Women and Justice: Keywords

Domestic Case Law

Moosa N.O. and Others v. Harnaker and Others High Court of South Africa: Western Cape Division (2017)

Gender discrimination, Property and inheritance rights

The deceased was married to the second and third applicant under Islamic law. The marriage of the deceased and the third applicant was entered into before the marriage between the deceased and the second applicant. However, the deceased and the second applicant entered into a civil marriage to qualify for a home loan. Following the death of the deceased, The Registrar of Deeds, Cape Town, refused to register the title deed to the family home in the name of the third applicant. The Registrar’s refusal was premised on the meaning of the term “surviving spouse” as contemplated in terms of section 2C(1) of the Wills Act 7 of 1953 (the “Wills Act”). According to the Registrar, the only recognised surviving spouse of the deceased is the second applicant as they entered into a civil marriage. The Court declared section 2C(1) of the Wills Act unconstitutional as it does not recognise the rights of spouses married under Islamic law nor multiple female spouses married to a deceased testator in polygynous Muslim marriages.

Die oorledene is volgens die Islamitiese Wet met ‘n tweede en derde applikant getroud.  Die huwelik van die oorledene en die derde applikant is aangegaan voor die huwelik tussen die oorledene en die tweede applikant.  Die oorledene en die tweede applikant het egter ‘n siviele huwelik aangegaan om te kwalifiseer vir ‘n huislening.  Na die afsterwe van die oorledene het die Registrateur van Aktes, Kaapstad, geweier om die titel-akte van die gesinshuis in die naam van die derde aansoeker te registreer.  Die weiering van die registrateur is gegrond op die betekenis van die term “oorlewende gade” soos beoog in terme van artikel 2C(1) van die Wet op Testamente 7 van 1953 ( die “Testamente Wet”). Volgens die registsrateur is die enigste erkende oorlewende gade van die oorledene, die tweede aansoeker aangesien hulle ‘n siviele huwelik aangegaan het.  DIe hof het artikel 2C(1) van die Wet op testamente ongrondwetlik verklaar aangesien dit nie die regte van gades wat kragtens die Islamitiese wet getroud is, erken nie asook nie veelvuldige vroulike eggenote wat met ‘n oorlede testateur in ‘n poligamiese moslemhuwelik verbind is nie.



Gandhi v. Perak, et al. Federal Court of Malaysia (2018)

Divorce and dissolution of marriage, Gender discrimination, International law

The appellant, Pathmanathan (husband), and the respondent, Indira Gandhi (wife), were married and had three children. In March 2009, the husband converted to Islam. In April 2009, the husband obtained certificates of conversion to Islam issued by the Pengarah Jabatan Agama Islam Perak over all three children as well as an ex-parte interim custody order over the children. In September 2009, he obtained a permanent custody order from the Syariah Court. In 2013 and 2014, the mother obtained orders from the High Court annulling the unilateral conversions and the Syariah Court’s custody order, inter alia, on the grounds that vesting equal rights to both parents to decide on a minor child’s religious upbringing and religion would be in accordance with international human rights principles, specifically the convention on the Rights of the Child (CRC) and CEDAW.  The first appeal in this case concerned the validity of the conversion of the children to Islam. The majority in the Court of Appeal allowed the husband’s appeal and held that the Syariah Court had exclusive jurisdiction to determine the validity of the children’s conversion to Islam. Dealing with the issue of whether the conversions violate international norms, the Court noted that international treaties do not form part of domestic law unless those provisions have been incorporated into domestic law and that the High Court’s approach of following very closely the standard of international norms in interpreting the Federal Constitution is not in tandem with the accepted principles of constitutional interpretation. Accordingly, the Court of Appeal did not declare that the conversions of the children were invalid. The Federal Court overturned the lower courts’ decisions on appeal, reasoning that the children had not met the statutory requirements of conversion. Specifically, the Court found that the children did not state the two clauses of the Affirmation of Faith in Arabic as the Perak Enactment requires for a valid conversion to Islam.  In addition, the Federal Court held that mothers have parental rights equal to fathers, so the permission of both parents is required for a child’s religious conversion.



De Lange v. Presiding Bishop of the Methodist Church of South Africa for the Time Being Constitutional Court of South Africa (2015)

