Whereas a husband’s unilateral statement was sufficient for him to obtain a
divorce, in many cases wives still needed to have recourse to the courts in order
to legitimize their status. This is particularly evident in the case of conditional
[ şartlı] divorce, where, after meeting the set conditions, the wife still needed to
have the court declare the divorce in order to be free. In one such case, Ahmed
Ağa had stated a year earlier that if he drank his wife Saf iye Hatun would be free
of him by triple divorce; however, he had continued to drink. For this reason,
Saf iye asked the court through a representative in 1686 to confirm that she was
divorced. Ahmed Ağa admitted that he had set such a condition, but denied that he
had been drinking. Accepting the testimony of two Muslim witnesses supporting
Saf iye’s version, the court declared that the woman was free of her husband by
a triple divorce. In another case before the court in the town of Vidin, Fatime of
Belgrade stated that her husband İbrahim, son of Salih, lived in the kasaba (small
town) of Nish and provided no allowance [ nafaka] to her. Fatime was issued a
hüccet for an allowance, which she had sent to her husband in order to claim the
means to acquire food and clothing. However, İbrahim had refused to pay what
he was obliged to give her, and had instead stated that ten days after the return
of the messenger Fatime would be free [ iradeti elinde olsun]. For that reason,
Fatime wanted that fact to be confirmed, and this was done by two summoned
Muslims. On 15 May 1720, it was recorded that the conditions for the divorce and
the divorce itself had been declared on 24 April 1720.37
The documents confirm that the will of the husband was decisive in divorces.
He could use different verbal formulae to express his will, and even sometimes
his whim.38 The departure of a husband, for example, only provided his wife with
grounds to make a claim for the issuance of an allowance from her husband’s
estate, but not with grounds to obtain a divorce.
ivanova, marital ProBlems of Christian Women
161
Technically, most of the recorded divorces were initiated by Muslim women,
since—unlike men—they could only get divorced by a court action. Women
needed to present legitimate grounds, especially in cases when they expected
material compensation by the husband—who, for his part, would often seek ways
to avoid it. In 1737, Ali Beşe from the town of Rousse divorced his wife by
talâk-i bâin and refused to pay her the 40 kuruş of mehr. The wife had to go to
court, and, with the assistance of a conciliator [ musalih], she settled for a mehr
of 20 kuruş.39 Women were often obliged to “buy themselves out” of unwanted
marital bonds and even assume the upbringing of the children. The courage that
it took to do so, probably based on careful estimates of future means, is all the
more evident against the background of cases in which the husband was actually
obliged to support the children. Kadriye, daughter of Abdullah from Vidin, was
divorced from her husband el-Hac Ali by talâk in 1704. She claimed and received
from the court a ruling of 3 akçe per diem for the minor Mustafa, whose care she
assumed.40 It is curious that in sicil s from present-day Bulgarian towns, I have not
encountered cases during the period under review in which Muslim women cited
zina (adultery) as grounds for divorce, since that would have been more beneficial
to them from the material point of view.41
The kadı court was the institution where women could seek protection in drastic
cases of brutality by an ex-husband after a divorce. Kadriye Hatun, daughter of
Osman from the village of Banska in the kaza of Razgrad, had been divorced
three-and-a-half years earlier from the spahi Mehmed Bey, a dweller of the
same village. By proxy, she filed charges against her ex-husband who, together
with another spahi charged with certain police powers, had attacked her house.
They had kidnapped her, along with her father, and had taken them to the village
of Kopriviche, in the kaza of Rousse, where they raped her. Although he was
summoned twice to the court, Mehmed Bey refused to appear. The interrogated
dwellers of the village of Kopriviche confirmed the words of the victim.42
Our material confirms the common observation that the marital status of
Muslim men was far more advantageous than that of Muslim women. Men were
free to resolve many of their marital problems without the need of institutional
involvement. However, the very fact that women possessed certain officially
recognized remedies is significant by itself. Family and marriage problems were
in the jurisdiction of the kadı—the basic administrative and legal institution of
the Ottoman empire, forming a relatively dense network throughout its provinces
and thus facilitating access to justice, especially for town dwellers. This fact is
indicative of the degree of formalization of the marriage institution. Of course,
it is important (though difficult) to know to what extent Muslim women actually
took advantage of these legal opportunities.43
Christian Women before the Shari‘a Court:
“Hüccet of the Divorce ( Tefrik) of the Christian Woman Istoiana”
I shall begin the discussion of our main topic with an interesting case from 1709.
