The interplay of law and culture represents, at best, a tenuous relationship. The instability of this rapport gives rise to a series of questions. Does the law adhere to a society’s enduring culture? Or does society, perhaps, mold itself to the contours of law and/or culture? This paper will seek to address these questions and takes as a case study the laws of marriage and divorce within the Chinese, Hindu, and Islamic legal systems. Because these systems have grown out of societies with strong cultural histories and identities, they prove especially fruitful to the present discussion.
This paper will first present the Chinese, Hindu, and Islamic systems individually and will feature a brief background, a description of the systems’ legal sources, and a discussion of the laws on marriage and divorce. The final part of this paper seeks to examine the interplay of law and culture through specific topics within each legal system –divorce mediation in China , temporary marriages in Islamic law, and arranged marriages in Hindu law.
Part I: Chinese Law
Traditional China
Traditional China was a society predominated by Confucius thought.[1] Confucianism functions as a code of conduct that seeks to teach proper ethical standards that one must practice in life.[2] It teaches that an individual should be guided by li, virtue, rather than fa, the law.[3] Li is understood as a measure that would keep social order and prevent crime. Fa, on the other hand, was linked to punishment of criminal conduct that would lead to unethical behavior, only encouraging the evasion of the law.[4] Traditional Chinese society was organized around various forms of the collective – the family, clan, and village.[5] Confucian ideology, then, was transmitted within clans of families.[6] These clans, subsequently, played a pivotal role as family heads and village elders instructed members on Confucian morality.[7]
This ethical and moral system persisted for centuries; however, Confucianism’s dominance took a back seat when the People’s Republic of China was established in 1949 with Mao Zedong as its leader.[8] Mao’s socio-political Cultural Revolution sought to do away with the tradition patrilineal system and Confucius philosophy.[9] Despite its efforts, the People’s Republic never fully enacted a complete decline of tradition Confucian thought in society’s collective consciousness.[10]
Marriage Law of 1950
Under Mao’s control, the new laws sought to transform the family into the main component of the new socialist state.[11] One of the first acts of the new government was the Marriage Law of 1950.[12] The code provided general models and guidelines of acceptable behavior.[13] It immediately established its departure from the traditional marriage laws in the first two articles. It stated, “The feudal marriage system based on arbitrary and compulsory arrangements and the supremacy of man over woman, and in disregard of the interests of the children, is abolished…Bigamy, concubinage, child betrothal, interference in the re-marriage of widows and the exaction of money or gifts in connection with marriages, are prohibited.”[14] These articles demonstrate the new marriage laws’ tone of independence, free choice, and equal rights.
There was strong emphasis on the freedom of choosing a spouse. The law stated: “Marriage is based upon the complete willingness of the two parties. Neither party shall use compulsion.”[15] These marriage laws also abolished arranged marriages[16] by stating that “no third party is allowed to interfere.”[17] Each person was given the right to choose his or her own partner without the involvement of outside parties.[18] The marriage law even addressed the potential for criminal liability in some instances of interference. Article 26 stated: “In cases where interference with the freedom of marriage has caused death or injury to one or both parties, persons guilty of such interference will bear responsibility for the crime before the law.”[19]
The state relied on its agents at the local community level to implement the new law against third party involvement.[20] Ironically, many of these “agents” were family heads of village elders who traditionally had the role of arranging marriages.[21] While the People’s Republic was attempting to destroy the traditions of the clan system, it was still working within that system to affect its own goals. As a result, the law was often ignored as the individuals at the local levels found them repugnant.[22]
The Marriage Law of 1950 seemed to override the Chinese tradition of family arranged marriages. Outwardly, the government promoted marriages free from any interference. However, the government stepped into the traditional role of the family and imposed its own guidelines on finding a spouse.[23] It accomplished this task with pamphlets, magazines, and newspapers, emphasizing that selection of spouses be based on political involvement, education level, professional training, stratus within the government party, and class background – all categories of importance to the socialist government.[24] Thus, paradoxically, the government forbade family interference but implemented its own rigid guidelines.
Along with the prohibition of personal and family interference, the marriage law implemented several other requirements for a proper marriage. The bride had to be a minimum of eighteen years of age and the groom was required to be at least twenty.[25] The couple was also required to register the marriage at a local government office.[26] While marriage payments were strictly prohibited by the new laws, dowries were still known to exist.[27]
The marriage laws established nominally equality between women and men on several different fronts. Both spouses were given the “free choice of occupation in work or in social activities.”[28] Both individuals were given the duty to “love, respect, assist and look after each other, to live in harmony, to engage in productive work, to care for their children and to strive jointly for the welfare of the family and for the building-up of the new society.”[29] Each spouse could use his or her own surname.[30] Family property belonged to each spouse equally[31] and each spouse had the right to inherit the other’s property.[32]
One remarkable aspect of the law was the freedoms of divorce it provided. A marriage could be terminated at the local government office without delay “after establishing that divorce is desired by both parties and that appropriate measures have been taken for the care of children and property.”[33] If only one spouse sought divorce, however, mediation was required.[34] Mediation was often used to restrict a woman’s right to a divorce. [35] Couples were strongly discouraged to divorce and were often forced into unhappy reconciliation.[36] It seemed that the government was only interested in presenting the appearance of a strong and unwavering socialist family system, at the expense of disregarding its own law.
The marriage law gave the couples the freedom to choose who would have custody of the child.[37] If a resolution could not be achieved by the parents, the people’s court would render a decision based on the child’s best interests.[38] The law also required the ex-husband to support his ex-wife financially until she remarried. [39] The force of these laws created during the time of Mao would not last long after his death. With the subsequent collapse of his philosophies, there was a move towards new policies and a new Marriage Law.
Post-Mao: Marriage Law of 1980
The post-Maoist era introduced new ideas of social stability, preventing arbitrary political action, and greater free market forces in the economy.[40] One means of instilling these social reforms was with the Marriage Law of 1980.[41] While much of the new laws was adapted from the Marriage Law of 1950, there were also quite a few changes.
Article 2 of the marriage law states: “family planning is practiced.”[42] As an addition to the previous laws, China ’s focus on family planning is immediately apparent. This requirement is very much in line with China ’s goals on population control, including the one child per family limit.[43] The new law also raises the age of marriage by two years for both males and females, stating that “late marriage and late childbirth should be encouraged.”[44] Again, this is an act that has the consequence of reducing the birth rate.[45] Another specific law that carries out the goal of smaller families is the law that states: “After a marriage has been registered, the woman may become a member of the man’s family, or the man may become a member of the woman’s family, according to the agreed wishes of the two parties.”[46] This law would have the effect of reducing a couple’s desire to have another child, if their first one is a girl.[47] The parents would have solace in knowing that the laws allow for the husband to join the family, thus guaranteeing the well-being of the parents in their old age.
