Part IX

The old severity towards those who endangered the sanctity of the marriage tie or of family relations was maintained in full rigor. The woman caught in the act of adultery is thrown into the water together with the culprit, though an additional clause gives the husband or the king the right to spare the woman's life if either feels so inclined (§ 129) a provision intended no doubt to cover cases where extenuating circumstances existed.

If a betrothed woman is forced to the act which takes place in her father's house, the culprit is put to death but the woman goes free (§ 130), and if the woman accused by her husband of adultery can swear an oath that she is innocent, she may return to her husband's house (§ 131). If, however, another than her husband accuse her, then she must submit to the ordeal by throwing herself into the water (§ 132).

The assumption in all these cases of course is that she has not been detected in the act. The punishment for the one who brings an accusation of adultery but cannot prove it is to be branded on the forehead (§ 127), and this applies to such a charge brought against a votary as well as against a wife.

Starting from the principle that a man must provide for his wife, the Code adds a number of decisions to distinguish between desertion and enforced absence. If a man is captured but there is provision made by him for his wife she must remain faithful to him. If she fails to do so, she is to be thrown into the water ; but if the husband fails to provide for her, she is free from blame if, as the phrase in the Code reads, "she enters the house of another" (§ 133-134) ; and if she bears children to her second husband, and then the first one returns, she is to be taken back by her first husband, while the children from the second one are placed in charge of the father (§ 135).

Such cases arose frequently in consequence of the numerous wars in which the petty states and afterwards the united states of the Euphrates Valley were engaged, as a consequence of which wives might be in doubt whether their captured husbands would ever return.

Making provision for the wife was, however, taken as an indication of the husband's intent to return, and therefore, the woman was bound to him until she heard that he had perished. The same would apply of course to a husband absent from home on business, and it is interesting to compare with the Code the discussions and decisions on the complications arising from such circumstances in the Talmudical treatise setting forth the Jewish practice, ^[1] with the same endeavor to distinguish between enforced absence and actual desertion. On the latter subject, the Babylonian Code is brief and explicit. The woman can marry another, and if the first husband returns, she is not to go back to him (§ 136) .

Lastly, as a further illustration of the aim of the Code to maintain proper standards in family relations, we may instance the series of punishments for incest which will also show the grades of such conduct recognized.

The man who violates his own daughter is driven out of the city, that is, loses his right of citizenship (§ 154). If a father violates the son's betrothed after the son has known her, he shall be bound and thrown into the water; but if the son has not yet known her, then the man is let off with a fine of half a mina of silver; he also restores to the girl whatever she may have brought from her father's house, and the girl may marry whom she pleases (§ 155). The point of view is that found generally in primitive society which looks lightly upon sexual intercourse with a woman before marriage or before she has known the man to whom she is promised, but is exceedingly severe upon the same act with a married woman.

As a consequence even the illicit intercourse between a father and his virgin daughter does not entail the severest punishment, whereas if a son has intercourse with his mother after his father's death, both are to be burned (§ 157). If, however, the intercourse be with one of his father's wives who is not his mother, he is merely expelled from the family, because the grade of incest is less than in the case of his own mother (§ 158). The distinction, however, appears to belong to a later age. Breach of promise is treated from two points of view.

A marriage representing primarily an agreement between the father of the bride and the prospective husband, a refusal to marry may emanate from the latter, and a refusal to give in marriage from the former. If the prospective husband rejects his bride merely because he prefers another woman, that is to say without adequate cause and he has already fixed a marriage gift for the girl, and in accordance with prevailing custom has given the father-in-law the present which takes the place of the older purchase-money for a wife, then the father-in-law retains the settlement.

If the father of the bride refuses to give his daughter in marriage after the gift has been turned over, then double the amount is to be returned to the bridegroom. If the father-in-law, after the marriage settlement has been given, refuses to abide by the agreement because he listens to the defamation of his son-in-law, to some idle gossip from a "friend", the same fine of double the amount of what had been given is imposed on the father-in-law. The "friend" who slandered the bridegroom is not permitted to marry the girl (§ 159-161). The three cases are set down as typical and form the basis for deciding other cases that may arise.

Footnotes and references:

[1]:

Treatise Kethubin, fol. HOb.