Osmanlı Kadınlarının Evlilik Bağından Kurtulma Oyunları ve Müftüler (16.-18. Yüzyıllar)Muharrem Midilli
Bu makale fetva mecmularına yansıyan meselelerden hareketle Osmanlı kadınlarının evlilik bağından kurtulmak için başvurduğu oyunları ve müftülerin bu oyunlara yaklaşım tarzını incelemektedir. Amaç evlilik birliğini sonlandırmak isteyen Osmanlı kadınlarının Hanefi mezhebinin katı boşanma ve tefrik kuralları karşısında başvurduğu hileli ayrılık girişimlerini göstermek ve müftülerin yaklaşım tarzlarıyla birlikte analiz etmektir. Osmanlı aile hukukunda kadınların prensip olarak boşama yetkisi yoktur. Mahkeme yoluyla ayrılık elde etme yolları sınırlandırılmış ve sıkı usul kurallarına bağlanmıştır. Fetva mecmualarına yansıyan meseleler evliliğinden mutlu olmayan ve boşanmak isteyen birçok kadının bu kısıtlayıcı hukuk siyaseti karşısında bazı oyunlara tevessül ettiğini göstermektedir. İrtidat etmek suretiyle nikâhı geçersiz hâle getirmek, iddeti geriye dönük bir evlenme engeli olarak kullanmak ve evlendikten sonra nikâh akdi sırasında küçük olduğunu iddia etmek bu oyunlar arasında yer almaktadır. Bazı durumlarda cezai müeyyide gerektiren ve hukukun evlilik birliğini sonlandırmak için vazettiği usullerin dışında kalan bu oyunlar Osmanlı kadınlarının ayrılık elde etme hususundaki çaresizliğine işaret etmektedir. Makale mezkur oyunları 16.-18. yüzyıllar arasında Anadolu ve Rumeli’de görev yapmış Osmanlı müftülerine ait fetvaların sunduğu gerçeklik üzerinden tasvir etmekte ve Hanefî hukuk öğretisi eşliğinde yorumlamaktadır. Gerçek olaylara dayanan fetvaları veri kaynağı olarak kullanan makale Osmanlı kadınlarının kendi inisiyatifleriyle ayrılık elde etmesini pratikte neredeyse imkânsız hâle getiren hukuk siyaseti karşısında başvurduğu hileli yollara ışık tutan bir hukuk tarihi incelemesidir.
Ottoman Women’s Tricks to Escape from Marriage and Muftis (16th-18th Centuries)Muharrem Midilli
This article examines Ottoman women’s tricks used to escape from marriage and muftis’ attitudes toward their tricks based on the issues reflected in the fatwa collections. The purpose of the article is to describe the tricks Ottoman women used for dissolving marriage in the face of the strict divorce and separation rules of the Hanafī madhhab and to analyze them alongside the muftis’ approaches. In Ottoman family law, women in principle are not entitled to divorce. The means for obtaining a divorce through the court are limited and bounded by strict procedural rules. The issues reflected in the fatwa collections indicate that many women who were unhappy with their marriage and wanted to divorce resorted to certain tricks in the face of this restrictive legal policy such as annulment of marriage by apostasy, using iddah as a retroactive marriage impediment and claiming after the marriage to have been a minor when the marriage contract was made. These tricks, which in some cases require penal sanction and fall outside the procedures laid down by law for dissolving marriage, indicate the desperation Ottoman women felt toward obtaining a divorce. This article describes these tricks through the reality presented by the fatwas of the Ottoman muftis who served in Anatolia and Rumelia between the 16th and 18th centuries and interprets them in the light of Hanafī legal doctrine. Using fatwas based on real events as a data source, the article is a study of the history of law that sheds light on the tricks Ottoman women were employed in the face of legal politics that had made it practically impossible to obtain a divorce on their initiative.
The Hanafī madhhab is known to have been dominant in the implementation of Ottoman family law. This dominance gained an official identity beginning in the middle of the 16th century, especially in Anatolia and Rumelia, and exhibited a monopolistic character. This policy was important for legal security and stability and undoubtedly caused some problems, particularly with regard to family law. In the Ottoman family law, women in principle have no right to divorce. A woman obtaining a divorce through court was nearly impossible due to the extremely limited means and very strict procedural rules. Therefore, women were practically stuck in their marriage union in cases such as a husband being absent, being sick to the point of being unable to fulfill the requirements of marital life, leading an immoral life or committing domestic violence. Fatwa collections indicate that many women who were unhappy with their marriage and wanted a divorce employed tricks such as apostasy, using iddah as a retroactive marriage impediment and after getting married that they had been a minor when the marriage contract was initiated. This article focuses on the tricks women used who wanted to divorce and the attitudes of muftis had toward their tricks. Fatwa collections signify that some women who tried to escape from marriage did so by deliberately apostatizing with blasphemous expressions. The Ottoman muftis issued fatwas that apostate women were to be forcefully converted to Islam and remarry their ex-husbands. The purpose of this fatwa policy was to prevent apostasy from being made a common remedy for women want divorce. However, muftis were also found who issued fatwas where the apostate woman should not be forced to renew her marriage if her husband leads an immoral life. Thus, apostasy despite the worldly and otherworldly sanctions, functioned as a means of obtaining divorce when the husband led an immoral life.
The issues in the Ottoman fatwa collections indicate that many women who were unhappy with their new marriages wanted to use iddah as a retroactive marriage impediment. Iddah is the legal period of waiting that a woman must observe after the death of her husband or after a divorce and considered as a continuation of the previous marriage in some ways and therefore prevents a new marriage. A marriage that occurs within iddah is invalid and subject to penal sanction. The Hanafī legal doctrine states that women are reliable about their iddah and their declarations will be approved unless they are beyond the legal periods. However, in many cases, the iddah period can be misstated, leaving this open to abuse. As a matter of fact, numerous questions asked to muftis signify that many women who remarried after confessing that their iddah had ended would later seek recourse to annul their marriage. However, Ottoman muftis do not take the woman’s recourse from her confession into consideration if the minimum period of iddah has passed between the divorce from or death of the previous husband and the new marriage. Once a woman observing iddah gives birth or suffers a miscarriage, her iddah is considered to be over. Some women who did not want to wait out their iddah for the widowed period of four months and ten days declared having given birth or suffering a miscarriage in order to annul the new marriage. Muftis did not respond positively to women who would act in this way.
Another trick many Ottoman women would play to escape from marriage was to use their minor status as a retroactive marriage impediment. In Ottoman family law, girls who turn nine were considered past the age of a minor and able to marry of their own free will. The issues asked to the muftis indicate that some girls who’d gotten married at a very early age of their own free will would use their minor status as a reason for annulment. Some girls whose body structure signified that they may have passed the age of a minor and/or who’d consented to marriage by declaring themselves to no longer be a minor would sometimes years later deny their declaration and claim that their marriage had been invalid or wanted to use their right of choice to annul the marriage by expressing that they had just passed the age limit of being a minor. Muftis had negative attitudes toward these types of claims. This article describes these tricks through the reality presented by the fatwas of the Ottoman muftis who served in Anatolia and Rumelia between the 16th and 18th centuries and interprets them in the light of Hanafī legal doctrine. Using the fatwas related to real legal life as a data source, the article is a legal history study that sheds light on the unusual tricks woman employed in the face of Ottoman legal policy that had severely limited their ability to obtain a divorce.