Any one of these senseless reasons, which have often the force of law with unenlightened races, can be set aside, and the repudiation counted null when it has been pronounced during a critical period of the woman.[774] The woman with child, on the contrary, can be repudiated, but she has a right to an “allowance during pregnancy.”[775] Actual custom also admits voluntary divorce, at the proposal of the wife, for a redemption paid by her to her master. Sometimes the initiative comes from the husband, who, knowing that his wife desires her liberty, says to her, “I repudiate thee, if thou givest me this pallium of Herat, or this horse, or this camel,” etc. It is then a sort of divorce by mutual consent, and the two part as good friends.[776]
Lastly, there is obligatory divorce, pronounced by the Cadi, on the plaint of the woman, when the husband is impotent, when in spite of these matrimonial conventions he tries to compel the woman to quit the house of her parents, or when he has corrected her with excessive brutality.[777] Then the divorced wife goes away, taking her dowry with her.
Taken altogether, these customs, while conforming to the spirit of the Koran, have in a certain measure improved the position of the married woman. This is because progress is the law of the social as well as the organic world; more or less slowly, more or less quickly, it ends by modifying in practice even theocratic legislations, which are the most rigid of all. But the old customs are still found almost intact in certain districts of Arabia which have remained more or less completely isolated. Thus in nearly all Arab countries there is one especial reason which justifies immediate repudiation of the marriage, and that is the absence of virginity, when it has been affirmed in the agreements preceding the union. But in Yemen this circumstance justifies far more than mere repudiation; it excuses the murder of the bride;[778] it is a practical return to the old law preserved in the Bible ordering the guilty woman to be stoned.
After the manner of all barbarous legislations, that of Mahomet has corrected, or at least tried to restrain, certain especially ferocious customs; but, on the other hand, it has given the force of law to some particularly crying abuses, and has thus rendered them more difficult of redress. This is generally the case. In all barbarous societies the subjection of woman is more or less severe; customs or coarse laws have regulated the savagery of the first anarchic ages; they have doubtless set up a barrier against primitive ferocity, they have interdicted certain absolutely terrible abuses of force, but they have only replaced these by a servitude which is still very heavy, is often iniquitous, and no longer permits to legally possessed women those escapes, or capriciously accorded liberties, which were tolerated in savage life. We shall have to prove this fact more than once in continuing our ethnographic study of divorce in barbarous societies.
In ancient Peru the liberal and reasonable custom of divorce by mutual consent was adopted.[779] At Quito, at least, where marriage was not civil and obligatory, the married pair had the power of separating by mutual accord.
In Mexico divorce was merely tolerated. Before being allowed to break the conjugal tie, the couple were obliged to submit their differences to a special tribunal, which, after a minute examination of the facts, and three hearings of the parties, sent them away without pronouncing judgment, if they persevered in their design.[780] The tribunal could, it seems, forbid the separation, but it did not expressly authorise it. Its silence, however, equalled a sentence of divorce.
This luxury of legality, this pretence of placing the conjugal union out of reach of the caprice or injustice of one of the parties, can only be met with in societies already advanced in organisation.
In lamaic Thibet, where marriage is a simple civil convention, with which the theocratic government of the country does not interfere, marriages are dissolved, as they are made, by mere mutual consent; but this consent is necessary, and there only results a separation analogous to ours, and taking from the separated couple the power to re-marry.[781] With the nomad Mongols we find, in spite of a relative civilisation, the absolute right of repudiation left to the husband alone, as it is in savage countries. The Mongol husband who is tired of his wife, whom, besides, he has purchased, can send her back to her parents without giving the least reason; he simply loses the oxen, sheep, and horses that he has paid for her. On their side, the parents make no difficulty of taking her back, for they have the right to sell her again. The Mongol wife can also spontaneously quit her husband; but this is not so simple a matter, because she represents a value. It is a capital that has fled; therefore the parents must send her back four times following to the husband-proprietor. If the latter persists in not receiving her, the marriage is dissolved, but in that case the parents must restore a part of the cattle previously paid by the marital purchaser.[782] In short, repudiation and divorce are considered in Mongolia entirely as commercial transactions, and always arranged for the advantage of the husband.
The Chinese have regulated this still quite primitive divorce, and while leaving to the husband the right of repudiation, they have carefully specified the conditions of it.
A Chinese husband can repudiate his wife for adultery, sterility, immodesty, disobedience to her father and mother or to him, loquacity or propensity to slander, inclination to theft, a jealous disposition, or an incurable malady. These motives, however, no longer suffice when the wife has worn mourning for her father-in-law or her mother-in-law; when the family has become rich in comparison with its former poverty; and lastly, when the wife has no longer a father or mother to receive her. If, heedless of these interdictions, the husband repudiates his wife all the same, he becomes liable to receive eighty strokes of bamboo, and must take her back.[783] To the husband alone belongs the right of repudiation, but the law admits divorce by mutual consent. On the other hand, it has taken good care to consecrate the servitude of the wife by ordering that if she flees from the conjugal abode when the husband refuses a divorce, she shall be punished by a hundred strokes of bamboo, and may be sold by her husband to any one willing to marry her.[784] Chinese legislation absolutely refuses the “right of insurrection” to the wife, which the Kabyle Kanouns, rigorous as they are to women, have granted. For divorce, as for everything else, China is at the stage of mitigated or humane barbarism. The foundation of her laws has remained savage, but a less ancient spirit has attempted to modify their severity. It has limited the right of repudiation, at first in the power of the master; it has specified the impediments; lastly, it has sanctioned divorce by mutual consent, which still terrifies our legislators.