Sophia Laiou
This paper investigates the position of women as wives, or potential wives, and
as mothers.1 It explores a wide range of family and personal issues (marriage,
divorce, extramarital pregnancy, child custody, adultery, premarital intercourse,
rape, and prostitution), using the following sources:
1. Unpublished loose Ottoman documents from the monastery archives of the
island of Samos, which are all we have to shed light on how the Ottoman court
functioned in the kaza of Samos, since the court records have not yet been
located.2
2. Veria (Karaferye) Ottoman court records Nos. 1 and 19 (1011/1602–3 and
1058–60/1648–50, respectively), together with a number of cases gleaned
from the documents published by Vasdravellis from the same court; the
documents published in translation by Vasdravellis are selected from the
kadı records and those used here have been compared with the originals.3
Also, translated Ottoman documents from court records on Crete and Chios
edited by N. Stavrinidis and Ch. Mavropoulos, respectively. In addition, the
most recently translated court record No. 3 of Candia, which covers the years
1669–73 and 1750–67. It appears that two or possibly three separate volumes
have been bound together in what today constitutes court record No. 3.4
From Cyprus, the records of the Nicosia Ottoman court of the years 1693–
95 published by Merkellbach, and the Ottoman documents from the Kykkou
Monastery published by Theoharidis.5
3. This article also makes use of published extracts from the records of the dioceses
of Sisanion and Siatista, Trikke (northern and central Greece, respectively),
and Paronaxia (the Aegean) for purposes of comparison.6
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Geographically, the research presented here includes local communities with
a large Christian majority (Samos, for instance7) and mixed communities in an
area ranging from the Aegean islands to mainland Greece. The selection of a
variety of cases involving these kinds of disputes is intended to assist a fuller
investigation of women’s social position in the seventeenth and eighteenth
centuries in the southern Balkan peninsula and certain Aegean islands―an area
with a predominantly, or at least considerable, Orthodox Christian population.
The article does not aspire to offer an exhaustive analysis of the subject; rather, it
seeks to highlight a number of common factors.
In an age when the institution of marriage was a major factor of stability and
social cohesion in both Islamic and Christian culture, women’s position in that value
system was pivotal. Any deviation from the established value system threatened
the cohesion not only of the family but of the society to which it belonged. Despite
the various constraints imposed by the study of court documents,8 the latter are
the only source available for the study of women—especially those from an
agricultural environment and of low economic status—as they give us evidence
of how these women chose to turn a private matter into a public one, how they
perceived their rights to dignity, motherhood, and a normal private life, and what
strategies they employed to achieve their purpose. These documents also make
us wonder about the social processes that prompted certain female members of
local Orthodox-Christian-dominated communities to go to the Islamic Ottoman
courts. Studies of this question have hitherto focused on religiously mixed local
communities of the Ottoman Empire or communities in which the Muslim
element predominated. In these studies, cases of non-Muslim (mainly Greek and
Armenian) women’s appealing to Ottoman courts are immediately apparent.9
According to the privileges which Mehmed II is believed to have granted to
the Patriarch of Constantinople, the latter enjoyed absolute jurisdiction over cases
relating to the Orthodox religion (e.g. marriage, divorce, wills, and dowries) and
involving Orthodox reaya.10 This jurisdiction extended to the local metropolitans
and was confirmed through their patents [ berat].11
However, as Pantazopoulos has shown, the Church’s jurisdiction conflicted
both with the Ottoman courts, where cases were tried under Islamic law and kanun,
and with the communal courts, where, if an out-of-court settlement could not be
reached beforehand, the customary law of the local communities was applied.12
The sultan’s Christian subjects had three ways of resolving their personal and
family disputes, provided that criminal liability was not at issue: they could turn to
the episcopal court, the communal court, or the Ottoman court, if the latter existed
in their locality or in a nearby town. As a last resort they could turn to the imperial
council, the Divan-ı Hümayun, in İstanbul, and appeal the local judge’s decision,
or to the “natural” recipient of such petitions, the Patriarchate of Constantinople.
It is clear that the women who had recourse to the Ottoman court were seeking
more favorable treatment, having perhaps already tried to resolve their dispute
in the ecclesiastical or communal court with unfavorable results. In traditional
Greek historiography, it is stated that the Ottoman kadı s were eager to judge cases
laiou, Christian Women in an ottoman World
245
of divorces between Christians or to register their marriages, hoping that, at least
in the first case, they could persuade the Chistians to convert to Islam. Even if
this did not happen, the Ottoman judge would have the “moral satisfaction” of
having adjudicated cases that normally belonged to the jurisdiction of the local
Metropolitan.13 In this paper I argue that the non-Muslim reaya chose to refer
to the kadı s for various practical reasons, taking under consideration certain
provisions of Islamic law and the fact that the Ottoman court decision took
immediate effect14 (and could be appealed only through the imperial council),
thus making use of their privilege to opt for a law that could prove more favorable
to their needs.
