The Marriage Act 25 of 1961, the Divorce Act 70 of 1979, and the dissolution of a Hindu marriage [Discussion of Singh v Ramparsad and others 2007 3 SA 445 (D)]

Abstract

In Singh v Ramparsad and others 2007 3 SA 445 (D) the court was asked to find that a Hindu marriage falls within the ambit of the Marriage Act 25 of 1961 or, alternatively, within the ambit of the Divorce Act 70 of 1979. The purpose of the claim was to enable the plaintiff to have her Hindu marriage dissolved by divorce. Hindu law does not permit divorce. Thus, the plaintiff could not obtain a divorce in terms of Hindu law. The court refused to grant the relief the plaintiff sought. It is submitted that the outcome of the decision is correct although the rationes decidendi are incomplete in some respects and wrong in others. In essence, the relief the plaintiff sought amounted to a request to convert her Hindu marriage into a civil marriage or to impose divorce on Hindu spouses. It is submitted that the court does not have the power to convert a Hindu marriage that has not been solemnised in terms of the Marriage Act into a civil marriage by declaring that it falls within the ambit of the Marriage Act. It is further explained that it would have been futile for the court to declare the plaintiff's Hindu marriage to fall within the ambit of the Divorce Act unless the court also imposed divorce on all Hindu spouses. It is submitted that it is impermissible for the court to impose divorce on Hindu spouses.