Marriage and Divorce Laws of the World Part 52

A woman with a husband living is absolutely disqualified from contracting a new marriage.

Idiots and lunatics are disqualified for civil purposes only, although the Hindu law permits a wife to desert or disobey an insane husband.

Deaf and dumb persons, or those afflicted with incurable or loathsome diseases, are competent to marry, but cannot insist upon conjugal rights.

Among the three highest castes (the twice-born) impotency is not an impediment to marriage, but for those of the lowest caste (_Sudras_) it is a disqualification.

A twice-born husband who was impotent was for centuries permitted to appoint a kinsman to beget issue by his wife, but this is now forbidden.

The female must be younger than her husband and of the same caste.

A girl whose elder sister is unmarried, or a man whose elder brother is unmarried, is not eligible for marriage.

MARRIAGE CEREMONIES.--Ceremonies of some sort, religious or secular, are requisite to the concluding of a valid marriage. The ceremony may be that of "walking seven steps" or merely the exchange of a garland of flowers.

The question as to whether or not a marriage is ceremonially complete depends largely upon what ceremonies are customary among the parties concerned.

Consummation is not necessary to complete a marriage. In thousands of cases girls under ten years of age have been married to males older than themselves who have died before their wives were old enough for the consummation of marriage. Such a situation has brought about the sad plight of the tens of thousands of child widows in India. If a girl of eight years of age is ceremoniously married to a man and immediately thereafter returns to her father's home to await the time when she shall be old enough to a.s.sume conjugal duties, she is from the moment the ceremony of marriage is completed a married woman, and if her husband dies the next day she is an eight-year-old widow whom no orthodox Hindu will marry.

When the British first came to India it was a general practice for widows to voluntarily submit to be burned alive with the corpses of their deceased husbands. This savage practice was called a _suttee_, and by it millions of child and adult widows were burned to death. By a provision of the Indian Penal Code such a death is treated as a suicide, and all who partic.i.p.ate in the offence are holden for homicide. We are glad to record that the British Government has so thoroughly enforced the law in this respect that _suttees_ have been entirely abandoned by the Hindus.

CONSANGUINITY AND AFFINITY.--Baudhayana says: "He who inadvertently marries a girl sprung from the same original stock with himself must support her as a mother."

Marriage between ascendants and descendants is unlawful.

Marriage is also prohibited between a twice-born man and a woman who is of the same _gotra_, or primitive stock.

The woman must not be the daughter of one who is of the same _gotra_ with the bridegroom's father or maternal grandfather. Neither must she be a _sapinda_ of the bridegroom's father or maternal grandfather. _Sapinda_ in the Hindu law means descended from ancestors within the sixth degree. That is, from persons in the ascending line within the seventh degree from the intending husband. The _sapinda_ relationship ceases after the fifth and seventh degrees from the father and mother respectively.

A _Sudra_ has no _gotra_ of his own.

DIVORCE.--Divorce in the ordinary sense is unknown to the Hindu law. The Hindus contend that even death does not dissolve the bond of marriage.

The single case in which a dissolution of a Hindu marriage can be granted by a court of law is under Act XXI. of 1860, which was enacted to meet the complications which arise when one of the spouses becomes a Christian. If the convert, after deliberation for a prescribed time, refuses to cohabit further with the other spouse, the court may upon pet.i.tion declare the marriage to be dissolved, and either party is free to marry again.

There are some low castes in the Bombay Presidency, in a.s.sam and elsewhere, among whom the practice of irregular divorce and remarriage of the parties prevails. The causes for divorce are mutual consent of the parties and ill-treatment. These divorces, although permitted by custom, are not recognized by the courts.

RESt.i.tUTION OF CONJUGAL RIGHTS.--A Hindu husband or wife can maintain a lawsuit to obtain a judicial separation against a deserting spouse for rest.i.tution of conjugal rights, but a Hindu convert to Christianity cannot obtain such a decree if his wife remains a Hindu.

CHAPTER x.x.xIV

THE CHINESE EMPIRE.

A treatise on the marriage and divorce laws of the world would be incomplete without a chapter dealing with the law of the most compact nationality in history.

