KIM TIU AND MARRIAGE
The practical necessity, then, of having a wife for each line, if the lines were to be kept distinct, prevailed in the customary law to the extent that it became common for a kirn tiu successor to marry two women as legitimate spouses.
This practice was noticed among the Cantonese immigrants in Formosa in the early years of this century.3 It was, however, disliked by the Manchu government, which already in the middle of the eighteenth century declared that the keeping of two wives in kirn, tiu was not to be permitted. This looked as if the custom ought to be treated as bigamy, and bigamy was visited by severe penalties for the guilty parties and the separation of the couple concerned. Yet in 1821, the first year of the Emperor Tao Kuang, who ceded Hong Kong to the British, it was held in a case that arose in the province of Shantung: ‘Marriage of a wife for each line in kirn tiu is for the purpose of begetting offspring for the succession, and should not be punished, as in the case of ordinary bigamy, by the1 Pp. 137-8. ’ P. 189. ’ P. 443. 4 Shiga, p. 60, n. 7.
5Taiwan shihfi, Vol. II, Pt. 2, Tokyo 1911, p. 266.
separation of the couple. Yet, as a matter of propriety, a man may not have two wives, and the second woman must be treated as a concubine.’1
This ruling, in itself, shows very well the attitude of the Chinese nineteenth-century courts to domestic affairs. So grave an offence as ordinary bigamy, which struck at the heart of Confucian tradition, called for the intervention of the State to suppress it. What amounted to bigamy in kim tiu was ignored, but if a dispute came to the courts for settlement only the woman first married would be recognized as a wife. In fact, such disputes were not in general taken before the magistrate, and the custom thrived without hindrance and survives in Hong Kong today.
As a matter of interest, it is worth noting that under the early Republic the Peking Supreme Court reaffirmed the 1821 ruling that a second kim tiu spouse may be accorded only the status of a concubine?It is much to be regretted that Dr Vermier Yantak Chiu in his note on him tiu in the Report of 1953, after an accurate statement of what is in fact the customary law, i.e. that a man may in such a case marry two wives, goes on to assert that ‘the law of lam tiu was made by the Emperor Ch’ien Lung in the eighteenth century’? In fact, as has been shown, although the Manchu Government, as a special privilege, permitted a man in certain circumstances to succeed to two lines, it utterly refused to recognize the marriage of two wives. Awn tiu, in other words, affords a striking example of a conflict between custom and statute?
One form the problem may assume in Hong Kong is illustrated by a case mentioned in the Report of 1953, where a magistrate ‘had to consider whether a complainant who claimed to have taken, in accordance with the Chinese custom known as kim tiu, two kit fat wives, could complain under section 3 of the Chinese Marriage Preservation Ordinance, 1921, of adultery committed by the defendant with the second of these wives’? Section 3(1) of the Chinese Marriage Preservation Ordinance reads as follows: ‘If it is proved to the satisfaction of a magistrate that any Chinese person has committed adultery with a Chinese married woman, the magistrate may order such a person to pay to the husband of the woman compensation not exceeding 500 dollars.’6 Section 2(1) of the same ordinance says: “‘Chinese married woman” means a woman married according to the
* Taiwan shihd, loc. cit. * Shiga, p. 33, n. 6. ’ Pp. 201-2.
1 Shiga, p. 33, n. 6. ’ P. 112.
( Revised Edition of Laws of Hong Kong 1950, cap. 178, (Vol. IV, p. 365).
laws or customs of China, and includes only the first wife (Jut fat) or the second wife (tinfong) of any Chinese man.’1
It is an undoubted fact that Chinese words, in any kind of romanization, are hard for the foreign reader.
When, as in the case of kim tiu, no western equivalent exists their use is defensible. But all too often the Hong Kong books think nothing of putting tsai and tsip where the ordinary English ‘wife’ and ‘concubine’ would serve perfectly well. If one must at all costs employ Chinese terms, then surely care should be taken to explain them correctly. In this respect, the definition just quoted from the Chinese Marriage Preservation Ordinance is a masterpiece of bad drafting. To the ordinary English reader two meanings are possible: either a Chinese man may have two wives, but no more, at one time, or else, when he loses his first wife by death or divorce, he may remarry once only, after which his matrimonial career, under Chinese law or custom, is at an end. To one who can understand the Chinese crib, the second interpretation is indicated. Yet we are told neither of these is intended. In fact the confusion has arisen through a misrendering of tin fong, which on the remarriage of a widower is applied not only to the second wife but to any wife subsequent to the first. The term kit fat means that a husband and wife both marry for the first time, and to the complainant in this case it would seem natural to use it of a kim tiu marriage, where the husband takes each wife in a distinct capacity. In spite of the wording there is no doubt the legislator intended that a man should have only one legally-recognized wife at a time, but as many wives in succession as the vicissitudes of fortune might dictate. Kim tiu marriages were not provided for, and the magistrate held that as the woman in question was the second of the two allegedly kit fat ‘wives’ no complaint could be lodged? ‘If the magistrate’s decision was correct,’ says the Report of 1953, ‘the Ordinance must be read as having made another inroad on this particular form of Chinese marriage (i.e. kim tiu) in that though, as the magistrate was careful to point out, he was not purporting to decide whether the custom was a valid custom, or in fact anything else except whether a complaint of adultery would lie, the legislature had, by confirming the remedy to adultery in respect of the first kit fat, ignored the possibility of there being more than one kit fat."It may be noted that if the case had been tried before a court in Manchu China it would have assumed an entirely different aspect.
