. He denied that the Plaintiff paid over to him any part of her pension.

[25] I might point out that the Plaintiff was not a satisfactory witness as to the amount of her pension pay-out. In her further particulars her answer varied from R2000.00 to “several thousand rands”. In her viva voce testimony she claimed that the same was approximately R5000.00. Although documentary evidence could have been presented by the Plaintiff on this aspect, this was not done. Under cross-examination she made no comment when it was put to her that a pension pay-out of between R2000.00 or R5000.00 was unlikely to have had any significant impact on the First Defendant’s fiscal obligations.

[26] From the conspectus of evidence led on this aspect and irrespective of the denial by the First Defendant that he received no portion of the money I am satisfied that this small amount of money would have had an insignificant effect on the First Defendant’s tax obligation especially since the Plaintiff resumed her new employment in the same tax year.

[27] Nor does it seem probable or plausible that the Plaintiff, an academic at a tertiary institution, would have insisted that her marriage be registered if she was as she claims abused from the outset of the marriage. I do not have to comment further on this version advanced by the Plaintiff other than to say that some of the explanations proffered by her further constrain the probabilities against her.

[28] I turn now to consider the essential submission made on behalf of the Plaintiff that the non recognition of her customary marriage violates, inter alia, her right to equality and to dignity before the law. I do not propose going through the history of the institution of marriage since the same has been with traversed with great erudition both by the Supreme Court of Appeal and the Constitutional Court in Fourie and Another v Minister of Home Affairs and others 2005 (3) SA 429 (SCA) and Minister of Home Affairs and Another v Fourie and another (Doctors for Life International and others , Amici Curiae) Lesbian and Gay Equality Project and others v Minister of Home Affairs and others [2005] ZACC 19; 2006 (1) SA 524.

[29] Counsel also referred me to the manner in which our legislature and the courts have in the past treated Hindu marriages in particular and customary marriages entered into in terms of other faiths in general. This legislative history and the jurisprudence developed by our courts premised as it was on our racist past has already been well documented by academics and historians and I therefore do not propose adverting to it.

[30] The terminus a quo for the analysis of the plaintiff’s claim that her constitutional rights have been violated would be the Marriage Act. The rationale for the existence of the Marriage Act in South Africa or for that matter the legal intervention by the State in any other country is most succinctly stated by Sachs J at para 63 in Minister of Home Affairs v Fourie (see supra), I quote:

“It is true that marriage, as presently constructed under common law, constitutes a highly personal and private contract between a man and a woman in which the parties undertake to live together, and to support one another. Yet the words “I do” bring the most intense private voluntary commitment into the most public, law governed and State-regulated domain”

[31] It is bought into ‘the most public, law governed and State-regulated domain’ for the reason I have already stated at the outset. The Marriage Act applies to all South Africans who enter into a monogamous marriage irrespective of race, colour or creed. Formalities for the celebration of a marriage are strictly set out in the Marriage Act.

[32] The Marriage Act in its essential provenance provides for a strictly secular marriage. In terms of S29A of the Marriage Act, the solemnization of the marriage is done by a marriage officer designated in terms of the Marriage Act. The parties to the marriage together with the Marriage Officer and two witnesses are required to sign the Marriage Register immediately after such solemnization.

[33] The Marriage Officer is thereafter charged to forthwith transmit the Marriage Register and other relevant documents to a regional or district representative designated as such under S21(1) of the Identification Act 72 0f 1986. The parties choose also the matrimonial regime by which they are to be married. In the absence of an express specification the marriage is one in community of property with all its attendant consequences. Once registered the marriage documents form part of the public records.

[34] The Marriage Act also contemplates a second group of marriages which are both secular and religious. These require the solemnization of the marriage by a minister of religion designated as a marriage officer in terms of S3 of the Marriage Act. Such a marriage officer performs both a secular and religious function. Registration as a marriage officer is open to members of all religious faiths. Thus a Christian marriage if performed by a priest who is not marriage officer will also have to be solemnized by a marriage officer duly appointed in terms of the Marriage Act before such a marriage can have legal validity.

