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A landmark High Court judgment confirms that Muslim women can claim interim maintenance after talaq, reinforcing legal protections under South Africa’s Divorce Act.
By YUSUF ISMAIL
A judgment on appeal, passed on March 12, 2026 in the matter of E.S v H.Z.A in the Gauteng High Court, ruled that a wife can claim interim maintenance (Rule 43) even after a talaq (Islamic divorce) has been pronounced.
The court confirmed that the wife is still legally considered a ‘spouse’ for the purposes of the Divorce Act, meaning husbands must continue to provide financial support until a civil divorce is finalised. The court reaffirmed that the amendments to the Divorce Act of 2024, which came after the 2022 Constitutional Court ruling, will now apply to all Muslim marriages subsisting after December 15, 2014.
According to senior advocate and Islamic law expert Mahomed Shoaib Omar, ‘The Constitutional Court has affirmed that Muslim marriages enjoy recognition on par with civil marriages. It follows that the civil consequences, including the statutory protections afforded by the Divorce Act, apply equally to Muslim marriages.’
The court held that parties cannot contract out of or waive statutory rights regarding maintenance under the Divorce Act, even if they have agreed to follow ‘Shariah’ in their marriage.
The ruling emphasised that the purpose of the 2024 amendment is to protect women from destitution upon what it deemed an irrevocable talaq, meaning a husband cannot use a so-called triple talaq to avoid civil court jurisdiction regarding maintenance.
In my communication with Omar, he further stated that ‘the court correctly concluded that a party to a Muslim marriage qualifies as a “spouse” for purposes of Rule 43 and is accordingly entitled to interim maintenance.’
This ruling must certainly be welcomed, but it underlines the grotesque bastardisation of Muslim personal law by both Muslim institutions and theological bodies, as well as the legal system of South Africa, which operates on the premise of determining what Muslim personal law is or is not.
Literally, the word Shari’ah means ‘the way to a watering hole’, a place where one refreshes or revives oneself. It is generically used in the Qur’an. The term came into vogue in the eighth century, during the Abbasid period, when Islamic law (jurisprudence) was beginning to be institutionalised. When Muslim jurisprudence developed its systematic juristic form during that period, besides incorporating the logic of Muslim imperium, it also evolved diverse schools of thought and differences. One of these was the Hanafi school of thought (named after the jurist Imam Abu Hanifa), followed today in general by Indian Muslims of the subcontinent.
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The conservative orthodox position among South African Indian Muslims, backed by obscurantist outfits like the Jamiat-ul-Ulema (council of theologians) based in Durban and Johannesburg, is not one grounded in justice or Qur’anic precepts. Indeed, it wrongly presents the idea that a man could at any time proclaim an irrevocable divorce (what is loosely labelled as a pronouncement of divorce three times at one sitting) and, after that, reconciliation is inconceivable. In such an unconventional scenario, the woman would be limited to maintenance primarily and only during the iddah (a waiting period) after divorce. They fail to realise that the primary purpose of such a waiting period is not only to determine possible pregnancy but also to allow for potential reconciliation.
These ridiculous and outmoded rulings have absolutely nothing to do with the Qur’an or the prophetic paradigm, but find credence in outdated manuals such as the Fatawa-e-Alamgiri (also known as Fatawa Hind), a 17th-century compilation of Hanafi Islamic law commissioned by Mughal Emperor Aurangzeb in India, which served as a key legal reference for the Hanafi school of thought on matters of divorce and other issues. Regarding triple talaq, the Fatawa-e-Alamgiri generally posited the traditional Hanafi position derived from other classic manuals of jurisprudence like the Al-Hedayah, that three pronouncements of divorce made at once are considered three distinct, irrevocable divorces. This outdated tome holds significant authority at Darul Uloom Deoband in India as a foundational, authoritative reference for Hanafi fiqh (jurisprudence) in the Indian subcontinent.
The traditionalist religious establishment among Indian Muslims in South Africa derives its positions from texts such as these, and particularly from their evolved development within what emerged from the ‘Deobandi’ seminary, as opposed to anything strictly from the Qur’an or the Prophet Muhammad ﷺ. Most of the syllabi at traditional seminaries in South Africa, where one studies for a number of years and eventually appropriates the title ‘Moulana’, are parasitically grounded in, and in many instances duplicate, that more than 100-year-old Indian syllabus titled in Urdu, ‘dars-e-nizami’.