True, the second kim tiu spouse would have been recognized merely’ As in (6). 2 Report of 1953, p. 113. 2 P. 113.
as a concubine, but misconduct with another man’s concubine was punished as adultery, and the complainant would accordingly have had the satisfaction, for what it was worth, of being revenged on the guilty couple.
This decision did not setde the fundamental problem of kim tiu marriage, and the matter was considered by the Committee which issued the Report of 1953. Among the questions on the Law of Marriage put to a group of Chinese informants was the following: ‘Should the existing law be amended so that the doctrine of monogamy for Chinese residents in Hong Kong be recommended?’ Mr Li King Hong, a member of the Chinese Chamber of Commerce, replied: ‘Yes, but the custom of a second kit fat for kim tiu must be carefully considered.’1 Nevertheless, in its recommendations the Report advised against the recognition of kim tiu marriages for the future? As the whole tenor of these recommendations seems directed primarily against concubinage, it is possible from this to come to the conclusion that the Committee followed the Manchu statute law, in opposition to custom, and decided that a second kim tiu spouse was a concubine. However that may have been, the Report of i960 takes an entirely different attitude and recommends that ‘for the present kim tiu marriages be recognized as lawful Chinese Customary Marriages’? Here there can be scarcely any doubt that custom is being supported against the Manchu statutes. What, incidentally, is the effect of this on the adoption side of kim tiu? Logically, it ought to be liberated from the restriction of the eighteenth-century legislator, who sought to confine it to the provision of successors for elder brothers, and given the full customary scope mentioned earlier. Then there is the custom called in standard Chinese san t’iao, where one man may succeed to three lines, with a wife for each? This is not covered by kim tiu, which by definition is concerned with only two lines, but what would be the attitude of the Hong Kong courts towards it?
THE BASIC QUESTION
However, even kim tiu is apparently not encountered too frequently in the Colony, and the serious question is the fundamental one, namely, whether the recommendation is a sign that the Hong Kong authorities are coming to a decision concerning the conflict between statute and custom in the traditional Chinese law.
Admittedly, even1 P. 237. 2 P. 71. ’ P. 11.
1 N. Niida, Shina mihunhS-shi, Tokyo, 1942, pp. 45, 76, 797.
when this has been answered, other problems remain, notably those concerning the extent to which developments in custom since the cession, whether in China itself, or in Hong Kong, call for recognition. Yet the point of departure must remain the Chinese law of 1843, and no useful advance can be made until the source of that law is determined. After that, the next step, logically, would be a clear and unambiguous statement of its content. If those responsible can be persuaded that this content is known and is expounded in a copious literature of scholarship, the task would not be too daunting. At the moment, such a belief seems withheld, no doubt because the books in question are not written in English.
UNITED KINGDOM
(a) Statutes
Act of Settlement, 1701 (12 & 13 Wm. 3, c. 2) 69,75
Act of Succession, 1536 (28 Hen. 8, c. 7) 128
American Colonies Act, 1766 (6 Geo. 3, c. 12) 12
Appellate Jurisdiction Act, 1875 (39 & 40 Viet, c. 59) 71
Assize of Jerusalem, 1099 82
British Nationality Act, 1948 (11 & 12 Geo. 6, c. 56) 222
British Settlements Act, 1887 (50 & 51 Viet., c. 54)
20-S» 27, 29, 40, 48 British Settlements Act, 1945 (9 Geo. 6, c. 7) 21, 23, 29, 40
Burma Independence Act, 1947 (11 & 12 Geo. 6, c. 3) 44
Ceylon Independence Act, 1947 (11 & 12 Geo. 6, c. 7) 47
Colonial Laws Validity Act, 1865 (28 & 29 Viet., c. 63) 14, 26, 46
Colonial Leave of Absence Act, 1782 (22 Geo. 3, c. 75) 73
Colonial Prisoners Removal Act, 1884 (47 & 48 Viet., c. 31) 48
Colonial Stock Act, 1934 (24 & 25 Geo. 5, c. 47) 49-50
Commissions and salaries of Judges Act, 1760 (1 Geo. 3, c. 23) 70 Commonwealth Immigrants Act, 1962 (10 & 11 Eliz. 2, c. 21) 56
Ecclesiastical Licences Act, 1534 (25 Hen. 8, c. 21) 128
Foreign Jurisdiction Act, 1843 (6 & 7 Viet., c.
