Abstract

Excerpted From: Waheeda Amien, Race-Religious Discrimination in South Africa's Hindu Marriages, 118 AJIL Unbound 129 (2024) (36 Footnotes) (Full Document)

South Africa is known historically for racial apartheid when people were classified as white, Indian, Colored, or Black/Native. Indians, Coloreds, and Blacks were discriminated against and denied rights afforded to whites. One example was the right to vote, which was withheld from anyone not classified as white. What is less well known is that other forms of discrimination also existed, including religion, culture, gender, and sexual orientation. These discriminations manifested in religious marriage laws. They also intersected in the domain of marriage through race and religion, resulting in what Rabiat Akande describes as “mutually imbricated religious and racial othering.” Akande's observation that “Euro-Christian foundations of the legal regime of religious liberty” excluded minority religions from legal protections in colonial settler situations resonates in South Africa. Apartheid South Africa adopted a colonial European Christianized approach to marriage, namely, the voluntary union of one man to one woman for the duration of the marriage. This definition of marriage was embedded within South Africa's common law and entrenched values of heteronormativity and monogamy, both of which are inherent in a Christian understanding of marriage. Consequently, same-sex marriages were excluded from legal protection. Similarly, customary marriages and Muslim, Hindu, and Jewish marriages were not legally recognized because they were potentially polygynous, which in South Africa was deemed immoral and contrary to the colonial and apartheid era notions of public policy. This essay focuses on the legal implications of Hindu marriages not being legally recognized in South Africa, and especially the disparate effect that this has on women. The essay thus adds a gendered dimension to Akande's arguments about religious discrimination.

The link between race and religious-cultural communities whose marriages were not deemed legal affected primarily Black, Indian, and Colored communities. Indians followed mainly the Hindu, Muslim, or Christian faiths. There were also Muslims who were classified Colored. Other Coloreds were assimilated into the Christian faith of their white masters. So too were many Blacks, which is why South African Christians constitute 85.3 percent of South Africa's population. Most South African Christians are thus located within Black African, Colored, and white communities. In contrast, Muslims (mostly from South African Indian and Colored communities) make up 1.6 percent, and Hindus (chiefly from the South African Indian community) comprise 1.1 percent of South Africa's population. South African Jews comprise 0.1 percent of the population. Their history is distinct from South African faith adherents of color. South African Jews descended from Europe and were classified white. They therefore did not suffer racial discrimination. Yet, their marriages were also not legal due to their potentially polygynous nature. Thus, they experienced religious-based discrimination like those who entered customary, Hindu, and Muslim marriages.

Since the beginning of the twenty-first century, customary marriages were legally recognized through the Recognition of Customary Marriages Act 120 of 1998 (RCMA), same-sex unions can be legally registered through the Civil Union Act 17 of 2006 (CUA), and in 2022, the Constitutional Court recognized Muslim marriages. To date, Hindu and Jewish marriages remain without legal recognition and no law has been passed to afford recognition to them.

Elsewhere, I demonstrate how non-recognition of minority religious marriages impacts unequally on Muslim and Jewish women. In this essay, I extend that observation to Hindu women. I argue that failure to recognize Hindu marriages infringes against, inter alia, their rights to equality and dignity. The main issue affecting South African Hindu women is their inability to obtain religious divorce. In the absence of a Hindu divorce, I contend that a civil divorce could suffice for them to obtain closure from their existing marriages. I suggest that the unfair discrimination can be remedied by amending the common law definition of marriage to include Hindu marriages, and that either existing family law legislation must be amended to include Hindu marriages, or if new legislation is adopted, it should include Hindu marriages.

The essay commences with a discussion about the effects of non-recognition of Hindu marriages on Hindu wives, followed by an explication of the courts' approach to Hindu marriages. Thereafter, current processes for the legal recognition of religious marriages, including Hindu marriages are considered briefly.

[. . .]

I have demonstrated how non-recognition of Hindu marriages impacts on access to divorce for Hindu spouses located principally in South African communities of color. The Singh case illustrates that access to civil divorce could provide Hindu women with closure. To have access to a civil divorce, however, the Hindu marriage must be legal. This could be realized through amendments to the common law definition of marriage and existing marriage legislation or enactment of new legislation that recognizes religious marriages and offers a civil divorce option. Until South African Hindu law is reformed to recognize religious divorce, a civil divorce may be sufficient for Hindu women to be released from undesirable marriages.

Professor of Law, University of Cape Town, South Africa.