Before the court of Sofia appeared an inhabitant of Sofia named Icho, son of
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Iovan, a zimmi (non-Muslim), who came from the village of Chorni Dol, in the
kaza of Şehirköy (today the town of Pirot in Serbia). In the presence of his own
daughter—the mature [ kebire] Christian woman Istoiana—he presented his claim
against Mitre, son of Radoslav, a zimmi, a dweller in the village of Boindol in the
same kaza. Icho claimed that thirty days earlier, without Istoiana’s or her father’s
permission [ izin], Mitre had “committed a marriage” [ nikâh]. Illegally and by
force, he had taken Istoiana to a summer sheep pen. He had treated Istoiana as a
husband would [ zevciyet muamelesi ider]. The father pleaded that the court, after
an interrogation, enter a verdict of tefrik (a divorce declared by court).
When questioned about what had happened, Mitre replied that Istoiana was
sane and had reached sexual maturity, i.e. puberty [ akıla ve balige], and that she
had acted freely [ faail muhtar] and of her own accord [ kendi rızasiyle]. “One
unworthy [ rekik] priest from the monastery of Palavniche (?), whose name I do
not know, married us [ bana niküh idüp] according to our false rite [ âyin-i bâtılamız
üzre]. Now she is my wedded wife [ zevce-i menküha].” Mitre’s assertions were
not accepted by the court, and he was required to present proof thereof. After
some time, two non-Muslims were summoned before the court. They declared
that they were not aware of the marriage, and confirmed the father’s assertion that
Istoiana had been taken by force without either her permission or that of her father
Icho. Thus, under Shari‘a law, it was not established that Istoiana was the lawful
wife of Mitre. Istoiana was separated from Mitre by tefrik and was transferred
to her father in the Shari‘a court. These events
“were recorded on demand” on
20 May 1709. The witnesses were Hüseyin Efendi, son of Ahmed Efendi, and
Mustafa Çelebi, son of Abdullah.44
The Institutions
In accordance with the zimma/ dhimma pact, the Orthodox Church as a legal
institution was integrated into the Ottoman social and administrative network
during and after the fifteenth century. Thus, the Church preserved elements of the
role it had played during the previous Balkan-Byzantine period, and even saw its
functions expand. This expansion particularly concerned the powers granted to
the Church by the Ottoman state to regulate the family and matrimonial relations
of its members in accordance with canonical law. The scarce information that we
possess indicates that wherever the Church attempted to regulate those matters, it
tried to follow the requirements of the canon.45 It seems, however, that during the
first centuries of Ottoman rule, not all local structures of the Church were able to
exercise these powers to the full extent.46 This must have meant that the legal rights
of Christian women were curtailed. The Church’s unsystematic functioning, and
the scarcity of surviving documents issued by the Church bodies, make it difficult
to study the regulation of the matrimonial problems of the Christian people from
the Bulgarian eparchies of the Constantinople Patriarchate before the nineteenth
century. It is therefore important to make use of the information available in the
Ottoman documents concerning the treatment of the matrimonial problems of
Christian women by the kadı court.
ivanova, marital ProBlems of Christian Women
163
The powers of the Church to regulate family and matrimonial relations were
established by the Ottoman state in the berat s issued personally to the bishops.
The renewed berat from 1703 for Anastasii, metropolitan of Sofia, reads: “Without
the knowledge and permission of the aforementioned clergyman, [priests] shall
not marry against their Church decrees those infidels who are not permitted to
enter into a marriage. If a non-Muslim’s wife runs away, or if a non-Muslim
has to divorce or to take a wife according to their useless confessional decrees
[ akd-ı nikâh ve fesh-i nikâh], or if they should be subjected to damnation and
punishment—the so called aforos (excommunication)—in their churches, only
the aforementioned clergyman and no one else should mediate.” In other similar
documents it is especially emphasized that non-Muslims can marry only up to
three times in succession, and that if they do otherwise, they should be punished.
Also mentioned are the taxes that were paid upon entering the first, second, and
third marriages, and when there was need to enter into or terminate a marriage.
A berat from 1738 on the appointment of the bishop of Cherven (near
Rousse) also contains the standard provisions regarding the marital powers of
the Church:
From the records preserved in the state Archive … it is evident that pursuant
to the high berats granted to the bishops, they … collect taxes, as have been
collected in the past as well, from those entering into their first, second,
and third marriages. … When a divorced or miserable Christian woman
asks the aforementioned monk, he possesses the right to permit a marriage
or to terminate the existing one in accordance with the relevant religious
rituals, after the Church is paid a fee. … Without the permission of the
aforementioned monk, no priest shall have the right to permit the marriage
of persons for whom marriage is not allowed. It shall not be allowed for a
priest to be forced to perform a service against the rituals that he is following,
or to be made to marry any Christian man to this or that Christian woman.