The new marriage laws were slightly altered from the previous laws. Some of these amendments clearly fall in favor of the husband. The 1950 provision stated that men were not to attempt to divorce their wives while she is pregnant or during the first year of their child’s life. The 1980 law, however, added that the people’s court could disregard this requirement when it “deems it absolutely necessary to agree to deal with a divorce application by the husband.”[48] Another alteration in the husband’s favor is the law that “if the spouse of a member of the armed forces on active duty insists on divorce, consent must be obtained from the member concerned.”[49] In a country where most of the armed forces members are men, this law will undoubtedly affect many more women than men.[50]
The laws did work in favor of the wife in some instances. The 1980 divorce provision included a new ground for divorce not in the 1950 version: “breakdown of mutual affection.”[51] This addition could have the result of making divorce much easier for women. Under the 1950 rule, the father was entitled to reduce his child support upon the mother’s remarriage. This law did not reappear in the 1980 version.[52] The husband, however, is no longer able to use the property settlement to offset child custody payments.[53] The law also states “in case of divorce, if one party has maintenance difficulties, the other party should render appropriate financial assistance.”[54] Women mostly take advantage of this law, as their earnings are historically lower than men.[55] The new laws also moved towards more equality between men and women. One example was that the former husband no longer had the sole responsibly of repaying the joint debt of the marriage.[56]
The evolution of the Chinese marriage laws was just one response to the changing social and cultural environment. While the Chinese legal system was able to mold to fit the demands of its society, other legal systems, such as the Islamic system, are not so flexible.
Part II: Islamic Law
The Prophet Mohammed received his first visit from the Angel Gabriel in the year 610.[57] Over the next 23 years, a long series of revelations would later come together to create the Quran. As the ultimate source of Islamic law, the Quran provides rules and principles on all aspects of life, including marriage and divorce.
Sources of Islamic Law
Islamic sources include: (1) the Quran, (2) Sunnah, (3) Ijma, (4) Quiyas, and (5) Ijtihad. The Quran is the ultimate source of law in Islam.[58] The actions and words of the Prophet are also an important source of law, called the Sunnah. The Sunnah, meaning the “beaten path,” includes the reports of the Prophet, the Hadith, which is a collection of specific sayings about the Prophet. Together, the Quran and Sunnah constitute the Shariah. The Shariah is the “right path or guide” and includes Islamic law, morals, and faith. After the two holy sources of Islam come the “man-made” sources. The ijma is the legal consensus of Islamic scholars. Bound by precedent, legal scholars create binding law that is not considered divine. Qiyas is analytical reasoning primarily done through analogizing. Finally, ijtihad is personal reasoning that is strictly forbidden in some schools of Islam. This extensive hierarchy of Islamic sources was nowhere in existence during the tribal, nomadic years of the Arabian Peninsula .
Pre-Islamic Women’s Status
The advent of Islam represented a great improvement in the status and lives of women beginning in the 600s AD.[59] During the period of Jahiliyah, or darkness, women endured a difficult lifestyle. Daughters were seen as a burden on the family because intense tribal warfare demanded males for battles.[60] Many girls would not make it past their first few months of life as female infanticide was prominent practice.[61] The Quran states: “When the seas are set on fire; and when souls are united; and when the female infant buried alive is asked, for what sin she was killed; …when the heaven has its covering removed, and when the hell is kindled up, and when the garden is brought nigh, every soul shall then know what it has prepared.”[62] The Quran not only acknowledges the existence of these acts during the Jahiliyah period, but Allah clearly expresses his dissatisfaction with such acts. The reference to heaven (the garden) and hell, likely refer to the Day of Judgment when all wrongful deeds are then recognized.
Issues of marriage and divorce were another arena over which men had absolute power. There little to no marriage institution prior to Islam.[63] Men could marry as many women as they wished[64] and the husband could easily divorce his wife for any reason.[65] Women were also considered possessions, passed on to their husband’s sons or brothers upon his death.[66] While many traditions of marriage and divorce continued to influence the culture of the Islamic institution of marriage, relative to the Jahiliyah period, women retained a tremendous amount of rights under Islam.
Marriage
In Islamic law, marriage is a contract for the purpose of procreation.[67] In general marriage is not obligatory but it is highly encouraged.[68] The Quran states that if a man cannot afford to get married, he can marry the maiden that he owns.[69] If he is still unable to marry the Quran states that he should “keep chaste until Allah makes them free from want out of His grace.”[70] Thus, for a man that is unable to find a wife, his last resort is to place faith in God that he will soon obtain a wife. Even in the direst circumstances, a Muslim man should never give up on getting married.
Under certain circumstances, marriage becomes obligatory. The laws slightly differ within each school of Islamic teaching: the Maliki, Hanafi, and Shafii schools. In the Maliki school, a man must get married even if he does not have the means if: (1) “he fears that by not marrying he will commit fornication”, or if (2) “he is unable to fast to control his passions or his fasting does not help him to refrain from [fornication].”[71] The Hanafi school follows the Maliki school, but the man is only obligated if he can pay a dowry and is capable of earning a living.[72] The Hanafi school goes farther by forbidding marriage for a man that wouldn’t have the means to take care of his wife and children or if he has a serious illness that would affect his wife to their detriment.[73]
Once a potential spouse is found, the couple must be on equal footing regarding certain conditions. The Maliki school of Islam
The Marriage Contract
The law recognizes several forms of the marriage contract. The most prevalent form of marriage is called the nikah, which involved three parts: (1) offer, (2) acceptance, and (3) the mahr, or dower.[77] The mahr belongs solely to the bride. Neither her family nor her husband gets a part of it.
One form of marriage directly outlawed by the Quran was the form that allowed a man to inherit his father’s wife.[78] The Quran states: “O ye who believe! Ye are forbidden to inherit women against their will. Nor should ye treat them with harshness, that ye may Take away part of the dower ye have given them,-except where they have been guilty of open lewdness; on the contrary live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike a thing, and Allah brings about through it a great deal of good.”[79] Not only can a son no longer inherit his step-mother, but the widow’s dowry is also protected by this section of the Quran.
