i. THE MARRIAGE CONTRACT IN THE PRE-ISLAMIC PERIOD
The use of a formal, written agreement as part of the process of establishing a marriage bond between two families is documented in both eastern and western Iranian practice. The several surviving examples of such contracts in Middle Iranian languages are here discussed and translated in full. (See also FAMILY LAW i. IN ZOROASTRIANISM; cf. ii. IN ISLAM.)
The Bactrian marriage agreement (Sims-Williams, document A) represents the earliest legal record in a large archive of Bactrian letters and documents. This archive comes from the town of Rob or its vicinity, in present-day northern Afghanistan, and reflects almost five centuries of uninterrupted administrative tradition. The marriage contract is dated by the year 110 of the Bactrian (= Kushano-Sasanian?) era, which probably corresponds to 343 CE. At that time Bactria was ruled by the dynasty of the Kushanshahs, vassals of the Sasanian kings.
In spite of this fact, several features of the Bactrian marriage contract are distinctly non-Sasanian. Its most striking peculiarity is, of course, the marriage of the two brothers Bab and Piduk with a woman Ralik. This confirms the data of Chinese historians who recorded the widespread custom of polyandry in Pre-Islamic Tokharestan. Polyandry was still frequent in the Panjsher valley at the time of Biruni (973-1050), and remained common in Tibet up to very recent times. One can draw a parallel with the Sasanian next-of-kin marriage (xwēdōdah), since an important economic motivation suggested for both customs was to avoid the division of an inherited property. Another feature of the Bactrian marriage contract that has no parallels in the Sogdian and Pahlavi marriage agreements is the mention of the mother of the bride (Nog-Sanind) as a legal party. The same holds for the father of the bridegroom (Bag-Farn), but his active role in the marriage arrangement may reflect nothing more than the young age of Bab and Piduk.
The text of the contract clearly implies that Bab and Piduk will be regarded as fathers of Ralik’s children. This, as well as a reference to Ralik as “a lady possessing authority” (phinzo phromanzo), indicates that we are dealing with the most traditional form of marriage, roughly equivalent to the “pādixšāy-marriage” of Sasanian law. Unfortunately, we do not know whether alternative forms of marriage, such as the temporary marriage aiming at providing children for one of the parties, were recognized in the Bactrian legal system.
Judging by the modest size of the dowry and by special formulae preventing the potential enslavement of Ralik and her children, the parties involved occupied a relatively low rank in the social hierarchy of the town of Rob. The fact that their marriage agreement was concluded in the presence of city officials, and then kept in an archive for several centuries, indicates a high degree of administrative organization in early medieval Bactria. This gives hope that more documents of this kind will be found in the future.
(It was) the year 110, month Ahrezhn, day Abamukhwin having elapsed, when this marriage contract was written here in the borough of the city of Rob which is called Steb, with the cognizance of these free men of Steb, the witnesses and those who impressed (their) seal (upon it)—those who witness the present document put their signatures thereupon, and those who do not witness the present document certified another one—(namely) in the presence of Wind-Ohrmazd, Kulagan, the chief of the district, and in the presence of Khwadew-lad, Yastunikan, and in the presence of Waraz-ormuzd, Khwasrawgan, and in the presence of Abdabuk Pabugan, and in the presence of Aspal-mir Yolikan, and in the presence of Bag-bandag, the master craftsman, and also in the presence of the other freemen of Steb, the witnesses and those who impressed (their) seal (upon the documents). (Then this) declaration was freely and willingly made (by me) Bag-farn, son of Zamod and (by us) Bab and Piduk, the natural sons of Bag-Farn, who now serve Ninduk Okhshbadugan in free service.
Now: there has been requested by me, Bag-farn, from you, Far-wesh, and from you Nog-sanind, this woman whose name (is) Ralik, (as) a fully privileged daughter-in-law, (as) a wife for these (my) sons, Bab and Piduk, so that I, Bag-farn may treat the woman described herein, whose name (is) Ralik, (as) a daughter-in-law (to be treated) like a daughter in law, in every home which we now have and also which we may acquire in future, as (one) ought to treat a daughter in law, as (is) the established custom of the land.
And a declaration was made (by us), Bab and Piduk. We have received Ralik—I, Bab, and I, Piduk, as a wife to be treated like a wife, a lady possessing authority in every home which we have now and which we may acquire in the future, as (is) the established custom of the land. And I, Bab, and I, Piduk, shall not have the right to make another (woman our) wife, to keep a free (woman as a) concubine, to whom Ralik would not agree. And if I, Bab, or I, Piduk make another (woman our) wife, or keep a free (woman as a) concubine, to whom Ralik would not agree, (we) shall give a fine of twenty dinars of struck gold to the royal treasury, and the same to the opposite party.
