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IRANIAN LAW & ADMINISTRATION

FAMILY LAW IN ANCIENT IRAN


 

By: Mansour Shaki

 

 

Achaemenid_Tablets.jpg (58389 bytes)

 

Mazdean family law is the most extensive and involved section of the civil code as set forth in the few surviving Middle Persian legal texts, especially the Sasanian lawbook entitled Mâdayân î hazâr dâdestân. It comprises a medley of orthodox legislation (kardag) and revisions (dâdestân) enacted by more liberal jurists and dignitaries (dastwarân, wêhân "sages"); such revisions were a source of continual controversy and led to the emergence of opposing schools of jurisprudence. In these disputes a remarkable attempt at improving the social status of women, minors, and to a lesser extent bondsmen is apparent (see citizenship ii)

 

The salient feature of Zoroastrian social organization in the Sasanian period was the patriarchal agnatic family (dûdag, kadag), in which the master of the household (kadag-xwadây "paterfamilias," pid(ar) "father," šôy "husband") was seconded by his wife (kadag-bânûg "materfamilias," mâd(ar) "mother," zan "wife"). Members of the family, usually an extended family, who were related either by kinship (nabânazdišt, hamnâf "kindred," xwêšâwand, paywand "kinsman, relative," kas, lit., "person," in certain contexts clearly also "relative") or by affinity, through marriage, adoption (see children iii), or stûrîh (marriage by proxy), were bound by a highly developed set of legal prescriptions, as well as by a strict moral code and a strong set of conventions. Even the relationship between master and bondsman was controlled by established rules and restrictions (êwên î šahr "custom of the land") and patriarchal tradition.

 

Types of marriage

In Zoroastrianism there were essentially two types of marriage (zanîh): pâdixšâyîhâ (lit., "with authorization, authorized") and stûrîh, each with several subtypes and irregular forms. Owing to gradual obscuration and modification of Middle Persian terminology in the Islamic period, however, five types of marriage were recognized in the Persian Rivayats (tr. Dhabhar, I, pp. 180-81).

 

Authorized marriage

Authorized marriage (zanîh î zan pâdixšâyîhâ "marriage of a woman in authorized condition"; Mâdayân, pt. 1, p. 36) was the legal union of a husband and wife; it may be interpreted as "legitimate" wedlock, a counterpart to Islamic or Christian marriage. Members of the family were known as š "husband," zan "wife," pus "son," and duxt "daughter" î pâdixšâyîhâ. This type required the authorization of the father or guardian of the bride, as well as a detailed marriage contract (paymân î zanîh; Pahlavi Texts, ed. Jamasp-Asana, pp. 141-43), of which a specimen has survived from the Islamic period (1278 C.E.; see contracts ii). In pâdixšâyîhâ not only the sanction of the guardian but also the consent of the bride was essential (Mâdayân, pt. 1, p. 36). AÚdurbâd î Mahrspandân (q.v.) advised young men to plead for the hands of their brides themselves (xweštan rây zan xwad xwâh; Pahlavi Texts, ed. Jamasp-Asana, p. 61), from which it follows that in the Sasanian period marriages were usually arranged by parents or matchmakers, as is still customary in Persia. It was the duty of the father to decide for which son to seek a wife and which daughter to give in marriage (Dênkard, ed. Madan, II, p. 744).

Appearing before the magistrate (mowbed) were the two fathers, the bride (wayôg) and bridegroom (dâmâd), and three witnesses (gugây), whose identities were registered. When married the bridegroom assumed the status of master of the household and the bride that of mistress of the house, with accompanying rights and obligations (Dênkard, ed. Madan, II, p. 739).

