Despite the current legal position, the presiding officer at the Wynberg Magistrates’ Court has found that that a religious marriage conducted in accordance with Hindu Personal Law is valid for the purpose of spousal maintenance.
Currently, Hindu marriages – like other religious marriages – are not recognized and so afforded the legal protection which is given to women married civilly or according to African customary law.
Hoodah Fayker, attorney at the Women’s Legal Centre, who acted for the applicant in this matter, said, “This decision highlights the necessity to recognize religious marriages within the spirit of the Constitution. The courts are obliged to assist women who seek maintenance from their spouses even though the marriage may not be a “legal” marriage giving rise to a “legal duty” as stipulated by legislation.”
Fayker says a legislative framework is necessary so that women can turn to the courts to assert their rights which should be granted to them in terms of legislation. “The Department of Justice is busy with a project at the moment regarding Hindu marriages, but in the meantime women married under religious law must approach the courts on a case by case basis. This is not an ideal situation and needs to be speedily remedied.”
Facts of the case
Mrs Prag was asked to leave the marital home after being married to Mr Prag for 50 years. She was a loyal housewife and brought up their five children. Not having been employed during the marriage and at the age of 72 years, there was little prospect of her maintaining herself. Her only source of regular income was the monthly state pension she received, while Mr Prag, on the other hand, enjoyed the fruits of what they jointly acquired during their marriage. The Women’s Legal Centre assisted Mrs Prag in making a claim for spousal maintenance.
Ms Pangarker, the presiding officer at the Wynberg Magistrates’ Court, recognized that Mr Prag had a duty to maintain his wife in terms of their religious marriage in accordance with Hindu Personal Law, and granted an order for monthly maintenance.