94) 20Foreign Jurisdiction Act, i89o(53&54Vict.,c. 37) 20,25,26,27,29
Ghana Independence Act, 1957 (5 & 6 Eliz. 2, c. 6) 47, 59
Government of India Act, 1833 (3 & 4 Wm. 4, c. 85) 26
Government of India Act, 1915 (5 & 6 Geo. 5, c. 61) 114
Government of India Act, 1935 (26 Geo. 5, c. 2) 79, 85
Heresy Act, 1533-34 (25 Hen. 8, c. 14) 128
Indian Independence Act, 1947 (10 & 11 Geo. 6, c. 30) 47
Interpretation Act, 1889 (52 & 53 Viet., c. 63) 48
Jamaica Act, 1866 (29 & 30 Viet., c. 12) 26, 29
Judicature Act, 1873 (3KONG
Chinese Marriage Preservation Ordinance, Cap. 178 266-7
INDIA
Child Marriage Restraint Act, 1929 246, 252
Code of Criminal Procedure, 1898 97
Constitution of India, 1950 168
Article 13 102
15 169
19 88,90
20 89,95
Article 21 89
22 89
25 89
JI 88—9
32 97-113
39 88
141 104
226 97-113
311 108
358, 359 90
9th schedule 89
Constitution (First Amendment) Act, 1951 88
Constitution (Fourth Amendment) Act, 1955 88
Dissolution of Muslim Marriages Act, 1939 246, 250, 252
Hindu Bigamy (Prevention and Divorce) Act, 1949 (Mad.) 169
Hindu Marriage Act, 1955 231
Indian Evidence Act, 1872 246
Municipalities Act, 1916 (U.P.) 108
Mussulman Wakf Validating Act, 1913 177, 179
Penal Code, i860 185-6
Prohibition Act, 1949 (Bom.) 103,168
Punjab Laws Act, 1872 149
Regulations for the Administration of Justice in the Courts of
Dewannee Adaulut, 1781 133
Specific Relief Act, 1877 98
(Temporary) Control of Rent and Eviction Act, 1947 (U.P.) 106
INDONESIA
Constitution of Indonesia 87-8
IRAQ
Code of Personal Status, 1959 254
ITALY
Penal Code, 1888 186
JAPAN
Constitution of Japan, 1946 85-7,94-5
Penal Code 95
KENYA
Mohammedan Marriage, Divorce and Succession Ordinance,
1920 173
Wakf Commissioners Ordinance, 1957 178-9
LIBYA
Constitution of the United Kingdom of Libya 167-8
Intoxicating Liquors Control Law (Cyrenaica) 167-8
NEW ZEALAND
Criminal Code, 1893 185
Western Samoa Act, 1961 45
FEDERATION OF NIGERIA
| Constitution of Nigeria Section 27 Criminal Code, 1916 Evidence Ordinance | 9i 166-70 184-93 191 |
NORTHERN REGION OF NIGERIA
Criminal Procedure Code 165-6
Moslem Court of Appeal Law, 1956 171
Native Authority Law, 1954 172
Native Courts Law, 1956 171
| Native Courts (Amendment) Law, i960 | 166 |
| Penal Code Law, 1959 Shari'a Court of Appeal Law, i960 | 165-6,168-70 114,175-6 |
NORTHERN RHODESIA
Marriage Ordinance, Cap. 109 231
OTTOMAN EMPIRE
| Land law, 1858 and 1911 Law of Family Rights, 1917 | 172 244, 249 |
| PAKISTAN | |
| Basic Democracies Order, 1959 Constitution of Pakistan | 248 |
| 167-8 | |
| Muslim Family Laws Ordinance, 1961 | 247-57 |
| QUEENSLAND | |
| Criminal Code, 1899 | 184-93 |
| SOMALILAND | |
| Natives’ Betrothal and Marriage Ordinance, 1928 | 180, 226 |
SOUTH AFRICA
Natal Code of Native Law 227
Native (Abolition of Passes and Co-ordination of Documents)
Act, 1952 221
SOUTHERN RHODESIA
Land Apportionment Act 197
Native Land Husbandry Act 200
SUDAN
Civil Justice Ordinance, 1929 150
Mohammedan Law Courts Organisation and Procedure
Regulations, 1915 180
SYRIA
Law of Personal Status, 1953 245
TANGANYIKA
Administration (Small Estates) (Amendment) Ordinance,
1947 172-3
Penal Code 228
UGANDA
African Courts Ordinance, 1957 237
Buganda Courts Ordinance, Cap. 77 237-8
Divorce Ordinance, Cap. 112 237
Hindu Marriage and Divorce Ordinance, 1961 231
Marriage and Divorce of Mohammedans Ordinance, Cap. 110 237
Marriage of Africans Ordinance, Cap. in 236-8
Marriage Ordinance, Cap. 109 236-8
Native Courts Ordinance, Cap. 76 237