Tania Broughton, Independent Online, SOUTH AFRICA May 23 2006
A Durban woman, separated from her husband – whom she had married under Hindu religious rites – launched a direct attack on South Africa's Marriage Act, claiming that her constitutional rights had been violated because, as her 19-year "marriage" was not considered legal, she could not "divorce" or benefit from the proceeds of the relationship.
"This is not about the money but about dignity and respect. I was not just shacking up," Dr Suchitra Singh told Durban High Court Judge Chiman Patel on Monday.
If Singh wins – and it is ratified by the Constitutional Court – it could have an impact on all non-registered, religious or customary marriages in South Africa which, under present legislation, are not recognised as lawful unions.
In the matter before the court, Singh has brought the application against her estranged husband, Dr Jailall Ramparsad, the minister and director-general of Home Affairs and the minister of Justice and Constitutional Development.
She wants an order declaring the Marriage Act unconstitutional, declaring her marriage lawful, and allowing her a legal divorce with community of property provisions.
She has abandoned her claim for half of Ramparsad's estate – the couple apparently agreeing to keep the assets they now retain. But she has deferred the issue of maintenance until the outcome of the constitutional challenge.
Giving evidence on Monday, Singh said she and Ramparsad had married in 1987 at a "simple, religious" Vedic ceremony witnessed by family and friends. They had not registered the marriage at that time because of tax implications. Singh said the relationship had become abusive and they had separated in 2000 when he had evicted her from the marital home.
"There was never a discussion about divorce… We were planning a life together as husband and wife. I never agreed to shack up, I was in a legitimate marriage.
"Now I cannot get closure. I want to get married again, but I can't if I am someone else's wife," she said.
Ramparsad, in his plea before the court, said the couple had agreed that they would not enter into a lawful marriage, but would cohabit, accumulate their own estates and be at liberty to terminate the relationship if either saw fit.
Singh denied this. Under cross-examination by Ramparsad's advocate, Vinay Gajoo, Singh conceded that at the time of her marriage, she had known that it had to be registered in order to be lawful and, when Ramparsad and she had not done this, she had not forced the issue, nor had she sued him for breach of promise.
But she said by the time the marriage broke up in 2000, she believed that it would be recognised because of the changes in the country.
It emerged in opening arguments that recently adopted legislation gave recognition to African customary marriages and they were recognised, whether registered or not.
This, Singh's advocate Omar Moosa contended, was "treating different communities differently".
The hearing continues on Tuesday, when Hindu religious and cultural experts are expected to testify.