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Gusii\nbridewealth is \"progeny price\" in its principal legal implication.\nWhat the bridewealth system as such is designed to primarily\nprotect is the husband\u0027s exclusive right over his wife\u0027s offspring.\nAll the wife\u0027s children, by whomever begotten, belong to her\nhusband as well as to his lineage, either during his lifetime or\nafter his death, unless the bridewealth is returned, in whole or\nin part, to him or to his heirs by way of divorce. The major\ndisputes arising between the parties concerned from an impending\ndivorce are always related to the custody of children and the\nrepayment of bridewealth.\nThe first half of the paper examines 42 divorce cases heard\nat Kisii Law Court in 1979-1980. The divorce suits filed by\nwomen number more than twice those filed by men. What\nprimarily motivates a wife to initiate legal actions is her wish to\nacquire the right of custody over her children. A divorce, if\ngranted by the court, also clears the way for her subsequent\nlawful remarriage. All the couples involved in divorce cases\nhave been separated for a certain period, and their marriage is\nirrevocably broken. A husband is much less eager to bring a\ndivorce before the court. This is because at any time he is\nallowed to become a polygamist, and by refusing his wife a\ndivorce he continues to have a potential right over her offspring,\nwho may be under her physical custody. Far fewer husbands\nthan wives opt for a divorce suit and, if they do, they usually\npray for both divorce and receiving back their bridewealth,\nthus from the outset waiving their right over children. This\nattitude is in line with that of many other husbands who ignore\na summons from the court in a suit where a wife is claiming the\nright of custody, and who consequently are forced to accept an\nex parte judgement totally in favor of the wife.\nThe magistrates\u0027 judgements at Kisii Law Court show a\nmarked tendency to grant the custody of children to the parent,\nthe mother in most cases, who has mainly brought up the\nchildren until the time of the lawsuit. When a wife is granted\nthe custody of all her children, her father is ordered to return\nthe whole bridewealth to her husband. In the very few instances\nwhere a husband is granted the custody of one or two children,\nnone or a portion of his bridewealth is returned, normally one\nchild remaining with him being offset by two head of cattle\ndeducted from the returned bridewealth. A husband sometimes\nrefuses a divorce at the hearing and then claims all children\nhis wife has had on the ground that he has not received back\nhis bridewealth. Such a course of action on the husband\u0027s\npart is generally considered by the magistrates to be an abuse of\nthe customary law and, moreover, repugnant to justice and\nmorality.\nThe , second half of this paper compares those divorce cases\nwith others heard in 1950\u0027s at a Court of Review. The Court\nof Review, presided over by a British judge, was created in 1951\nto hear appeals from African Courts. The judgements at the\nCourt of Review invariably granted the custody of children to\ntheir genitor, either a husband or another man, who had been\nliving with the former\u0027s wife. In cases where a husband-genitor\nwas dead, his biological children were given to the custody of\nhis nearest patrilineal kin, despite the same claim from his wife,\nwho was the genitrix of the children. The judges were well\naware of the long-established customary law to the effect that\nthe children of any irregular union between the wife and a man\nother than the husband, as well as the children of the marriage,\nbelonged to the husband of the regular union. In their judgements,\nhowever, the judges modified this customary law on the\nground that it was repugnant to the principles of natural justice.\nThe major trend in the changes that have occurred in\ncourt judgements as to the custody of children since 1950\u0027s is\nvery clear : it may be summarized as the shift of prior emphasis\nfrom a genitor to a nurturer. I maintain that this change has\nbeen brought about not only by the national legal policy of\nunifying customary laws of various ethnic groups, but also by\nnegative evaluations, among increasing numbers of Gusii men,\nagainst the customary law that has served to this day primarily\nto make them jural fathers of as many children as