High Court ruling affirms interim maintenance rights for Muslim women post-talaq

A recent ruling by the Gauteng High Court has established that Muslim women can claim interim maintenance after a talaq, highlighting the evolving recognition of Muslim marriages under South African law, writes Yusuf Ismail

A RECENT judgment on appeal passed in last month in the matter of ES v HZA in the Gauteng High Court ruled that a wife can claim interim maintenance (Rule 43) even after a talaq (Islamic divorce) has been pronounced.

The court confirmed that the wife was still legally considered “spouse” for the purposes of the Divorce Act, meaning husbands must continue to provide financial support until a civil divorce is finalised.

The court reaffirmed that the amendments to the Divorce Act of 2024, which came after the 2022 Constitutional Court ruling, will now apply to all Muslim marriages subsisting after December 15, 2014.

According to senior advocate and Islamic law expert, Mahomed Shoaib Omar: “The Constitutional Court has affirmed that Muslim marriages enjoy recognition on par with civil marriages.It follows that the civil consequences, including the statutory protections afforded by the Divorce Act, apply equally to Muslim marriages.”

The court held that parties could not contract out of or waive statutory rights regarding maintenance under the Divorce Act, even if they have agreed to follow “Shariah” in their marriage.

The ruling emphasised that the purpose of the 2024 amendment is to protect women from destitution upon what it deemed as an irrevocable talaq, meaning a husband could not use a so- called triple talaq to avoid civil court jurisdiction regarding maintenance.

In my communication with Omar, he further stated that “the court correctly concluded that a party to a Muslim marriage qualifies as a ‘spouse’ for purposes of Rule 43 and accordingly entitled to interim maintenance”.

This ruling must certainly be welcomed, but it underlies the grotesque bastardisation of Muslim personal law by both Muslim institutions and theological bodies; as well as the legal system of South Africa which operates on the premises of determining what Muslim personal law is or is not.

Literally, the word Shariah means "the way to a watering hole", a place where one refreshes or revives oneself. It is generically used in the Qur’an.

The term came into vogue in the eighth century, during the Abbasid period when Islamic law (jurisprudence) was beginning to be institutionalised. When Muslim jurisprudence developed its systematic juristic form during that period; besides incorporating the logic of Muslim imperium, it also evolved diverse schools of thought and differences, one of which was the Hanafi school of thought (named after the jurist Imaam Abu Hanifa), and followed today in general by Indian Muslims of the subcontinent.

The conservative orthodox position among South African Indian Muslims and backed by obscurantist outfits like the Jamiat-ul-Ulema (council of theologians) based in Durban and Johannesburg, is not one grounded in justice or Qur’anic precepts.

Indeed it wrongly presents the idea that a man could at any time proclaim an irrevocable divorce (what is loosely labelled as a pronouncement of divorce three times at one sitting) and after that; reconciliation is inconceivable. In such an unconventional scenario, the woman would be limited to maintenance primarily and only during the iddah (or what is considered a waiting period) after divorce.

They fail to realise that the primary purpose of such a waiting period is besides determining possible pregnancy, but also to effect potential reconciliation.

These ridiculous and outmoded rulings have absolutely nothing to do with the Qur’an or the prophetic paradigm, but find credence in outdated manuals such as the Fatawa-e-Alamgiri (also known as Fatawa Hind), a 17th-century compilation of Hanafi Islamic law commissioned by Mughal Emperor Aurangzeb in India, and which served as a key legal reference for the Hanafi school of thought on matters of divorce and other issues.

Regarding triple talaq, the Fatawa-e-Alamgiri generally posited the traditional Hanafi position derived from other classic manuals of jurisprudence like the Al-Hedayah that three pronouncements of divorce made at once are considered as three distinct, irrevocable divorces.

This outdated tome holds significant authority at Darul Uloom Deoband in. India as a foundational, authoritative reference for Hanafi fiqh (jurisprudence) in the Indian subcontinent. 

The traditionalist religious establishment among Indian Muslims in South Africa find their derivations from texts such as these and particularly their evolved development, within what came out of the “Deobandi” seminary as opposed to anything strictly from the Qur’an or the Prophet Muhammed.

Most of the syllabi at traditional seminaries in South Africa where one studies for a number of years and eventually appropriates for himself the title “Moulana”, are parasitically grounded of, and in many instances a duplication of that more than 100-year-old Indian syllabus which is titled in Urdu, “dars-e-nizami”.