The ancient custom of receiving a sum of two thousand drahms' "security" (pâyandanîh) for the bride, a euphemism for marriage portion, was observed. It may be surmised that among the upper classes the marriage portion was not restricted to this traditional sum but also included movable or real property transferred to the bride's family in return for a rich dowry (*passâzagân). Such transactions may have been the primary reason for preferring marriage with kin, in order to prevent property from leaving the family. In fact, the most meritorious type of marriage, regarded as a panacea for all deadly sins except sodomy (Rivâyat î Êmêd, chap. 29), was what modern Parsis call "next of kin" union (xwêdôdah, Av. xvaêtvadaƒa-; AirWb., col. 1860; Nyberg, Manual II, p. 224), described in the Dênkard (ed. Madan, I, p. 73) as "union of father and daughter, son and mother, brother and sister" (hampaywandîh î hast pid ud duxt, ud pus ud burdâr, ud brâd ud xwah). Already in the Yasna (12.9) the righteous xvaêtvadaƒa- was praised. Consanguineous marriage, originally practiced by the nobility among many peoples, was later commonly contracted in all sections of the Iranian community, high and low. Many Persian monarchs married their sisters or daughters (Boyce, Zoroastrianism I, p. 254 n. 24, II, pp. 75-77; idem, 1979, s.v. khvâetvadatha), and the Magians were reported by Xanthus of Lydia to have cohabited with their mothers and daughters (Jackson, pp. 152-57). In the Sasanian period the priest Ardâ Wîrâz (q.v.) took all his seven sisters to wife (Ardâ Wîrâz Nâmag, chap. 2). Next-of-kin marriage among the common people is dealt with in most Middle Persian lawbooks, especially the Rivâyat î Êmêd (chaps. 22, 24, 27-30; cf. de Menasce, 1985, pp. 138-44; Shaki, 1971, pp. 335-36; Nyberg, Manual II, p. 224).

Pâdixšâyîhâ marriage could be temporary, for a mutually agreed period, and could thus function as a form of companionate marriage. Upon termination of the stipulated period the wife's dowry and private belongings (wâspuhragân) reverted to her, but, if she had died, her property belonged to the husband (Mâdayân, pt. 2, p. 2).

 

Irregular unions

n contrast to authorized marriages, there were a few irregular types, the common feature of which was the bride's disregard for her father's sanction (cf. Ind. svayam®vara, lit., "self-choosing"). In Frahang î Oîm 2.f a xwarâyên (lit., "self-guardian") is defined briefly as "a daughter who marries on her own" (duxt-ê kê šôy xwad kunêd, corresponding to xúad-rây or xúad-sâlâr in Persian Rivayats, tr. Dhabhar, p. 181). The Rivâyat î Êmêd (chap. 43) contains an illuminating chapter on the legal and social status of such a runaway daughter: "The xwarâyên is explained as misunion (jud âyôzišn "un[authorized] union"). It is the case when a man has a daughter who has come of age (i.e., is marriageable) and her father is guilty of keeping her in the house (i.e., he does not give her in marriage), and the maiden takes to herself a guardian without the sanction of the father and marries him. That woman is called xwarâyên" (Shaki, 1971, pp. 343-44; idem, 1988, pp. 96-99). In the lost Sasanian orthodox lawbook Dâdestân-nâmag the validity of this kind of marriage was not acknowledged; on the other hand, "There was a jurist who maintained (that in accordance with the) civil law it is legal, but traditional law does not approve of it" (bûd kê guft dâdestân dahišn, bê pad kardag nê dârênd; Mâdayân, pt. 1, p. 36).

Another irregular type of marriage was connected with the term bêastân, which occurs twice in the Mâdayân and in corrupt form in the Rivâyat î Êmêd (chap. 30), where four different definitions are given for it, all embodying the idea of the daughter's leaving the paternal house. It may thus be read "out of the house." The greater esteem expressed in the Mâdayân for bêastân than for xwarâyên suggests that in the former the daughter, upon coming of age, simply rejected the father's candidate, in order to marry a man of her choice (pt. 1, fols. 21, 36, 41; Shaki, 1971, p. 335).

A singular instance, which actually falls under concubinage, was that of a widow who took to herself a bedfellow (gâdâr "fornicator") and cohabited with him under his guardianship; if there were minors or other women in the family, no guardian would have been appointed for her but for the minors and other people who happened to be in the household (Mâdayân, pt. 2, p. 14; Rivâyat î Êmêd, chap. 5). It was specified that the woman seeking such cohabitation should be without a guardian and free from the obligation of stûrîh, but the bedfellow was by duty bound to maintain her and her children until they came of age (Mâdayân, pt. 1, fol. 36).

