Turkmen Adat

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A.     Lomakin “Obychnoe pravo Turkmen” (Adat), (1897), 
Ashgabat, “Ylym”, 1993 

A. Lomakin “The Common Law of the Turkmens” (Adat), 1897, 
Ashgabat, “Ylym”, republished in 1993

 

p. 2:  This book is the republication of A. Lomakin’s work and includes information on the common law of Turkmens, and who worked first in Seraks police office of the Transcaspian region, then later as Assistant Head of Tedjen and Ahal district (uyezd). First, this work was published on the order of the Head of the Transcaspian region, Lieutenant-General A.N. Kuropatkin in 1897 in Askhabad.

 

On behalf of the author (Author’s remarks)

 

After graduating the Officer’s course on Eastern Languages within the educational section of the Asian department of the Ministry of Foreign Affairs in 1890, I started to work in the Seraks police office of the Transcaspian region and realized that the research on Muslim law which I undertook during my course, was not of great use, when it comes to practical work of considering cases in the People’s Court, as the decisions of the Court are accepted according to he regulations of adat, which in most cases has a lot in common with shariat. (Shariat is Muslim law stated in Koran and Mohammed'’ sayings. It is taught in detail at the Officer’s course on Eastern Languages).

 

p. 3-4:  As due to my service position I had to express my opinion on the correctness or incorrectness of People’s Court decisions which were to be submitted for approval through the Head of the district (uezd) I became aware on my ignorance on adat. (In Tedjen region a bailiff as a chairman of People’s Court submitting for approval through the Head of the district the court decisions, has to express his opinion on correctness or incorrectness of each decision. To my mind, only the chairperson, who knows Turkmen’s customs as people’s judges or has a manual to consult with, can express the correct opinion)

 

p. 4:  I had to study and research these customs partly as a requirement of the administration, and partly as the chairman had the moral responsibility to administer the justice in the Court, and due to the fact that such manual on Turkmen customs did not exist. Primarily, I started without any plan limiting by conversations with the people’s judges and writing down the people’s Court decisions; however, I came across contradictions as similar cases had often different decisions (people’s judges staff was variable), and I understood that judges decided the cases not always according to the custom, therefore I did not succeed. Then, I got the idea to talk to old people on my business trips around the auls. Information from one aul (without the help of an interpreter) was checked in other aulson using any chance, therefore after 3 years I knew the Turkmen customs very well.

 

p. 5:  The information from Seraks was supplemented by me and checked first in Tedjen where I worked as an Assistant Head of the district, then in Akhal (Ashkhabad district) as Assistant Head of the district and later as office clerk Head of the region. Finally, I could assess the practical significance of the information gathered by me, only participating as an Assistant Chairman at Four Extraordinary Congresses of People’s Judges.

As the head of the Transcaspian region, Lieutenant-General Kuropatkin often asked for my opinion on various shariat issues as well as issues relevant to the common law of the Turkmens (adat). I having classified one part of the overall information together submitted the first part of my work (family right) to His Excellency asking for publication if the work was worthy. Lieutenant-General Koropatkin regarded the work very useful for the region and ordered to publish it on karend (rent) money of the region under the title of “Common law of Turkmens (adat).” Thus, from the notes that I made for myself, the actual manual was made up of. On working on parts of adat the information was added (updated) due to the resolutions of Mr. Kuropatkin, who regularly consulted the book.

 

p. 6:  I do not want to guess to what extent this work will be useful for the administration of the Transcaspian region, the future will show it, still I am pleased to think that despite imperfection and shortcomings of my work, it can serve without doubt as a base for further research.

 

Captain of the Transcaspian brigadier of Detached Corps of Frontier Guards Lomakin.

 

p. 7:  Introduction:  Transmitted orally, the traditions of the common law which Turkmens follow in their life and according to which they are at law, are called kovagat or adat, or sometimes deeb (“Kovagat”- plural from Arabian “kaide” (folk-kayada), means rule, order, custom; “deeb” corrupted, comes from the word “Deatsa” means argument, lawsuit, case; “Adat” from Arabic, means CUSTOM, HABIT.

 

Adat serves not only as the guiding principle on solving of various cases, but also includes rules on private and social life of Turkmen as well as household regulations on using land, water, pastures, etc., in other words covers the overall life of Turkmens.

 

p. 7-8:  From Shariat –Moslem Law (Shariat is called Moslem legislation stated in Koran and Magomed’s sayings) divided into two parts: “Ibalet” or spiritual law and “Memaliket” or secular law. Turkmens entirely accepted “Ibadet” having preserved it inviolable at present time; from “memaliket” they borrowed (or adopted) very little, as accepted Islam and its religious principles, however the Turk peoples living their own life, having not much in common with the life of Arabs of the time of Magomed, could not entirely replace the customs of their ancestors.

 

p. 8:  However, Islam had some influence on the ancient common law of the Turkmens, thanks to fanatics Mullah(s) (religious functionary having the right to serve in the mosque and interpret Koran) and Kazi(s) (judge investigating cases according to the shariat) who being filled with Magomed’s dogma aimed and are now aiming at introducing much more shariat in the common law of Turkmens. Their aspiration succeeded as even at present time family, inheritance and divorce cases are considered in Turkmen people’s courts according to shariat.

 

Neither written handbooks nor manuals on the common laws of the Turkmens ever existed not only in Russian but in Turkmen language as well. Adat is not considered a science by Turkmens as Shariat, therefore is not taught in the educational institutions, but transmitted orally.

 

Part I:  Domestic (or family) rights

 

p. 9:  Marriage:  According to the Turkmen custom, marriage is not stipulated by any age limit and age inequality is not an obstacle for marrying. The custom allows marrying if under aged (on parents’ or tutors’ consent) as well as old men. There is the limit only for the under aged. It means that under aged wives before coming of age they have to live in their parents’ home, tutors or relatives, moreover the custom doesn’t allow cohabitation with them.

Joint conjugal life of Turkmens usually starts: for boys from 15 years and for girls from 12. (If the girl’s period starts sooner, the girl is able for conjugal life since the moment when she had her first period). Sometimes in Turkmen families, marriages of the under aged are concluded by their parents; in this case, similar marriages are regarded real and compulsory for both sides on coming of age, as if marriages were concluded at a mature age.

 

p. 10:  If a girl’s parents, propose their daughter as a wife receive kalym (kalym is called ransom, veno), but the marriage is not concluded then on coming of age the girl has the right to agree to marry or to refuse. In this case the kalym has to be returned.

 

Since the age of 12 the parents’ or tutors’ consent on regarding the marriage of a girl is not anymore needed: a bride-groom can abduct a full-aged girl and marry her on her consent, and the marriage is considered legal even without the consent of the girl’s parents or tutors. The obstacle for marriage for a man is madness, impotence, and for a woman, physical defects preventing conjugal cohabitation.

