Polygamy, though permitted, was definitely restricted by the code. Thus a man might marry a second wife if "a sickness has seized" his first wife, but the first wife was not to be put away. This is the only case in which two equal wives are recognised by the code. But it was also possible—as the contracts prove—for a man to take one or more secondary wives or concubines, who were subordinate to the chief wife. In some cases this appears to have been done to enable the first wife to adopt the children of the concubine "as her children."[247]
It is worth while to note the exact conditions of divorce in the reference to women as given in the clauses of Hammurabi's code—
"137. If a man has set his face to put away his concubine, who has granted him children, to that woman he shall return his marriage portion, and shall give her the usufruct of field, garden, and goods, and shall bring up her children. From the time that her children are grown up, from whatever is given to her children, they shall give her a share like that of one son, and she shall marry the husband of her choice."
"138. If a man shall put away his bride, who has not borne him children, he shall give her money as much as her bride-price."
"139. If there was no bride-price he shall give her one mina of silver."
"140. If he is a poor man he shall give one third of a mina of silver."
So far the position of the wife is secured in the case of the infidelity of the husband. But if we turn to the other side, when it is the woman who is the unfaithful partner it is evident how strongly the patriarchal idea of woman as property has crept into the family relations. We find that a woman "who has set her face to go out and has acted the fool, has wasted her house or has belittled her husband," may either be divorced without compensation or retained in the house as the slave of a new wife.
I would ask you to contrast this treatment with the free right of separation granted to the Egyptian wife, whose position, as also that of her children, in all circumstances was secure, and to remember that this difference in the moral code for the two sexes is always present, in greater or lesser force, against woman wherever the property considerations of father-right have usurped the natural law of mother-right. Conventional morality has doubtless from the first been on the side of the supremacy of the male. To me it seems that this alone must discredit any society formed on the patriarchal basis.
The Babylonian wife was permitted to claim a divorce under certain conditions, namely, "if she had been economical and had no vice," and if she could prove that "her husband had gone out and greatly belittled her." But the proof of this carried with it grave danger to herself, for if on investigation it turned out that "she has been uneconomical or a gad-about, that woman one shall throw into the water." Probably such penalty was not really carried out, but even if the expression be taken figuratively its significance in the degradation of woman is hardly less great. The position of the wife as subject to her husband is clearly marked by the manner in which infidelity is treated. The law provides that both partners may be put to death for an act of unfaithfulness, but while the king may pardon "his servant" (the man), the wife has to receive pardon from "her owner" (i.e. the husband). The lordship of the husband is seen also in his power to dispose of his wife as well as his children for debt.[248] The period for debt slavery was, however, confined to the years of Hammurabi.[249]
From this time onwards we find the position of the wife continuously improving, and in the later Neo-Babylonian periods she again acquired equal rights with her husband. The marriage law was improved in the woman's favour. Contracts of marriage by purchase became very rare. It appears from the later contracts that a wife could protect herself from divorce or the taking of another wife by special penalties imposed on the husband by the conditions of the deed, thus giving her a position of security similar to that of the Egyptian wife.