ANCIENT IRANIAN FAMILY LAW
By: Mansour Shaki
In pre-Islamic Zoroastrian canon and civil law the dissolution of marriage (Parth. *abihirzan—cf. Arm. apaharzan "divorce" [Hübschmann, Armenische Grammatik, p. 104, no. 43], Younger Av. (apa-) harəzana- "leaving" [AirWb., col. 1794], OPers. ava-hard- "to abandon" [Kent, Old Persian, p. 214]; Mid. Pers. hilišn "abandonment"; abêzârîh "repudiation," cf. Arm. apizar "separated, free" [EIr., II, p. 460]; hištârîh) was by law; it could be affected either by mutual consent or if the wife was barren or guilty of a deadly (marg-arzân "deserving death") sin/offence. The Riwâyat î EÚmêd î Ašawahištân (chap. 7) gives a thorough account of the cases that entitle the husband to divorce his legitimate (pâdixšâyîhâ) wife without her consent. It states: "The repudiation (abêzârîh) of a legitimate wife by the legitimate husband is only allowed by their mutual consent, unless the woman is found guilty of a proven sin (winâhkârîh î êwarîhâ)...such as whoring, sorcery, failure to fulfill the obligatory duties (ân-iš frêzwânîg kardan), refusing to submit herself unto the husband, failure to observe the monthly period of confinement (i.e., retiring and keeping aloof when in menses), sleeping with her husband when in menses, concealing the menstruation (daštân), submitting herself to another man, or committing any other deadly sin or any sin that may harm the body or the soul. If the man divorces his wife for some other offence or against her will, the divorce (hištârîh) is not valid and he becomes guilty of a sin to the degree of one tanâpuhl (a deadly sin), whereas the (innocent) woman remains his legal wife." However, on the death of the husband the property held by the wife passes to the family of the husband, unless on her entering into marriage there has been settled some other agreement or arrangement (pašn ud êstišn) as regards her private property (wâspuhragân). At all event she is entitled to food, maintenance, and bed-clothes (xuft-paymôxt, a 9th-century term) in conformity with her social station (chand pâyag passazagîhâ abayišnîg), beyond which she has no other title to the estate left by the deceased husband. If her alimony is in excess of her needs, it should not be taken away from her; but if the husband has left less than her needs, it should be made up from the husband's estate. And if he has given away his estate as alms, so much of it should be retrieved as is necessary for her maintenance. In the case of a chakar (q.v.) wife, she should be regarded as exempt from any obligation to the chakar husband; therefore, there is no need for any statement in respect to her repudiation, as she is divorced (abêzâr) from him by her own status (xwad aziš abêzâr; Shaki, 1983, pp. 46-47).
The antiquity of the law of divorce is attested to by Justin's report (41.3) that in the Parthian period the low-class women could not remarry in the lifetime of their husbands; that is, as in Sasanian practice they could not seek the dissolution of marriage. In contrast to the legal limitations imposed upon the commoners, the noblewomen could easily divorce their husbands. This class privilege, judging by the tenacity of legal and social institutions, must have continued in Sasanian times. Similarly, the Parthian husband could divorce his wife only if she were barren or guilty of sorcery, adultery, or concealing her menstruation.
The Mâdayân î hazâr dâdestân and the 9th-century Pahlavi legal texts have generally passed over the case of woman's barrenness. The Persian Sad dar-e nathr (chap. 92), however, in agreement with the Parthian tradition, mentions it in conjunction with adultery, sorcery, and concealing of menstruation as justifications for divorce. But according to the late Persian Rivâyat of Dârâb Hormazyâr (I, p. 189) a man may divorce his barren wife if he does not conclude a second marriage. And the Dênkard (ed. Madan, pt. 2, p. 749) refers to the maintenance of a barren woman or wife (zan î starwan) and that of a pregnant wife, which, by implication, asserts her title to a "separate maintenance." Because sleeping with a barren woman (zan î anâpus) as a case of "wasting semen" (š, pp. 490, 807) is considered a grave sin (tanâpuhl), the judicial separation is the obvious alternative to divorce. Of interest is the evidence of Tha´âlebî giving adultery, sorcery, and apostasy as reasons for divorce (GÚorar, p. 260).