Legal wives (nikahli helei) are those with whom the marriage ceremony (nikah) is conducted, whereas concubines (kyrnak) are brought home without any marriage ceremony. (kyrnak are also called the legal wives who are half-bred Turkmen women)

 

The Turkmen custom does not allow to have more than four wives at the same time; at different times, allows to a man’s heart’s content.

 

This rule (or regulation) is taken from shariat, which states that to have more than four wives is illegal. In order to marry a new wife the consent of other wives is not needed. Besides four legal wives every Turkmen is allowed to have an unlimited number of concubines (kynak). Now an illegal cohabitation among Turkmens is very rare. Before the Russian ruling of Turkmenia, the majority of the Turkmens had illegal wives. This cohabitation happened with women captured during forays or bought very cheap from Persians and Kurds of the border areas.

 

P. 10-11:  Concubines were regarded as goods until they gave birth; after a child was born “kyrnak” was called “umm-e-veled” (which means a child’s mother in the Arabic language), and since this time on her master was deprived of the right to sell her to another person, though it depended on him to marry her or to continue illegal cohabitation.

 

Concubines that had no children, after their master’s death, were inherited as property, whereas umm-e-veled became free; they had the right to marry on the same grounds as Turkmen widows. The custom does not allow cohabitation with pure-blooded Turkmen women.

 

Match making:  Match making precedes the marriage custom. Turkmen people going to marry never directly participate in matchmaking; this is undertaken through a third person, usually by a relative or an honorable old man. A matchmaker goes to the bride’s relatives and in the case of their consent to marriage, they discuss the conditions of kalym and the wedding day.

 

On the wedding day 5 women from the groom’s side come on camel back accompanied by 20-30 persons, come to the bride’s home to abduct her (pretended abduction). (This custom goes back to ancient times when the wives of the Turks and Slavs were obtained by force, abducted). Having seen the guests, the women-relatives and women-neighbors of the bride pretend that they do not allow the bride to go, and the guests pretend that they are taking the bride away to the groom by force. Then the groom’s men and women take the bride and run away, being followed by the bride’s relatives. There is a fight between them, and the participants sometimes get carried away and a trifle fight turns into a serious one, and as a result the majority of them return back to the groom’s home with bloody noses and without teeth.

 

p. 11-12:  The reaction of Turkmens is seen from the following example: in December 16, 1895, the Extraordinary Congress of People’s Judges considered the case on the appeal on the decision of the Ashkhabad People’s Court which had sentenced a Turkmen to 1 week arrest and payment of expenses for treatment for 2 Turkmens, beaten during the pretended abduction of a bride.  The Extraordinary Congress freed the accused from the punishment, motivating that that beating was unintentional and was due to protection of the bride from the groom’s people, and that in such cases Turkmens are never punished.

 

Engagement in Turkmen families does not exist.

 

The marriage ceremony (marriage- “nikah”)

According to the Turkmen custom, the marriage ceremony is completed verbally by a groom’s declaration and the bride’s consent before a mullah, in the presence of at least 2 male witnesses. The witnesses have to be Moslems, full aged and in the right mind. They are called “shade-kazi”. The presence of the witnesses is very important for a marriage ceremony. Before the marriage ceremony the Mullah is examining the witnesses to make sure that the bride is free and that the groom has no more than 3 legal wives, and that they both wish to marry on mutual consent. Only after that he is praying according to Koran (hutbe and fatkhu from the first sura of Koran). If a bride is widowed or divorced the Mullah has to make sure that the mourning period had expired (usually 4 months and ten days) in the first case, and in the second case that a woman is really divorced and that her 3 periods have passed.

 

p. 13:  According to the Turkmen custom, during the ceremony one needs to put a cup of tea covered by a handkerchief before the bride and the groom. In one of the corners of the handkerchief a coin is put. After the Mullah’s prayer, the marrying couple has to take a sip from the cup. Then people congratulate the couple wishing them to live in peace and consent. The handkerchief is given to one of the witnesses, the coin to the other.

 

Kalym (veno, bashlyk)

According to the custom, a Turkmen wishing to marry has to pay as ransom a relevant amount of money to the bride’s father, or if he is dead to the close relatives, tutors or those people who brought the bride up and are marrying her off. This ransom is called kalym. Kalym is never paid in the favour of the bride. In this respect, the Turkmen custom differs from shariat: according to shariat a woman who is going to marry uses the kalym; this is her inalienable right, therefore she can refuse it before her marriage, or having taken part of it before marriage, freed her husband from paying the other part of kalym. Except her, shariat does not permit anybody to use kalym, neither during her husband’s life, nor after his death.

 

The amount of kalym varies in each of the Turkmen tribes. For instance, at Iomuds from 5-12 camels, at Goklen 2000-3500 kran (the rate of kran=20 kopecks in silver), at Teke – 2000-4000 kran, at Alili- 3300 kran, at Saryks and Salyr 1600-2000 kran.

The above-mentioned amounts of kalym were established in the People’s Court as standard in cases of court suits regarding kalym.

 

p.1 4:  The amount of kalym depends on the wealth of the groom and on a bride’s parents, a bride’s age, her beauty and other reasons; sometimes it depends on the circumstances whether she is a virgin or a widow. It is a fact that within the last years the amount of kalym has been increased. The reason is that since the pacification of the region, a Turkmen that had no money to pay kalym is deprived by the opportunity, as before, to bring back a concubine from his raids (alaman), and therefore the demand for Turkmen brides increased. The increase of kalym is profitable for a bride’s father, but in reality is a great obstacle for getting married. Wise Turkmens understand that it is the time to make easier the position of those wishing to marry by reducing the amount of kalym. For instance, in winter 1895, the Extraordinary Congress of the People’s Judges addressed the head of the region with the petition for taking measures to reduce the kalym or at least to stop the increase of it.

 

The Head of the region agreed with the opinion of the judges of the Extraordinary Congress and said that the population itself had to initiate the limitation of kalym and recommended the judges, as being honorable and influential representatives, that on their return to auls to convince the population that the administration would do its best to solve the kalym issue only on the population’s petition.

 

p. 15:  Though a year has passed and still there was no petition from the population and the issue was unsolved. However, during recent times, the Turkmens established the custom of making the payment of kalym possible: it was a rule to pay half in cash, and the rest in cattle. Moreover, the cattle as a part of kalym was assessed at 1 ½ - 2 times more expensive as its real value. For cattle assessment, 4 delegates, 2 on each side, were selected. The term on kalym payment depends on the agreement of the relatives from both sides.

In many cases kalym is being paid within some years, particularly if the groom’s relatives are poor and cannot support him in the payment of kalym. As the Turkmen custom differs from shariat on kalym, a marrying girl, widow or divorced to use kalym, therefore a bride does not participate in the discussions on amount, term and conditions of payment of the kalym.

On discussing the kalym conditions, the parents of the marrying couple establish the total sum of money and cattle on mutual consent, bargaining as if at sale and purchase.

In the case of non-implementing of conditions, the side having the right of receiving kalym, applies for a court suit, which if it fails to reconciliate the two parties, insists on payment according to the terms, or following the above mentioned amounts of kalym, and identifies the sum which a respondent has to pay.  

