South Africa: Divorcée challenging Muslim marriage

Facing a public gallery of Muslim clerics this week, Moolla told the court she did not regard herself as a torch-bearer for all Muslim women. She said while she regarded Muslim marriage as important, its consequences "did not sound fair to me ... there are so many beliefs on the consequences. "A marriage should be judged on its merits ... on how much a person put into the marriage."

Moolla wants the court to declare that the Divorce Act be applicable to her divorce to Jamaloodeen, which would entitle her to the consequences of civil law, including maintenance and custody. In terms of 'Islamic law', every Muslim marriage is automatically an "out of community of property" union, in which the husband and wife retain their respective estates if they divorce. But Moolla contends that her marriage was an in-community-of-property union, entitling her to half of her husband's estate.

If the court declares her marriage to be on a par with a civil marriage, it would effectively override 'Islamic law' and could see Muslim husbands forking out millions in settlements.

Moolla's court action has been widely condemned in her home town and by Muslim clerics.

A Port Elizabeth body -- the Mujlisul Ulama of South Africa -- has circulated a pamphlet throughout the country saying "it is haraam (forbidden) for Muslim divorced sisters to enlist the aid of the courts to extract haraam money from ex-husbands when a marriage breaks down and ends in divorce".

The application is also being opposed by the United Ulama Council of South Africa (UUCSA), a national body responsible for safeguarding the religious affairs of Muslims. It stepped into the fray to protect the sanctity of 'Islamic marriages'.

The case has captured the attention of the Women's Legal Centre Trust, which was admitted as a "friend of the court", in the interests of women's rights.

This week Moolla told the court how her childhood friendship with Jamaloodeen developed into "something more significant" over the years. She said they were engaged in June 1996, but had to postpone their marriage to July 1997 after Jamaloodeen suffered serious facial and head injuries when a firecracker exploded in his face.

She told the court she broached the subject of registering their marriage with Jamaloodeen before their Nikah (wedding). "He said he wanted to register the marriage, but it would be done after the Nikah. He felt the religious marriage should take precedence over the civil marriage ... so I accepted that." She later reminded her husband about the registration, "but for some reason we never got around to do it".

"Nazir wanted to register our marriage, especially after the authorities at the airport in Singapore hassled us because our son, Ahmed Raza, and Nazir shared the same surname and I had a different surname in our passports. Nazir said we must register our marriage and we must appear like a family." Her father asked her when they were going to register their marriage in Jamaloodeen's presence. But, in court papers, Jamaloodeen said he and Moolla "expressly chose not to register" their 'Islamic union' in terms of the Marriage Act.

The court heard how the couple enjoyed a lavish lifestyle of overseas holidays, fancy cars and expensive jewellery, including a R25000 Rolex watch. They also held offshore accounts in Australia, to which they eventually intended immigrating.

Moolla told the court that they never discussed "anything about finances but shared everything. There were no restrictions ... he had signing power to my bank account and I to his." When she asked her husband about not receiving a salary for working in the family business, he said "it would be his one day and we would reap the benefits at a later stage". She said the marriage broke down mainly because of her mother-in-law's interference.

Moolla, a temporary teacher at an Islamic school in Newcastle, wept when she recalled the day Jamaloodeen divorced her over the telephone. She did not receive an explanation from him. "I was returning from Durban with my father and our son. He telephoned me to say he was driving to Durban with his mother and aunt for a doctor's appointment and wanted our son to spend some time with him." She refused because she was not "comfortable" leaving her son with Jamaloodeen and his mother, and an argument ensued.

Jamaloodeen called back and ended their eight-year marriage over the telephone by issuing a divorce with the words "talaaq, talaaq, talaaq".

Under cross-examination, defence advocate David Gordon told Moolla the Jamaloodeens were an "extremely wealthy family ... far wealthier than your own. You are asking the court to give you part of that fortune and grant you maintenance. "You were generously treated and wanted for nothing, but what you weren't able to do is register your marriage."

He quizzed Moolla about why she did not have their marriage registered during their eight-year union. "I was helpless without his consent. The registration was important to both of us ... it pertained to both of us," she said

. Moolla told the UUCSA's attorney, Mahomed Omar, that she did not know what the proprietary consequences of a 'Islamic marriage' would be. "I thought it would be fair and equitable. I always thought that if it was not defined in the 'Islamic marriage', it would be defined in the civil marriage," she said.

UUCSA warned in court papers that the case had "far-reaching implications for Muslim marriages and their consequences". UUCSA secretary-general Yusuf Patel said the right of divorce in 'Islamic law' was vested only in the husband, not the court.

The case was adjourned to September next year.

Suthentira Govender
October 29, 2006