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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 and Confucianism
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
STANLEY B. LUBMAN, BIRD IN A CAGE: LEGAL REFORM IN CHINA AFTER MAO 13 (1999).
JAMES M. ZIMMERMAN, CHINA LAW DESKBOOK 32 (American Bar Association 2005).
3 Id.
4 Id.
5 LUBMAN, supra note 1, at 17.
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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.
Id.
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).
9 Michael Palmer, The People’s Republic of China: Some General Observations on Family Law, 25 J. FAM. L 41, 49 (1987).
10ZIMMERMAN, supra note 2, at 32.
11Palmer, 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)
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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 marriages16 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
Marriage Law art. 3 (1950) (P.R.C)
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.
15
16
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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 equally31 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
Id.
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.
24
25
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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
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.
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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
Marriage Law art. 5(1950) (P.R.C)
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.
44
45
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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
Palmer, supra note 9, at 65.
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).
52
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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
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).
62 QURAN 81:1-10, http://www.usc.edu/dept/MSA/quran/081.qmt.html
58
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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
wished64 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
JAWAD, supra note 59, at 3.
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.
70 QURAN 24:33, http://www.usc.edu/dept/MSA/quran/024.qmt.html
63
64
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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 requires that the two be equal in religious piety, in lineage,
and must not have physical deformities.74 The Shafiis require freedom from defects, lineage, chastity,
craft and solvency.75 It appears that craft is referring to vocation and solvency refers to financial
health. The Hanafis consider lineage, property, craft, piety and being Muslim.76 While the
distinctions are slight, it is reflective of what attributes are cultural and religiously required.
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
ABDUL RAHMAN I. DOI, WOMEN IN SHARIAH, 33 (3d ed. 1990).
Id.
73 Id.
74 JAMAL J. NASIR, THE STATUS OF WOMEN UNDER ISLAMIC LAW 19 (2d ed. 1994).
75 Id.
76 Id.
77ENGINEER, supra note 61, at 26.
78 ENGINEER, supra note 61, at 27.
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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
QURAN 4:19, http://www.usc.edu/dept/MSA/quran/004.qmt.html
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.
79
80
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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
within the Sunni sect believe that the attempt to contract into a temporary marriage only
binds the parties in a permanent marriage.91
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
NASIR, supra note 74, at 18.
Id.
89 Haeri, supra note 81, at 125.
90 Id.
91 NASIR, supra note 74, at 17.
92 NASIR, supra note 74, at 26.
93
QURAN 4:03, http://www.usc.edu/dept/MSA/quran/004.qmt.html.
94
QURAN 4:129, http://www.usc.edu/dept/MSA/quran/004.qmt.html.
87
88
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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
JAWAD, supra note 59, at 46.
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.
101
QURAN 4:35, http://www.usc.edu/dept/MSA/quran/004.qmt.html
102 JAWAD, supra note 59, at 74.
95
96
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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. Though Islamic jurisprudence rejects it, the talaq al-Bid’ah is commonly used in
the Muslim world by Sunnis.110 Shi’as only accept the talaq al-Hasan form of divorce. The
declarations of divorce must be made orally with two witnesses at hand.111 For Shi’as, unlike the
Hanafi School, there must be a genuine intent to dissolve the marriage.112
(2) Divorce by the Act of the Wife/Divorce by Judicial Order
Id. at 79.
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.
103
104
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Because the talaq is unavailable to women, they must obtain divorce by judicial order. The
Hanafi School allows a woman to get a judicial decree for divorce only if her husband is unable to
consummate the marriage.113 The Ithna Ashari School grants a judicial order if the husband is insane,
has leprosy, or has venereal disease. The Hanbali School allows for divorce in cases of certain
physical and mental defects, desertion for more than six months without just cause, failure to
comply with a condition of the marriage contract, and failure to provide maintenance. The Shafi
School allows judicial order of divorce when the husband suffers from medical ailments (leprosy,
insanity, and venereal disease) and if he does not maintain his wife. The most liberal of these schools
in allowing divorce is the Maliki School. It allows divorce in cases of physical and mental defects,
desertion, absence for more than a year, failure to maintain, and ill-treatment. However, the judicial
order is done in the form of the talaq on behalf of the husband.
(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
Id. at 285.
NASIR, supra note 74, at 84.
115
QURAN 2:229, http://www.usc.edu/dept/MSA/quran/002.qmt.html
116 NASIR, supra note 74, at 84.
113
114
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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
ENGINEER, supra note 61, at 33.
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.”
121
QURAN 2:228, http://www.usc.edu/dept/MSA/quran/002.qmt.html.
122 NASIR, supra note 74, at 107.
117
118
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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,
123
QURAN 4:20, http://www.usc.edu/dept/MSA/quran/004.qmt.html.
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.
124
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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 muchanticipated 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
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.
132Davis, supra note 126 at 2.
133Id.
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.
130
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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
See Id.
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.
144
145
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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
RIG VEDA 85.46.
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.”
155
156
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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
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.”
159
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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
husband170 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
Id. at 44.
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.
171DERRET, supra note 124 at 147-48.
172 Nanda, supra note 148 at 628.
173 Id.
165
166Nanda,
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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 brideprice 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
Id.
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.”
174
175
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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
Id. at 160.
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).
179
180
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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
ASHUTOSH DAYAL-MATHUR, MEDIEVAL HINDU LAW: HISTORICAL EVOLUTION AND ENLIGHTENED REBELLION.
51 (2007).
186 Sarma, supra note 188 at 335.
185
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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
LUBMAN, supra note 1, at 24.
Id.
189 Id. at 219.
190 Id.
191 Id.
192 Id.
193 Id.
194 Id.
187
188
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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
Gelareh Asayesh, Iran: The Rules of Courtship, TORONTO STAR, Feb. 4, 1991, at B1.
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.
195
196
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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 nonsexual 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:
Id. at 138.
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.
202
203
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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
Law Code of Manu, supra note 141 at 161.
Ellen & Falk, supra note 208 at 269.
208 Id.
209 Id.
206
207
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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,
Id.
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.
210
211
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Nassim Hooshmandnia
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.
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