 

If a young girl, the parents of whom don’t want her to marry her groom, leaves her parents home and is married without their consent, but with preserving the ceremonies required by the custom in order that there is no chance to take her back home, her parents avoiding any contacts with the abductor’s relatives, insist in court on the immediate payment of the whole kalym in cash.

 

p. 16:  In this case, the People’s Court in establishing the sum of kalym follows the above-mentioned amounts. However, as the abducted girl’s parents insist on the immediate payment of the overall kalym in cash and the abductor’s relatives finally consenting to satisfy the petitioners, insist on paying half in cattle, due to assessment. The People’s Court, following the custom, in most cases satisfies the respondent’s petition. Obeying the People’s Court decision, the petitioners (the plaintiffs) try to postpone the reconciliation; they insist on assessing the cattle by their own evaluators without interference from the respondent’s people, whereas the latter foreseeing the partial assessment, on their turn, insist on the assessment according to the custom, from the both sides. If the sides don’t come to an agreement, the People’s Court, as a rule, selects the outside, impartial evaluators.

 

According to the custom, the relevant sum (or part) of the kalym has to be paid before the marriage ceremony. The newly married girl’s parents take her home later after the wedding (from 2 weeks to 60 days) until the groom or his relatives pay the overall sum of kalym.

 

A husband, separated from his wife, has to earn kalym and pay in installments to his wife’s parents; poor people, having no rich relatives to support them, have to earn kalym during some years. The more cattle the husband has, the sooner he can pay the overall kalym to his wife’s parents.

The custom established this rule (to return the bride temporarily) in order to make the husbands carry out their responsibilities towards his wife’s parents on kalym payment.

 

p. 17:  The custom requires that a newly married woman has to return back to her parents’ home in 40-50 days after the wedding, even if the kalym is entirely paid. In this case she has to stay a year or till childbearing.

 

Among Turkmens bride exchange without payment of kalym exists. It happens in the cases when, for instance, a father having a son and a daughter, wishes to marry his son off; having no money to pay kalym, instead he marries his daughter to one of the relatives of his son’s bride, or, for instance, a brother if an adult bride, marrying a woman, instead of kalym marries his sister to one of his bride’s relatives.

This custom of bride exchange is called “karshylyk”, which means, “reward” as well as “requital” (good for good, evil for evil).

 

If a woman, married as karshylyk, becomes a widow and then wishes to remarry, kalym as an exception is used not by her parents as usually, but by her husband’s relatives.

 

As mentioned above, the Turkmen custom regards kalym as a reward to a person who reared the bride before marriage, therefore karshylyk doesn’t contradict the common custom, as having no bride whom he would have married off due to karshylyk, a groom’s father would have paid kalym for the daughter taken for his son, and vice versa, having no son or relative whom he would have married off with paying kalym for the bride, the father or relative marrying the bride off would have received kalym for her.

 

p. 18:  According to the custom, a bride’s relatives on receiving kalym or karshylyk have to perform their functions in marrying their daughter or relative off to her groom.

 

If a bride’s relatives proposing her as a wife from her childhood receive overall kalym, then on coming of age she cannot get married to another man without returning the kalym.

 

If kalym is entirely or partially paid foe a bride who dies before marriage, then due to the custom, those who paid kalym have the right to demand it (money or cattle) back.

In the case when after the marriage ceremony and bride’s returning home to her parents’ home, her husband cannot pay the rest of the kalym by the deadline, and he is sued in the court, then the court rules that the husband should pay in the determined term. If he is not able or does not wish to pay kalym, the court condemns a husband to divorce his wife, if he refuses the court declares the divorce.

 

As mentioned above, first of all, a bride’s father has the right to receive kalym, and if he is dead, then the close male relatives in the following order: bride’s brothers, cousins, etc, related until the 7th generation. At equal relationship kalym is equally divided between the relatives. If a bride has no relatives, according to the custom a tutor or a person having cared and married her off has the right to receive kalym. That’s why, if a girl is orphan, all her relatives wish to take her to their home and rear her, hoping to receive kalym for her in the future.

 

According to the custom, if a girl’s father or her relative is not able to rear her, refuses upbringing and brings her to the mosque, and if somebody out of pity for the girl takes her home and rears her then on her marriage, this person receives kalym.

Sometimes, during such girl’s marriage, her father or relative appear to demand kalym. In such cases, according to the experience of the Extraordinary Congresses of the People's Judges, the custom established the following kalym division: 1/3 in favor of the person that reared the girl, 1/3 in the favor of the father or relative, who left the girl, called (“songi-hostar”), and 1/3 in the bride’s favor. Moreover, it is stipulated that if a married woman becomes a widow and wishes to marry again, then 1/3 of the kalym she received is taken by the “songi-hostar”.     

It is needed to point out that the right of mothers-widows on receiving the part of kalym is different in Turkmen tribes, for instance: in Akhal, if a mother marries earlier than her daughter, she is deprived of the right of any kalym for herself (the 1/3), as well as if she, the widow, breaks the relationship with her husband’s relatives, and lives not in the house of her dead husband but at her parents’ home. If she still lives in her husband’s house after his death, she has the right to demand from her husband’s male relatives a part of kalym received by them for her daughter. In case they refuse, the People’s Court decides in her favour the part of kalym to be received by her (from 1/8 to ½). In Iomud tribes, the mother-widow can demand in any case the reward for the upbringing of her daughter, married off with payment of kalym. In case the relatives refuse to pay the mother the kalym, the People’s Court always rules in the favor of the mother-widow a part of kalym- maximum amount of 12 tumans yearly (tuman-10kran, kran =20 kopecks) but for 7 years only. The rest of kalym is received by the close male relatives of her husband. As an exception to the rule, strictly observed by all the Turkmens, the custom, as above mentioned, provides the right to take (use) kalym by the dead husband’s relatives only in the case when a woman married off without kalym due to karshylyk, and having become a widow wishes to marry again.  

 

p. 20:  As mentioned above, this exclusive rule regards only widows, but not divorced women:  if a woman was married according to karyshlyk and then divorced who remarries, then according to the common law the kalym is received by her relatives.

 

If on a widow’s consent, her brother in law or one of her late husband’s relatives marries her, then kalym is not paid to the widow’s relatives. In such cases, the widow’s relatives try not to allow her to marry as it is against their interests; however, if despite their persuasion, she still insists on her decision, her relative will sue her thorough the People’s Court, which as a rule, reconciles both sides on the condition of gifting some money or cattle to her relatives, but not paying kalym.

 

It is needed to highlight that in recent times the People’s Court decisions on paying kalym for widows getting married have been changed. In most cases, widows marry the chosen men who they love and who can support their new husband not to pay kalym to her relatives, who will sue through the People’s Court. In the court a widow states that she married on her own wish and does not want her husband to waste (lose) money on paying kalym to her relatives. Moreover, a widow usually gives the argument that if her first husband would not have died, her relatives would have been satisfied with the kalym paid for her.

