April 18, 2006, By Logan Govender, The Post, South Africa
A Durban university lecturer and her estranged husband, a doctor, are among the principal personalities involved in a test case in the Durban High Court concerning the validity of Hindu marriages, which are not registered in accordance with South African law.
Suchitra Singh ,of North Ridge Road, Morningside, a lecturer at the University of KwaZulu Natal, is the applicant. She is being represented by the Legal Resources Centre.
The defendents are:
# Singh’s estranged husband Jailall Ramparsad, a doctor at Clairwood Hospital, formerly of Baracuda Drive, Isipingo Beach, now of Amanzimtoti. Ramparsad is being represented by advocate Vinay Gajoo (SC), instructed by attorney Bob Bahadur.
# The Minister of Home Affairs, represented by advocate Vas Soni (SC).
# The Director General of Home Affairs and the Minister of Justice and Constitutional Development. Court papers said the couple tied the knot on March 21, 1987, according to Hindu rites performed by a Hindu priest.
Singh alleged that her estranged husband had unilaterally terminated the marriage in June 2000. A divorce is pending.
The legal battle is set for a five-day trial, starting on May 22.
Singh is seeking an order that their marriage be declared valid. Ramparsad is opposing the action, on the grounds that their marriage, is not recognised in terms of South African law.
Singh claimed that by performing the Hindu rituals she and Ramparsad had:
# Consented to the marriage in terms of the Hindu religion.
# Consented to a monogamous union.
# Accepted each other as husband and wife.
# Endorsed their commitment to the Hindu marriage.
# Consented to marry each other in community of property.
She alleged that she had been evicted from their matrimonial home on December 19, 2002, and had been unable to support herself at the standard of living which she and Ramparsad had before the alleged eviction.She also claimed that her financial benefits from the joint estate were at stake.
Ramparsad claimed that he and Singh had agreed that they would not solemnize their marriage in terms of the provisions of the Marriage Act, No 25 of 1961. Therefore, he alleged, the marriage was not in accordance with the law.
"We also agreed to accumulate our assets independently of each other and either of us would be at liberty to terminate the relationship when we saw it fit to do so. I had a successful medical career before the religious marriage ceremony. The relationship ended in 2000,” claimed Ramparsad.
Counsel acting for the Minister of Home Affairs and the Director General of Home Affairs posed a number of questions in court papers.
Among them were: By whom was the marriage that had been entered into by the parties, solemnized? At the time of the marriage, had the person who had solemnized it, been designated as a marriage officer in terms of Section 3 of the Marriage Act, No 25 of 1961?
The following sections of the Marriage Act were quoted in court papers by Singh’s counsel.
# Section 39 (2) of the Act provides for the solemnization and legal validity of purerly secular marriages.
# The solemnization and legal validity of marriages conducted according to religious rites by marriage officers, who in concluding such marriages, perform a dual role of conducting a religious marriage and solemnizing same in a manner recognised by the Act.
# Having regard to the spirit, purport and objects of the Bill of Rights as enshrined in the constitution, and as interpreted by the courts, and without derogating from the generality, thereof, specifically those rights in Sections 7 (1), 7 (2), etc and 39 (2) of the constitution, on a proper interpretation of the Divorce Act 70 of 1979, the word ‘marriage’ in the Divorce Act must be interpreted to include marriages concluded and solemnized in accordance with the tenets of a religion.
There is a possibility that this matter could head to the the highest court in the land – the Constitutional Court.