There are a considerable number of entries in the court records of Veria,
Herakleion, Rethymno, and Chios concerning Christian marriages and divorces
in the seventeenth and eighteenth centuries. Why did these people―men and
women alike―elect to marry and separate under the terms of Islam rather than
Orthodoxy? To answer this question, it is useful first to look at the institution
of marriage and the divorce process both under Islamic law and according to
the practice of Orthodox ecclesiastical courts. Under Islamic law, marriage was
regarded as a transaction requiring the agreement of both parties. One condition
which ensured the validity of the process was the payment of the dowry [ mehr]
by the groom to the bride. Whether this was a sum of money or property in kind,
one part [ mehr-i muaccel] was―usually―handed over when the marriage was
contracted, and the remainder [ mehr-i müeccel] after the husband’s death or after
divorce. According to the Hanafi school of Islamic law (the official school of
the Ottoman Empire), by paying the dowry the man acquired ownership of the
woman’s sexual parts, while his obl
igation to maintain her [ nafaka] during the
marriage gave him the right to keep her socially confined. In fact, the payment
of the mehr and nafaka had the same purpose: to secure the man’s absolute and
exclusive right to have sexual intercourse with his wife.15
There were two forms of divorce under Islamic law: one pronounced
unilaterally by the man [ talak] by a simple procedure in which he repudiated his
wife three times in the presence of witnesses, not necessarily in court; the other
pronounced on the woman’s initiative [ hul] with the husband’s approval.16 In the
first case, the woman was entitled to any outstanding portion of the dowry, a sum
for maintenance for a period of three months [ iddet], and, if there were children
not yet of age, an allowance to sustain mother and children until they reached the
age of two and a further allowance for the children’s needs (clothing and so on)
up to the age of seven for boys and about nine for girls.17 If the woman initiated
the divorce proceedings, she had to pay her husband compensation, usually in the
form of all or some of the dowry, the three-month maintenance, or the allowance
she received for any children not yet of age.18 The amount of compensation was
negotiated by the spouses. There were also certain conditions under which the
marriage could be annulled [ faskh] at the request of either spouse: the husband’s
impotence for more than a year; an infectious disease or mental illness affecting
either spouse; the conversion to Islam of the wife but not the husband; the wife’s
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minority at the time of the marriage; and the husband’s failure to maintain his
wife either through poverty or through desertion.19
In theory, only the Orthodox clergy were responsible for issuing marriage
licences and divorce decrees when the applicants were Orthodox reaya.
According to the Orthodox Church, marriage is a sacrament blessed by Christ
and the sanctity of marriage makes its dissolution something to be avoided.20
According to Ginis, whereas the Church was very strict about granting divorces
in the Byzantine period, it gradually became more flexible after 1453. The
reason for this increased flexibility was the need to curtail the tendency of many
Orthodox reaya to apply to the Ottoman courts for divorce, and to achieve this
the Church recognized more grounds for ending a marriage. These “new” grounds
included the husband’s absence for either five or three years, the non-virginity of
the bride, and insanity or epilepsy occurring after the marriage. To these may be
added the grounds which had already been recognised in the Byzantine period,
such as the husband’s impotence for a period of three years, an unsubstantiated
charge of adultery, or the husband’s cohabitation with another woman.21 It should
also be noted that in church divorces there were no legal stipulations covering
the provision of maintenance, the amount of which was left to the ex-husband’s
discretion and was, by and large, a matter of customary law. For instance, there
are cases in which the former husband maintained his wife because she was
very ill, which was also the reason why the divorce had been granted in the first
place;22 and there are recorded cases in which the husband was summoned to pay
maintenance [ fakna] to his deserted wife, the specific amount being determined
by the ecclesiastical court.23
One landmark decision regarding the Orthodox Church’s attitude to divorce
was the acceptance of divorce by mutual consent, which was made official in 1717
by the decision of the Patriarch of Constantinople, Jeremiah III. Its importance
lay in the fact that it went against Byzantine jurisprudence―which specifically
forbade consensual divorce―and exemplified the Church’s increased flexibility
during the Ottoman period.24
Two major issues connected with the role of the Church in the local Orthodox
communities and the flexibility it was forced to adopt relate to the Muslim
institution of temporary marriage [ mut‘a/ kebin] and the payment of the dowry.