 

p. 21:  Due to the fact that a chairman in the People’s Court always supports widows as well as kazi or mullah, shariat representative, trying to support widows when is possible, and as above mentioned according to shariat kalym belongs entirely to a woman and she uses it as she likes, judges also in most cases comply with the widows’ request and free their new husbands from paying kalym.

Before changing this custom the widow’s relatives having received kalym had to spend some money on purchasing silver adornments, dresses and other things for her.

 

If a bride, for whom kalym or part of it is paid but due to various circumstances does not get married to her groom, kalym is returned back, namely the same amount that had been paid. If a marriage ceremony did not happen because of a groom’s refusal without any reasons, kalym was not returned back before; now, on People’s Court’s decision- it has to be returned, deducting some part as penalty. The penalty is in the favor of the bride’s relatives according to the decision of the People’s Court.

 

In cases when a bride cannot marry her groom due to circumstances (death, being in captivity, abduction of a bride with her consent, but without her parents’ consent, physical disabilities preventing performing conjugal responsibilities, etc.) kalym is returned back to a bridegroom or his relatives as it was paid, however no fine or penalty is imposed on the bride’s relatives.

 

Receiving kalym but then marry the bride to another person, though returning the kalym to the first groom is regarded dishonest by Turkmens. In former times, if a bride’s father or relative, after making a deal and receiving a part of kalym, married a bride to another man, hostility results that ends in murder.

 

P. 22:  When the region came under direct Russian rule, bloody violence due to kalym was significantly reduced, thanks to the administration’s policy: whereas in remote auls murders are still taking place. If a bride for whom kalym is paid finds out that her groom is incapable of conjugal life (impotent), the custom provides her the right not to marry. However, she cannot enjoy this right from the moment she became aware that he is impotent, even if a groom acknowledges that he is impotent. In this case, according to the custom, the groom is given a testing time. If within a year the observers confirm that he was not cured from impotence, a bride becomes free and the received kalym is returned back to her groom.

 

As match making and kalym deals take place in the presence of witnesses, so in case of misunderstandings, the People’s Court makes the decision based on evidence provided by the witnesses.

 

In the case of paying entire or partial kalym without any witnesses, and if a person who received kalym refuses to give it back, he has to testify in court under oath.

 

In the case of a bride’s flight from her parents home and marrying without their consent not to the person who paid kalym, her parents have to return kalym back immediately; if they are not able to do it at once, then on receiving kalym from the abductor. In this case the bride’s parents recover a double kalym from an abductor, moreover according to the custom, if her parents are not able to return kalym back to the 1st groom immediately, they have to sue the abductor to pay the kalym at once, in order to satisfy the 1st man without delay.

 

Kalym for an illegitimate daughter is entirely used by her mother. None of the fornicatress’s relatives can use kalym, as it is regarded unclean. To receive kalym by the relatives would be very blame worthy.

 

p. 23:  According to the custom, a part of kalym, usually 1/3 must be used on purchasing dowry for the bride who is getting married, but within recent time as a result of the increase of the amount of the kalym, this part is returned back to the groom, and a dowry is purchased not at once, but gradually.

 

Dissolution of marriage:  According to the Turkmen custom the validity of marriage is stipulated only by the verbal statement of both sides or their confidants in the presence of at least two witnesses. No written evidence of a conjugal union exists at Turkmens.

 

Marriage is regarded invalid and is dissolved in the following cases:

1)      If married under compulsion (a girl or a widow) proves that during the marriage ceremony she didn’t consent to marry and was married by force.

Note: In the case of a woman’s statement that a marriage was registered against her wish, the People’s Court questions the mullah that registered the marriage and the witnesses, piyade-kazi; they are testifying without being under oath. Only in exclusive cases, piyade-kazi have to swear under oath. For instance, the widow Niyaz-bibi- Ata-bai kizy of the Yangi-kala village of Ashkhabad region, in summer 1896 filed a complaint that her brother Gaib-Niyaz had married her to Oraz-Geldy Toshi-ogly under compulsion and received a kalym of 120 tumans, therefore she ran away from him and she now wants a divorce. Niyaz-bibi’s complaint was considered in the Ashkhabad’s People’s Court on the 19 July 1896. Based on the oathless evidence of the witnesses, piyade-kazi, who testified that the mullah, according to the rule, asked Niyaz-bibi three times if she agreed to marry or not Oraz-Geldy, and that she had replied “yes” three times, resolved: marriage is valid and obliged Niyaz-bibi to return back to her husband with the baby of her former husband; the remaining three children had to be given to the brother immediately whereas her baby in a year (according to the People’s Court Decision). Niyaz-bibi was not satisfied with this decision and appealed to the Head of the area. This case, on Niyaz Bibi’s petition was considered by the Extraordinary People’s Congress of Judges on 30 November 1896. Having questioned both sides and witnesses the congress concluded that the decision of the Ashkhabad’s People’s Court was correct, according to the custom. Having understood that the decision of the Congress would not be in her favor, Niyaz-bibi together with her teenager child started to cry and scream and said to the judges that she would not obey the decision of the Congress, that she would kill herself but not return to back to Oraz-Geldy. Moreover, she was going to complain to the Head of the region. 

p. 24:  The judges were very sorry for Niyaz-bibi and her children and agreed to extreme measures- to have the witnesses, piade-kazi, testify under the oath, so-called “mokhkemliki uchun”, which means for firmness, adding that if Niyaz-bibi’s evidence was to some extent true, then the witnesses would hesitate to testify under the oath and they might then change the decision of the Ashkhabad’s People’s Court. The witnesses took the oath immediately, therefore the 1st decision was approved by the Congress. When the decision of the Congress was declared to both sides, Oraz-Geldy made Niyaz-bibi return back to him, whereas her brother Gaib-Niyaz, based on the court’s decision wanted to take the children. This moment the tragedy broke out which depressed the chairperson and made the judges smile. When Niyaz-bibi saw that they were taking away her children she started lamenting and beating her face, and the children started to cry and scream, scratching their own faces; when her husband wanted to pull Niyaz-bibi in order to take her to his aul, whereas the brother tried to take the children (three of them of 7, 11 and 15), not wishing to be separated from their mother, attacked those who wanted to separate them using their fists, feet and teeth. Djigits (skilful horsemen) were ordered to take Niyaz-bibi out of the court. However, the children became so embittered that turned into beasts: snatching at swords, at the djigits’ legs, biting, screaming, and trying to scratch their faces. This scene was stopped only when the chairman of the Congress declared that Niyaz-bibi would not be separated from her children until the approval of the decision of the Congress by the Head of the region. Of course, Niyaz-bibi hurried to the Head of the region with the complaint on the last decision according to which she had to be separated from her children brutally.