The guardianship (sâlârîh) over the wife being an indispensable condition for the legality of marriage, its dissolution is equally essential to the validity of divorce. If the guardianship is not renounced together with (the marriage contract), divorce will not take effect (ka-š sâlârîh abâg be nê hilêd hilišn be nê bawêd; Mâdayân, pt. 1, p. 87). That is why in the certificate of divorce first the guardianship is terminated and then divorce considered (ân-iz pad hilišn-nâmag naxust sâlârîh hanjâmênd ud pas hilišn nigerîdan, p. 87). In case the wife is divorced and given in marriage and guardianship to another person who rejects to assume her guardianship, then according to some jurists the divorce is not effective, as the jurist Wahrâm has maintained: "marriage cannot be contracted apart from guardianship" (pp. 4-5).
The significant element of guardianship in matrimonial relations offers the husband a wide scope to manipulate the wife. The transferring of guardianship to the wife and giving freedom over her own person results in a partial divorce or legal separation that makes it possible for the husband to set his wife to various undertakings. Thus the Mâdayân î hazâr dâdestân (pt. 1, pp. 3-4) states: "If a person divorces his wife in such a way that makes the woman her own guardian and gives freedom over her own person (pad xwêš tan sâlâr ud pâdixšây kunêd—the technical formula for legal separation), and does not place her under the guardianship of another person, and that woman in the lifetime of that husband marries and gives birth to children, those offspring belong to that man who divorced her in that manner." In this way a man without male issue can make his wife to undertake a chakarîhâ marriage in his own favor (pt. 1, p. 3), or to appoint her to assume a stûrîh marriage (pt. 1, p. 49), in order to provide a deceased co-religionist with a male progeny.
In case the wife is divorced by her consent, she does not receive the property that the husband has given her (pt. 1, p. 4), nor can she retrieve the earnings (windišn) that she has transferred to the husband on her own accord (pt. 2, p. 2). The jurists were divided on a woman's title to a property which she claims, against the husband, to have been promised her in case of divorce (pt. 1, p. 95). According to some jurists, on divorce the wife is only entitled to that which she has brought with her in connection with marriage, such as her dower (pêšîgân/passâzagân?) and private property (wâspuhragân), but her earnings during matrimony remain with the husband. It is stressed that this orthodox traditional practice (kardag) is retained unchanged in the modified civil code (u-š kardag aôn abâg ku gaštag be bawêd, ms. šawêd, by copyist's error; pt. 1, p. 4; Shaki, 1974, p. 329). If a man divorces his wife and marries her to his under-age child, who dies in infancy, the stûrîh of that man does not devolve upon that woman (pt. 1, p. 4). A bodily mature maiden of nine years given in marriage with the consent of her guardian, on reaching her prime, at fifteen years of age, is not entitled to renounce the wedlock; should she abandon her husband, she would become marg-arzân ("deserving death"; The Pahlavi Rivâyat of Âturfarnbag, chap. 14); but a youth under age married to a mature woman, on coming of age may dissolve the arranged match only if he had not acted according to the contract (chap. 15).
The only case in which the husband may divorce his innocent legitimate wife against her will is when he offers her in marriage to a co-religionist who is in want of wife and children because of poverty (niruzdîh; Mâdayân, pt. 1, p. 101; Bartholomae, I, pp. 29-30, 36-37), an injunction that echoes the Vidêvdâd, chap. 4.44. This is interpreted by the Dênkard (ed. Madan, pt. 2, p. 715) as making a charitable gift to the amount of one human being (dâsr î wîr-masây).
On remarrying his divorced wife, the promises made by the husband during the former term of cohabitation may not be binding on him (Mâdayân, pt. 1, pp. 104-05), but if the husband makes an agreement on an allocation of property with his wife, who is his partner, and then divorces her, that promise remains binding on him (p. 4).
A divorced wife given in marriage to someone reverts to her former husband if she is found to suffer from an injury (rêš, p. 105).