This is quite in accord with the laisser aller habitual to the primitive Berbers in regard to marriage. In this respect, however, our Kabyles of Algeria contrast with the other ethnic groups of their race. Their conjugal customs are most rigid; neither liberty nor libertinage exist for the wife amongst them. Their customs in regard to repudiation and divorce are consequently very curious, and are worth studying in detail. In Kabyle, marriage is treated literally as a commercial affair of the most serious kind, especially for the women, who are owned as things by their husbands. The customs and the Kanouns, however, forbid the exchange of wives, and the husband whose wife has fled from the conjugal dwelling is forbidden to sell the fugitive except to a man of the tribe, and even then he is not allowed to have the price.[753] Still, the Kabyle husband has preserved the right of repudiation, and this right he alone enjoys, and without restriction.
There are in Kabyle two kinds of repudiation. In one, the husband simply says, “I repudiate thee;” and he repeats this formula three times. The wife remains dependent on him until he sells her by means of a price of redemption. If he accepts from the father or some other man this price (lefdi) he must, when the sum is once counted out, declare before witnesses that he gives up all rights over his wife. Then, and only then, the marriage is dissolved.[754] Under the other form of repudiation the husband says, “I repudiate thee, and I put such a sum on thy head.” The formula is pronounced once, twice, and thrice. In this case the husband is irrevocably bound, and by paying the sum fixed, the wife has the power to marry again; at the same time, the husband can specify the conditions, can say, for example, that if the woman is married to such or such a man, the price of redemption will be doubled or tripled. Sometimes the sum is so great that it amounts to an absolute interdiction of any fresh marriage, and the woman is then designated “a prevented one” (thamaouok’t).[755] When the formula of repudiation has only been pronounced once or twice, the husband can, by means of a fine paid to the djemâa, and with the consent of the father-in-law, take back his wife; but he loses his reputation, and his testimony is no longer legal. If the formula has been pronounced three times, it is irrevocable. As for the other revocation, public opinion does not admit that it may be revocable, unless it has only been declared once, and that the husband find a priest who will consecrate a fresh union.[756]
If, after repudiation, the Kabyle woman marries again, and becomes a widow, the first husband can retake her without repayment and without a fine.[757]
Without pronouncing the formula of repudiation, the Kabyle husband has the power to send his wife back to her family, with the consent of the said family. If the husband has serious reasons of displeasure he sends her to her parents without forewarning them, mounted on an ass, and conducted by a servant or a negro. This treatment is so ignominious for the wife that it is equal to repudiation, and public opinion then forbids the husband to take her back. Sometimes, in case of proved adultery, the husband sends the wife back to her family, after having shaved her head; the guilty one is then for ever dishonoured, and however beautiful she may be, she never finds another husband.[758]
In case of repudiation, for any motive whatever, the Kabyle husband has the right to keep all his children, girls and boys, even those at the breast.[759] As for the repudiated woman, she always returns to her parents, and it is to these last that a man must apply to marry her; but the new marriage cannot be concluded until after the payment to the first husband of the price of the redemption (lefdi), which is sometimes more, sometimes less, than the thâmanth, or price of the first acquisition. Generally, too, the parents profit by the opportunity to claim a supplement, or gratification. The father often agrees first with the husband, reimburses him for the thâmanth, and afterwards negotiates his daughter as he pleases. In a certain number of tribes the husband can directly sell his wife, but Kabyle morality reproves this practice,[760] and permits the wife in that case to retire to her father, where she remains “prevented” (thamaouok’t); however, if the father is powerful, he risks sometimes marrying his daughter, and the tribe at need stands by him.[761] In any case, the repudiated Kabyle woman can only marry after a delay (aidda), generally of four months,[762] which is conformable to the prescriptions of the Koran. If she flees the country, the parents must restore to the husband the thâmanth or lefdi, for this last can no longer gain them a new suitor.[763] The whole of this régime is very partial to the husband. However, as public opinion in Kabyle is sovereign, it has decreed a few protective measures for woman, recalling from afar the proverbial liberality of the Berbers in conjugal matters. Thus, though the woman is deprived of the right of divorce, she is allowed a “right of insurrection” if she has just complaints to make. In this case she begins by telling one of her relatives, who fetches her back to her father openly, the husband not being permitted to oppose; it remains to him either to repudiate the fugitive or to let her be a “prevented one.” It is understood that custom protects an “insurgent” wife only when she takes refuge with her relatives.[764] Some tribes have tariffed the thâmanth; and in case of repudiation the husband can only exact or receive the ordained sum. As for the tariff of the repudiated woman, it is nearly always more than the thâmanth, or price of the virgin and the widow. This is done counting on the avidity of the husband, to urge him to permit a fresh marriage.[765] Lastly, it is the rule that after four years’ absence on the part of the husband the union is dissolved and the woman is free.[766] This is a wise law which certain European codes might borrow with advantage from Kabyle legislation.
It is a veritable godsend for scientific sociology to be able to know in its minute details all this curious regulation of Kabyle marriage. Too often we are forced to content ourselves, in regard to savage or barbarous peoples, with general assertions that have to be completed as well as may be from accounts that are incoherent, sometimes contradictory, and always fragmentary. Here we possess a whole barbarous code, quite an assemblage of old Berber customs, which are more or less confounded with the precepts of the Koran.
The law of Mahomet itself is only a sort of compromise between the ancient customs of Arabia and the Biblical precepts relating to marriage. On certain sides the Arab customs are superior to the severity of the Kabyle kanouns, but on others they are inferior to them, as, for example, in not affording to the wife the right of “insurrection.”
It is necessary to distinguish between the text of the Koran and practice, which has notably departed from it—sometimes for the better, sometimes for the worse. The Koran leaves to the husband the absolute right of repudiation. It orders that if the formula of repudiation has been pronounced three times, the husband cannot take back the wife until she has been married to another; it permits him to do it, therefore, in the contrary case.[767] It specifies that the repudiated wife should have a sufficient maintenance provided for her, and that the husband should not keep the dower she brought with her;[768] that the husband should have four months’ grace to retract his decision;[769] that if the repudiated wife is suckling an infant, the husband, or, in his default, the next heir, should supply her needs during the two years that the suckling should last.[770]
The Koran orders repudiated wives not to re-marry before three menstrual periods, not to dissimulate their pregnancy, “if they believe in God and in the day of judgment;” and in the last case it advises the husbands to take them back.[771] Lastly, the law of Mahomet encourages amicable arrangements, and these by money payments between ill-assorted couples; it authorises the husband to sell a divorce to his wife for a cession, with her consent, of a portion of her dowry.[772] This is what the texts, which are both legal and sacred, declare: this, then, is the theory. We will now see what is the practice as regards repudiation and divorce in Algeria at the present time.
There are three graduated formulas of repudiation: first, the discontented husband says simply to the wife, “Go away,” and if he has only said it once or twice, he may retract his decision; second, but if he has said, “Thou art to me as one dead, or as the flesh of swine,” it is forbidden to take back the repudiated wife until she has been married to another, and then repudiated or left a widow; lastly, there is a formula so solemn that it entails a separation for ever; it is this, “Let thy back be turned on me henceforth, like the back of my mother.”[773]