Gender discrimination, LGBTIQ

After a Methodist Church minister (applicant) announced to her congregation her intention to marry her same-sex partner, the Methodist Church (respondent) suspended and subsequently discontinued her role as an ordained minister in early 2010. In March 2010, the applicant referred the matter to arbitration according to the Laws and Discipline of the Church. The parties could not agree on the applicant’s procedural rights and the arbitration convener proceeded with the process as provided by the Laws and Discipline of the Church. On her behalf, the convener then entered into a final agreement with the Church in May 2011. In 2012, the applicant approached the Western Cape High Court, Cape Town seeking an order to set aside the arbitration agreement in terms of the Arbitration Act. She contended that she was unfairly discriminated against on the basis of her sexual orientation. The High Court held that the applicant had not shown good cause to set aside the arbitration agreement. She then appealed to the Supreme Court of Appeal. The majority judgment of that Court agreed with the finding of the High Court. The applicant sought leave to appeal to the Constitutional Court. In a unanimous judgment, the Constitutional Court made four findings. First, the applicant had not shown good cause to set aside the arbitration agreement. Because the issue related to interpretation of religious doctrine, arbitration would be the appropriate forum. Second, since the applicant had unequivocally disavowed her unfair discrimination claim before the High Court, she was not free to raise the claim for the first time on appeal. Third, pursuant to the principle of constitutional subsidiarity, the applicant should have first brought her unfair discrimination claim to the Equality Court. Finally, the applicant failed to file a notice in terms of the Uniform Rules of the High Court, an omission that deprived other interested parties including religious communities of the opportunity to intervene as parties to the dispute or seek admission as amicus curiae in the High Court. The Court accordingly dismissed the appeal. 



Seedis v. Chief Execution Officer & Schmuel Seedis Supreme Court (as an article 55 Special Tribunal) (1954)

Property and inheritance rights

A woman petitioned the article 55 Special Tribunal, which decides whether a case is of personal status and thus within the exclusive jurisdiction of a Religious Court, for review of the Rabbinical Court’s decision to allow her husband to receive rent from a property belonging to the plaintiff.  The Rabbinical Court exercised jurisdiction pursuant to Article 51 and 53 of the Palestine Order in Council 1922, which states that “suits regarding marriage” or “matters of marriage” are within the exclusive jurisdiction of the religious courts. The Special Tribunal agreed with the Rabbinical Court’s decision to exercise jurisdiction over the suit, reasoning that articles 51 and 53 are not limited to questions regarding the existence of a marriage, but also include claims for the enforcement of rights derived from marriage, including property rights.



Esseku v. Inkoom Superior Court of Judicature (2012)

Divorce and dissolution of marriage, Property and inheritance rights

Ms. Esseku and Mr. Inkoom had been married for 30 years. The husband claimed to have divorced his wife in 1995 under Muslim tradition and custom. They had one property together, which Mr. Inkoom sold without consulting Ms. Esseku or their five children, all of whom he evicted off the property. The trial court held that the property was a joint property of both parties, and nullified the sale. Examining the evidence, the Superior Court affirmed the holding because Ms. Esseku had made a “substantial contribution” to the property by building an additional two bedrooms to the house. Furthermore, the Court held that even if she had not made a substantial contribution to the acquisition of the property, she still would have been entitled to an equal share of the property because of her valuable considerations made during the marriage, like “the performance of household chores” and the “maintenance of a congenial domestic environment for the respondent to operate and acquire properties.” As such, both parties were entitled to equal shares of the property, and Mr. Inkoom could not sell the house without consulting her first.



In re M Insa, Decision No. 12/PUU-V/2007 Constitutional Court of Indonesia (2007)

Gender discrimination, Harmful traditional practices

Petitioner, an Indonesian male, challenged the constitutionality of a marriage law requiring monogamy with an exception that allows polygamy only with the consent of the wife and the permission of the court (Law Number 1 Year 1974 regarding Marriage). The law requires the husband to submit an application to the court of his domicile with his wife’s consent in order to engage in polygamy. Petitioner argued that because the law required the husband to obtain consent from his wife and the court before engaging in polygamy, it violated his right to freely exercise his religion because the teachings of Islam allow polygamy. The government argued that Islamic principles encourage monogamy and only allow polygamy when a wife allows her husband to re-marry for the benefit of their marriage. The court held that the practice of polygamy historically had degraded the status of women and the teachings of Islam required the preservation of the dignity of women. In addition, since the purpose of marriage is to “achieve peacefulness (sakinah),” men are required to first obtain their wives’ consent before engaging in polygamy, thus respecting their wives as legally equal partners. Therefore, the Court rejected petitioner’s claims and held the laws constitutional as they guarantee the recognition of women’s rights and allow husbands to exercise polygamy in accordance with the teachings of Islam.



Barriya v. The Kadi of the Sharia Moslem Court Supreme Court of Israel (1955)

Gender-based violence in general

The aunt of three children applied to a Moslem Religious Court to be appointed as their guardian. The children’s mother argued that she was entitled to the guardianship under the Women’s Equal Rights Law. The mother, believing that the religious judge (the Kadi) would apply religious law and disregard the Women’s Equal Rights Law, applied for an order staying or setting aside the proceedings of the religious court. The court held that the issue was not ripe for review, as there was no indication that the Kadi would disregard civil law and rely only upon religious law. The order in which the Kadi decided to proceed was a matter of procedure with which the court would not interfere.