In a typical reductio ad absurdum fashion then, according to Hanafi jurisprudence detailed in texts like Fatawa-e-Alamgiri and Hedaya, if a husband utters “talaq, talaq, talaq” (three divorces) in a single sitting, it is considered a triple divorce at one setting.

Not only does this bunkum make a mockery of Islamic law and what is described as the Maqasid al-Shari’ah (greater objectives of the Shariah), but it is fundamentally wrong and immoral at all levels, and goes against the very basic precepts of Islam.

The primary objective of recognising Muslim Personal Law (MPL) is to provide legal protection and dignity to Muslim families, particularly women and children, whose marriages were historically ignored by the state.

The push for the recognition of MPL in South Africa has a long history spanning over three decades, with significant momentum following the end of apartheid. Bills were formulated almost 30 years ago, but internal wrangling amongst various filaments of the Muslim community meant that the culmination of work invested never saw the light of day.

“That ship has long since passed”, according to Omar. There was no consensus within the South African Muslim community on the form the legislation should take. Some theologians and organisations preferred a system where Muslims could choose to be governed by the act, while others felt it should be mandatory for all nikah (Islamic) marriages.

Different religious bodies disagreed on how to codify Shariah into statutory law, specifically concerning marriages and divorce procedures.

Some dogmatist sectors of the community argued that “divine laws” should not be codified by a secular parliament.

The cynicism behind the disagreements unwittingly reflected one basic truth, and that is what in fact passed as Islamic law (fiqh) or jurisprudence, was never actually meant to be static, and was always historically subjected to a wide array of interpretations. The jurisprudence in the classical period always evolved based on conditions and circumstances. Hence formation and content of the Shariah was expansive not just in terms of the dynamics of imperialism but also in human, social and cultural terms.

As the British Islamic futurist and prolific writer Ziauddin Sardar states, “We need to appreciate the fact that, far from being Divine, the Shariah is almost totally a human product (developed by jurists using the absolute reference frame).

"By insisting that an outmoded body of man-made law is Divine, we do an injustice both to the (actually divine) Qur’an and to ourselves. The elevation of the Shariah to the divine level also means the believers themselves have no agency: since ‘The Law’ is a priori given, people themselves have nothing to do except to follow it."

Those early advocates for the MPL Bill mistakenly started from the presupposition of utilising an existing “static” jurisprudence (fiqh), not a dynamic one, and hence debates and potential reforms for, and/or against, worked around anachronistically squeezing an outmoded body of jurisprudence into a South African legal framework. They started from a default position that those preposterous jurisprudential rulings were “somehow” intrinsic to Islamic law as a de facto position. Nothing could have been further from the truth. And nobody went and debated the crux of the problem that existed. Those that knew better were too afraid to topple the religious establishment and take over the mantles of a liberating trajectory.

Even the classical scholar Ibn Taimiyyah (661–728 AH) famously held the view that three instances of divorce pronounced in one sitting count as only one single (revocable) divorce, rather than an irrevocable triple divorce because he recognised the ludicrousness of such invented rulings.

A cursory glance at the Qur’an will tell you that a divorce has to be issued before two witnesses (Qur’an 65:2), and the divorce decree is effectively suspended pending the potential reconciliation of the parties during the iddah period, and only in the event that reconciliation was unsuccessful, does the decree take effect. A further glance will tell you that maintenance and provision for women is mandatory in the interim and even after the divorce is finalised based on the principle of reasonableness (Qur’an 2:241).

The high court ruling is reflective of the indolence and inertia of the Muslim leadership both in the legal fraternity such as with organisations like the Association of Muslim Accountants and Lawyers, or obscurantist mullahs hellbent on formenting sectarian divisions. To such an extent that an issue like interim maintenance which is foundational in the Qur’an, had to be spelt out by an inexperienced (on Islamic Law) high court judge. It reflects decades of filibustering on a basic framework of proposed MPL legislation that should have been approved 26 years ago.

But more than that, it echoes that religious communities in general wish to adopt a position of isolationism in relation to state and governments which penultimately would lead to a faith being reduced to personal pieties and praxis.

The consequences are that secular fundamentalism would eventually emerge triumphant. In such a scenario the Muslim organisational and religious establishment of South Africa are solely to blame.

Yusuf Ismail is a criminal defence lawyer and founder of the South African Debate Initiative

** The views expressed do not necessarily reflect the views of IOL or Independent Media. 

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