[35] In argument Counsel for the Plaintiff raised the issue that very few members other than those of the Christian faith had chosen to register as Marriage Officers. But this in my view is a make-weight argument in order to advance the contention by the Plaintiff that her right to equality and dignity were compromised. If priests of the Hindu or other faiths adopted a non possumus position or showed a lack of enthusiasm to register, the blame cannot be laid at the door of the State.

[36] Pundit Roshan Singh who testified on behalf of the Defendant informed the Court that he had no difficulty in obtaining registration as soon as the Act was promulgated. Dr Rambilass also testified that their academy encouraged priests to register as marriage officers thus obviating the need for solemnization by a secular official who has been designated as a marriage officer. The Plaintiff clearly did not seek out such a priest because on her own version although conscious of the consequences she and the First Respondent had agreed not to register their marriage.

[37] The Marriage Act does not proscribe purely religious marriages. These marriages involve the solemnisation by a minister of religion who is not designated as a marriage officer for the purposes of the Marriage Act. These religious marriages although they lack legal validity are regarded as lawful marriages in terms of the common law (see Daniels v Campbell NO and others [2004] ZACC 14; 2004 (5) SA 331(CC))

[38] Our courts have, since the advent of the Constitution, consistently come to the aid of spouses and their children if the marriage was one under the common law if there was a need, especially if unfairness would result by the application of the strict letter of the law. No doubt they have used the very raison d’être of the Constitution and the broad Roman – Dutch law maxim of ubi ius ibi remedium to come to their aid.

[39] Thus in Ryland v Edros 1997 (2) S.A. 690 (C) the parties were married according to Muslim rites. The wife in opposing eviction from the matrimonial home upon termination of their marriage counterclaimed on the basis of a contractual agreement. Farlam J (as he then was) besides giving recognition to the monogamous Muslim marriage upheld the Defendant’s counterclaim for maintenance and the consolatory gift but rejected the claim for a share of the Plaintiff’s estate on the basis that the wife had not established her entitlement thereto according to Islamic personal law. The court in coming to the conclusion which it did whilst recognizing the common law marriage did not declare it to be legally valid.

[40] Similarly courts have come to the assistance of dependants in a common law marriage where loss of support is claimed (see Amod v Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA). The Constitutional Court has upheld the right of a surviving spouse of a marriage performed according to Muslim rites which had not been registered, to inherit (see Daniels V Campbell (supra)). In doing so, the court held that the Intestate Succession Act No81 of 1987 and the Maintenance of Surviving Spouses Act No 81 of 1987 and the Maintenance of Surviving Spouses Act No 27 of 1990 should be interpreted to include as a spouse a party to a monogamous Muslim marriage. In Daniels case no declaration as to the validity of the Muslim marriage was considered.

[41] In Minister of Home Affairs and another v Fourie and others: Lesbian and Gay Equality Project and others v Minister of Home affairs and others 2006(3) BCLR 355 (CC), the court declared the common law definition of marriage to be inconsistent with the Constitution and invalid to the extent that it did not permit same sex couples to enjoy the status and benefits coupled with responsibilities accorded to heterosexual couples. It is instructive that in this case Sachs J (at para [63] to [64]) noted, inter alia that :

a. There must be due compliance with the formalities set out in the Marriage Act.

b. Marriage, though freely entered into by the parties, must be undertaken in a public and formal way and, once concluded, it must be registered.

c. The purpose for the compliance with the formalities is to inform the broader community precisely who gets married and when they get married.

d. The way in which marriage affects the property regime of the parties is also dependant on registration. Marriages may be entered into in community of property or out of community of property with accrual sharing or without accrual sharing.

e. Marriage also produces other consequences, for example, insolvency law provides that where one spouse is sequestrated, the estate of the other spouse also vests in the Master in certain circumstances, the law of evidence creates certain rules relating to evidence by spouses against or for one another, the law of delict recognizes damages based on duty of support.

f. The formalization of marriage provides for valuable public documentation in which the parties are identified, the dates of celebration and dissolution are stipulated. Further all the multifarious and socially important steps which the public administration is required to make in connection with children and forward planning are facilitated.