Temporary Marriage
There is also a form of marriage that is temporary and only recognized by the Shi’a branch/sect of Islam. Temporary marriages, or muta, were allowed in the Jahiliyah period.[80] These marriages were initially allowed by the Prophet Mohammed, however, the second Caliph Umar outlawed it in the seventh century AD.[81] As such, Sunnis believe that marriage can only be permanent and for the purpose of the upbringing of children.[82] The Shi’as, however, viewed Umar’s decision as unbinding.[83] Shi’as, particularly the Twelver Shi’as, don’t believe that it is prohibited. Shi’as believe that the authority for a muta marriage is in the Quran and cite this section:
[A]ll married women except those whom your right hands possess (this is) Allah's ordinance to you, and lawful for you are (all women) besides those, provided that you seek (them) with your property, taking (them) in marriage not committing fornication. Then as to those whom you profit by, give them their dowries as appointed; and there is no blame on you about what you mutually agree after what is appointed; surely Allah is Knowing, Wise.[84]
The verse explains that a man may “profit by,” or have sexual relations with, a woman as long as he pays a dowry.
The muta contract has two requirements: (1) a set length of time and (2) a specified dowry.[85] A muta marriage contract can be anywhere between 1 hour and ninety-nine years.[86] The contract is void without a dower, however, the marriage may be a permanent one if the length of time is not specified.[87] There can be no divorce in temporary marriages; however, the husband may end the marriage contract by paying the entire dowry.[88] Additionally, all children born to a muta marriage are legitimate and permitted to inherit from both parents.
Men may temporarily marry as many women along while being married to as many as four permanent wives.[89] Women, however, may only have one temporary marriage at a time and must wait for two menstrual cycles before her next temporary marriage, in order to identify the father should she get pregnant.[90]
While Sunnis don’t believe in the muta marriage, some within the Hanafi School
Polygamy
While temporary marriages are only allowed by Shi’as, polygamy is accepted by all Sunnis and Shi’as.[92] Its authority comes from the Quranic passage: “if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four; but if you fear that you will not do justice (between them), then (marry) only one or what your right hands possess; this is more proper, that you may not deviate from the right course.”[93] However, this verse is usually read in conjunction with another: “ye are never able to be fair and just as between women, even if it is your ardent desire: But turn not away (from a woman) altogether, so as to leave her (as it were) hanging (in the air). If ye come to a friendly understanding, and practice self-restraint, Allah is Oft-forgiving, Most Merciful.”[94]
Many take the position that because the Quran says that a man can never treat two wives equally, then he should only be permitted one wife. Others argue that the equality the Quran demands among the multiple wives is a “humanly attainable” and thus the second verse is not meant to nullify the verse allowing polygamy.[95] Polygamy is also supported by tradition. The Prophet himself had many wives. It is said that the Prophet informed the new converts to Islam that they could only keep as many as four wives and would have to divorce the others.[96] The legal consensus, or ijma, has also approved polygamy.[97]
Divorce
The Islamic institution of marriage does not forbid divorce. For couples contemplating divorce, the Quran allows for a period of separation. The separation, called the ila, allows the husband to leave his wife for up to four months.[98] After the time period expires, the couple reunites or they divorce.[99] Along with the separation period, the Quran also promotes arbitration.[100] The Quran states: “And if you fear a breach between the two, then appoint judge from his people and a judge from her people; if they both desire agreement, Allah will effect harmony between them, surely Allah is Knowing, Aware.”[101] This passage puts the burden on the community to reconcile the marriage or, at the very least, to find someone that may be able to do so. It also requires that both the wife and husband be appointed an arbiter, protecting the interests of both individuals.[102]
Types of Divorce
When separation or arbitration does not help a marriage, a Muslim couple will seek a divorce. An Islamic marriage may be dissolved in several ways: (1) by death of one of the spouses,[103] (2) by the act of the husband or wife, (3) by mutual agreement, or (4) by judicial order.[104] The most common form of divorce is the repudiation by the husband, called the talaq.
(1) Divorce by the Act of the Husband
There are three types of talaq: (a) talaq al-Ahsan, (b) talaq al-Hasan, and (c) talaq al-Bid’ah. Talaq is only available to the husband.[105] In the most approved form of divorce, talaq al-Ahsan, the husband declares that he has divorced her once and must not have sexual relations with her thereafter.[106] This divorce can be revoked with sexual relations only after the wife has given her consent.[107] Talaq al-Hasan is when the husband repudiates his wife three times over three consecutive months. After the third month, the couple may not be remarried until the woman marries another first.[108] The least approved form of divorce is the talaq al-Bid’ah. This form requires that the husband declare “I divorce you” three times. This divorce is irrevocable and the couple could only re-marry after the woman marries and divorces another man.[109] This form of divorce is largely approved by the Hanafi School Hanafi School
(2) Divorce by the Act of the Wife/Divorce by Judicial Order
Because the talaq is unavailable to women, they must obtain divorce by judicial order. The Hanafi School Ithna Ashari School Hanbali School Shafi School Maliki School
(3) Divorce by Mutual Agreement
Dissolution of marriage by the mutual desire of both spouses, called khula, is recognized in the Quran.[114] It states: “it is not lawful for you to take any part of what you have given them, unless both fear that they cannot keep within the limits of Allah; then if you fear that they cannot keep within the limits of Allah, there is no blame on them for what she gives up to become free thereby.”[115] This passage recognizes a mutual willingness to divorce when “both fear that they cannot keep within the limits of Allah” and can longer perform their duties to each other as husband and wife. If the wife “gives up” some payment, the couple’s marriage is terminated.[116]
Prohibited Forms of Divorce
One form of divorce that the Quran strictly prohibits is a practice from the Jahiliyah period known as zihar.[117] This involved the husband telling his wife that she was like one of his mother’s body parts.[118] In effect, the husband was casting his wife as his mother and therefore divorcing her. The Quran admonishes the husband that divorces his wife in this manner: “(As for) those of you who put away their wives by likening their backs to the backs of their mothers, they are not their mothers; their mothers are no others than those who gave them birth; and most surely they utter a hateful word and a falsehood and most surely Allah is Pardoning, Forgiving.”[119] The Quran requires that the husband free a captive or fast for two months before being able to touch his wife again.[120]
Divorce Waiting Period
After a divorce has been completed, the ex-wife must observe a waiting period called the iddat. During this period, the woman must abstain from sex and not get remarried. The Quran states: “the divorced women should keep themselves in waiting for three courses; and it is not lawful for them that they should conceal what Allah has created in their wombs, if they believe in Allah and the last day.”[121] Thus, the purpose of the iddat is to ensure knowledge the child’s paternity should the woman give birth. The verse continues: “their husbands have a better right to take them back in the meanwhile if they wish for reconciliation.” This represents another reason for the iddat – to allow for the couple to reunite if the type of divorce allows it. For widows, this time is also used for mourning.[122]
Dowry upon Divorce
Upon divorce, the woman is entitled to her dowry. The Quran states: “But if ye decide to take one wife in place of another, even if ye had given the latter a whole treasure for dower, Take not the least bit of it back: Would ye take it by slander and manifest wrong?”[123] This passage reaffirms the notion that the dowry belongs to the wife and only the wife, during and after the marriage. Islamic law’s specific rules regarding all aspects of marriage, including the dowry, share the same level of particularity as another legal system, the Hindu system.