 

p. 25:  The Head of the region promised Niyaz-bibi that the decision would be just and based on the human rights of a mother, and indeed, when on the 3 rd December 1896 the detailed decision of the Congress was submitted by the Chairman of the Congress and me, his assistant to the Head of the region, having agreed, which was stated in the resolution, that the decision was correct according to adat. However, he did not approve this decision, stating in his resolution: “taking into account the legal and human feelings of the mother, not wishing to be separated from her 3 children, I allow Niyaz-bibi to stay at her relatives 3 more years, then I propose to consider this case on the Extraordinary Congress of People’s Judges, if by that time conciliation is not achieved”. This is a very human decision, of course and was met by Niyaz-bibi and her 3 children with great appreciation towards the representative of the Russian power, preventing the victory of adat over the human rights of a mother.

 

2)      If a married woman (not divorced) marries again.

3)      If a widow marries before the mourning period (mourning- “idde”) – 4 months and 10 days or a divorced woman – before 3 periods after her divorce. Marriage contracted with a pregnant woman is also regarded invalid.

4)      If a Turkmen had 4 living wives, marries the 5th one. The custom, as above-mentioned, does not allow having more than 4 legal wives at the same time. If a Turkmen divorced one of his four wives, and wishes to marry again, in this case the custom allows to do it, without any limitation, however preserving the condition to have not more than 4 wives at once.

5)      Marriage with an under aged contracted without the consent of her parents or tutors is regarded invalid.

6)      Marriages contracted between very close relationships are regarded invalid; therefore they cannot marry:

        a)      brother and sister as well as to his half-sister               

        b)      father to his stepdaughter

        c)      father to his son’s mother-in-law

        d)      stepson to his widowed stepmother

        e)      son-in-law to mother-in-law

        f)       uncle to his niece

        g)      nephew to his aunt

        h)      foster-brothers to their sisters

        i)        nursed people to their wet-nurses

        j)        to a wife’s sister if the wife is alive

 

p. 26:  Marriages are allowed between cousins. A nephew can marry his uncle’s daughter. Debates and misunderstandings appeared because of issues related on validity of marriages in the Turkmen times (before the Russian rule) were solved by kazi (kazi is a holy man solving debates between Muslim people, according to the shariat, p. 62). Now such debates are solved by the People’s Court with the participation of experts-kazi and mullah.

 

According to the Turkmen custom besides so-called natural dissolution of marriage in the result of death of one of the spouses, marriage can be dissolved in the following cases:

    a)      on mutual consent of the spouses

    b)      on husband’s wish, even without his wife’s consent
    c)     
on Court’s decision
 

In the first two cases the husband himself has to give his wife a divorce (talak). Divorce given with the wife’s consent or without it is expressed by the words: “I gave you a divorce” or “You are divorced”, and giving a divorce paper “talak-haty”. One must emphasize that the divorce regulations are borrowed by Turkmens entirely from shariat, therefore divorce cases without the participation of shariat representatives, kazi or mullah are not solved by the People’s Court. 

After the pronunciation of the above mentioned words by the husband, even in the presence of kazi, the woman is not entirely free and she cannot marry another person – she has to wait for the expiry term “idde” – 3 periods, and during this period she is in her husband’s power, who has the right to return her back home without marriage “nikah”, she again becomes as before his legal wife. Husband wishing to return his wife back before the expiry term “idde” does not need her consent, neither according to shariat, not according to adat. 

p. 27:  Having the responsibility to keep his wife before expiry term “idde”, the husband is not usually allowed to have sex with his wife. A woman waiting for the expiry term “idde” as above-mentioned, cannot marry another person. Such marriages are not allowed in order to know whose children are born. After the expiry term “idde”, the husband that divorced his wife is deprived to marry her again until she marries another person, divorces him or until she becomes a widow. Moreover, in both cases she has to observe the expiry term “idde”. After the expiry term “idde” a woman is allowed to marry any person she likes. 

After divorce all suits on paying kalym are stopped.

The third category of marriage dissolution, on Court’s decision, happens only on the initiative of the wife, as according to the custom as well as shariat, husbands have a right to divorce whenever they like, without explaining why, if only on caprice. Therefore, husbands have no need to apply for the Court. A Turkmen woman is in quite different situation: though the custom allows her to apply for court in the case of a husband’s bad treatment towards her or disability to engage in sexual life, still the judges try to make justice to the husband, give him time to cure and do everything in order not to divorce a woman without her husband’s consent. If a husband treats his wife unkindly, does not want to keep her, etc., his wife has to bring to the Court trustworthy witnesses who can confirm that life with her husband was hard and unbearable. And even after that the Court before divorcing usually nominates confidential persons (or agents) who have to spy upon the spouses. 

If after the fixed term (usually from ½ year to one year) the agents confirm in the Court the woman’s statement, the Court in the case of her husband’s dissent (or disagreement) divorces his wife itself, determining material conditions obligatory for both sides. 

p. 28:  As above mentioned a wife has the right to demand a dissolution of marriage only in the case when on natural or accidental reasons her husband is impotent. On these conditions according to the Turkmen custom, divorce is given by Court either immediately or in a year, immediately if a husband is castrated and in this case a year delay is of no use, and one-year delay if a husband is impotent even after some years of joint life. It is needed to point out that even if impotence is certified and a husband himself does not reject this fact still the court gives him one year delay for curing, This custom seem strange, however some decisions of the People’s Court prove it. Judges explain that a man’s impotence could happen not on the reason of bodily defect but due to transient and accidental reason, which has to be found out within one year.

In most cases an impotent husband rejects this in Court because of his unwillingness of being divorced and of losing a mistress of the house, as after the marriage dissolution, due to his impotence, neither girls, nor widows will marry hum. In the case a husband rejects his wife’s statement that he is impotent, the Court appoints trustworthy people to watch the spouses, and fixes a definite term, usually a year. If after this term it is certified that a husband was not cured from impotence, then the People’s Court make him divorce his wife. If a husband does not want to dissolve the marriage voluntarily, the Court dissolves it itself, asking the mullah or kazi to give/issue the divorce paper (talak haty) signed by several judges. This divorce paper equals the paper given by the husband himself: having this paper a woman is allowed to marry whoever she likes after the expiry term “idde” (3 periods). 

p. 29:  If a husband proves his wife’s adultery (or fornication), she is not allowed to demand divorce. In this case a husband has more rights according to the custom; we know that a husband’s wish is enough to divorce his wife without explaining anything, but in this case the custom gives him the right to kill his wife- adulteress and go unpunished. 

The wife’s sterility is not considered to be an obligatory reason for divorce: to live with such a woman or to divorce her depends on her husband. 

According to the present (or modern) custom a wife is allowed to ask People’s Court to divorce her from a mentally impaired husband: if she can prove that he has a raving (or ungovernable) madness, the People’s Court , despite the protests of her husband’s relatives, divorces them, making the relative return back a part of kalym. This custom did not exist before the Russian ruling; shariat does not allow a wife to divorce from her crazy husband on her own initiative. 