Although the extant Middle Persian lawbooks, which reflect the legal norms of the community, rarely include references to bigamous practice, polygamy was an ancient privilege of the aristocracy and spiritual dignitaries (Mâdayân, pt. 2, p. 1; "Letter of Tansar," p. 1630; tr., p. 44), attested by lexicological evidence (Av. hapaƒnî- "cowife"; Frahang î Oîm 2.f; AirWb., col. 1765; Old Pers. *hapašnî > Mid. Pers. hambašn [Zâdspram, pp. 163, 143]; NPers. âmvasnî, vasnî [Mo´în, I, p. 62; II, p. 2283]; Mid. Pers. abôg > NPers. havû "cowife" [Henning, p. 18]). The number of wives as a reflection of wealth and dignity tended to increase with the husband's standing. K¨osrow II (590-628, with interruption) is said to have had, apart from his queens and legal wives, ten thousand concubines in his harem (š; Xosrow ud Rêdag, p. 84). Although the ancient Iranians were endogamous as a people, some monarchs married foreign, non-Zoroastrian women. The Parthian king Phraates IV (ca. 40-3/2 B.C.E.) married the Italian slave girl Thesmousa, Yazdegerd I (399-420) the Jewish Sôšandukòt, and K¨osrow II the Byzantine princess Maria and the Armenian Šîrên.

 

Proxy marriage

The second type of recognized Zoroastrian marriage was stûrîh (Av. stûiriia-; Pahlavi Rivâyat of AÚturfarnbag, p. 27), translated into Arabic by Ebn Moqaffa´ as badal (substitute; "Letter of Tansar," p. 1630; tr., p. 46). It was the counterpart of the Mosaic levirate (Deuteronomy 25:5-10; Syr. ybmwt÷; Syrische Rechtsbücher, p. 96), defined, incorrectly, by the Parsis and thus by many scholars as "adoption" (West, pp. 188-89) and by Christian Bartholomae as "care, trusteeship, guardianship" (1920, p. 48; 1922, p. 51). The word is of obscure origin with a variety of specialized meanings, which are not always easy to differentiate or assess. Generally it denotes "custodianship, safeguarding the cause of someone or something" (Dênkard, ed. Madan, II, p. 537: u-šân ên-iz aôn dâšt ku myazd stûrîh î yazdân, ud âtaxš î Warahrân stûrîh î Gayômard, ud gâhânbâr stûrîh î dên "And they so held that the myazd ceremony is safeguarding [the cause of] the gods and the fire of Warahrân (Wahrâm) is safeguarding [the cause of] Gayômard and the gâhânbâr festivals are to safeguard [the cause of] religion," where stûrîh could equally be rendered "trust"; Shaki, 1971, p. 325). In reference to fire it may be rendered "trusteeship" (ka âtaxš pad stûrîh nišânêd "if someone establishes a fire in trusteeship," i.e., to be maintained by generations of trustees in succession; Mâdayân, pt. 1, p. 50). In the sense of "substitute, proxy" (Dênkard, ed. Madan, I, p. 407: ud hamistîhâ kard pad weh-dên nimûdârîh ên î nâmênîd pad stûrîh mânâgîh î az ân wuzurg bun dênkard hazâr-darag "and I [AÚdurbâd î Êmêdân] compiled this book, called the Dênkard of a thousand chapters, as a substitute from that great original Dênkard for the guidance of the people of the good religion") it was applied by Zoroastrian legislators to marriage by proxy. The "Letter of Tansar" is quite explicit: "When a man dies without a male issue, his widow, if he has left one, was given in marriage to one of his closest next of kin. If he has no wife, but a daughter, the same was done. If there were neither of these two, they would provide a woman from the dead man's property and give her to his nearest kinsmen, and every son who was born they assigned to the man who had left the legacy." The author commented that "anyone who disregarded this custom had in fact slain innumerable souls, since he had cut off the dead man's lineage and memory to the end of time" (p. 1630; tr., pp. 46-47). Further details are provided in Dâdistân î dênîg (ed. Christensen, chap. 55): "When a man of the good religion passes away without issue, the relatives of the deceased should find someone as his substitute (guharîg), who is called stûr, in order to observe the commemorative rituals for his soul (nâmagânîh), maintain his lineage, and administer his property" (pad ân î ôy nâmagânîh ud paywand râyênêd ud xwâstag dârêd, word order rearranged). Male issue was indispensable to salvation (daughters were not vehicles of lineage), for a person without a son was unable to cross the bridge to the next world (see Ùinwad puhl; Wizîrkard î dênîg 26.17; AirWb, col. 910; Shaki, 1971, p. 326). Stûrîh was a religious obligation (paywand î frašgerd; Dênkard, ed. Madan, I, p. 168; II, p. 492), for it helped the Weh-dêns, assistants to Ohrmazd to attain the restoration of the world.