Aleem v. Aleem Maryland Supreme Court (2008)

Divorce and dissolution of marriage, Gender discrimination

Court held that divorce obtained by husband under Islamic religious and secular Pakistani law would not be recognized and afforded comity in Maryland.  Petitioner argued that because he performed “talaq,” (which under Islamic law, allows a husband to divorce his wife by stating “I divorce thee” three times) the Circuit Court for Montgomery County lacked jurisdiction “to litigate the division of the parties’ marital property.”  “The trial court found that the marriage contract entered into on the day of the parties’ marriage in Pakistan specifically did not provide for the division of marital property and thus, for that reason alone, the agreement did not prohibit the Circuit Court for Montgomery County from dividing the parties’ marital property under Maryland law.”  The Court of Special Appeals agreed and stated, “[t]hus, the Pakistani marriage contract in the instant matter is not to be equated with a premarital or post-marital agreement that validly relinquished, under Maryland law, rights in marital property.”  It explained that the default under Pakistan law is that the wife does not have rights to marital property, while under Maryland law she does.  Applying Pakistani law, according to the court, would violate Maryland public policy.  The court also noted that a “procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife . . . summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife.  Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.”



Thomas v. Union of India (2010)

Gender discrimination

Ms. Saumya Ann and Mr. Thomas, who were Christians by faith, had applied for a decree of divorce by mutual consent under Section 10A of the Divorce Act. The lower court rejected the application because the Divorce Act requires that the filing couple shall have lived in separate residences for a minimum period of two years, but Ms. And Mr. Thomas had been living apart for only one year. On appeal, the couple argued that the law was a violation of their right to life and liberty guaranteed under Article 21 of the Indian Constitution. They also argued that such law was discriminatory and in violation of Article 14 of the Constitution because Hindus and Parsis were entitled to divorce by mutual consent after living apart for only a year. The Government argued that the law in question pertained to Christians and was their personal religious law, granting it complete insulation from any form of interference by courts. The Kerala High Court rejected the government’s contention. The Court held that the couple was entitled to seek a decree of divorce by mutual consent, that the requirement of two years violated the right to seek a divorce as guaranteed under Article 21 of the Indian Constitution, and that the constitutional right to equality includes the right to divorce as persons from other religions are. Instead of declaring the law unconstitutional, the Kerala High Court read down the two-year requirement to one year, like the laws applicable to Hindu and Parsi divorces. This case is significant because it demonstrates that customs and laws, even if religious in nature, can be invalidated if they violate the fundamentals rights guaranteed by the Indian Constitution.



Legislation

Law No. 1 of 1974 Marriage Law (1974)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Property and inheritance rights

This law sets the legal age of marriage without parental consent at 21 years of age. With parental consent, girls may marry at age 16 and men may marry at age 19. Marriages under the legal age are void and there are penalties for knowingly entering into or authorizing child or early marriage. The law also sets the requirements for polygamy, which include the first wife’s inability to fulfill her spousal duties (e.g., bearing children), the permission of the man’s current wife or wives, permission from the local Court, and proof that the man will treat all of his wives and children fairly and provide for them equally. Women are prohibited from marrying a second husband. The law also provides the conditions for the cancellation (annulments and divorce) of a marriage, the obligations of husbands and wives, property rights of spouses, the obligations of parents to their children, the legitimacy of children, the requirements of guardianship, foreign marriages, and the children of mixed-religion marriages.



Civil Code of Iran (Marital Duties) (1969)

Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape

According to Iranian law, the husband is the exclusive holder of the position of “head of the family”  (Art. 1105).  As such, the husband provides his wife with the cost of maintenance (Art. 1106), “which includes dwelling, clothing, food, furniture, and provision of a servant if the wife is accustomed to have servant or if she needs one because of illness” (Art. 1107) Article 1108 creates a duty on the part of women to satisfy the sexual needs of their husbands at all times.  This is the tamkin (submission) requirement of Sharia law.  If a wife refuses to fulfill her duties, she may be barred from receiving maintenance payments. The husband determines his wife’s place of residence and thus controls her freedom of movement (Art. 1114).  If the dwelling of the wife and husband in the same house involves the risk of bodily or financial injury or that to the dignity of the wife, she can choose a separate dwelling.  If the alleged risk is proved, the court will not order her to return to the house of the husband and, so long as she is authorized not to return to the house, her cost of maintenance will be on the charge of her husband (Article 1115). In addition, the husband may prevent his wife from exercising a certain profession if he deems it “incompatible with the family interests or the dignity of himself or his wife” (Art. 1117).



The Islamic Penal Code of Iran, Books 1 & 2 (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, LGBTIQ

Article 147 of the Islamic Penal Code specifies that the age of maturity triggering criminal responsibility is 15 Islamic lunar calendar years for boys, but only nine Islamic lunar calendar years for girls. This signifies that young girls can be charged as criminally responsible adults in Iran before they reach the age of puberty. Articles 237-239 forbid same-sex kissing and touching, which will be punished by 31-74 lashes. Female genital touching (musaheqeh) is punished by 100 lashes. Article 225 mandates the death penalty for adultery (zina), which international commentators have noted is disproportionately applied to women (e.g., UN Special Rapporteur for Violence Against Women report: http://www.ohchr.org/Documents/Issues/Women/A-68-340.pdf). Article 199 describes the number and gender of witnesses needed to prove various crimes; no crimes may be proven with female witnesses alone and any female witness requires corroboration of a man and another woman. (Full Persian version of the Penal Code available at: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=103202)