Marrying rights with tradition
When Laila Mohamed (25) of Pietermaritzburg was eight months pregnant her abusive husband sent her back to her parents. “My mehr [dowry] was the only thing I had, because I was wearing it when he threw me out.”
Her dowry, in the form of jewellery, was worth only a few thousand rands.
Although her marriage is effectively over, Mohamed (not her real name) has been unable to secure a divorce through the religious bodies that govern Muslim marriages.
“I want my talaq [divorce]. I want closure in my life,” she told the Mail & Guardian.
Now a women’s advocacy group has approached the Constitutional Court in a bid to get Muslim marriages legally recognised and women’s marital rights enforced.
Currently, Muslim women can’t make use of South Africa’s judiciary to enforce their legal rights because, among other reasons, the imams (religious officials) who officiate over Muslim marriages are not registered marriage officers. As a result, Muslim women can find themsleves in particularly vulnerable positions concerning child maintenance, alimony, inheritance, and even divorce.
A draft Muslim Marriages Bill, submitted to the justice ministry in 2003, proposed that matters concerning Muslim marriages and divorces be settled in court, with the assistance of a Muslim judge and assessors who are versed in Islamic law.
But the Bill has still not been tabled. On Wednesday last week, the Women’s Legal Centre Trust argued in the Constitutional Court that Parliament and the president are required by the Constitution to “prepare, initiate and enact” legislation to recognise Muslim marriages.
Zohra Sooliman, director of the Gift of the Givers Careline, which provides counselling services for Muslims, said most callers contact the organisation for help with marital and relationship problems. Of these, many are queries about legal matters.
“When you enter the legal system, you just get pushed from pillar to post because Muslim marriage isn’t recognised,” she said.
It’s about time this legal action happened, said Munirah Osman, an attorney with the Coalition of Muslim Women, which is supporting the action. The problem, she said, is that an ulama (community of Islamic legal scholars) decision is not binding on issues such as financial settlements following divorce, whereas “a court decision would be”.
Fayruz Sattar has had first-hand experience. When her husband divorced her she had no opportunity to oppose the action and is now “sitting with zero assets”.
“I’m at his mercy, living on a property that is his. There should be an uppermost guardian of the most vulnerable and that should be the Constitution.”
But, during proceedings in the Constitutional Court, Judge Kate O’Regan questioned the need for a special Act to govern Muslim marriages.
“The question is whether it is acceptable for the state to take over the management of a particular religion,” she said. Judge Albie Sachs commented that “it’s asking the courts to intrude, in a very profound way, on a very sensitive issue”.
Another hurdle is the lack of consensus within the Muslim community over whether the Bill is required and what form it should take. The Women’s Cultural Group, which participated in the hearing as a friend of the court, said the Muslim community had gone into “hibernation” over the issue because of the “intensity of the exchanges” on the matter.
Yasmin Omar, an advocate with the Muslim Women’s Association, which opposes the Bill, said such legislation would cause “unnecessary infringement with regards to the right to freedom of religion”. She argued that Muslim marriages should be judged on a case-by-case basis.
“We want our rights to be governed by the Qur’an,” she said, adding that if the Muslim Marriages Bill becomes law “the Qur’an is not going to be supreme for a Muslim; you’ll be forced to abide by the Constitution of the republic”.
A case-by-case scenario is exactly what those who support the Bill are trying to avoid. While the state has incrementally given greater recognition to Muslim marriages, particularly in relation to inheritance and maintenance, each case requires an investment of time and money.
Sattar said it’s imperative that laws be put in place to protect women, but conceded that they should be elastic and allow for the further development of Islamic law. “Muslim opinion on shariah [Islamic law] is heterogeneous and it’s evolving all the time,” she said.
The Constitutional Court is deliberating and judgment is pending.