In this type of matrimony the family included husband, wife, son, and daughter (šôy, zan, pus, duxt î stûr). On the authority of the Avesta, then extant (Mâdayân, pt. 1, p. 43), the free half of a slave (for partial slavery, see barda and or an authorized wife not already serving as stûr was eligible for stûrîh; the authorized wife had first to be granted freedom over her own person and made her own guardian by her husband (Mâdayân, pt. 1, p. 3). A widow undertaking stûrîh for her deceased husband was called ch (q.v). There were jurists who held that the procedure should, however, be supervised by eminent religious dignitaries (ka dastwarân abarmad kard; Mâdayân, pt. 1, p. 49). In contrast to authorized marriage, in this type the couple was not bound by ties or obligations other than cohabitation, guardianship of the husband over the wife, and obedience (tarsâgâhîh "reverence") of the wife to the husband. It should be stressed, however, that stûrîh did not resemble Roman matrimonium sine manu, in which the wife was free in her sexual relations (pace Perikhanian, 1970, p. 355).

A stûrîh was also to be instituted for any deceased free Iranian Zoroastrian who had left no authorized wife, male issue (frazand), adopted son (pus î padîgriftag), or associate brother (brâd î hambây) and had left a minimum profitable (barômand) estate of 60 stêrs (Dâdestân î dênîg, ed. Christensen, chap. 55; see below). In the Sasanian caste system stûr and deceased were to be of similar social class, wealth, and standing. According to the "Letter of Tansar" (p. 1630), the proxies of princes were to be princes (Mâdayân, pt. 2, p. 14; Shaki, 1987, p. 192). As the purpose of stûrîh was to beget at least one son, providing the deceased with a successor, premature dissolution was a grave sin (tanâpuhl; Pahlavi Rivayat, ed. Dhabhar, pp. 122-23). Once a son had been begotten, the stûrîh marriage, though not the guardianship over the woman, could be terminated (Mâdayân, pt. 1, p. 48) without divorce (q.v.), as the stûr couple was by definition divorced (pad xwad êstišnîh abêzâr; Riv@âyat î Êmêd, chap. 21; Shaki, 1983, p. 47). An exception was made when a limited term was stipulated for stûrîh (Mâdayân, pt. 1, p. 46; pt. 2, p. 17). Stûrîh was not limited to a single person, the widow, sister, daughter, or brother of the deceased; rather, both parties to the marriage or even several couples could take part in stûrîh for a single deceased person (Mâdayân, pt. 1, pp. 50, 105). In contrast to Parsi practice, not only the first son but all children born to a proxy marriage belonged to the deceased (Persian Rivayats, tr. Dhabhar, II, p. 428); when the first son came of age he succeeded to the guardianship of the family (Rivâyat î Êmêd, chap. 43; Shaki, 1988, p. 98).