Chinese law is the growth of many centuries and is based on immemorial custom, but with all its antiquity and wealth of precedent, it has not yet pa.s.sed the system of exacting testimony from witnesses by physical torture.

The first evidence of civil law to be found in Chinese history or tradition is the recognition and regulation of the status of marriage. Its fundamental principle is parental authority.

Though in a sense systematic, the laws of China are not as yet in a concentrated or scientific form. Under the present dynasty the collection of laws which is applied by the courts is called _Ta Ch'ing Lii Li_.

Two things are to be said in favour of the laws of China--the first being that every Chinese is within the law, and that the person is considered of more importance than property.

MARRIAGE.--A Chinese is not permitted to have more than one wife. He may, however, in addition, keep concubines, or "secondary wives." Both wives and concubines have a legal status.

The wife is considered to be a relative of all her husband's family, but a concubine is not so considered. It is an offence for a man to degrade his wife to the level of a concubine, or to elevate a concubine to the level of his wife.

The consent of the parties, which is the first requisite of a valid marriage in Christendom, is legally of no consequence in China. It is the consent of the parents of the respective parties which is material and necessary.

The consent of the father of the woman is sufficient, and if he is dead then the mother may give the necessary consent.

The preliminary stages of a Chinese marriage are elaborately formal. It is the duty of the families of the intended bride and bridegroom to ascertain whether or not the parties have the capacity to conclude marriage. Certain introductions and exchange of social courtesies follow. If everything appears satisfactory the parties acting on behalf of the intended bride send a note of "eight characters" to the parties acting in behalf of the prospective bridegroom, which note is practically a proposal of marriage.

If the terms of the proposed marriage are agreed upon the next thing is for the representatives of the parties to draft and execute the articles of marriage.

The courts will hold it to be a marriage if the betrothal is regular, even if there is no consummation.

It is essential to a legal marriage that the written consent of the woman be obtained; it is not sufficient that the woman herself gives free consent.

Fraud makes the marriage a nullity. In his book, "Notes and Commentaries on Chinese Criminal Law," Mr. Ernest Alabaster tells of the case of "Mrs.

w.a.n.g." It appears that an old reprobate, knowing that the girl's parents would refuse him because of his ugliness of face and character, sent a handsome young nephew to represent him in the marriage negotiations. The impersonation brought about the signing of the contract, and the old man secured possession of the bride. Soon after the wedding he ill-treated his young wife and one night she strangled him. The court decided that the woman had committed an unjustifiable homicide and that the victim was not her husband.

IMPEDIMENTS.--Intermarriage is forbidden between ascendants and descendants and between kinsmen by consanguinity or affinity up to the fourth degree.

Marriage is also forbidden between persons having the same _Hsing_, or surname.

A free person cannot contract a valid marriage with a slave.

A mother and daughter must not marry father and son.

Marriage is absolutely forbidden to a Buddhist or Taoist priest.

An official must not marry a wife or buy a concubine within his jurisdiction.

It is unlawful for a person of official rank to take as his secondary wife or concubine an actress, singing woman or a prost.i.tute.

No one must marry a female fugitive from justice.

Marriage of a deceased brother's widow is against the law.

It should be remembered that it is a criminal offence to contract an invalid marriage. For example, not very long ago a prince of the Imperial family purchased a singing girl as his secondary wife or concubine. The marriage was declared null and he was sentenced to receive sixty blows for attempting to contract an illegal secondary marriage.

WIDOWS.--A widow or divorced woman can contract a new marriage, but she must first obtain consent of her parents and wait until the customary period of mourning is completed.

DIVORCE.--As an inst.i.tution divorce is almost as ancient in China as marriage. Marriage is not considered as in any respect a religious contract, but as a status created princ.i.p.ally for the comfort of man and the continuance of the race. As woman is considered an inferior creature to man she has not the same rights in or out of a court of law. However, she can obtain, against her husband's will, an absolute divorce on the following grounds:

1. Impotency. If her husband is unable to perform the s.e.xual act a wife can compel him to grant her a deed of divorcement.