And a declaration was made (by us), Ninduk, son of Muzda-wanind, and Yamsh-bandag and Pap and Yat, the sons of Nunduk, whose house is called Okhshbadugan, that we have ourselves approved Ralik and we are in agreement about this matter, and (we) shall not have the right—I, Ninduk, or I, Yamsh-bandag, or I, Pap, or I, Yat—to assign duties and tasks to Ralik, nor (to) whatever (child) may be born from Ralik. And whatever son may be born from Ralik, then she may have (him) for her own, and may put (him) for hire in free service, as (his) grandfather and father did; and whatever daughter may be born, then in as much as the father and the mother and the family may agree to give (her) away, then (we) shall grant (their) wish. And if I, Ninduk, or I, Yamsh-bandag, or I, Pap, or I, Yat do otherwise, or assign duties and tasks to Ralik, or claim that there is our slave-girl or slave among Ralik’s progeny, not (one) in free service like (his/her) grandfather and father, then (we) shall give a fine of twenty dinars of struck gold to the royal treasury, and the same to the opposite party, and so too our claim and argument shall be [inva]lid.
Dowry: one blanket, one pillow, one (?), one cloak [...], one [...], four bracelets, two (?), three pairs of shoes, two sheep [...], three measures of [whe]at.
The only extant edition of the marriage contract is N. Sims-Williams, Bactrian Documents from Northern Afghanistan: Legal and Economic Documents, Corpus Inscriptionum Iranicarum, pt. II, vol. VI, Oxford, 2001, pp. 32-36. A photograph of a part of this document is available for download at www.gengo.l.u-tokyo.ac.jp/~hkum/images /bactҳ018.jpg (accessed on 20 December 2004). The practice of polyandry in Pre-Islamic Tokharestan is extensively discussed in K. Enoki, “On the Nationality of the Ephtalites,” Memoirs of the Research Department of the Toyo Bunko 18, 1959, pp. 51 ff.
The Sogdian marriage contract (Nov. 3), together with the accompanying guarantee letter (Nov.4), was found, together with many other documents and letters, during the excavations on Mount Mugh located some hundred kilometers east of Samarkand, in present-day northern Tajikistan. These two documents, taken together, represent the longest legal text available in the Sogdian language. It is dated by the tenth regnal year of Tarkhun, king of Samarkand (ca. 709-10 CE). Consequently, it is likely that the marriage agreement between Ot-tegin and Chat was concluded in Samarkand, shortly before its surrender to the Arab armies of Qotayba b. Moslem. The find-spot of Nov. 3-4 is probably implies that one or both of the spouses eventually threw their lot in with Dewashtich (see DĒWĀSTĪČ), a ruler of Panjikent and a pretender to the throne of Samarkand, and was/were beside him when he was besieged in the castle of Mount Mugh by the Arabs and their allies. It is possible, although by no means certain, that Ot-tegin is the same person as Ot, the framānδār “steward” of Dewashtich and the addressee of numerous Mugh letters.
Nov. 3 refers to Chat as “a lady possessing authority (pāt[ə]xšāwan waδu)in his (= Ot-tegin’s) own house,” a title that has a semantic parallel in the Bactrian marriage contract. Both titles are likely to be functionally equivalent to Middle Persian kadagbānūg “mistress of the house,” a term defining a woman who has entered a pādixšāy-marriage, which was a regular type of arranged matrimony in the Sasanian period. Unfortunately, we do not know whether alternative forms of marriage, such as the temporary marriage aiming at providing substitute children for the deceased husband, were recognized by the Sogdian legal system.
The social status of the two spouses was possibly not quite equal. Chat is a stepdaughter of Wiyus, Prince of Nawekat, which can be identified with a prosperous Silk Road town in Semirechye. Ot-tegin, on the contrary, is not introduced as a prince. One can hypothesize that this difference in social standing is one of the reasons for the unusually high degree of independence granted to Chat by the marriage agreement. Its most salient manifestation is her right to initiate a divorce without forfeiting her dowry, a stipulation that would be unthinkable in Sasanian law.
Some passages of Nov. 3-4 seem to reflect the transitional political situation in Sogdiana in the early 8th century CE. Thus the clause “this document is valid wherever produced” can be taken as a reference to the political fragmentation of the country. The explicit promise of Ot-tegin to release Chat if she is taken hostage or given away as tribute reveals to us some grim realities of Sogdian everyday life. It is interesting that Ot-tegin has to appoint a guarantor of his obligations towards Cher, who, ironically, is called Nipak, literally “hostage.”