In a typical reductio ad absurdum fashion, then, according to Hanafi jurisprudence detailed in texts like Fatawa-e-Alamgiri and Hedaya, if a husband utters ‘talaq, talaq, talaq’ (three divorces) in a single sitting, it is considered a triple divorce at one sitting. Not only does this bunkum make a mockery of Islamic law and what is described as the Maqasid al-Shari’ah (greater objectives of the Shari’ah), but it is fundamentally wrong and immoral at all levels, and goes against the very basic precepts of Islam.
The primary objective of recognising Muslim personal law is to provide legal protection and dignity to Muslim families, particularly women and children, whose marriages were historically ignored by the state. The push for the recognition of Muslim Personal Law (MPL) in South Africa has a long history spanning over three decades, with significant momentum following the end of apartheid. Bills were formulated almost 30 years ago, but internal wranglings among various segments of the Muslim community meant that the culmination of this work never saw the light of day.
‘That ship has long since passed,’ according to Omar. There was no consensus within the South African Muslim community on the form the legislation should take. Some theologians and organisations preferred a system where Muslims could choose to be governed by the Act, while others felt it should be mandatory for all nikah (Islamic) marriages. Different religious bodies disagreed on how to codify Shari’ah into statutory law, specifically concerning marriages and divorce procedures. Some dogmatic sectors of the community argued that ‘divine laws’ should not be codified by a secular parliament.
The cynicism behind these disagreements unwittingly reflected one basic truth: what, in fact, passed as Islamic law (fiqh) or jurisprudence was never meant to be static and was always historically subjected to a wide array of interpretations. Jurisprudence in the classical period evolved based on conditions and circumstances. Hence, the formation and content of the Shari’ah were expansive, not just in terms of the dynamics of imperialism, but also in human, social and cultural terms.
As the British Islamic futurist and prolific writer Ziauddin Sardar states, ‘We need to appreciate the fact that, far from being Divine, the Shari‘ah is almost totally a human product (developed by jurists using the absolute reference frame). By insisting that an outmoded body of man-made law is Divine, we do an injustice both to the (actually divine) Qur’an and to ourselves. The elevation of the Shari’ah to the divine level also means the believers themselves have no agency: since “The Law” is a priori given, people themselves have nothing to do except to follow it.’
Those early advocates for the MPL Bill mistakenly started from the presupposition of utilising an existing ‘static’ jurisprudence (fiqh), not a dynamic one. Hence, debates and potential reforms worked around anachronistically squeezing an outmoded body of jurisprudence into a South African legal framework. They began from a default position that those preposterous jurisprudential rulings were somehow intrinsic to Islamic law as a de facto position. Nothing could have been further from the truth, and nobody engaged with the crux of the problem. Those who knew better were too afraid to challenge the religious establishment and take forward a liberating trajectory.
Even the classical scholar Ibn Taimiyyah (661–728 AH) famously held the view that three instances of divorce pronounced in one sitting count as only one single (revocable) divorce, rather than an irrevocable triple divorce, recognising the absurdity of such invented rulings. A cursory glance at the Qur’an reveals that a divorce must be issued before two witnesses (Qur’an 65:2), and that the divorce decree is effectively suspended pending potential reconciliation during the iddah period. Only if reconciliation fails does the decree take effect. A further glance shows that maintenance and provision for women are mandatory in the interim and even after the divorce is finalised, based on the principle of reasonableness (Qur’an 2:241).
The High Court ruling reflects the indolence and inertia of Muslim leadership, both within the legal fraternity, such as organisations like AMAL (Association of Muslim Accountants and Lawyers), and among obscurantist clerics intent on fomenting sectarian divisions. To such an extent that an issue like interim maintenance, which is foundational in the Qur’an, had to be articulated by a High Court judge with limited grounding in Islamic law.
It reflects decades of filibustering on a basic framework of proposed MPL legislation that should have been approved 26 years ago. More than that, it echoes a broader tendency among religious communities to adopt a position of isolationism in relation to the state and government, which ultimately reduces faith to personal piety and praxis. The consequence is that secular fundamentalism emerges triumphant. In such a scenario, the Muslim organisational and religious establishment of South Africa is solely to blame.
Yusuf Ismail is a criminal defence lawyer and founder of the South African Debate Initiative.
