Race-Religious Discrimination in South Africa's Hindu Marriages

Abstract

South Africa is known historically for racial apartheid when people were classified as white, Indian, Colored, or Black/Native.1 Indians, Coloreds, and Blacks were discriminated against and denied rights afforded to whites. One example was the right to vote, which was withheld from anyone not classified as white.2 What is less well known is that other forms of discrimination also existed, including religion, culture, gender, and sexual orientation. These discriminations manifested in religious marriage laws. They also intersected in the domain of marriage through race and religion, resulting in what Rabiat Akande describes as “mutually imbricated religious and racial othering.”3 Akande's observation that “Euro-Christian foundations of the legal regime of religious liberty” excluded minority religions from legal protections in colonial settler situations resonates in South Africa.4 Apartheid South Africa adopted a colonial European Christianized approach to marriage, namely, the voluntary union of one man to one woman for the duration of the marriage.5 This definition of marriage was embedded within South Africa's common law and entrenched values of heteronormativity and monogamy, both of which are inherent in a Christian understanding of marriage. Consequently, same-sex marriages were excluded from legal protection.6 Similarly, customary marriages and Muslim, Hindu, and Jewish marriages were not legally recognized because they were potentially polygynous, which in South Africa was deemed immoral and contrary to the colonial and apartheid era notions of public policy.7 This essay focuses on the legal implications of Hindu marriages not being legally recognized in South Africa, and especially the disparate effect that this has on women. The essay thus adds a gendered dimension to Akande's arguments about religious discrimination.