From the formal point of view, the Sogdian marriage contract exhibits many features of the Hellenistic administrative tradition. Unlike the Bactrian and Pahlavi marriage agreements, and like their Hellenistic counterparts found in Egypt, it does not fall apart into a series of declarations by the parties involved, but rather represents a connected narrative. The practice of special guarantee letters accompaning a transfer, such as Nov. 4, is also familiar from the Hellenistic world. The formulaic obligations taken by Ot-tegin and Chat in the beginning of Nov. 3 find striking parallels in Greek marriage contracts. This makes one suspect that the official institutions of Samarkand were thoroughly Hellenized in the Greco-Bactrian period, so that the legacy of Greek scribes can still be felt some nine centuries after the demise of Greek power in this region.
TEXT (Nov. 3)
It was the tenth year [of the reign] of King Tarkhun, month Masbogich, day Asman, when Ot-tegin, also called Zhedan, took for himself a wife from Cher, son of Wankhanak, Prince of Nawekat, [namely] a woman under [Cher’s] guardianship, a wife, who is called as follows: Dgutgonch, also called Chat, daughter of Wiyus. And Cher gave him [his] ward in accordance with the traditional law and on such a condition that Ot-tegin will treat Chat as his dear and respected wife, [providing her] with food, garments, and ornaments, with honor and love, as a lady possessing authority in his own house, the way a noble man treats a noble woman, his wife. (12-16) And Chat must treat Ot-tegin as her dear and respected husband; she must always conform to his wellbeing and obey his orders as befits a wife, the way a noble woman treats a noble man, her husband.
If, however, Ot-tegin, without sending Chat away, should take another wife or concubine, or keep another woman that does not please Chat, then Ot-tegin, as husband, will be owing and pay Chat, his wife, a fine of thirty good, pure dirhams of [the type] Den and will not keep that aforementioned woman either as a wife or as a concubine, but will send her away. (22-V 2) But if it should occur to Ot-tegin that he will not have Chat as a wife [anymore], but send her away, he will release her with [her] inherited and acquired property, [as well as] with the gifts received, without compensation, and [he] will [also] not be owing or pay any compensation [to her], and after that he may marry such a woman as pleases him. (V 2-9) And if it should occur to Chat at that she will not remain with Ot-tegin, but will go away from him, she will leave him the undamaged garments and ornaments, all that, which is the portion received by her from Ot-tegin, but she will take [back] her own share with an indemnity and will not be owing or pay any other compensation, and after that she may marry such a man as pleases her.
And if Ot-tegin commits a misdeed, then [he] will suffer and pay for it himself. (11-13) And if he becomes somebody’s slave, hostage, prisoner, or dependent,then Chat at with her progeny will become free without [paying] compensation. (13-14) And if she should commit a misdeed, then [she] will suffer and pay for it herself. (14-17) And if she becomes somebody’s slave, hostage, prisoner, or dependent,then Ot-tegin with his progeny will become free without [paying] compensation, so that one will not suffer and pay for the other one.
And this marriage contract [was] made in the Foundation Hall before the elder Ukhushukan, son of Barkhuman. (19-20) And there were present Skatch, son of Sheshch, Chakhren. son of Ramch, and Shaw. son of Makhak. (20-21) And [it was] written by Ramtish son of Akhushfarn.
TEXT (Nov. 4)
(Tenth year [of the reign] of King Tarkhun, month Masbogich, day Asman. From Ot-tegin, also called Zhedan, son of Qishiq, to Cher, son of Wankhanak, Prince of Nawekat, and to his son(s) and family. (5-7) Mylord, I took from you Dgutgonch, also called Chat, daughter of Wiyus, as a wife. (7-12) And then, to you, Cher, I promised and made obligation that henceforth and for evermore, so long as Chat remains with me as [my] wife, mylord, by the Lord Mithra, I shall not sell her, give her as hostage, give her away as tribute, or place her under [another’s] protection. (12-15) And if someone, from my [side] or from the enemies’ side takes her and detains her, I shall have her immediately released without damage or injury.
And if [it] is not agreeable for Chat to remain with me, or if I send her away, I shall deliver her and give her to you, Cher, to your son(s) and family with her portion (of the property), without damage or injury. (18-22) And if I do not give her, do not deliver her with her portion (of the property), I shall be owing, and give, and pay you 100 approved, good, pure silver dirhams of [the type] Den. (22-V 1) And, until I pay, I shall hold them at the rate of 12to 10.