[42] It must be emphasized that in the Fourie case, a same sex couple wanted to marry each. Neither the extant statute law nor the common law gave their marriage a secular recognition.

[43] The above are but a few examples of the willingness of the courts to come to the assistance of litigants who experience difficulties as a result of an unrepentant positivistic interpretation of statutes which may work an injustice to spouses married by common law. In my view the Plaintiff does not fall into the category of plaintiffs who were afforded relief in the aforementioned cases.

[44] A judicial officer is bound to interpret a statute which is clear in its provenance unless it conflicts with the letter and spirit of the Constitution. The question therefore arises whether the Marriage Act violates the plaintiff’s rights as adumbrated in the pleadings.

[45] Both the Plaintiff and her expert witness were constrained to concede in their evidence that the requirements of the Marriage Act are not per se unreasonable. That the requirements of the Marriage Act does not discriminate on the basis of one’s religion. It is of uniform application to Christian, Hindus, Jews and Muslims. Nor was there a suggestion that considered objectively the requirements contained in the marriage Act are such as to limit the dignity of anyone. The Plaintiff in giving her evidence did not in so many words advert to the violation of her rights save to say that the primary purpose in bringing this action was that she was wanting closure.

[46] Nor, as I understood her case was she contending that the common law should be so developed so as to include in its definition of marriage the Vedic Hindu ceremony that she and her husband went through. The Constitution of course grants the power to the Constitutional Court, the SCA and the High Court to develop the common law, taking into account the interests of justice. As I have said before the Marriage Act merely consolidates the law governing the formalities of marriage and the appointment of marriage officers and to that extent it is solely concerned with marriage as a secular institution.

[47] It permits parties who do not belong to the religions to which I have adverted to marry according to the tenets of their faith. Accordingly a Rastafarian may elect to solemnise his marriage according to the tenets of the Rastafarian religion. Neither the Marriage Act nor the Constitution forbids this. However should the Rastafarian couple want the imprimatur of the state then compliance with the provisions of the Marriage Act is a pre-requisite.

[48] The Plaintiff through her counsel advanced the argument that she is discriminated against because, under the Recognition of Customary Marriages Act, No 120 of 1998 (‘’RCMA”) unregistered customary unions are afforded legal validity. The RCMA was promulgated after extensive investigation into the plight of parties to customary unions. I am in agreement with Counsel for the First Defendant that this argument is misconceived for a number of reasons;

(a) the RCMA deals with customary marriages which are potentially polygamous and which do not fall within the ambit of the marriages contemplated by the Marriage Act.

(b) The promulgation of the RCMA was premised on the need to give secular recognition to marriages which were a ‘lived reality’ for a large group of our society who come from a rural background and who have engaged in polygamous customary marriages as part of their religious tradition.

(c) Whilst the RCMA recognizes the validity of unregistered customary marriages, it obliges the parties thereto to ensure registration thereof.

(d) It regulates in clear and unambiguous language the proprietary rights of the parties to customary marriages. Customary marriages concluded prior to the commencement of the RCMA continue to be governed by customary law. Customary marriages concluded after commencement of the CMA are regarded as being in community of property unless such consequence is excluded in terms of an Ante nuptial Contract. Provision is also made for a change in the matrimonial property regime of parties to a customary marriage.

[49] Accordingly in my view the argument that the Plaintiff is unfairly discriminated against because the legislature through the promulgation of the RCMA has given recognition to customary marriages entered into by people of African descent and has thereby favoured them has no validity.