Part III: Hindu Law
When British colonization of India began in the 1600s, Hindu law had already been in existence for over 2,000 years.[124] Since then, Hindu law has played a significant role in the region, as a legal system devoted to a proper Hindu existence.
Sources of Hindu Law
An understanding of Hindu law begins with the concept of dharma, which refers to one’s religious, legal, ethical, and social duties.[125] Within Hindu law, the highest source of dharma is the śruti, which literally translates as “what is heard.”[126] The most important śruti literatures are the Vedas,[127] which are of divine origin and serve as the revelatory sources of Hindu law.[128] The Vedas are the oldest sacred texts of Hindu law; however, their importance lies not in the authorship or messenger, but in the message itself.[129] The Vedas consist of four books: Rig-Veda, Yajur-Veda, Sama-Veda, and Atharva-Veda.[130] The Vedas are written poetically as a collection of songs and hymns.[131] However, the Vedas do not represent positive law but are rather considered the “the spirit of the law in Hinduism,” giving guidance on the Hindu way of life.[132]
The next class of religious texts is the smriti, which literally means “what is remembered.”[133] The smriti began with sutras—ideas and rules derived from the Vedas formed in “maxim-like strings.”[134] The smriti was then further developed by Hindu legal texts called dharmasastras.[135] These law books are written in a more poetic fashion, like the Vedas, mixing a musical style with prose.[136] These sastras, or law books, have supreme authority in Hindu law.[137] Because the sastras are a direct product of the śruti, they are considered sacred, though not as sacred as the śruti.[138]
The most famous text of the smriti is the Law Code of Manu.[139] Manu creation of this much-anticipated legal treatise around 100 BC was considered a momentous event for Hindu law.[140] There is not much known about the author of this code, not even his true name.[141] Manu was actually the name of an ancient lawgiver derived from a Hindu text, which stated “whatever Manu has said is medicine.”[142] Thus, the name Manu was attributed to this landmark code. The Manu Code is divided into twelve chapters.[143] Subjects include origins of the world, sources of law, marriage, the justice system, and penances.[144] Of all the smriti texts, Manu is often considered the ultimate authority – Manu’s code prevails in all instances of inconsistencies.[145]
The commentaries and digests are the final class of Hindu law texts.[146] These academic writings analyzed and interpreted the smriti texts and were written from 700 to 1700 AD.[147] Commentaries, called bhasya, are “linguistic exegesis, hypothetical examples, and theoretical disquisitions on a single Dharmasastra text.”[148] The digests, or nibandha, are much like the commentaries but instead of analyzing a single dharmasastras text, they would explore a single topic from a series of smriti texts.[149]
The śruti, smriti, commentaries and digests come together to form the corpus of Hindu law which serves as a guide to fulfilling one’s dharma. One of the main ways in which a Hindu may fulfill his dharma is through marriage.
Marriage
In Hindu law, marriage is a sacrament and not a contract.[150] Ideally, marriage is for the purpose of performing religious duties.[151] An unmarried man cannot take part in a series of religious ceremonies.[152] Marriage itself is one of the ten purificatory ceremonies, or Samskaras, required for purification of the body according to Hindu law.[153]
The institution of marriage is a concept recognized even by the oldest texts of Hindu law – the Vedas.[154] The Rig Veda states: “Over thy husband’s father and thy husband’s mother, over the sisters of thy lord and over his brothers, rule supreme”[155] This statement tells us a great deal about the structure of the Hindu family. The woman joins husband’s household but becomes the head of that household. While the wife may enjoy that status in the home, her status in the greater society is of lower value. The Manu code says:
Day and night men should keep their women from acting independently; for, attached as they are to sensual pleasures, men should keep them under their control. Her father guards her in her childhood, her husband guards her in her youth, and her sons guard her in her old age; a woman is not qualified to act independently.[156]
The woman’s entire life is spent being controlled by men; she is passed from her father to her husband and ultimately to her son. Manu code states that a “father is reprehensible, if he does not give her away at the proper time.”[157] The father’s primary duty during his lifetime is to give his daughter her away in marriage.
In Hindu law, marriage functions as a religious duty for men. First, a man must marry. Then, as a father, he must mediate marriage for his daughter. This may be a way of contributing to a great community cause; that is, it allows the man to contribute to the religious community by enabling another man to fulfill his religious duty. While it may be tempting, and perhaps appropriate to read this system in feminist terms, the woman does enjoy some supreme status in the household. The supreme status that the new wife enjoys is just one reason that selection of the proper wife is imperative.
Bride Selection
The Manu Code speaks at length about selection of the proper bride. Unlike most Islamic schools, Hindu law requires that the bride belong to a different lineage from the husband. [158] Manu goes further by saying the husband “should avoid these ten families when contracting a marriage alliance…:families negligent about rites, deficient in male issue, without Vedic learning, and with hairy bodies, as well as families prone to haemorrhoids, tuberculosis, dyspepsia, epilepsy, leukoderma, or leprosy.”[159] Manu’s advice serves to protect religious faith by encouraging marriage with women raised in families that properly practice Hindu law. Additionally, it seems that Manu seeks to prevent medical ailments. While some of these conditions are not hereditary or unsafe by modern standards, Manu nonetheless seeks to prevent their spread as they were likely considered undesirable by ancient standards. Not only does Hindu law provide a list of valuable and undesirable characteristics of a bride, it also provides rules regarding which castes may marry.
Caste and Marriage
According to the Rig Veda, there are four categories of humans.[160] The sacred book described the death of Purusa, the original cosmic life form, and the transformation of his body parts into different people – the Brahmin came from his mouth, the Rajanya from his arms, the Vaisya from his thighs, and the Śūdra from his feet.[161] These varieties are called varnas, meaning category or color.[162] According to Manu, the caste system is predominant in the selection of a wife. Men were to marry women from the same varna,[163] however, under certain conditions, men could marry women from a lower varna.[164] The Manu Code goes on to describe the grave consequences of a Brahmin, the highest caste, marrying a woman from the lowest caste, the Śūdra. The Manu code states:
When twice-born men foolishly marry low-caste women, they quickly reduce even their families and children to the rank of Śūdras…[A] man falls from his caste by marrying a Śūdra woman...by fathering a son through her and…by producing all his offspring through her….When such a woman plays a leading role in his divine, ancestral, and hospitality rite, gods and ancestors do not partake of them, and he will not go to heaven.[165]
According to Manu, the consequences of a Brahim marrying a Sudra woman are carried out both in this world and the next. Once a proper wife has been found, however, there are several options regarding the form of marriage.
