Tania Broughton, Independent Online, South Africa, January 25 2007
A Hindu woman who launched a constitutional challenge aimed at getting her unregistered Hindu marriage recognised in law so that she could get a divorce has failed in her attempt.
In a judgment handed down this week, Durban High Court Judge Chiman Patel said former university lecturer Suchitra Singh had failed to advance acceptable evidence that the non-recognition of her marriage offended her dignity or, if it had, how that would be regained if a secular decree of divorce was granted.
None of her constitutional rights had been compromised, he said, ruling that the provisions of the Marriage and Divorce Acts were not unconstitutional.
Singh, who married medical doctor Jailall Ramparsad in 1987 according to Vedic tradition, testified in court that because her marriage was not considered legal according to the Marriage Act, she could not now get a divorce – an Act also not provided for in Hindu law. She said the issue was one of dignity and respect.
'The Marriage Act applies to all South Africans'
However, she conceded that she and her now-estranged husband had agreed at the time of their marriage not to register it.
In his ruling, the judge said that legislatures around the world required registration of a marriage for the purposes of proof and to afford parties an opportunity to select a proprietary regime.
This was similarly the case in South Africa.
"The Marriage Act applies to all South Africans who enter into a monogamous marriage irrespective of race, colour or creed. The formalities are strictly set out," he said.
"The Act, in its essential provenance, provides for a strictly secular marriage.
"But it also contemplates those that are both secular and religious. These require the solemnisation of the marriage by a minister of religion designated as a marriage officer in terms of the Act.
"Such an officer performs both a secular and religious function. Registration as an officer is open to members of all religious faiths."
The judge said he had heard argument 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. If priests of the Hindu or other faiths showed a lack of enthusiasm, the blame cannot be laid at the door of the state."
He said it was also clear that Singh had not sought out a priest who was registered to conduct her marriage, because she and her husband had agreed not to register their marriage.
He said the courts had, since the advent of the constitution, come to the aid of spouses and their children if the marriage was one under the common law, especially if unfairness would result by the application of the strict letter of the law.
However, Singh did not fall into that category.
"The question arises whether the Act violates her rights. Both she and her expert witness conceded that the requirements of the Act were not unreasonable.
"The requirements do not discriminate on the basis of one's religion. Nor was there a suggestion that, considered objectively, the requirements are such as to limit the dignity of anyone."
Patel said that if he were to grant Singh a divorce, he would be interfering in theological issues.
"It is not for the court to pronounce parties as being divorced if they elected to practice a faith and took vows, which did not countenance divorce."
He said the Act, in his view, provided a compromise that permitted parties to marry according to the tenets of their religion and obtain secular recognition.
"If Singh 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 token, there is no secular objection to her remarrying according to the Act and registering such a marriage."