The unknown absence of a husband does not allow his wife to marry again without the consent of the relatives of the disappeared husband. As a rule, in the case of several years absence of the husband, a wife addresses his relatives in order to get a permission to divorce. In most cases, they don’t agree, asking her to wait more, and finally they mutually agree on a definite term: on the expiration of the term a wife is given the permission to divorce, but only on the condition of the relevant compensation for her husband’s relatives in the case that she marries again. Shariat does not allow it, assuming that a disappeared husband can return back any time. 

Marriage is dissolved only by kazi or mullah present in the People’s Court as shariat experts. Kazi fill in a divorce paper (talak haty), mentioning the witnesses present at the divorce, signs it and stamps it. Upon receipt of the divorce paper a divorced women is allowed to marry any person, but after the expiration of the above-mentioned “idde”. 

p. 30:  If a Court divorces without a husband’s consent usually a divorces woman has to pay her former husband the relevant sum of money on marrying again, which is also mentioned in the divorce paper. 

Property consequences for a divorced couple

A divorce has the following property consequences for the divorced couple: 

1) If a couple is divorced because of a husband’s impotence, his wife is not to be blamed for it, and the paid kalym is not returned back to her husband.  

7)  If kalym is paid partially a husband on above-mentioned conditions of divorce has to pay his wife’s relatives the second part of the kalym.

8) When the reason for the divorce is the wife’s sterility, kalym is not returned back to her husband and the unpaid part of it needs to be paid to the relatives of the divorced wife

9)      If the reason for a divorce is because of an anomalous structure of the wife’s genitals, kalym or the paid part of it is returned back to her husband at his request.

10)  If a divorce is given by the People’s Court without a husband’s consent, regardless of reason, except impotence, a part of kaly, usually half of it is returned back to the husband. The reason of this custom is that by marrying a wife, a Turkmen man pays the kalym not only for a female, but for a worker as well whom he loses on being divorced against his wish

11)  Dowry (carpets, chests, hurdjums, etc.) which a wife brought to her husband’s home can be taken away by the divorced woman

12)  A divorced woman is allowed to take from her husband’s home the following clothes: 1 shirt, 1 pair of trousers, 1 head- dress, and 1 kerchief.

13)  If during a divorce spouses have a small child a wife has the right to nurse and care for him/her until the child is able to eat himself/herself. P. 31  To nurse a child is a divorced wife’s right but not her responsibility. Nafaka or supporting a child (bringing clothes, soap, etc.) until a divorced mother is nursing a child is a father’s responsibility

14)  A divorced wife does not use the property left from her former husband as well as a husband has no right to the property left from his divorced wife.

15)  The conditions according to which a Turkmen man can marry again a divorced woman are mentioned above. 

Spouses’ rights and responsibilities:   

According to the custom every man on paying kalym has to take his wife home and provide her with living, food, and clothes, relevant to his living standards; keeping or supporting a wife by a husband is called “nafaka” (Arabic word). 

Though according to the custom nobody can make a husband spend money on his wife’s clothes, on the furniture of his kibitka and other things in order to go into debt, at the same time the custom requires from every man to keep his wife according to his standard of living; if a husband does not provide his wife with the necessary dresses, food or wood for heating the kibitka, his wife can complain to her relatives, who through People’s Court make her husband give her adequate support. Otherwise if the husband refuses, People’s Court act as above mentioned in the 3rd category of marriage dissolution. Spouses have to always live together.   

On moving to another aul, a wife has no right to refuse to go with her husband. In case of the wife’s unwillingness to follow her husband, the custom provides the husband with the right to make his wife move by force. Only during the independence of Turkmenia in the cases when a husband was taken prisoner, the custom allowed a wife not to obey her husband to move to another place, if he would have demanded it from captivity. Such person’s wife had to continue to live in her husband’s home or at his relatives and was expected to wait for his return from captivity. 

p. 32:  She had no right to marry again as long as her husband was alive.

During the times of the Russian rule, when Turkmens were exiled due to the Court’s decision or administrative order to European Russia and Mangyshlak, the custom established that the exiled husband had no right to force his wife to follow him. However, if a wife wished to follow her husband voluntarily, the administrative bodies did not prevent this. Such cases did happen. According to the established custom a wife of the exiled husband had to live in her husband’s or his relatives’ home and wait for his return from exile. She was not allowed to marry again as long as her husband was alive. Each wife had to live in a separate kibitka, if a husband was not able to buy a kibitka, then in a hut or saklia (dwelling of Caucasian people).

The custom did not allow that several wives live in the same kibitka, even if it was large enough. 

Nafaka or keeping of her wife by her husband is stopped if a wife as a result of family misunderstandings leaves her husband’s house in order to live at her parents’ house.

A suit on nafaka (keeping or supporting of a wife by her husband) brought in by a wife to the People’s Court is not considered until she returns back to her husband. 

p. 33:  According to the custom a husband must have conjugal sexual life with all his wives, taking turn. As a rule a husband has a liking for his last, younger wives. 

The custom demands that a wife has to obey her husband and carry out all his orders.  The custom trying to protect morality of the people provides husbands and fathers with the right to kill their wives and daughters caught in the act of adultery (or fornication) as well as their lovers. They (husbands or fathers) are not punished and they are exempted of “huna” (ransom (vira) which is paid by a killer, according to custom, for murder), if both lovers are killed at the same time; if only the man or the woman is killed, the killer has to pay huna to the respective’s family. 

p. 35:  Moreover, the lovers have to be killed at the moment of fornication in order for the killer to be freed from paying the huna.

People’s Court requires that the killer (husband or father) certifies through witnesses’ evidence that he killed the lovers at the moment of fornication. It is needed to mention the Turkmen custom which makes indignant any civilized person, namely the violence inflicted by a jealous husband against his wife, whom he suspects that is committing adultery but cannot prove. Such husbands blinded by jealousy take hot metal things such as teapot, tongs, etc. and put on his wife’s genitals. 

p. 36:  If I had not presided in the people’s court on considering such cases of violence, I would have not believed such things. In one of the cases, a doctor’s assistant examines the plaintiff stated that the burns off her genitals, but the People’s Court who listened to the arguments of a jealous husband arrested him only for some days. 

Property rights of the spouses 

Dowry brought by a Turkmen woman to her husband’s house, though is regarded her property, according to the custom, still she is not allowed to use it without her husband’s consent. Only if she is divorced or widowed and she does not wish to stay in her late husband’s house, she can take her dowry with her. In a Turkmen family, the property belongs to the husband, who can use it as he wishes without his wife’s consent, he can sell, rent or mortgage. The Turkmen custom allows a wife to participate in using her husband’s property, at the same time requires from her to do her best in order to increase the property. A woman has no right to use her husband’s property even in his absence. A wife has no right to deal with trade without her husband’s consent; whereas a widow can do it even without the consent of her or her late husband’s relatives. She is not allowed to sell anything from the property after her husband’s death if he has male relatives. 

p. 37:  A wife cannot be bound with promissory notes or lend from her dowry without her husband’s consent. 