The first was a marriage that took place in the presence of the kadı and two
witnesses, had a specific duration—that was not, however, mentioned in the
marriage contract—and the man paid, or promised to pay, a sum specified in the
contract as the dowry [ mehr]. After the agreed-upon time had elapsed, the man
could leave the woman and she would receive the dowry in compensation.25 In
the region under discussion, kebin marriages took place either between Muslim
men and Christian women or between Christians. Any children resulting from
the marriage were recognised as legitimate under Islamic law with full rights
to inheritance and support; in contrast, the Orthodox Christian authorities did
not recognise marriages (whether kebin or not) between Christians that were
registered in the Ottoman court, and therefore regarded any resulting offspring as
laiou, Christian Women in an ottoman World
247
illegitimate. It should be stressed that since the specific duration of the marriage
was not included in the marriage contract, one can not be sure if these marriages
were always kebin, that is temporary. The custom was widespread in the Balkans
and the Aegean islands in the seventeenth and eighteenth centuries, despite efforts
to discourage it by the Church, which branded as adulterers those who entered into
a kebin marriage and those who registered their marriage in the Ottoman court;
and despite sultanic ferman s issued at the request of the ecclesiastical authorities
forbidding kebin marriage without the consent of both parties.26
In the local Christian communities of the Ottoman Empire, the institution of
the dowry [ προίκα] differed from its counterpart in Islamic law, for it was, in
general terms, the man who received the dowry, usually in the form of immovable
property. The dowry could also be accompanied by a gift of money [ trachoma],
again from the bride to the groom, while the groom provided the pre-marital
gift [ προγαμιαία δωρεά]. The difference between the dowry and the trachoma
was that the former was recognised by the Church, while the latter was not; and
if the man deserted the woman and the marriage was formally ended, he had to
return the dowry intact and in its entirety, while the trachoma was not returnable.
However, in other areas, we find the practice of agriliki, a sum of money given
by the groom to his parents-in-law as compensation for the expense of having
raised the bride. The agriliki is found, with variations, in Thessaly and western
Macedonia, where the groom did not receive a dowry or a trachoma.27 It should
be noted that in the Greek lands the institution of dowry was quite complex,
having numerous local variations deriving from communal law. Taking under
consideration this complexity, one might say that the obligation to provide a
dowry was usually a heavy burden for the girl’s family, especially given the fact
that the family’s social status rose in direct proportion to the value of the dowry.
Other daughters, if any, might thus be deprived of any hope for a “proper” dowry
and marriage. In t
he eighteenth century, the Church made unsuccessful efforts to
control the custom of both the dowry and the trachoma, in a bid to put a stop to
the financial drain it inflicted on many households.28 It is important to note that
if the man deserted the woman, the canon law implemented by the ecclesiastical
courts after 1453 decreed that the dowry be returned to the woman along with the
gifts he had given her before the marriage. But if the fault lay with the woman,
the man retained the dowry.29 In practice, however, there were variations: for
instance, in 1780, the archdiocese of Paronaxia issued a divorce at the request of
a husband who had accused his wife of adultery. Whereas, under canon law, the
man should have kept the dowry, the divorce document stipulated that the dowry
be returned to the woman, who should then return to her husband a sum of money
with which he had paid off a debt of hers. So here we have a financial settlement
between former spouses which did not implement the provisions of ecclesiastical
law, even though the divorce was granted by an ecclesiastical court.30
Bearing in mind the theoretical context outlined above, we can make the
following observations. It is understandable that a female Christian Ottoman
subject of low financial status, without strong family and social ties, might have
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sought relief from her financial problems in a temporary marriage. After the
dissolution of the marriage—if it were indeed dissolved—she would be able to
make a fresh start, and possibly contract a second marriage, with some capital in
hand. Furthermore, the offspring of this marriage were considered legitimate under
Islamic law. This strong financial motive was also a factor in marriages contracted
between Christians and registered in the Ottoman court. Such marriages had to
follow the Islamic convention and thus the man was obliged to pay the dowry at
the time of the marriage or in the event of divorce or death.31 However, what the
Christians did once they had left the court—whether the man handed over the
entire dowry written in the marriage contract or only part of it, and whether or not
the woman also handed over a sum of money—we have no way of knowing in the
absence of some judicial claim filed by one or other spouse.
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