And Ot-tegin, with his son(s) and family, appointed for Cher, and for his son(s) and family, Nipak, also called Nibodak, son of Burz, [who will be] responsible for these conditions and for these 100 dirhams, and from whom Cher with his family, if he wishes, may request this woman, without injury, or these dirhams, with interest. (9-10) And this document [is] valid and authoritative for all people. (10-12) And [it was] made in the Foundation Hall before the elder Ukhushukan, son of Barkhuman. (12-14) And there were present Skatch, son of Sheshch, Chakushak, son of Nanch, and Chakhren, son of Ramch. (14-16) And [it was] written by Ramtish, son of Akhushfarn by the order of Ot-tegin and with [his] authorization.
The contract was published in facsimile in Mikhail Bogoliubov et al., Sogdiĭskie documenty s gory Mug. Fotoal’bom, Corpus Inscriptionum Iranicarum, vol. 2 part 2, Moscow, 1963, plates LIV-LV. Out of the two Russian editions, Vladimir A. Livshits, “Sogdiĭskiĭ brachnyĭ kontrakt nachala VIII veka n.e.,” Sovetskaya etnografiya 5, 1960, pp. 76-91, and idem, Yuridicheskie dokumenty i pis’ma (Sogdiĭskie dokumenty s gory Mug, v. 2). Moscow, 1962, pp. 17-45, the second one takes into consideration the extensive remarks of Ilya Gershevitch “The Sogdian Word for ‘Advice’ and some Muγ Documents,” Central Asian Journal 7, 1962, pp. 90-95. Ilya Yakubovich, “Marriage Sogdian Style,” in B. Fragner et al., eds., Iranistik in Europa - gestern, heute, morgen. Akten der Tagung Graz,1 1.-15.02.2002, Vienna, forthcoming (2005), represents an English edition of the document that focuses on the research done in the last forty years. The translation given above incorporates personal communications by Dr. Pavel Lurje.
The marriage contract in Pahlavi, preserved in the codex MK, does not represent an archival document, but rather a template for the use of Zoroastrian officials. Although it is probably based on a real marriage agreement concluded in an unknown place in the year 647 of the Yazdegerd era, which corresponds to 1278 CE, all the original personal names in the document have been replaced with wahmān “so and so.” The recent English editions of this document render this ambiguous designation with the letters of the alphabet, where each letter refers to a particular person. The abbreviation B.C (etc.), corresponding to Middle Persian wahmān ī wahmānān means B, son of C.
The arrangements reflected in the Pahlavi marriage contract display a general agreement with the juridical norms of the late Sasanian “Book of the Thousand Judgements” and post-Sasanian Pahlavi Rivayats. The main features of the pādixšāy-marriage, referred to in the contract and known from these prescriptive documents, are as follows: (1) the wife comes under the guardianship of the husband; (2) she receives the title kadag-bānūg “mistress of the house”; (3) her children are accepted as legitimate children of the husband; (3) she and her children are entitled to maintenance by the husband during his lifetime and to the inheritance of his property after his death; (5) if the husband dies childless, the wife is obliged to make special arrangements in order to provide him with heirs.
These arrangements are referred to in the contract by the term ayōgēnīh “intermediary succession.” As an intermediate successor, the widow had to enter an ancillary marriage with another man in order to provide children for her former husband. The intermediary succession must be distinguished from a broader term stūrīh “substitute succession,” referring to the situation when any man or woman, not necessarily a relative of the deceased man, puts his/her reproductive capacity into the service of the deceased, entering an ancillary marriage as his proxy. The Pahlavi marriage contract underscores the fact that the wife (F) is not functioning as an intermediary successor or substitute successor for someone else, and therefore can enter pādixšāy-marriage.
A large portion of the marriage contract deals with the size of kābēn, the part of the husband’s property that constitutes the wife’s “share” in it and must be forfeited by the husband if he initiates a divorce. The sum of 3,000 silver dirhams was apparently regarded as a normative kābēn, the size and/or form of which could be, however, modified in individual cases. The ideal half of A’s property, pledged by him as a substitute for the regular payment, would make it extremely difficult for him to divorce F. It may be not entirely coincidental that the dwindling Zoroastrian community, which regarded marriage of “those of the Good Religion” as a pious duty and subsequently abhorred separation of the spouses, chose this particular marriage contract as a model.