In the Mâdayân (pt. 1, p. 97) it is briefly stated that the stûr must be innocent of margarzânîh (lit., "death deserving" sin; tanâpuhl). The 9th-century sources are more informative. According to Dâdestân î dênîg (ed. Christensen, p. 202), a stûr could be any adult (purnây) Zoroastrian (weh-dên) who was sane (ôšyâr), virile or fruitful (frazand-êmêdag), an Iranian subject (šâhânšâh-bandag), and free of margarzân sin. A slave woman (bandag paristâr), eunuch (šâbistân), prostitute (zan î rôspîg), non-Iranian (an@er), infidel (ag-den), or a margarz@an person was not fit for stûrîh. A minor boy or girl might be nominated to undertake stûrîh on coming of age (Mâdayân, pt. 1, p. 87). The jurists disagreed on the eligibility of a man to contract more than one stûrîh (Mâdayân, pt. 1, p. 43), but in the late Persian Rivayats (tr. Dhabhar, II, p. 46) it is prescribed that a man may undertake as many as forty stûrîhs, a serious modification of the law prompted, it seems, by the dwindling number of Zoroastrians in the Islamic period.

The stûrîh was financed from the estate of the deceased for whom it was established. The proprietary right of the stûr depended on his or her legal status. An authorized widow who undertook the obligatory stûrîh of her deceased husband inherited as a son, that is, twice a daughter's share, in absolute ownership (xwêšîh). The same rule applied to a daughter who assumed the stûrîh for her father at her own request (Mâdayân, pt. 1, p. 62; Dâdestân î dênîg, ed. Christensen, chap. 53; Rivâyat î Êmêd, chap. 23). A childless widow, a single daughter, or a single sister who assumed the stûrîh of the master of the household inherited the entire patrimony (Rivâyat î Êmêd, chaps. 2, 3). Property settled on the designated stûr was treated as an inheritance (stûr î kardag pad ân xwâstag abar mânêd; Mâdayân, pt. 1, p. 87; see below).

RIGHTS AND OBLIGATIONS WITHIN THE HOUSEHOLD

The master of the household

The master of the household was to support his wife as long as she lived, his daughters until they married, and his sons until they came of age. He was to support even a guilty daughter or slave (Mâdayân, pt. 1, pp. 32-33) and any woman cohabiting without a guardian or marital obligation and her children until they came of age (Mâdayân, pt. 1, p. 36). He was not allowed to share his wife and food with a coreligionist, even if intimidated (ka-z pad bîm; Dênkard, ed. Madan, II, p. 715; Shaki, 1971, p. 338). An authorized husband could, however, designate his wife, even without her consent, as stûr for a coreligionist who was in need (niruzd) of a son and was blameless in not having produced one (Mâdayân, pt. 1, p. 101; cf. Vd., chap. 4.44); such a grant was deemed meritorious (ahlawdâd), "a present to the amount of one human being" (dâsr î wîr-masây; Dênkard, ed. Madan, II, p. 715). The husband might designate his wife as her own guardian and give her freedom over her own person, so that she might marry a coreligionist in ch and provide him with male progeny (Mâdâyân, pt. 1, p. 3). The husband was obligated to provide his wife with food during monthly sequestration for menstruation; if she was forced to steal food he would be held guilty of the crime and branded in accordance with the country's customs (êwên î šahr rây be drošišn; Mâdayân, pt. 2, p. 35). It was considered meritorious for the master of the household to educate women, minors, and slaves from the people of the good religion (Dênkard, ed. Madan, II, p. 699). He could relinquish his guardianship over his women and sell his minor children if he was threatened by extreme indigence involving the sin of adbadât (being unable to support his family; see Frahang î Oîm, fol. 25b; AirWb., col. 61), death, or exhaustion (margîh ud raxtagîh; Mâdayân, pt. 1, p. 33; Shaki, 1971, p. 337). If possible, a son was to provide for the family in these circumstances and should be reimbursed by the father (Mâdayân, pt. 1, p. 32). The master of a household was not entitled to punish his wife or slave for an offense against the state (winâh î šahr; Mâdayân, pt. 1, p. 98). He was also not entitled to give his daughter in authorized marriage without her consent, but in the instance of stûrîh she had to abide by his decision, the reason being that her income from stûrîh went to him. The liberal jurist Zurwândâd, son of Gušn-/Juwânjam, supported the daughter's option in both instances, however (Mâdayân, pt. 1, p. 36).

