South Africa High Court, Kwazulu-Natal Division: Bezuidenhout, J. while adjourning the application sine die granted the applicant leave to amend her papers and file a supplementary affidavit.
The applicant, Amina Dawood, under Rule 43 of the Rules of this Court brought an application against respondent claiming pendente lite maintenance for herself and for two minor children.
Respondent in his counter-affidavit contended that the issue of maintenance between the parties had been resolved after the parties were divorced in terms of Islamic Law. As the applicant abandoned the matrimonial home she was not entitled to any further maintenance.
It was stated in the respondent’s affidavit that the marriage was not registered in terms of any statutory provisions. As well as there was no recognised marriage and no legal proceedings pending and therefore Rule 43 does not apply.
Counsel for the applicant, E.J. Vawda submitted that similar orders have been granted in other divisions where the parties had been married by Islamic Rights. He referred a decision of Tasneem Mahomed v. Zaki Jasat, 2195 of 2015, wherein such relief was granted, even though the parties were married in terms of Islamic Rights and divorced in terms thereof.
The Court in view of the above submission observed that in case referred above and some similar cases, relief was sought by way of a declaration of some sort and the relief in terms of Rule 43 is still pending for finalisation of such litigation. It was thus pendente lite. The Court further observed that due to the legislative process not having been finalised, Islamic Marriages are presently not yet recognised as valid marriages in terms of the Marriage Act and therefore a decree of divorce cannot be granted. [Amina Dawood v. Suleman Rahaman, Case No. 6578 of 2019, decided on 28-10-2019]