Marriage Forms
The Vedic texts describe marriage as a union of two fully developed people.[166] There are eight forms of marriage in Hindu Law – four are approved and four are unapproved methods.[167] The four approved forms are Brahma, Daiva, Arsha, and Prajaptya, while the four unrecognized forms of marriage were Gandharva, Asura, Rakshasa, and Paischach. The different forms of marriage determined the succession of her estate upon her death.[168] Over the years, all but Brahma and Asura became obsolete.[169] A Brahma marriage is one where the girl is presented as a gift to her husband[170] and the Asura was considered a sale of the girl to her husband.[171]
In addition to several types of marriages, there are also several types of marriage ceremonies.[172] One example is the “kanyadan” ceremony, which requires the giving away of the bride by her father or guardian.[173] The girl’s acceptance of the marriage is seen as her sacrifice to God in order to procreate.[174] The “panigrahna” ceremony is carried out by the groom taking his bride’s hand. In the “saptapadi” ceremony, described in the Rig Veda, the bride and groom take seven steps around a fire finalizing the marriage on the seventh step.[175] The outcome of all these ceremonies is the same: the man and woman are married. All of these marriage forms and ceremonies are subject to the same laws on dowries.
Dowry
Hindu law strictly prohibits the purchase of a bride. The laws of Manu explain that the acceptance of money or goods for a daughter’s hand in marriage is a greedy act: “A learned father must never accept even the slightest bride-price for his daughter; for by greedily accepting a bride-price for his daughter, a man becomes a trafficker in his offspring.”[176] Much like the Islamic tradition, Manu recognizes the act of giving a dowry to the bride herself. He states, “some say, the bull and cow constitute the bride-price. That is totally false….When women’s relatives do not take the bride-price for themselves, it does not constitute a sale. It is an act of respect to women, a simple token of benevolence.”[177] Thus, a new bride may have wealth of her own. In recognition of this fact, Manu protects this wealth by stating that it is dishonorable for a man to live of the money of a female relative.[178] In the Hindu tradition, the husband has is given a dowry at the time of marriage. The dowry, given from the wife’s family to the husband, serves as a symbolic gift uniting the families. Often, however, even after the unification of families, many married couples desire a divorce.
Divorce
Manu’s Code lists specific times and reasons under which divorce is permitted. For example, a barren wife may be divorced in the eighth year of matrimony.[179] A woman who has not been able to produce living children may be divorced in the tenth year of marriage, while a wife that has only given birth to females may be divorced in the eleventh year of marriage.[180] A “foul-mouthed” wife, however, may be divorced at once.[181] While the proper definition of “foul-mouthed” is unclear, it is likely referring to a rebellious and unruly wife.
According to Manu, women do not have the same ability to dissolve a marriage. Manu states: “If a wife loathes a husband who has become insane, fallen from caste, or impotent, who is without semen, or who has contracted an evil disease, she must neither be abandoned nor deprived of her inheritance.”[182] On its face, this passage seems to protect women by prohibiting abandonment and dispossession of her inheritance. By prohibiting abandonment, however, this verse could be interpreted as prohibiting a woman from getting a divorce because it would be considered abandonment on the part of the husband.
More specifically, Manu’s code provides guidelines on when a woman may terminate the marriage after the husband’s absence. The text states, “A wife should wait for eight years when her husband has gone away for a purpose specified by Law, for six years when he has gone for learning or fame, and for three years when he has gone for pleasure.”[183] The wife must wait the longest period when the husband leaves for spiritual or religious purposes.[184] While the wife may be divorced at once for a sharp tongue, the wife must wait three years for a husband that leaves her for a romantic trip. These required waiting periods imply that if the husband returns within the prescribed time, the marriage must remain intact. It must be noted that though Manu does permit divorce under some circumstances, he strongly advises against it and warns that women must be loyal to their husband during his life and even after his death.[185]
Other smriti texts have a slightly different take on divorce. For example, the Gautama-Smriti gives a wife the right to divorce if:
[her] husband suddenly disappears and all traces about his whereabouts are lost, if [her] husband should die early and prematurely, if he runs away from home to become an ascetic, if he should prove to be impotent, and if he should fall in social and public estimation on account of vicious conduct like drinking, stealing, consorting with prostitutes, etc.[186]
Other prominent Hindu law figures have differing opinions in their smritis. The Hindu sage Narada had his own list of circumstances in which a woman could seek a divorce. Only when the “husband be missing, or dead or retired from the world, or impotent, or degraded” may a wife get a divorce. Despite all the variations in the law, the Hindu system seeks to encourage marriage as an ultimate form of religious duty and only allows for divorce under very specific circumstances.
Part IV: Comparative Study: Interplay of Culture and Law
The law is oftentimes a reflection a country’s or people’s culture. Other times, the law is an imposition of the ruling power, in opposition to the culture of the time. Juxtaposing the Chinese, Hindu, and Islamic legal systems in the preceding way brings to focus many examples of the strained relationship between legal system and culture being both at odds and in conformity.
Dispute Resolution in China
In China, marriage law was slightly revised and developed in recent history. One aspect of the new marriage law that did not change was the emphasis on dispute resolution. This traditional Confucius belief seems to have been ingrained in Chinese thinking for centuries and, as a result, prevalent in Chinese family law. According to a Chinese saying, “to enter a court of justice is to enter a tiger’s mouth.”[187] This maxim is indicative of the Chinese’s cultural aversion to an adversarial legal process. Historically, most civil disputes have been resolved outside the state’s judicial system.[188] Family disputes, in particular marital problems, were settled by elders or clan leaders. In modern China, this cultural attitude towards marital problems has remained much the same. The state has implemented an official system of dispute resolution for marital problems in conformity with the tradition of mediation.
