ANCIENT IRANIAN FAMILY LAW

DIVORCE

 

IN THE PARTHIAN & SASANIAN PERIODS

 

By: Mansour Shaki

 

In pre-Islamic Zoroastrian canon and civil law the dissolution of marriage (Parth. *abihirzancf. Arm. apaharzan "divorce" [Hbschmann, 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. hilin "abandonment"; abzrh "repudiation," cf. Arm. apizar "separated, free" [EIr., II, p. 460]; hitrh) was by law; it could be affected either by mutual consent or if the wife was barren or guilty of a deadly (marg-arzn "deserving death") sin/offence. The Riwyat Emd Aawahitn (chap. 7) gives a thorough account of the cases that entitle the husband to divorce his legitimate (pdixyh) wife without her consent. It states: "The repudiation (abzrh) 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 (winhkrh warh)...such as whoring, sorcery, failure to fulfill the obligatory duties (n-i frzwng 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 (datn), 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 (hitrh) is not valid and he becomes guilty of a sin to the degree of one tanpuhl (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 (pan ud stin) as regards her private property (wspuhragn). At all event she is entitled to food, maintenance, and bed-clothes (xuft-paymxt, a 9th-century term) in conformity with her social station (chand pyag passazagh abaying), 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 (abzr) from him by her own status (xwad azi abzr; 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 Mdayn hazr ddestn 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 Rivyat of Drb Hormazyr (I, p. 189) a man may divorce his barren wife if he does not conclude a second marriage. And the Dnkard (ed. Madan, pt. 2, p. 749) refers to the maintenance of a barren woman or wife (zan starwan) and that of a pregnant wife, which, by implication, asserts her title to a "separate maintenance." Because sleeping with a barren woman (zan anpus) as a case of "wasting semen" (, pp. 490, 807) is considered a grave sin (tanpuhl), the judicial separation is the obvious alternative to divorce. Of interest is the evidence of Thaleb giving adultery, sorcery, and apostasy as reasons for divorce (Gorar, p. 260).

The guardianship (slrh) 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- slrh abg be n hild hilin be n bawd; Mdayn, pt. 1, p. 87). That is why in the certificate of divorce first the guardianship is terminated and then divorce considered (n-iz pad hilin-nmag naxust slrh hanjmnd ud pas hilin nigerdan, 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 Wahrm 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 Mdayn hazr ddestn (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 xw tan slr ud pdixy kundthe 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 chakarh marriage in his own favor (pt. 1, p. 3), or to appoint her to assume a strh 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 (windin) 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 (pgn/passzagn?) and private property (wspuhragn), 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- kardag an abg ku gatag be bawd, ms. awd, 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 strh 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-arzn ("deserving death"; The Pahlavi Rivyat of turfarnbag, 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 (niruzdh; Mdayn, pt. 1, p. 101; Bartholomae, I, pp. 29-30, 36-37), an injunction that echoes the Vidvdd, chap. 4.44. This is interpreted by the Dnkard (ed. Madan, pt. 2, p. 715) as making a charitable gift to the amount of one human being (dsr wr-masy).

On remarrying his divorced wife, the promises made by the husband during the former term of cohabitation may not be binding on him (Mdayn, 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 (r, p. 105).

 

Bibliography:

  • Ch. Bartholomae, Zum sassanid-ischen Recht I-V., Heidelberg, 1918-23. 

  • S. J. Bulsara, "The Laws of the Ancient Persians as Found in the Mtkn Hazr Dtastan" or "The Digest of a Thousand Points of Law," Bombay, 1937. 

  • M. Macuch, Das sasanidische Rechtsbuch "Mtakdn Hazr Dtistn," Pt. 2, Wiesbaden, 1981. 

  • The Pahlavi Rivyat of turfarnbag and Farnbag-Sr, ed. B.T. Anklesaria, 2 vols., Bombay, 1969. 

  • The Pahlavi Rivyat Accompanying the Ddestn- Dnk, ed. B. N. Dhabhar, Bombay, 1913. 

  • A. G. Perikhanian, Sasanidski sudebnik (Mtakdn hazr dtastn), Yerevan, 1973. 

  • The Persian Rivayats of Drb Hormazyr Frmarz, ed. M. R. Unvala, 2 vols., Bombay, 1922. 

  • Rivyat Emd Aawahitn, ed. B. T. Anklesaria, Rivyat- Hmt- Aavahitn, Bombay, 1962. 

  • Sad dar-e nathr. M. Shaki, "The Sasanian Matrimonial Relations," Archv Orientaln 39, 1971, pp. 322-45. 

  • Idem, "Two Middle Persian Legal Terms for Private Property," in Ph. Gignoux and A. Tafazzoli, eds., Memorial Jean de Menasce, Louvain, 1974, pp. 327-36. 

  • Idem, "Two Chapters of the Rivyat Emd Aawahitn," in Oriental Studies, D. Kobidze Memorial Volume, Tbilisi, 1983, pp. 45-53.

 

 

 

Source/Extracted From: Encyclopaedia Iranica

 

Please note: CAIS has the privilege to publish the above article originating from the above-mentioned source, for educational purposes only (Read Only). This article has been published in accordance with the author(s) / source' copyright-policy -- therefore, the ownership and copyright of this page-file remains with the author(s) / sourceFor any other purposes, you must obtain a  written permission from the copyright owner concerned(Please refer to CAIS Copyright Policy).

 

 

http://www.cais-soas.com/CAIS/Law/divorce_partho_sasanid.htm