On Turkmen women’s status 

Everything mentioned on Turkmen women helped to conclude that her position is very bad. As we have seen a Turkmen woman has no personal rights and independent privileges as well that she does not enjoy freedom and independence. It is difficult to say that the position of a Moslem woman in those Middle Eastern countries, where shariat and its teachings are deeply rooted is worse than a Turkmen woman’s position. I would like to compare some instances of the position of the Turkmen women, with the position of women from the countries strictly following the shariat regulations. As it is known, according to shariat a husband has to consider his legal wife as his friend, owner in his house, whereas adat regards a woman as a person deprived of rights, not more than female (samka)  and as property bought by the husband for kalym. Shariat allows a husband to punish his wife only for leaving the house without his consent, theft, refusal of sexual relations and proved fornication; whereas a Turkmen woman can be attacked by her husband because of his caprice, or only on suspicion of fornication and she is severely punished. 

p. 38:  However, in recent years the mutual relationship between a wife and a husband improved. This was the result of the fact that cruel treatment towards a wife was always punished by the Tsarist administration and moreover that to pay kalym for his wife a man had to work hard for some years; in case his wife’s died because of his cruel treatment, he would not be able to have a concubine as long time ago, before paying kalym for a new wife. 

The position of Turkmen widows is worse than the Moslem widows guiding themselves on shariat. As we know from the cove example, after a husband’s death a Turkmen woman’s life depends again on her relatives. Though, according to adat nobody can force a widow to remarry, however, a severe inhuman regulation of adat on separation of a widow from her children in the case of her marrying again often becomes the reason that young widows are doomed to widowhood till her old age.  

p. 39:  This inhuman regulation made Niyaz-bibi Atabai-kazi (see above p. 23-25) lie in the court in order not to be separated from her children. It is necessary to highlight that according to shariat a widow cannot be deprived of the right over her children, unlike adat, therefore if she would have wished to act in her own way by suppressing her mother feelings, nobody would have prevented it. 

In conclusion it is needed to state that to some extent a Turkmen woman’s position is better than the women strictly following the shariat. Turkmen women have more freedom in choosing husbands. It happens due to the following reasons. 

p. 40:  According to shariat a fornication by action is less criminal than a fornication by eyes, therefore in order not to lead a man into sin, shariat requires from women to conceal their faces. Hence, shariat commentators interpret that a bridegroom has no right to look at his bride and matchmaking date has to be fixed through relatives. On such conditions the bridegroom and the bride have no opportunity to know each other. On the contrary, Turkmen women do not conceal their faces and do not avoid men (except only Turkmen women living near the border with Persian auls conceal the lower part of their faces under the Persian influence) therefore the Turkmen bride and groom despite the fact that the matchmaking date and the kalym amount are solved through third parties, they have ample opportunity to know each other before marriage, more over in most cases they have close contact from their childhood. 

Division of Turkmens by origin 

Children born from Turkmens are divided into three categories:

1)      born as a result of a legal  marriage of a Turkmen man to a Turkmen woman
2)     
as a result of a Turkmen man’s cohabitation with a non-Turkmen woman (Persian, Afghan) 
3)     
illegitimate children
 

The 1st pure-blooded Turkmens are called “ig”, the second “kul”, which means “slave’. “Kul” are called the children born from a legal non-Turkmen wife as well as from a concubine “kyrnak”. 

According to the custom pure-blooded  Turkmens “ig” as well as “kul” have equal property rights, however in all other aspects the pure-blooded Turkmens look down upon “kul”.

Turkmens do not marry the pure-blooded “ig” to a man “kul”. Only very rich “kul” by paying a huge amount of kalym can marry a very poor woman “ig”. 

p. 41:  Pure-blooded Turkmen men do not marry” kul” though kalym is much lower; they prefer to pay much more kalym in order to marry pure-blooded women. Illegitimate children are very rare. Turkmens call them “heramzade” or “veled-e-zena”. The first word means forbidden born, the 2nd means- fornication child. The birth of an illegitimate child is shameful for any Turkmen family. In account of this the relatives of pregnant girls despite the fact that shariat allows it, try to marry them off as soon as possible for a very low kalym. During independent Turkmenistan, after giving birth, those women were driven out of the aul. A mother driven away from her parents’ house, failing to find shelter at her relatives killed her baby. 

 p. 42:  According to the ancient Turkmen custom male relatives never brought a suit on kalym for the illegitimate girl-bride. Now such suits are brought to the Court, but the custom keepers –People’s Judges reject motivating their refusal by the fact that only the mother of the illegitimate child can use illegal money.  The Extraordinary Congress of the People’s Judges considered such a suit in winter 1895. A Turkmen man requested kalym for a pregnant girl who had found shelter in his late brother’s house on the condition that the later will marry her after the birth of her child. (Neither shariat, nor adat allows to marry the pregnant, though later Turkmens started to marry pregnant women. However, the man died; the petitioner, his brother, in account that the woman’s relatives were absent, and regarding himself as the closest person requested kalym when the illegitimate girl wanted to marry. The Court dismissed the case. 

p. 43:  Kalym was given in the favor of the mother. It is hard to believe that since the Russian rule fornicatresses stopped to kill their illegitimate children. The fact that no suits were brought to the Court does not mean that the Turkmens became more moral, it means that after the increase of kalym, a Turkmen man became less scrupulous in choosing a wife and would marry a fornicatress because she was cheaper. Moreover, this was in the favour of the fornicatress as according to shariat if a fornicatress gave birth within 6 months after the marriage, a child was considered legitimate even against her husband’s will. 

p. 44:  Illegitimate children at their full age, according to the custom were equaled to kul on property rights. Sometimes they used land and water as other aul people and participated in public meetings. According to the custom the illegitimate inherited the property if he was adopted by his father. 

p. 45:  Though the custom recognized that a baby lives 9 moths and 10 days in his mother’s womb, and if a father was absent more than this term the child would be regarded as illegitimate. However, thanks to the influence of the shariat a woman can achieve that the People’s Court will recognize the baby as legitimate; in this case some witnesses are needed, men or women who would be able to certify that the baby was born later than 9 months and 10 days, as the result of a disease that influenced the duration of the pregnancy and the Court in most cases recognizes the legitimacy of the baby. Illegitimate children as well as children not recognized by their fathers (for instance born earlier than 6 months after the mother’s marriage) inherit after mothers and after fathers only in case of their adoption. 

Adoption 

Among Turkmens the custom of adoption existed from ancient times. Mostly boys are adopted by rich Turkmens who don’t have children of their own and want that somebody will inherit their property after their death; girls are adopted very seldom. 

p. 46:  An adopted boy is called “kiametlyk ogly”, i.e. son forever. Every adult Turkmen man having his own, separated from his parents’ household has the right to adopt. Married women, men and girls living with their parents can adopt: the 1st- with their husband’s consent, the 2nd and the 3rd –with the consent of their parents. A widow has the right to adopt without the consent of the relatives, but in this case, the adopted has no right to inherit property after the death of the widow’s husband. 

