The right to inherit for women in Hindu marriages

A judgment was recently handed down in the Durban High Court on 6/11/2008 in Soloshinie Govender v Narainsamy Govender NO and Others by Moosa AJ. The applicant had applied to the High Court for recognition as a spouse in terms of the Intestate Succession Act 81 of 1987.

The applicant had been married to her husband in accordance with the traditions and customs of Hindu religion. Her husband died without leaving behind a valid will, which meant that his estate would be administered and dissolved in terms of Intestate Succession. As the marriage was not legally recognized and the couple had no children, the parents of the deceased would inherit his entire estate.

From the facts of the matter there was no dispute that the marriage was conducted in accordance with proper Hindu tradition and custom.
Moosa AJ held that the fact that the marriage was not registered in terms of the Marriage Act did not disqualify the applicant as a spouse for the purposes of the Intestate Succession Act. Moosa AJ granted an order which interpreted the word “SPOUSE” as used in s 1 of the Intestate Succession Act as including the surviving partner of a monogamous Hindu marriage. Mrs. Govender was therefore able to inherit from the deceased estate of her late husband.

The Cape High Court has likewise interpreted “SPOUSE” to include a spouse in a polygamous muslim marriage. See: Fatima Hassam v Johan Jacobs NO and Others (unreported case no. 5704/2004)

Section 15 of our Constitution recognizes that everyone has the right to freedom of conscience, religion, thought, belief and opinion;

Section 30 of the Constitution recognizes that everyone has the right to use the language and participate in the cultural right of their choice;

Section 31 of the Constitution guarantees that persons belonging to a cultural, religious or linguistic community may not be denied their right to enjoy their culture, practice their religion and use their language.