Muslim Marriages on the Rocks Again

Posted by Abdulkader Tayob on 02 March, 2011 06:54

The place of Muslim marriages in the country’s legal and parliamentary frameworks has once again landed on the rocks. This time, debate among South Africa's Muslim leaders is building up to the Ministry of Justice’s call for comment to the draft Muslim Marriage Bill (MMB) before 15 March 2011.

Positions have hardened, but the challenge remains the same. Can the South African parliament pass a law that recognizes Muslim marriages, as enunciated in the constitution? Without a law, judges are left to interpret the constitution and also Islamic law on the basis of expert witnesses.  The sticky point is how to frame Islamic law on marriage in terms of the general intention of the constitution, particularly the Bill of Rights.

Rejection of any such attempt to pass a law has come to dominate public debate among Muslims. This proposed Bill is refuted with all the religious rhetoric tcan be mustered. At the same time, this goes along with an unexpected support for a secular constitution that separates religion and state. Both are worthy of critical analysis.

Founded in Port Elizabeth around a Newspaper and now a website, the Majlis under the leadership of AS Desai has led the charge against proposed Bill. His articles and writings have spread throughout the country, challenging Muslims and their religious leaders in particular to reject this and any other proposed Bill on offer. 

The highly charged debate on Muslim radio stations, on websites and in mosque platforms, is framed in extreme theological rhetoric. Anyone supporting the bill, even in some modified form, is meddling in heresy (kufr). The Bill itself is called Kufr MMB (Heresy Muslim Marriages Bill), and those who support it are themselves implicated in heresy.

This theological framing of the debate has had its desired effect. Many religious leaders who had previously supported the bill have turned around (and some have turned back to support it too).  New groups of religious leaders are formed, and coups engineered within existing ones. The charge of heresy has had a remarkable effect.

The rhetoric has however obscured the main problem of non-recognition. Muslim women are the most obvious victims of non-recognition, particularly working-class Muslims who do not register their religious ceremonies in a civil court. In the past, when they approached the court for redress, they were turned away because Muslim marriages were “potentially polygamous” or did not conform to Christian ritual form.

The new constitution set out to change these colonial and apartheid responses. And the court record is beginning to build an alternative case history since 1994.

Not surprisingly, the defendants in these disputes have been men. They are the ones who unilaterally repudiate their wives, given them a limited amount of compensation at divorce, or take on second or third wives (often in mid-life crises). In all these cases, women receive meagre consideration or compensation for supporting homes, careers and businesses during the most difficult periods of a couple’s journey in life.

When summoned to court in these cases, men have taken recourse to fact that Muslim marriages are not recognized! The colonial and apartheid regimes harboured deep prejudices for not recognizing Muslim marriages; many Muslim men did not have to be taught how to use such prejudice to their advantage. One may say that these Muslim men have played an equally powerful role in supporting the no-recognition of Muslim marriage.

In post apartheid South Africa, Muslim men in conflict with their spouses want to naturally maintain this status quo. They do not want their wives to seek redress in court, nor in any progressive interpretation of Islamic law. The religious language of a Kufr MMB provides a perfect cover for this status quo.

All the substantive objections to the Bill reveal this male privilege. We are told in no uncertain terms that the rights of men are given by God and the Prophet Muhammad, and may not be tampered with. In some of the objections, women are regarded as emotional, deficient in intellect and wayward. Their demand for rights are framed as feminine weakness or religious infidelity.

Surprisingly, the objections raised to the proposed Bill also make a very explicit constitutional argument. They make an important point about the limits of the state in the definition and practice of religion. Echoing a venerable European tradition of the separation of religion and state, they are arguing that the proposed Muslim Marriages Bill interferes in the freedom of religion. Stressing all the values of a secular state, they want to preserve the so-called purity of Islamic law.

Clearly, the present debate does not revolve around the protection of ‘purely’ religious beliefs and practices like prayer, fasting and the like. And one has to look through the religious rhetoric to appreciate the underlying cause for concern. Not many would agree that the Bill of Rights was drafted to defend all cultural and religious practices. 

The Muslim Marriages Bill debate in South Africa deserves careful attention. On the one hand, it advances the cause of the secular constitution. More importantly, though, it points out how cultural practices can be clothed in religious rhetoric that limit the fundamental goals of the constitution. 

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