[763] Dawson, Australian Aborigines, 33.
[764] For the impediments to matrimony, all of which are diriment, see Möllendorff, Das chin. Familienrecht, 9-20.
[765] Möllendorff, Das chin. Familienrecht, 32. In China a man is legally incapable of adultery. If the husband slay either the man or the woman taken in flagrante delicto, he must do so on the instant; "though it is also allowable for the husband to kill the adulterer outside the house, if it be in chase. But if the husband first ties up the adulterer, and then kills him, he will be guilty of a transportable offence.... If the husband kills the wife afterwards, he will be liable to three years' transportation and 100 blows."—Alabaster, Chinese Criminal Law, 187, 188. If the paramour kills the husband, the wife is strangled, whether she knew of the crime or not, provided the husband has not consented to the adultery. Grace is shown the woman only "when the murder was sudden and unpremeditated;" but then only in case that she "fly to the rescue, and give the alarm, and do her best to bring the murderer to justice by denouncing him to the authorities."—Alabaster, op. cit., 194. The price of the guilty wife sold as a concubine falls to the state: Möllendorff, 32.
[766] The agreement, however, must be in good faith. Should the wife plan the divorce so as to form a punishable relation with another man, it is void, and the husband may retain the woman or sell her to another as in the case of unfaithfulness: Kohler, "Aus dem chin. Civilrecht," ZVR., VI, 376.
[767] Möllendorff, op. cit., 32; Hellwald, op. cit., 380, 381; Alabaster, op. cit., 182 ff.; Grosse, Die Formen der Familie, 225 ff.; Katscher, Bilder aus dem chin. Leben, 90 ff., passim.
[768] If he puts away his wife without just cause, he is to receive eighty blows with the bamboo and take her back: Wake, Marriage and Kinship, 232; Kohler, loc. cit., 375; Westermarck, op. cit., 523; Letourneau, op. cit., 300, 301; Doolittle, Social Life of the Chinese, I, 106, 107.
According to Tscheng-ki-Tong, China und die Chinesen, 55, barrenness is the only serious ground of divorce in China, and even of this little use is made, particularly by the aristocracy; but this view is not sustained by other evidence, divorce being frequent among the lower classes: Hellwald, op. cit., 380, 381.
[769] Kohler, loc. cit. On the other hand, the interpretation of these rules may often be "too elastic" in favor of the man. In one of the old Chinese books, according to Westermarck, op. cit., 524, 525, "when a woman has any quality that is not good, it is but just and reasonable to turn her out of doors.... Among the ancients a wife was turned away if she allowed the house to be full of smoke, or if she frightened the dog with her disagreeable noise": citing Navarette, An Account of the Empire of China (London, 1704), 73.
[770] According to Alabaster, op. cit., 190, "it would seem that the husband can claim no marital rights, if he has been for five years in exile, without writing to his family, and his wife has in the meantime married again, although the law is not clear."
[771] Kohler, loc. cit., 375, 376. The woman has also the right of divorce when the husband is a leper or becomes such after marriage; when he is impotent; and either party may claim the right when deceived by a false allegation in the marriage contract: Möllendorff, op. cit., 32, 33; Alabaster, op. cit., 182.