>>Conjugal institutions under ancient laws of Vietnam
Pham Diem
The State and Law Research Institute
Of the family relationships, the relations between husband and wife constitute a type of basic and leading relationship which consequently attracted the special attention of the ancient law-makers.
In the old days, the family relations in general and the conjugal relations in particular were governed by various types of social norms: the ethical norms, the Confucian norms, the local customs and practices and the legal provisions.
According to Confucian perception, an ideal woman was not only possessed of “tu duc” (four virtues): “cong” (housemaid work), “dung” (good countenance), “ngon” (speech) and “hinh” (chastity), but also subject to the principle of “tam tong” (three submissions): “tai gia tong phu, xuat gia tong phu, phu tu tong tu” (When still young in the family, they had to be submit to their fathers; when married, they had to be submit to their husbands; and when their husbands die they had to be submit to their children). In the family, the husbands are patriarch and family master, having the rights to decide all family affairs. Yet, under the traditional customs and practices of the Vietnamese people, the women were not so totally dependent on their husbands that they have lost all their civil capacity. On the contrary, they have had certain rights. Those, namely the Confucian ideology of patriarchy, and the Vietnamese people’s traditions were institutionalized in the ancient laws of Vietnam.
The husband-wife relationships in the ancient laws were concretely reflected through the following rights and obligations of involved parties:
1. The obligation to co-habit
According the Vietnamese people’s customs and practices and the Confucian perceptions of the Orient, after their marriage, women had to stay with their husbands at places decided by their in-laws and their husbands. The newlyweds often lived together with the husbands’ parents within the big families before they were allowed by parents to stay separately, living their independent life.
Under the ancient laws, a woman who left her husband’s family without permission would be severely punished. Among the 24 teachings issued by King Le Thanh Tong in 1471, there was one provision: “Women at faults and punished by their in-laws should correct themselves to expiate their faults and must not leave without permission to spoil herself”. This law provision also held such woman’s parents accountable for their daughter’s acts (even she had got married): “Being women, they must follow their husbands and must not plume themselves on their wealthy parents to disdain their husbands; if not, their parents would be penalized”. The ancient law-makers prescribed severe penalties for wives who had left their husbands’ families without permission. Article 321 of Hong Duc Code (the 15th century) stated: “If an official wife or a concubine leaves her husband’s family without permission, she will be sentenced to “do lam xuy that ty” (meaning to corve labor in an army barrack, doing the cooking, and penalized with 50 canings and stigmatized with two letters on her neck). If she left and later married another husband, she will be sentenced to “do lam thung that ty” (meaning corve labor, husking and pounding rice at tax rice depots of the State, and at the same time being subject to 50 canings and stigmatized with four letters on her neck). Such woman and her property will be returned to her former husband’s family. Those who knew her case but still married her shall be subject to “do” (corve labor for the State). If they did not know and got married with such woman, they shall not be penalized”.
According to Article 108 of Gia Long Code (in the 19th century), if a husband did not wish to divorce his wife while the latter left her husband’s family without permission, she would be penalized with 100 canings; if she left and married another husband, she would be sentenced to hanging. This was explained by the then law-makers that: “The woman has to follow her husband. The husband may give up his wife, but the wife must not abandon her husband. Hence, if she abandons her husband and escapes from the latter’s family, she will be penalized with 100 canings; if she escapes and marries another husband, she will be sentenced to hanging.” Also under Article 108 of Gia Long Code, the husband might marry or sell such wife to other person.
However, not the wives alone had to fulfill the co-habitation obligations, but the husbands had, to certain extent, to respect such obligations. Article 308 of Hong Duc Code stipulated: “If a husband has neglected his wife for five months (as reported to the local mandarin by the wife and witnessed by the village mandarin), he will lose his wife. If the wife has child (children), he will be given one year before this takes effect. If the husband has been away for official duty, this law provision shall not apply”.
Article 108 of Gia Long Code also stipulated that if a husband left home for 3 years without any trace and information on him, his wife might report such to the local mandarin and ask permission to marry another husband without having to pay compensation for the wedding costs to her husband’s family.
So, the obligations to co-habit were the obligations of both the husband and the wife, and neither of them could infringe upon them because any infringement thereon would contradict the marital objectives.
As customary in Vietnam, women, when married, shall have to stay with their husbands’ families. Yet, in some cases, it is vice versa, the husband shall stay matrilocally. So, how this was prescribed in the ancient laws? Hong Duc Code contained no provision on this. Yet, in a separate legal document promulgated at the time of Hong Duc Code, this was provided for as follows: “If the groom’s family has organized the wedding, they must bring the bride to her husband’s family. If the groom stays matrilocally, after three years the couple shall have to return to the husband’s family.” So, the matrilocality was recognized by this legal document though to a limited extent (3 years at most).
Gia Long Code also recognized the matrilocality, but also to a limited extent. However, it did not spell out any specific duration for matrilocality, but only permitted matrilocality in certain circumstances. According to Articles 76, 94 and 97 of the Code, such circumstances were as follows:
- The bride’s parents have had no son. So, they can invite their son-in law to stay matrilocally in order to look after them at their old ages.