Orphans can be adopted as well as children having parents, but in this case the consent of the parents is needed. The age for adoption is not limited by the custom. Foster or adopted children enjoy the same rights provided by the custom as well as inheritance rights like as if they were biological children of their adoptive parents. According to the custom the adopted children have the same responsibilities towards their new parents as any biological child. The custom does not allow adopted persons to marry foster parents as well as their relatives. 

There is no specific ceremony on adoption. Usually a foster parent having secured the consent of the parents or relatives, or tutors (if a child is an orphan), declares the adoption in the aul meeting and celebrates this event. 

p. 47:  There are no written acts on adoption, no prayings. The number of adopted children is unlimited. The custom does not recognize adoption by force, therefore if it is proven that a Turkmen man has a child from his unlawful (or illicit) cohabitation with a women, nobody can force him to adopt this child. Also, if somebody finds a child or a child is left at a kibitka, the custom does not force the owner of the kibitka where the child was found, to adopt the child. According to the custom the owner of the kibitka has to look for the child’s parents and give them their child. In case if the parents are not found a child can stay in the house of the owner on the condition that on reaching the full age he has to work in order to pay for his rearing. If the child is a girl, upon marriage kalym is paid to the person who found her and reared her. If a person who found the child does not want to take the child, then it is announced in the aul where there are couples without children who agree to take this child.

Girls are taken more readily as in the future, upon her getting married, kalym will be paid for them. It is needed to mention that neither custom, nor shariat provided a person who found a child with the right to adopt that child. 

p. 48:  According to the custom a poor widower with small children, who has no female relatives, and is not able to rear the children, brings his children to the mosque and declares ff from his children in favour of others wishing to take them and rear them. A father refusing his child is called “songy-hostar”.

Parents’ power over their children 

Turkmens as well as people having a lower level of social development, have a great power over their children. The Turkmen custom based on patriarchal order provides parents with the right to require from their children complete obedience and respect.

However, respect is the responsibility not only of children towards their parents but, according to the custom, the responsibility of young people in general towards elder, in particular old people (aksakals and yashuli, it means white-bearded, elders), influential persons.

Disrespectful treatment, non-execution of request, moreover an insult of an old man or honorable person is very shameful not only for the guilty person but for his relatives as well. The custom provides parents with the right to involve the children in work, according to their physical abilities and capacities. The custom recommends parents first to use domestic measures towards their lazy, disobedient children: remarks, talks, warnings, and if it does not help then beating and as a last resort asking them to leave the home and depriving them of inheritance. 

p. 49:  Usually, if domestic measures are not effective, parents address elder relatives, honorable persons of aul to help them. Nevertheless, children have inheritance rights after their parents’ death. 

p. 50:  The Turkmen custom does not allow disobedience to parents: a person from his childhood sees a servile respect of children towards their parents and becomes sure that the responsibility to obey parents is the main responsibility of people in their life.

Children’s complaints on their parents’ cruel treatment towards them are, in most cases, not considered by the People’s Courts.

The Turkmen custom as well as shariat allows children not to obey their parents in forcing them in apostasy, crime, theft, alcohol and drug abuse, particularly girls as well as widows when they are forced to marry.

They say that in ancient times, the custom of killing the children monsters (mazardat) existed in Turkmenia, but later this barbarian custom disappeared. At present parents can kill their children for fornication with their sisters, mother, one of the father’s wives or relative, and go unpunished.

In general one can say that Turkmens by nature love children; particularly they treat small children very well. 

p. 51:  In Turkmen families the division of children is in separated from their parents and non-separated. Turkmens separate their sons mostly after their marriage and payment of kalym for wives. Junior sons in both poor and rich families are very seldom separated.

Non-separated children cannot own (or use) property of their parents without their consent; the custom does not allow them to contract any property bargains as well as have commitments, therefore sale and purchase and other bargains made by non-separated children are regarded invalid. Parents are responsible for the debts of their non-separated children, if they got into debt having their parents’ consent. 

The custom obliges the parents to keep their son until he is 15, to educate him, assist him to pay kalym, while regarding their daughter- to marry her off. The parents’ power over their children is ended, towards their sons on final separation, towards their daughters, upon receipt of the entire kalym. 

p. 52:  The custom commits children to keep their old parents, grandfather and grandmother if they are poor; if they have any property, their keeping is based on it, but not on children’s and grandchildren’s property. 

Trusteeship 

15 years old is regarded full age for property issuance. Hence, in case of a father’s death, an orphan under 15 has a trustee (or tutor) called “vasy”. 

p. 53:  According to the custom, trustees have to manage the property of the under aged, who cannot conclude agreements or terms without the consent of their trustees. In a Turkmen family, after the father’s death usually the mother of the orphans becomes the trustee of her children, until they reach the full age. This custom is contrary to shariat, according to which if an orphan has male relatives his mother cannot be a trustee over his (child) property. In a Turkmen family, the mother cannot be the trustee only in case when she is not able to manage her children’s property because of her illness. 

Upon getting married again, the mother-trustee is deprived of trusteeship over her small children’s property. However, if she marries her late husband’s relative, she remains the trustee over the property of her children from her first husband. If the close relative cannot be a trustee, the aul community chooses one out of the other relatives; if there are no relatives then an honest, respectable person is chosen out of the community. There can be only one trustee. According to the custom the following persons cannot be trustees over under aged children’s property: 1) under aged; 2) crazy; 3) turned out of the community; 4) being under trial; 5) opium abuser; 6) considered unreliable by the community. 

p. 54:  The report on managing the property has to be submitted to the relatives under the trusteeship child, and if there are no relatives, to the aul community. Before the Russian ruling, a trustee submitted a report on managing the property to the kazi who in such cases was guided by shariat, imposing specific care of kazi on trusteeship supervision.

Nowadays, disloyal actions of a trustee are investigated in the People’s Court. According to the custom, besides managing the property, a trustee has the responsibility to be a father for an under trusteeship child. 

p. 55:  A trustee is subject to no other punishment except property responsibility even if it is proved that he is guilty for damage. 

p. 56:  Regulations of adat related to wasters is an evidence of how much the Turkmen custom is concerned about the property of every Turkmen person. Though Turkmens are by nature very economical, there are still some wasters among them. Adat provides relatives and wives with the right to prevent from property wasting. 

Inheritance 

In all times, the property issues of the Turkmen family were solved according to the rules and regulations of the shariat; shariat regulations are not stated in this book as you can find them in any manual (or handbook) of Muslim law.  As concerns adat deviations from shariat, called “tereke” only two can be pointed out:  

1)      A Turkmen wife after his husband’s death, besides her widow part, is allowed by the shariat to also inherit “mulk” (complete property right for land usage) with the right of using it either until her death or before getting married, but before transferring it to somebody. Upon the death of a widow or on her getting married, “mulk” is inherited by the close relatives of the late husband.

The property of a dead person having no relatives has to be inherited according to shariat by imam or sultan. As there were neither imams (holy men of Mohammedans) nor sultans in Turkmenia, the property is inherited by his close friend or close neighbor.

 

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Last Updated: 
08/07/2010

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