 

The guardian

After the death of the master of the household, the most authoritative member of the family was the guardian (sâlâr), who was responsible for the care and protection of women and minors. Juridically three categories of guardians, or stûrs, were distinguished: bûdag (q.v.) "lawful, at law," kardag "designated," and gumârdag "appointed." Family guardianship devolved on the guardian at law through obligation or kinship status: father, eldest brother, or husband. Should a son hold and administer the estate of the father he had to undertake guardianship over the minors (Mâdayân, pt. 1, p. 26). A widowed authorized wife and an unmarried or single daughter were reckoned among stûrs-at-law. As a family member the guardian at law was entitled to a portion of the inheritance (abarmând) and thus received no stipend.

The designated guardian was chosen by the master of the household or the guardian at law to serve after his own death; if no appropriate close relative was available, he could choose from among the nearest agnates or even outside the family. Transfer of guardianship to another person was the privilege of the guardian at law and, according to some jurists, also of the designated guardian (Mâdayân, pt. 1, p. 28).

Should the master of a household fail to designate a stûr in his lifetime or should the designated stûr not accept the undertaking, so that the women and minor children were left without a guardian or neglected by their family, it was the duty of the citizens to assume guardianship and extend care and attention to them (Mâdayân, pt. 1, p. 33). The close kin or members of the extended family assembled and appointed (gumârdagîhâ) a stûr to serve under their joint supervision (ô hamsâlârîh). If there were no next of kin or other relatives the widow was entitled to devolve, in the event of her death (pad be widerišnîh), the stûrîh of her deceased husband on whomever she pleased (Mâdayân, pt. 1, p. 87). Should she also die intestate or turn apostate (anêr), the obligation to appoint a stûr devolved on the judges (dâdwarân stûr gumârišn; Mâdayân, pt. 1, pp. 43-44). An appointed guardian received as stipend the income from 60 stêrs (240 drahms), held by him in usufruct; it was set at one srênag-masây and one bâzây-masây (i.e., up to the amount of one rump and one shank of a sheep), an idiomatic expression for 18 drahms of standard purity (drahm î purr; Mâdayân, pt. 1, p. 27; Dâdestân î dênîg, ed. Christensen, chap. 55; Rivâyat î Êmêd, chap. 23; Frahang î Oîm 25 f., corrected; Shaki, 1971, p. 330; see CONTRACTS ii). The institution of stûrîh was not binding on relatives for less than 60 stêrs, though the deceased was nevertheless entitled to a stûr; in such a situation the relatives themselves were to set up his stûrîh (Mâdayân, pt. 1, pp. 43, 50; Dâdestân î dênîg, ed. Christensen, chap. 59). If an appointed guardian caused a financial loss, he forfeited his right to guardianship (Mâdayân, pt. 1, pp. 27-28).

 