The Chinese government’s family dispute resolution law is an example of culture and law converging to create a consistent framework for family law. With the post-Maoist era, the government emphasized the primacy of mediation in resolving civil disputes.[189] Within a few years, there were over 5.5 million mediators working in China.[190] Training for new mediators continued to increase.[191] By 1993, there were over 10 million mediators, working in more than one million mediation committee.[192] As the number of mediators continued to grow, the people continue to take advantage of the state-instituted mediation system.[193] Over a span of seven years, mediation committees handled over 5.26 million cases, while the courts only received one-fifth of that in cases.[194]
The mediation system’s popularity should not come as a surprise. The traditional emphasis on social order and stability makes litigation a widely avoided alternative to mediation. One Chinese author wrote: “traditional consciousness cannot be thoroughly changed within a short period of time, unless there is really no other alternative, [Chinese people] simply are not willing to litigate in the courts. People’s mediation is just right for satisfying the hopes of the masses for solving disputes without litigation.” Just as litigation is not accepted by the Chinese culture, neither are temporary sexual marriages in Islamic societies.
Temporary Marriages in Islam
In the Islamic legal system, Shi’as recognize temporary marriages as valid legally. As a mostly Shi’a country, Iran has a long history with the institution of temporary marriage, colloquially known as sigheh. While sighehs are permitted within Shi’a jurisprudence, Iranians do not usually take part in it.[195] Even before the Islamic revolution of 1978-79 temporary marriages were uncommon and only took place around “the great sanctuaries and places of pilgrimage.”[196] The institution is considered morally reprehensible by many and even called “legalized prostitution.”[197]
One writer, Shahla Haeri, discusses sighehs in the context of sexual and non-sexual marriages. Sexual sighehs are popular in pilgrimage area, predominately Qom and Mashad, the two most popular domestic pilgrimage sites.[198] One group that is particularly fond of sighehs is religiously pious individuals, primarily the mullahs.[199] As is often the case, the social stigma of entering a contract for temporary marriage attaches to the woman, but not so much the man.
While the sexual sighehs have legal backing, Haeri discusses non-sexual sigheh as a product of popular imagination.[200] Haeri calls non-sexual sighehs “an ingenious Iranian/Shi’i response to the problems created by the formal rules of segregation of the sexes on the one hand, and moral and pragmatic demands of everyday life on the other.”[201] These sighehs are used to make unlawful or namahram relationships into mahram, or lawful, ones. This version of the sigheh does not carry with it the social stigma of the sexual version. The legal fiction of the non-sexual sigheh is considered wholly distinct from the sexual sigheh, however, it seems that the religious ceremony required for both are identical.[202]
One context in which the issue of mahram/namahram comes up in Iran is in context of travel. Haeri discusses the example of an Iranian woman who needed to transport her husband’s body to Karbala, Iraq for burial. She sought the help of her late husband’s friend. They entered into a non-sexual sigheh so that they could travel together without any problems from Iranian officials. The sigheh also allowed for the woman’s daughter to come along, as the daughter was now also mahram to her mother’s temporary husband. The sighehs are used for convenience and to evade the traditional roles of mahram and namahram.
The nonsexual sigheh is an example of the culture determining the legal contours of the religion. Culturally, the act of sexual sigheh is frowned upon and remains unused by most Iranians. Instead, Iranians have cleverly used the institution to their benefits in an area that it was not meant for in the first place. While temporary marriages are legally permitted within the Islamic system, arranged marriages are legally required in Hindu law.
Arranged Marriages in Hindu Law and Society
Arranged marriages are a common characteristic of Hindu society and family life. Hindu texts impose the duty of finding a suitable mate on the father. Manu states, “A father is reprehensible, if he does not give her away at the proper time.”[203] Part of the father’s dharma is to marry off his daughter.[204] A conscientious fulfillment of dharma would bring prosperity, offspring, and a long life, while an unfulfilled dharma would bring disorder and turmoil.[205] Should a father not complete his obligation, Hindu texts allow a daughter to find her own husband. The Law Code of Manu states:
For three years shall a girl wait after the onset of her puberty; after that time, she may find for herself a husband of equal status. If a woman who has not been given in marriage finds a husband on her own, she does not incur any sin, and neither does the man she finds. A girl who chooses a husband on her own must not take with her any ornament coming from her father or mother or given by her brothers; if she takes, it is theft.[206]
This text confirms the father’s duty to seek out a proper mate for his daughter and it also imposes a time limit for which he must fulfill his duty. Once three years has passed from the time his daughter has reached puberty, a daughter may step in and take control of her own destiny, leaving her father’s obligations officially unmet.
This sacred duty of giving daughters away in marriage, in the modern day, is better recognized as the custom of arranged marriages, which suggests that the religious focus has taken a backseat to the cultural and social tradition. Many young men and women often cite personal, social reasons for the tradition of arranged marriages rather than religious reasons.[207] Arranged marriages are seen as a way for more experienced members of a family to make a wise decision for the child’s future. They also serve as a way of establishing allies and connections across families. Beginning as a religious duty, it seems that the practice of arranged marriages has persisted because it has become embedded in the social and cultural scheme of the society.
As an element of the culture, the practice of arranged marriages has become molded to fit the current social environment. As more single Hindu men and women find themselves in regular contact with the opposite sex through work or university, many couples have sought to play a more central role in arranging their marriages.[208] As a result, “semi-arranged marriages” have become more popular, with both the parents and the children having a say in the selection of a mate.[209] For example, the parents would discuss acceptable spouses within their social circle but it would be for the son or daughter to make the final decision.[210] There are also “love marriages” in which a couple meets, falls in love, and gets married with or without their parents’ permission.
While “love marriages” have become trendy in modern Hindu society, arranged marriages are still highly prevalent.[211] Arranged marriages still outnumber all other types of marriage.[212] An estimated 95% of all Hindu marriages in India are still arranged, whether in the traditional sense or with a modern twist.[213] This cultural practice of arranged marriages has its roots in religious texts. However, it is the way in which the practice has been shaped to meet the society’s modern needs that have allowed it to last for so many years.
Conclusion
With the examples of divorce mediation, temporary marriages, and arranged marriages within the Chinese, Islamic, and Hindu legal system, it seems that society invariably picks culture over law. The laws that seem to be in line with the cultural beliefs are the ones that are followed. On the other hand, laws that are not aligned with the cultural practices of the society must be molded to conform or are ignored.
The Chinese culture has long been a champion of dispute resolution and mediation. Although the Chinese government has set up an extensive legal system for litigation, it has gone unused in comparison to the official mediation system in place. In China, it seems that the law was created to match the culture, for the government recognized the futility in nonconformity with Chinese tradition. Though the Islamic system allows for temporary marriages for sex, most of Iranian society has rejected it. Instead, the people have molded this institution to suit their social needs. The Hindu tradition of arranged marriage began as a father’s legal duty. Through the years, the practice seemed to lose it legal character and develop a deep cultural identity. As a cultural element of Hindu life, arranged marriages have become a long-practiced aspect of almost all young Hindus. The fluidity of culture allows for changing societal values to be reflected within it. Laws are only able to withstand the social, economic, and political changes of a society if they are responsive to its cultural preferences.