(It was) the month of Vahman of the year 627 after the 20th (regnal) year of His Majesty Yazdegird, King of Kings, son of Shahriyar, (who is) a descendant of His Majesty Abarwez Husraw, King of Kings, son of Ohrmazd, in the first part of the day Day-pad-Mihr, when they gathered together (reciting) good utterances for the taking into pādixšāy-marriage by a man called A, (who is) a son of B.C, living in the district D, village E, of this girl, called F, (who is) a pādixšāy-daughter of G.H, living in the same village E.
And so she (= the bride) has entered into the guardianship of the father of A (= the bridegroom), since marriage and daughterhood did not come to her in the way of practicing someone (else)’s substitute succession or intermediary succession.
Thus A (= the bridegroom), by request and transfer by the father of F (= the bride), with the approval and consent of F (= the bride) took the said F into pādixšāy -marriage in accomplishment of a pious act.
And the said G (who is) the father of F (= the bride), gave F (= the bride), in accomplishment of a pious act, into pādixšāy-marriage to A (= the bridegroom) by (speaking) the triple formula.
And the said A accepted (her) from him (= the father of the bride) in this (manner), that F (= the bride) also (should) accept the following: “As long as I live, I shall not deviate from the marriage (with the bridegroom), and (his) intermediary succession, and submissiveness, and obedience towards A, as well as from being an Iranian and (practicing) the Good Religion.”
And A (= the bridegroom) also said thus: “As long as I live, I shall hold (her) dearly in marriage, established as mistress of the house, provided with food and clad with clothing, according to my status of husband and guardian and fitting the (requirements of) the times, well respected, and I shall regard the children born by her as my own pādixšāhy-children.
And, when this matter was so (agreed and declared), (then) the said A (= the bridegroom) granted to the said F (= the bride) full right of disposal of the income. And, then they agreed by contract (on the following): A.B (= the bridegroom) (pledged) for F.G (= the bride) 3,000 sanctioned and approved silver dirhams in domestic currency (as follows): “As a substitute of 3,000 silver dirhams in domestic currency sanctioned and approved for her, I convey to F.G (= the bride) an equivalent, (namely) an ideal half of all the property that that has come into my possession and ownership and that I have been entitled to give, as well as (the property) that from now on will come into my possession and ownership and that I will be entitled to give. And I grant to F.G (= the bride) full right of disposal of this substance, so that if F (= the bride), or F’s representative, make a request for a portion, I shall deliver it to her unspoiled and neither delay nor be obstinate over it.
And the said F.G (= the bride) accepted this substance as a substitute of these 3,000 dirham without a surety and agreed to this.
And the father of the said F.G., (who) had come as her intercessor, accepted the surety of A.B (= the bridegroom) and did not dispute further
And I, (the present) K. L, whose duty it was to carry out an investigation on other matters relevant to the marriage contract, have examined (these) and drove a disposition.
And, given the consent of A. B (= the bridegroom), F.G (= the bride) and F.G (= father of the bride), this document was completed upon dictation and declaration of unanimity of the said A.B (= the bridegroom), F.G (= the bride), and, on behalf of the said F, the said G.H, (who is) the father of F.G, and with the testimony of M.N, O.P, and Q.R regarding (its) validity.
The contract was published by J. M. Jamasp-Asana, Pahlavi Texts II, Bombay, 1913, pp. 141-43, and translated for the first time by B. G. Anklesaria in the introduction to the same volume (pp. 47-49). Parts of this document are quoted by E. W. West, “Pahlavi Literature,” in W. Geiger and E. Kuhn, eds., Grundriss der iranischen Philologie II, Strassburg [Strasbourg], 1904, II, pp. 119-20 (secs. 1–2) and A. Pagliaro, “L’ anticresi nel diritto Sasanidico,” Rivista degli studi orientali 15, 1935, p. 308 (secs. 7-9). These earlier works were rendered obsolete by the Russian edition of the contract, A. Perikhanian, “Obrazets pehleviĭskogo brachnogo kontrakta,” Sovetskaya etnografiya 5,1960, pp. 67-75, and its English creative adaptation, D. N. MacKenzie, “The Model Marriage Contract in Pahlavi,” in K.R. Cama Oriental Institute Golden Jubilee Volume, Bombay, 1969, pp. 103-12. The Persian translation of the document is included in S. ‘Oryān, Motun-e pahlavi, Tehran, 1992. The most up-to-date edition is currently in preparation by M. Macuch, to be published in M. Macuch, M. Maggi, and W. Sundermann, eds., Iranian Languages and Texts from Iran and Turan. Ronald E. Emmerick Memorial Volume, Wiesbaden, forthcoming (2006?).
January 13, 2005
Originally Published: July 20, 2005
Last Updated: July 20, 2005