The status of women

There was a noticeable disparity between the social and the legal status of women in the Sasanian period as set forth in Middle Persian literature; it was occasioned, as mentioned above, mainly by opposition between orthodox precepts and reformist views. Generally speaking, women, especially of the lower classes (amaragân, "commonalty"), were regarded as property, each valued at 500 stêrs, that is, one wîr-masây (the price of a man). They were often ranked with slaves and minors (Mâdayân, pt. 1, pp. 33, 58) but had some limited freedom of choice and action, for example, in the right of consent to marriage. A mistress of the household (kadag-bânûg), especially if fruitful (zahânag < zah- "give birth," present participle zahân-, lit. "prolific"; it renders Av. vantu- "loved wife," mistranslated "young woman"; Shaki, 1975, p. 263; idem, 1971, p. 325 n. 1), was loved, enjoyed respect and certain privileges. According to Sasanian jurists, a girl reached her majority and became marriageable at the age of nine years and was to be given in marriage between then and the age of twelve years, especially if she had carnal desire (Pahlavi Rivayat, ed. Dhabhar, p. 107). Upon marriage the property she brought to her husband, whether as dowry or received from her father or the state (š) before marriage, remained her absolute possession, not liable to the discharge of her husband's or father's liabilities (Mâdayân, pt. 1, p. 30). The jurist Wahrâm maintained that a wife is entitled to her income (windišn); the followers of the school of Medô(g)mâh recommended deliberation on this point (Mâdayân, pt. 1, p. 17). She assumed a partial right to manage her husband's property, and, as a reverent (tarsâgâh) wife, every year, with the acquiescence of her husband, she could dispose of his property, except for land, watercourses, plants, houses, and two full slaves. She could be authorized by the husband to barter (guharên râst kardan) or sell at a profit (guharên kardan; Mâdayân, pt. 2, pp. 12, 37). A destitute husband was to be supported by his well-to-do wife, children, or stûr son (Mâdayân, pt. 2, p. 7). On the death of the husband his widow was entitled to manage the family affairs, provided that the family guardian (sâlâr) assisted her as advocate (Mâdayân, pt. 1, p. 75). She was entitled to give her daughter in marriage (Mâdayân, pt. 1, p. 22). In orthodox law (kardag) the testimony of a woman, like that of a slave or minor, had no standing (Mênôg@ î xrad, ed. Anklesaria, chap. 39. 37), but in the opinion of liberal jurists an authorized wife could bear witness if she had been made her own guardian and given freedom over her own person (Dênkard, ed. Madan, II, p. 708); similarly the testimony of two women from a single household was accepted in civil law (Mâdayân, pt. 1, p. 98). The reformers also allowed the mistress of a household who was her own guardian to give evidence and even sit in judgment (Dênkard, ed. Madan, II, p. 708). In Mazdean worship it was not incumbent upon women to pray to god (niyâyišn). Instead, in reverence (tar@sâgâhîh) for her husband, a woman was supposed to stand before him three times a day with arms crossed as if in prayer and to say "Tell me what you desire me to think, say and do, and what not to think, say and do, that I should act upon it" (Pahlavi Rivayat, ed. Dhabhar, p. 120; Saddar Bundahesh, p. 138).

 

INHERITANCE

An inheritance (baxtîgîh [kardan] "distribution of heritage/estate") might be received either as an ordinary (bahr, lit., "portion, share") or a residuary (abarmând, lit., "left over") legacy. Recipients of the former were in duty bound to administer (xwâstagdârîh) the estate. According to the Mâdayân, "If the father allots (pad bahr dahêd "gives in shares") the estate (to the heirs) in his lifetime . . . they shall become thereby ordinary legatees to that property (pad ân xwâstag xwâstagdâr hênd), and they should discharge the loan/liabilities (abâm) that he had incurred before allotting that property. . . . If the master of the house on passing away gives property to the wife and children in such a way that it should come down to them in residuary legacy (pad abarmând rasêd), it shall be so, but if he allots them in shares (pad bahr dahêd) they will become ordinary legatees (xwâstagdâr bawênd)" (pt. 1, p. 61).