[1] Stanley B. Lubman, Bird in a Cage: Legal Reform in China After Mao 13 (1999).
[3] Id.
[4] Id.
[5] Lubman, supra note 1, at 17.
[6] Id.
[7] Id.
[8] Deming Lui, Now the Wolf Has Indeed Come! Perspective on the Patent Protection of
Biotechnology Inventions in China, 53 Am. J. Comp. L. 207, 212 (2005).
Biotechnology Inventions in China, 53 Am. J. Comp. L. 207, 212 (2005).
[9] Michael Palmer, The People’s Republic of China: Some General Observations on Family Law, 25 J. Fam. L 41, 49 (1987).
[10]Zimmerman, supra note 2, at 32.
[11]Palmer, supra note 9, at 49.
[12] Annelise Riles, Spheres of Exchange and Sphere of Law: Identity and Power in Chinese Marriage Agreements, 19 Int’l J. Soc. L. 501, 507 (1991).
[13] Palmer, supra note 9, at 42.
[14] Marriage Law, arts. 1-2 (1950) (P.R.C)
[15] Marriage Law art. 3 (1950) (P.R.C)
[16] Riles, supra note 12, at 507.
[17] Marriage Law art. 3 (1950) (P.R.C)
[18] Riles, supra note 12, at 507.
[19] Marriage Law art. 26 (1950) (P.R.C)
[20] Riles, supra note 12, at 507.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Marriage Law art. 4 (1950) (P.R.C)
[26] Marriage Law art. 6 (1950) (P.R.C)
[27] Marriage Law art. 2 (1950) (P.R.C)
[28] Marriage Law art. 9 (1950) (P.R.C)
[29] Marriage Law art. 8 (1950) (P.R.C)
[30] Marriage Law art. 11 (1950) (P.R.C)
[31] Marriage Law art. 10 (1950) (P.R.C)
[32] Marriage Law art. 12 (1950) (P.R.C)
[33] Marriage Law art. 17 (1950) (P.R.C)
[34] Palmer, supra note 9, at 43.
[35] Michael Palmer, The Re-Emergence of Family Law in Post-Mao China: Marriage, Divorce and Reproduction, China Q. 1995, at 110, 123
[36] Palmer, supra note 9, at 43.
[37] Marriage Law art. 20 (1950) (P.R.C)
[38] Marriage Law art. 40 (1950) (P.R.C)
[39] Marriage Law art. 21 (1950) (P.R.C)
[40] Palmer, supra note 9, at 41.
[41] Id.
[42] Marriage Law art. 2 (1950) (P.R.C)
[43] Palmer, supra note 9, at 55.
[44] Marriage Law art. 5(1950) (P.R.C)
[45] Palmer, supra note 9, at 56.
[46] Marriage Law art. 8 (1950) (P.R.C)
[47] Palmer, supra note 9, at 56.
[48] Marriage Law art. 27 (1950) (P.R.C)
[49] Marriage Law art. 26 (1950) (P.R.C)
[50] Palmer, supra note 9, at 63.
[51] Palmer, supra note 35, at 123.
[52] Palmer, supra note 9, at 65.
[53] Id.
[54] Marriage Law art. 33 (1950) (P.R.C)
[55] Palmer, supra note 9, at 65.
[56] Id.
[57] Hamid R. Kusha, The Sacred Law of Islam: A Case Study of Women’s Treatment in the Islamic Republic of Iran’s Criminal Justice System 15 (2003).
[58] Hossein Esmaeili & Jeremy Gans, Islamic Law Across Cultural Borders: The Involvement of Western Nationals in Saudi Murder Trials, 28 Denv. J. Int’l L. & Pol’y 145, 148-49 (2000).
[59] Haifaa A. Jawad, The Rights of Women in Islam 1 (1998).
[60] Id. at 2.
[61] Asghar Ali Engineer, The Rights of Women in Islam 23 (2d ed. 2004).
[63] Jawad, supra note 59, at 3.
[64] Engineer, supra note 61, at 25.
[65] Jawad, supra note 59, at 3.
[66] Id. at 1.
[67] Engineer, supra note 61, at 117.
[68] Id. at 118.
[69] Quran 4:25, http://www.usc.edu/dept/MSA /quran/004.qmt.html. “And whoever among you has not within his power ampleness of means to marry free believing women, then (he may marry) of those whom your right hands possess from among your believing maidens” Id.
[71] Abdul Rahman I. Doi, Women in Shariah, 33 (3d ed. 1990).
[72] Id.
[73] Id.
[74] Jamal J. Nasir, The Status of Women Under Islamic Law 19 (2d ed. 1994).
[75] Id.
[76] Id.
[77]Engineer, supra note 61, at 26.
[78] Engineer, supra note 61, at 27.
[79] Quran 4:19, http://www.usc.edu/dept/MSA /quran/004.qmt.html
[80] Engineer, supra note 61, at 27.
[81] Shahla Haeri, Power of Ambiguity: Cultural Improvisations on the Theme of Temporary Marriage, 19 Iranian Stud. 123, 124 (1986).
[82] Nasir, supra note 74, at 17.
[83] Haeri, supra note 81, at 124.
[84] Quran 4:24, http://www.usc.edu/dept/MSA /quran/004.qmt.html.
[85] Nasir, supra note 74, at 18.
[86] Haeri, supra note 81, at 125.
[87] Nasir, supra note 74, at 18.
[88] Id.
[89] Haeri, supra note 81, at 125.
[90] Id.
[91] Nasir, supra note 74, at 17.
[92] Nasir, supra note 74, at 26.
[95] Jawad, supra note 59, at 46.
[96] Nasir, supra note 74, at 26.
[97] Id.
[98] Engineer, supra note 61, at 34.
[99] Quran 2:226 states: “Those who swear that they will not go in to their wives should wait four months; so if they go back, then Allah is surely Forgiving, Merciful.”
[100] Jawad, supra note 59, at 74.
[102] Jawad, supra note 59, at 74.
[103] Id. at 79.
[104] Nasir, supra note 74, at 74.
[105] David Pearl & Werner Menski, Muslim Family Law 280 (3d ed. 1998).
[106] Jawad, supra note 59, at 79.
[107] Id. at 80.
[108] Id.
[109] Pearl & Menski, supra note 105, at 281.
[110] Id. at 282.
[111] Id.
[112] Id.
[113] Id. at 285.
[114] Nasir, supra note 74, at 84.
[116] Nasir, supra note 74, at 84.
