Islam in World Cultures: Comparative Perspectives - Islamic Books ...

2 7 2Islam i n World Cult u r e sto Islamic rites and without state recognition. The judge appealed to the interimconstitution in turning against a long-standing legal tradition that consideredMuslim marriages potentially polygamous and thus against the dominantsocial norms of society. Since the constitution recognized the pluralistnature of South African society, the judge felt comfortable in extending legalrecognition to Muslim marriages:Can it be said, since the coming into operation of the new Constitution, that acontract concluded by parties which arises from a marriage relationship enteredinto by them in accordance with the rites of their religion and which infact is monogamous is “contrary to the accepted customs and usages which areregarded as morally binding upon all members of our society” or is “fundamentallyopposed to our principles and institutions”? I think not. (Rylands v. Edross1996, 708)The judge in this case was referring to a precedent involving an Islamic marriagethat was heard in 1983 in South Africa (Ismail v. Ismail 1983 [1] SA 1006[A]). In that case, the court refused to recognize a Muslim marriage on thegrounds that it was “potentially polygamous” and thus “void on grounds ofpublic policy.” In doing so, the judge noted the change brought about to thevalues of public policy by the Bill of Rights in the new constitution.But he then had to consider the issue of how to interpret this particularruling of Islamic law with regard to property acquired during an Islamic marriage.The contentious issue raised in the case was whether or not the wifewas entitled to an equitable share of the property accumulated by the husbandduring the marriage. Two competing interpretations were presented tohim. The first, led by Ebrahim Moosa on behalf of the plaintiff (the wife), arguedthat a Malaysian precedent had been established that property acquiredduring marriage should be equitably shared. The Malaysian case wasbased on a synthesis of Islamic law and local custom ( a d a t ) . Such coexistenceof Islamic law and local custom is not unusual in Islamic communities, butonly in Malaysia was such a synthesis officially recognized by courts of law.Moosa argued that such an approach ought to be followed in South Africa asw e l l .On the other hand, Alie Moosagie, the expert witness on behalf of the defendant(the husband), presented the opposing viewpoint that such a conditionof matrimonial property was not implied in Islamic law. He asserted thatIslamic law should be applied irrespective of any contextual application andinterpretation, and he did not present a counterargument to the contextualapplication espoused by Moosa. The judge picked up this nuance and insistedon a relevant South African custom. Since the Malaysian case depended on aparticular customary practice, the judge insisted on finding a similar practice