If the father died intestate the share of an authorized or adopted son, as well as that of the widow who assumed the chakarîh, was twice that of a daughter (Dâdestân î dênîg, ed. Christensen, chap. 53; Rivâyat î Êmêd, chap. 23; Mâdayân, pt. 1, p. 65). The domestic fire was primarily the responsibility of the husband and wife, and therefore if the wife established a fire and died intestate it descended to the father not to the son. When allotting inheritance, the share of the domestic fire was to be settled first, a portion equal to that of a son (Mâdayân, pt. 1, pp. 27, 51; de Menasce, p. 12); the jurist Pusânwehî AÚz@admardan maintained that the fire ought to be held in joint custody (stûrîh) by the legatees. The head of the family could dispose by testament of family property at his discretion, except for the shares of his wife and children, who could not be disinherited unless they had become irreverent (atarsâgâh) or ungodly (Mâdayân, pt. 1, p. 20; Dâdestân î dênîg, ed. Christensen, chap. 53; Syrische Rechtsbücher, p. 133). Should the master of the household assign his estate to another citizen (mard î šahr), upon the death of the latter the portions of the original owner's wife and children, as well as of ailing and infirm members of his family, would revert to them and the rest be disposed of in accordance with the terms of the assignment (Mâdayân, pt. 1, p. 20). If there was only one son and the father assigned him property in any fashion, he was responsible for administering it, and he was obligated to undertake guardianship of the minors in the family (Mâdayân, pt. 1, pp. 59, 26). The legacy to the widow in absolute ownership (bahr î xwêšîh) was her share for the management of chakarîh (bahr î stûrîh). A daughter married to her father and assuming his chakarîh/stûrîh after his death inherited only the share falling to a ch daughter, that is, as a son, not as a wife (Mâdayân, pt. 1, p. 44). If the father willed a property to a few children in absolute ownership (xwêšîh), it did not fall under administration and was not subject to the discharge of liabilities (Mâdayân, pt. 1, p. 62). If a husband died without relatives, even an irreverent wife whom he had not expressly disinherited received all his estate on the strength of want of relatives (pad râh î akasîh), but if he had emphatically disinherited her she received no share, even if he had no relatives (Mâdayân, pt. 2, p. 6). The widow and adult children had jointly to declare their satisfaction (kâmag dôsišn) of their portions in ordinary legacy for the allotment to be valid (Mâdayân, pt. 1, p. 67). The stûr couples were not entitled to inherit from each other (Rivâyat î Êmêd, chap. 23; Shaki, 1983, p. 49).

 

OFFENSES AND PUNISHMENTS

The penalty for rape of a married woman was 300 stêrs (1,200 drahms, the fine for one tanâpuhl or margarzan sin, which was nevertheless not subject to capital punishment); 700 drahms were for the violation and 500 for the theft or kidnaping (Mâdayân, pt. 1, p. 73; Nêrangestân, fol. 7r). The penalty for raping a daughter or married woman entitled to her own income was paid to the father or husband, but the woman received the fines for other offenses against her (Mâdayân, pt 1, p. 36). If a ch woman was raped the fine belonged to her (ch; Nêrangestân, fol. 7v). Anyone who openly united with a woman out of wedlock, even in love (dôšâramîh rây), was a robber (apparag); if he did so in secret, he was a thief (duz; Nêrangestân, fol. 6v). The fine for deflowering a girl who had not come of age (aburnâyag rûnêd) was also 1,200 drahms (Rivâyat î Êmêd, chap. 42; Mâdayân, pt. 1, p. 73: 1,500 drahms, a copyist's error; Šayest ne šâyest I, p.2). Sexual intercourse that might involve admixture of semen from different men (šusr gumêzišnîh), especially that of Iranians with non-Iranians, or with those with whom intercourse was forbidden (e.g., married or non-Iranian [anêr] women) was a grave sin (Dênkard, ed. Madan, II, pp. 486, 739). On the other hand, free cohabitation with a woman without a guardian (guardianship being entrusted to herself) and the obligation of stûrîh was not a crime but imposed certain obligations on her partner to support her and her children (Mâdayân, pt. 1, p. 36). In the Dênkard (ed. Madan, II, p. 714) interchanging women under guardianship for purposes of illicit intercourse is, however, identified as a sin, though no punishment is specified.

Reverence or dutifulness (tarsâgâhîh) by the wife and children toward the master of the household or guardian was an imperative in Sasanian family law. Withholding it (atarsâgâhîh) was defined in the Mâdayân as "not performing the righteous deeds that the master of the house bids them to do" and was liable to punishment after three episodes. As the wife was under her husband's guardianship, his allegation of irreverence was incontrovertible; her plea of not guilty had no validity. An authorized wife's disobedience to her husband also vitiated the filial rights of her children; if they were born during the period of their mother's breach of discipline their claim to inheritance was forfeit (Mâdayân, pt. 2, pp. 6-7).

 Bibliography

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