[117] Engineer, supra note 61, at 33.
[118] Id. The husband would say his wife was like “his mother’s back, like her womb, like her high, like her sexual organ or like the back of his sister or aunt.”
[119] Quran 58:2, http://www.usc.edu/dept/MSA /quran/058.qmt.html.
[120] These punishments are stated in 58:3 and 58:4 of the Quran: “And (as for) those who put away their wives by likening their backs to the backs of their mothers then would recall what they said, they should free a captive before they touch each other; to that you are admonished (to conform); and Allah is Aware of what you do. But whoever has not the means, let him fast for two months successively before they touch each other; then as for him who is not able, let him feed sixty needy ones; that is in order that you may have faith in Allah and His Messenger, and these are Allah's limits, and the unbelievers shall have a painful punishment.”
[122] Nasir, supra note 74, at 107.
[124] J. Duncan M. Derret, Introduction to Modern Hindu Law 1 (Oxford University Press 1963).
[125] Donald R. Davis, Jr,, Law and ‘Law Book’s in the Hindu Tradition, Social Science Research Network, Sept. 2005, at 2, available at http://ssrn.com/abstract=924581.
[126] Id. at 2.
[127] Id. at 1.
[128] Brian K. Smith, Exorcising the Transcendent: Strategies for Defining Hinduism and Religion, 27 History Religions 32, 46 (1987).
[129] Id.
[130] Aalok Sikand, ADR Dharma: Seeking a Hindu Perspective on Dispute Resolution from the Holy Scriptures of the Mahabharata and the Bhagavad Gita, 7 Pepp. Disp. Resol. L.J. 323, 325 (2007).
[131] Id.
[132]Davis, supra note 126 at 2.
[133]Id.
[134] H. Patrick Glenn, Legal Traditions of the World 277 (3d ed. 2007) .
[135] Davis, supra note 126 at 2.
[136] Other famous smrit texts are the Arthasastra, the epics Mahabharata and Ramayana and the sacred narratives of the Puranas. Id. at 3.
[137] Davis, supra note 126 at 3.
[138] Id.
[139] Id. at 2.
[140] Id.
[141] Law Code of Manu xxi (Patrick Olivelle trans., Oxford University Press, 2004).
[142] Id.
[143] See Law Code of Manu, supra note 141.
[144] See Id.
[145] Glenn, supra note 134 at 277.
[146] Ved P. Nanda, Marriage and Divorce in India: Conflicting Laws, 55 Nw. U. L. Rev. 624, 625 (1960).
[147] Davis, supra note 126 at 3.
[148] Davis, supra note 126 at 3.
[149] Davis, supra note 126 at 3-4.
[150] Nanda, supra note 148 at 627.
[151] Id.
[152] Id.
[153] Id.
[154] Id.
[155] Rig Veda 85.46.
[156] Law Code of Manu, supra note 141 at 155.
[157] Id.
[158] Law Code of Manu, supra note 141 at 43. “A girl who belongs to an ancestry different from his mother’s and to a lineage different form his father’s, and who is unrelated to him by marriage, is recommended for marriage by a twice-born man.”
[159] Id. Section 3.8-10 continues: “He must not marry a girl who has red hair or an extra limb; who is sickly; who is without or with too much bodily hair; who is a blabbermouth or jaundiced-looking; who is named after a constellation, a tree, a river, a very low caste, a mountain, a bird, a snake, or a servant; or who has frightening name. He should marry a women who is not deficient in any limb; who has a pleasant name; who walks like a goose or an elephant; and who has fine body and head hair, small teeth, and delicate limbs.”
[160] Studying Hinduism 354 (Sushil Mittal & Gene Thursby eds., 2007).
[161] Id.
[162] Id.
[163] Law Code of Manu, supra note 141 at 44.
[164] Id. “At the first marriage, a woman of equal class is recommended for twice-born men; but for those who proceed further through lust, these are, in order, the preferable women. A Śūdra may take only a Śūdra woman as wife; a Vaisya, the latter and a woman of his own class; a Ksatriya, the latter two and a woman of his own class; and a Brahmin, the latter three and a woman of his own class.”
[165] Id. at 44.
[166]Nanda, supra note 146 at 627.
[167] Glenn, supra note 134 at 281.
[168] Derret, supra note 124 at 147.
[169] Nanda, supra note 146 at 628.
[170] Id.
[171]Derret, supra note 124 at 147-48.
[172] Nanda, supra note 148 at 628.
[173] Id.
[174] Id.
[175] Id.
[176] Id. at 47.
[177] Id.
[178] Id. “When relatives foolishly live off a woman’s wealth- slave women, vehicles, or clothes – those evil men will descent along the downward course.”
[179] Id. at 160.
[180] Id.
[181] Id.
[182] Id.
[183] Id.
[184] R. Naga Raja Sarma, Ethics of Divorce in Ancient India, 41 Int’l J. Ethics 329, 336 (1931).
[185] Ashutosh Dayal-Mathur, Medieval Hindu Law: Historical Evolution and Enlightened Rebellion. 51 (2007).
[186] Sarma, supra note 188 at 335.
[187] Lubman, supra note 1, at 24.
[188] Id.
[189] Id. at 219.
[190] Id.
[191] Id.
[192] Id.
[193] Id.
[194] Id.
[195] Gelareh Asayesh, Iran: The Rules of Courtship, Toronto Star, Feb. 4, 1991, at B1.
[196] Paul Vieille, Iranian Women in Family Alliance and Sexual Politics, in Women in the Muslim World 451, 466 (Lois Beck & Nikki Keddie eds., 1978).
[197] Jane Khatib-Chahidi, Sexual Prohibitions, Shared Space and Fictive Marriages in Shi'ite Iran, in Women and Space: Ground Rules and Social Maps 112, 126 (Shirley Ardener ed., 1981).
[198] Haeri, supra note 81, at 128.
[199] Id.
[200] Id. at 129.
[201] Id. at 137-38.
[202] Id. at 138.
[203] Law Code of Manu, supra note 141 at 155.
[204] Nancy Ellen & Auer Falk, Women In-Between: Conflicting Values in Delhi, 62 J. Religion 257, 258 (1987).
[205] Id. at 259.
[206] Law Code of Manu, supra note 141 at 161.
[207] Ellen & Falk, supra note 208 at 269.
[208] Id.
[209] Id.
[210] Id.
[211] Devika Chawla, I Will Speak Out: Narratives of Resistance in Contemporary Indian Women's Discourses in Hindu Arranged Marriages, Women & Language, Apr. 2007, at 1.
[212] Id.
[213] Id.
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