possible.", "subitem_description_type": "Abstract"}]}, "item_9_identifier_registration": {"attribute_name": "ID登録", "attribute_value_mlt": [{"subitem_identifier_reg_text": "10.15021/00004312", "subitem_identifier_reg_type": "JaLC"}]}, "item_9_publisher_33": {"attribute_name": "出版者", "attribute_value_mlt": [{"subitem_publisher": "国立民族学博物館"}]}, "item_9_publisher_34": {"attribute_name": "出版者(英)", "attribute_value_mlt": [{"subitem_publisher": "National Museum of Ethnology"}]}, "item_9_source_id_10": {"attribute_name": "書誌レコードID", "attribute_value_mlt": [{"subitem_source_identifier": "AN00091943", "subitem_source_identifier_type": "NCID"}]}, "item_9_source_id_8": {"attribute_name": "ISSN", "attribute_value_mlt": [{"subitem_source_identifier": "0385-180X", "subitem_source_identifier_type": "ISSN"}]}, "item_9_version_type_16": {"attribute_name": "著者版フラグ", "attribute_value_mlt": [{"subitem_version_resource": "http://purl.org/coar/version/c_970fb48d4fbd8a85", "subitem_version_type": "VoR"}]}, "item_creator": {"attribute_name": "著者", "attribute_type": "creator", "attribute_value_mlt": [{"creatorNames": [{"creatorName": "松園, 万亀雄"}, {"creatorName": "マツゾノ, マキオ", "creatorNameLang": "ja-Kana"}, {"creatorName": "Matsuzono, Makio", "creatorNameLang": "en"}], "nameIdentifiers": [{"nameIdentifier": "253", "nameIdentifierScheme": "WEKO"}, {"nameIdentifier": "1000000061408", "nameIdentifierScheme": "CiNii ID", "nameIdentifierURI": "http://ci.nii.ac.jp/nrid/1000000061408"}, {"nameIdentifier": "00061408", "nameIdentifierScheme": "NRID", "nameIdentifierURI": " "}, {"nameIdentifier": "00061408 ", "nameIdentifierScheme": "e-Rad", "nameIdentifierURI": "https://kaken.nii.ac.jp/ja/search/?qm=00061408 "}]}]}, "item_files": {"attribute_name": "ファイル情報", "attribute_type": "file", "attribute_value_mlt": [{"accessrole": "open_date", "date": [{"dateType": "Available", "dateValue": "2015-11-19"}], "displaytype": "detail", "download_preview_message": "", "file_order": 0, "filename": "KH_013_4_004.pdf", "filesize": [{"value": "3.6 MB"}], "format": "application/pdf", "future_date_message": "", "is_thumbnail": false, "licensetype": "license_free", "mimetype": "application/pdf", "size": 3600000.0, "url": {"label": "KH_013_4_004.pdf", "url": "https://minpaku.repo.nii.ac.jp/record/4320/files/KH_013_4_004.pdf"}, "version_id": "c5c353e1-3839-46b9-85db-2a60b10cf314"}]}, "item_language": {"attribute_name": "言語", "attribute_value_mlt": [{"subitem_language": "jpn"}]}, "item_resource_type": {"attribute_name": "資源タイプ", "attribute_value_mlt": [{"resourcetype": "departmental bulletin paper", "resourceuri": "http://purl.org/coar/resource_type/c_6501"}]}, "item_title": "子の監護と婚資返却 : グシイにおける離婚訴訟の分析", "item_titles": {"attribute_name": "タイトル", "attribute_value_mlt": [{"subitem_title": "子の監護と婚資返却 : グシイにおける離婚訴訟の分析"}, {"subitem_title": "Custody of Children and Bridewealth Repayment : An Analysis of Gusii Divorce Cases", "subitem_title_language": "en"}]}, "item_type_id": "9", "owner": "17", "path": ["451"], "permalink_uri": "https://doi.org/10.15021/00004312", "pubdate": {"attribute_name": "公開日", "attribute_value": "2010-02-16"}, "publish_date": "2010-02-16", "publish_status": "0", "recid": "4320", "relation": {}, "relation_version_is_last": true, "title": ["子の監護と婚資返却 : グシイにおける離婚訴訟の分析"], "weko_shared_id": -1}
子の監護と婚資返却 : グシイにおける離婚訴訟の分析
https://doi.org/10.15021/00004312
https://doi.org/10.15021/000043127866379b-22ea-4426-8d18-6a4b803778fe
名前 / ファイル | ライセンス | アクション |
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KH_013_4_004.pdf (3.6 MB)
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Item type | 紀要論文 / Departmental Bulletin Paper(1) | |||||||||||
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公開日 | 2010-02-16 | |||||||||||
タイトル | ||||||||||||
タイトル | 子の監護と婚資返却 : グシイにおける離婚訴訟の分析 | |||||||||||
タイトル | ||||||||||||
言語 | en | |||||||||||
タイトル | Custody of Children and Bridewealth Repayment : An Analysis of Gusii Divorce Cases | |||||||||||
言語 | ||||||||||||
言語 | jpn | |||||||||||
資源タイプ | ||||||||||||
資源タイプ識別子 | http://purl.org/coar/resource_type/c_6501 | |||||||||||
資源タイプ | departmental bulletin paper | |||||||||||
ID登録 | ||||||||||||
ID登録 | 10.15021/00004312 | |||||||||||
ID登録タイプ | JaLC | |||||||||||
著者 |
松園, 万亀雄
× 松園, 万亀雄
WEKO
253
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抄録 | ||||||||||||
内容記述タイプ | Abstract | |||||||||||