No interference with the papers composed and dispatched for the sanction
of those Christians who have been subjected to aforos shall be allowed.
Whenever the aforementioned priests perform marriages against the
religious requirements, … they shall be punished by dismissal or shaving of
their beards, and their positions shall be granted to more worthy ones.47
These texts outline the main problems that the Church dealt with when regulating
the matrimonial issues of its parishioners: the desire to enter into more than three
marriages, or possibly to evade some other matrimonial limitations. It was precisely
because a prelate had permitted an illegal concubinage and a fourth marriage that
the synod of the Ohrid archbishopric defrocked and excommunicated him from
the Church. We may add that folklore as well as ecclesiastical court documents
from the nineteenth century suggest that another common problem was the desire
to marry a close relative.48
Christians were not obligated to go to the kadı in order to be married or to
divorce, but there may have been judges who abused their positions in order to
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collect taxes. Such a case is discussed, for example, in a ferman from 1700 sent
to the authorities of the town of Vidin as a result of a complaint by Kalinikos,
Patriarch of Constantinople. Quoting the berat s granted by sultans, the patriarch
pointed out that when a marriage of infidels [ kef ire taifesi] was to be contracted or
terminated [ akd-i nikâh ve fesh-i nikâh], this was to be conducted by the bishops
and the priests in accordance with their false rites [ âyin-i bâtılamız üzre]. However,
in order to gain some money, kadı s and nâib s (assistants to the kadı) claimed that
without a letter from them [ mürâsele] a marriage could not be contracted. This
inflicted damage upon the Treasury and was a breach of the infidels’ customs.49
In order for such taxes to be collected—although that meant acting beyond legal
powers in order to obtain undue financial gain—at least formally a marriage or
divorce had to be sanctioned by the Shari‘a court. A similar case is evidenced by
another ferman to the kadı of Vidin concerning abuses by the former kadı who
had traveled around the kaza, stayed at the houses of the reaya, and, in violation
of procedure, forcefully performed the partition of inherited estates as well as
illegally earning fees for contracting marriages.50
It becomes clear from such documents that it was not unusual for kadı s to
officiate in marriages among Christians, and collect the officially-set fees. It has
been established that various regions experienced a scarcity of priests in different
periods, particularly the villages of Bulgaria in the fifteenth to seventeenth
centuries. As a result, Church marriages could not be regularly performed, and this
opened the way for the only institutionalized alternative available—registration
before the kadı. On the other hand, it was precisely during the seventeenth century
that the jurisdiction of the kadı institution reached its apogee in the provinces
under study, and that the network of kadı courts was completed and its staffing
peaked. Particularly from the middle of the seventeenth century to the end of the
eighteenth, the office of the kadı became especially desirable, and as a result there
was pressure to create new kadı posts. This, together with an increase in c
orruption
among the lower-rank ( toprak) kadı s—as evidenced by adaletname s (sultanic acts
of mercy against injustices upon the reaya)—leads to the conclusion that those
kadı s who had waited for a long time before assuming their limited term in office
sought to exploit all available opportunities to collect earnings, that is, to perform
the maximum number of procedures and collect the associated fees—in obvious
competition with customary practices. The local zimmi would have represented a
substantial reserve for this expansion of the scope of formal Shari‘a procedures.
Going back to the ferman of 1700 mentioned earlier, it is clear that looking for
business around the kaza was the easiest way for a kadı to increase his earnings,
because while the population of the town of Vidin was predominantly Muslim,
the countryside was mostly inhabited by Christian villagers.51
The ferman s cited above were issued in response to complaints by local
bishops against kadı s, and, as mentioned earlier, the number of such problems
in Rumeli appear to have increased during the eighteenth century. The local
bishop considered the perimeter of his activities, as well as his finances, to be
endangered. The case of Mitre and Istoiana also confirms that the administration
ivanova, marital ProBlems of Christian Women
165
and local authorities recognized the competence of the clergyman to contract
marriages—the subject of dispute was not whether or not the Church had the
jurisdiction to officiate marriages in general, but rather whether or not such an act
had been performed in this particular instance.
It seems, however, that Christians themselves resorted to the kadı courts for
several reasons. According to some researchers, financial motivations played a
part: marriage and divorce fees at the kadı courts were lower than those collected
by bishops.52 In addition, simpler procedures—for example, no investigation
into the motives for divorcing, no conciliation terms, and no bans on subsequent
marriages—and the wish to evade some canonical restrictions might have
induced Christians to use the services of the kadı. Indeed, all these factors are
evidenced by the documents of the bishopric courts from the nineteenth century.
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