- The groom was very poor; so he could stay matrilocally to get help from his parents- in law.
- The groom had to stay matrilocally and work for his in-laws to pay off the wedding costs which were beyond the capacity of his family and paid by his in-laws.
All three above-mentioned cases had to be subject to the two following conditions:
First, the matrilocality would not be permitted if the groom was the only son in his family because, according to the feudal law-makers, such man was obliged to look after and support his own parents.
Second, the matrilocality had to be made in a contract which clearly stated the son-in-law’s obligation to look after and support his parents-in law and the duration of matrilocality.
The ancient laws, on the one hand, recognized the custom of matrilocality and, on the other hand, limited it with a view to protecting the patriarchal role of the husband in the family, which, to the then law-makers, could not be fully performed during the matrilocality as the man had to fully depend on his in-laws.
2. The obligation to be faithfull
Customs, practices as well as ancient laws all permitted men to marry more than one wife (polygamy). It is for this reason that the obligation to be faithful was set first of all and mainly for the wives. According to Article 310 of Hong Duc Code, if an official wife or a concubine was unfaithful to her husband, she would be abandoned by the husband. Even more, the law compelled the husband to abandon his wife; if not, he would be sentenced to “biem” (degrading his virtue).
Similar provisions were seen in Article 108 of Gia Long Code, which stated that if a husband refused to divorce his adulterous wife, he would be penalized with 100 canings. If a wife was unfaithful to her husband, she would be severely punished by law. Article 401 of Hong Duc Code stipulated: “If an official wife or a concubine commits adultery, she shall be subject to “luu” (exile to far-flung area); her land property shall be returned to the husband. If it is a fiancée, the penalty shall be one level lower. So, under this law provision, both wives and fiancees were obliged to be faithful to their husbands as, according to the ancient laws, a marriage was legally valid right from the time of engagement.
Under Article 322 of Gia Long Code, if a wife committed adultery, she and the adulterer would be penalized with 100 canings, and her husband might marry or sell her to another person, but not to her lover. If he married or sold his wife to the adulterer, both the husband and the adulterer would be penalized with 80 canings; meanwhile the wife was divorced and returned to her parents. The then law-makers reasoned that adultery was committed with consents of both parties, the male and the female; if the female was an unmarried woman, she would be penalized with 80 canings; if she was a married woman, she would be penalized with 100 canings. If a husband married or sold his adulterous wife to the adulterer, he connived the faults of such couple; hence, being penalized with 80 canings.
In addition to the criminal penalties, the civil legislation also prescribed the adultery as one of the seven reasons for a husband to divorce his wife. According to Article 310 of Hong Duc Code, if a husband refused to divorce his adulterous wife, he would be punished, while Gia Long Code (Article 108) also stated that if a husband refused to divorce his adulterous wife, he would be penalized with 80 canings.
So, the ancient laws heavily punished acts of unfaithfulness committed by women in order to protect the women’s virtues according to the Confucian viewpoints of the Orient.
At the same time, in order to preserve the family harmony and happiness and to preserve the women’s virtues, the ancient laws also severely punished men who committed acts of adultery with women. Article 401 of Hong Duc Code stipulated: Any man who commits adultery with other people’s wife shall be sentenced to exile or death, or one level lower if he commits adultery with concubine of other person. According to Article 405 of Hong Duc Code, if a man committed adultery with the wife of other people, but was not caught in the scene, he would be subject to a lighter penalty with 60 canings and a fine for forgiveness.
3. The wives’ obligation to mourn for their deceased husbands.
The ancient laws did not stipulate that the husbands had to mourn for their deceased wives, but that the wives had to mourn for their deceased husbands. Under Article 2 of Hong Duc Code and Article 2 of Gia Long Code, those who failed to mourn for their husbands would be charged with one of ten serious crimes (called “ thap ac”). According to Article 320 of Hong Duc Code, if anyone other than the grandparents or parents of a widow wishing to stay widowed for the rest of her life after the expiry of her 3-year period of mourning for her deceased husband married her to another man against her will, he/she shall be subject to a three-level virtue degrading and the marriage of such couple had to be dissolved; the woman had to be returned to her deceased husband’s family and the man would not be punished. Meanwhile Article 98 of Gia Long Code stipulated that if a woman who was in the period of mourning for her husband remarried, she would be penalized with 100 canings.
Under the above-cited law provisions, the wives had the obligation to mourn for their husbands, which included:
- The three-year mourning period.
- During that period, the wives were not allowed to remarry, still had to stay with their deceased husbands’ families and had to fulfill all obligations towards their in-laws as before their husbands had died.
The prescription of the wives’ obligation to mourn for their husbands by the ancient laws also aimed to protect the women’s virtues according to the Confucian viewpoints of the Orient.
In short, the provisions of the ancient laws on the relationships between husbands and wives aimed, on the one hand, at consolidating the patriarchal order as well as the ethical rules based on the Confucian ideologies and, on the other hand, at consolidating the family cohesion and enhancing the responsibilities of the wives and the husbands in the family according to the traditions of the Vietnamese people.-