内容記述 | The institution commonly referred to as bridewealth remains universally practiced among the Gusii of western Kenya. Gusii bridewealth is "progeny price" in its principal legal implication. What the bridewealth system as such is designed to primarily protect is the husband's exclusive right over his wife's offspring. All the wife's children, by whomever begotten, belong to her husband as well as to his lineage, either during his lifetime or after his death, unless the bridewealth is returned, in whole or in part, to him or to his heirs by way of divorce. The major disputes arising between the parties concerned from an impending divorce are always related to the custody of children and the repayment of bridewealth. The first half of the paper examines 42 divorce cases heard at Kisii Law Court in 1979-1980. The divorce suits filed by women number more than twice those filed by men. What primarily motivates a wife to initiate legal actions is her wish to acquire the right of custody over her children. A divorce, if granted by the court, also clears the way for her subsequent lawful remarriage. All the couples involved in divorce cases have been separated for a certain period, and their marriage is irrevocably broken. A husband is much less eager to bring a divorce before the court. This is because at any time he is allowed to become a polygamist, and by refusing his wife a divorce he continues to have a potential right over her offspring, who may be under her physical custody. Far fewer husbands than wives opt for a divorce suit and, if they do, they usually pray for both divorce and receiving back their bridewealth, thus from the outset waiving their right over children. This attitude is in line with that of many other husbands who ignore a summons from the court in a suit where a wife is claiming the right of custody, and who consequently are forced to accept an ex parte judgement totally in favor of the wife. The magistrates' judgements at Kisii Law Court show a marked tendency to grant the custody of children to the parent, the mother in most cases, who has mainly brought up the children until the time of the lawsuit. When a wife is granted the custody of all her children, her father is ordered to return the whole bridewealth to her husband. In the very few instances where a husband is granted the custody of one or two children, none or a portion of his bridewealth is returned, normally one child remaining with him being offset by two head of cattle deducted from the returned bridewealth. A husband sometimes refuses a divorce at the hearing and then claims all children his wife has had on the ground that he has not received back his bridewealth. Such a course of action on the husband's part is generally considered by the magistrates to be an abuse of the customary law and, moreover, repugnant to justice and morality. The , second half of this paper compares those divorce cases with others heard in 1950's at a Court of Review. The Court of Review, presided over by a British judge, was created in 1951 to hear appeals from African Courts. The judgements at the Court of Review invariably granted the custody of children to their genitor, either a husband or another man, who had been living with the former's wife. In cases where a husband-genitor was dead, his biological children were given to the custody of his nearest patrilineal kin, despite the same claim from his wife, who was the genitrix of the children. The judges were well aware of the long-established customary law to the effect that the children of any irregular union between the wife and a man other than the husband, as well as the children of the marriage, belonged to the husband of the regular union. In their judgements, however, the judges modified this customary law on the ground that it was repugnant to the principles of natural justice. The major trend in the changes that have occurred in court judgements as to the custody of children since 1950's is very clear : it may be summarized as the shift of prior emphasis from a genitor to a nurturer. I maintain that this change has been brought about not only by the national legal policy of unifying customary laws of various ethnic groups, but also by negative evaluations, among increasing numbers of Gusii men, against the customary law that has served to this day primarily to make them jural fathers of as many children as possible. |
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書誌情報 |
国立民族学博物館研究報告 en : Bulletin of the National Museum of Ethnology 巻 13, 号 4, p. 807-856, 発行日 1989-03-29 |
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ISSN | ||||||||||||
収録物識別子タイプ | ISSN | |||||||||||
収録物識別子 | 0385-180X | |||||||||||
書誌レコードID | ||||||||||||
収録物識別子タイプ | NCID | |||||||||||
収録物識別子 | AN00091943 | |||||||||||
著者版フラグ | ||||||||||||
出版タイプ | VoR | |||||||||||
出版タイプResource | http://purl.org/coar/version/c_970fb48d4fbd8a85 | |||||||||||
出版者 | ||||||||||||
出版者 | 国立民族学博物館 | |||||||||||
出版者(英) | ||||||||||||
出版者 | National Museum of Ethnology |