[50] In any event if I were to rule in favour of the Plaintiff and adopt the arguments constrained by her and grant her divorce I would be interfering in theological issues which may cause offence to members of the Hindu community. Our courts have tried assiduously not to get entangled in doctrinal issues and it can be safely accepted that “the doctrine of non-entanglement” is part of our law. As was said by Malan J in Taylor v Kurtstag NO and others 2005 (1) SA 362 at 379 para 39 et seq ;

“Prior to the Constitution, South African courts would not become entangled in religious doctrine ‘unless some proprietary or other legally recognized right was involved’ (Allen and Others NNO v Gibbs and Others 1977(3) SA 212 (SE) at 218A-B). In Ryland v Edros 1997 (2) SA 690 (C) at 703E, Farlam J (as he then was) expressed the view that, in view of s 14 of the interim Constitution, the ‘doctrine of entanglement’ may have become part of South African law. This doctrine entails a reluctance of the courts to become involved in doctrinal disputes of a religious character. In the United States, all organs of Government, including the Judiciary, are required to adopt a position of strict neutrality towards theological questions; and insofar as the courts are required to decide questions involving the life, liberty or property of individuals, they must abjure a resolution of religious questions in doing so (see, inter alia, Abington School District v Schempp [1963] USSC 162; 374 US 203 (1963) at 243). In Presbyterian Church in the United States v Mary Elizabeth Blue Hull Memorial Presbyterian Church [1969] USSC 24; 393 US 440 (1969) at 449, it was said that :

‘(T)he First Amendment severely circumscribes the role that civil courts may play in resolving Church property disputes…First Amendment values are plainly jeopardized when Church property litigation is made to turn on the resolution by civil courts of controversies of religion doctrine and practice. If civil courts undertake to resolve controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern… (T)he Amendment therefore commands civil courts to decide Church property disputes without resolving underlying controversies of religious doctrine.’”

[51] Accordingly on the basis of this doctrine it is not for the court to pronounce the parties as being divorced if they elected to practice a faith and took vows which did not countenance divorce. Counsel for the Plaintiff was constrained to admit that the legislature too would be faced with a mammoth task in formulating a body of laws which would accommodate the different marriage and divorce laws as contemplated by the various religions practiced in South Africa.

[52] The Marriage Act in my view provides a compromise which permits parties to marry according to the tenets of their religion and obtain secular recognition through the process of registration. If the Plaintiff professes to be a devout Hindu then a secular pronouncement of divorce by this court will in no way absolve her from her religious vows. By the same taken there is no secular objection to her remarrying according to the Marriage Act and registering such a marriage.

[53] The Plaintiff failed to advance any cogent or acceptable evidence establishing that the non-recognition of the marriage as a valid legal marriage offended her dignity. Nor did she advance any cogent evidence as to how her dignity if it was indeed lost, be regained if a secular decree of divorce was granted. I therefore come to the conclusion that none of the Plaintiff’s constitutional rights have been compromised and accordingly neither the provisions of the Marriage Act or Divorce Act needs to be ruled unconstitutional.

[54] I briefly advert to the remaining issue of the claim by the by the Plaintiff to token maintenance of R1 per annum. In my view it is not necessary for a declarator of legal validity of her customary marriage to issue for the plaintiff to pursue any maintenance claim. However, in light of her claim for token maintenance any future action should be premised on a genuine need and not on huberis.

(55) Order

The Plaintiff’s action is dismissed with costs.

________________________________

C.N. PATEL

JUDGE OF THE HIGH COURT

DURBAN AND COAST LOCAL DIVISION

Date of Hearing : 22 – 25 May 2006

Date of Judgment : 22 January 2007

Counsel for Plaintiff : Mr. O. Moosa S.C. together with

Mr. H.S. Gani

Instructed by :

Legal Resources Centre

71 Diakonia Centre

20 St Andews Street

DURBAN

REF: MS SHARITA SAMUEL

Counsel for First Defendant : Mr. V.I. Gajoo S.C.

Instructed by :

Yacoob Meer & Company

2^nd Floor Trust House

191 Grey Street

DURBAN

REF: MR. BAHADUR/RR

Counsel for Second and Third

Defendants : Mr. V. Soni S.C.

Instructed by :

The State Attorney (kWAZULU-NATAL)

Third Floor

Sangro House

417 Smith Street

DURBAN

REF: 182/141/03/S/P13

No appearance for the Fourth Defendant.

---