Gendered rights and legal competence

‘[The] distribution of justice must proceed upon the supposition of the females being merely passive subjects, and of the men alone possessing the faculties of free agents.’ (Marsden 1975 [1783]:389).

This and the previous chapters have shown that in nineteenth-century Toba Batak society, only men were considered full legal subjects, whereas women were regarded as legal minors. Before a woman married, her parboru (her father or eldest brother) had authority over her. He might force her to marry or bow to her wishes, but in the end, he was the only one who could contract a legal marriage for her. He was also responsible for her serious misconduct such as breaking off a betrothal and minor offences such as thieving. Even after her marriage, his responsibility did not end: if she proved a less than dutiful wife, or worse, committed adultery, he had to pacify her husband and pay the fines. It was also in his power to give her valuable gifts, the most precious being a rice field, before, at the time, or after her marriage, or to withhold his blessings in material and immaterial form.

After her marriage, a woman’s husband had authority over her. He could sue any man who tried to seduce her, had committed adultery with her, or abducted her. He could treat her well or mistreat her, marry a co-wife without or her consent, and squander the family assets. He also had the right to divorce her, with or without sufficient grounds, although the latter would cause him material loss.

A woman who became a widow was under the authority of her eldest adult son, who would usually hold her in respect and was probably often inclined to follow her wishes. Things stood differently if her son was underage or if she had no son. The closest male relative of her late husband would become her guardian and that of her children until her son had come of age. If she had no children or only daughters, he would become the heir of her husband’s estate, the uaris. He would decide, with the senior men of the family and the parboru of the widow, which relative of the deceased would become her new husband. The uaris would also marry off a widow’s daughters as he saw fit. If the widow eloped, he would go after the abductor, with or without help of the widow’s parboru. It is likely that a widow had less influence on the guardian or heir of her husband than on her own son(s).

The construction of women as legal minors in customary law was fully consistent with their allotted role of sealing the affinal relationship between bridegiving and bridetaking clans through their marriage. To forge and—above all—maintain these relationships, women’s rights as free agents had to be restricted. Consequently women were not allowed to sue another person, nor could they be summoned as defendants in case of a dispute. At the most, the rajas could request them to appear as a witness, but this probably rarely happened.⁷³ The public character of the adjudication of disputes, however, gave women a certain measure of influence. Junghuhn (1947:97) wrote that ‘often the women shriek their opinions and advice into the meeting house,

generation of their parents (Interviewees 1, 2, 12, 13, 21, 27, 29, 30). .

73 The author of Patik (1899 [tr. De Boer 1921:208- 208; 220-1]) makes mention of female witnesses called by the rajas in only two cases; in the other cases in which a woman was involved, she was not asked to testify. According to C.J.

Westenberg (1914:531-2), Karo Batak judges paid hardly any attention to the testimony of women. To his surprise, they were often not summoned to testify, even if it was clear that they were in the know about a crime or transaction. Toba Batak judges probably acted no differently.

which are not only heard, but in particular if they are old sibyls, also taken to heart’.

On the other hand, Marsden’s view that women were ‘mere passive subjects’ is incorrect.

Women may have been legal minors, but passive they were certainly not. If sufficiently strong-headed, they could force a marriage they desired on their father, their lover, and his family. They pleaded with their parboru to help them out if their families faced difficulty surviving, and they coaxed and cajoled him to help them divorce a husband who mistreated them. They ran away from their husband and protested if their husband wanted to remarry. Widows took off with another man to evade a levirate marriage with a relative of their late husband they did not like.

Perhaps the majority of women were indeed ‘submissive’ if they found themselves in a situation of adversity. But this does not mean they were not ‘agents’. Women most likely calculated the advantages and disadvantages of taking any of the aforementioned courses of action. Going along with a father’s arranged marriage would ensure his support during a woman’s marriage.

Enduring a disharmonious marriage and staying with her children was less disadvantageous than divorce. By consenting to marry a relative of her late husband, a widow maintained her established position in the household and saved herself and her children from destitution. Thus a woman had good reasons to adjust to the limitations posed on her agency, because of what was expected of her as a dutiful daughter, wife, and mother.

If the relationship between a daughter and her father was good, if she had given her husband many sons and daughters and got along well with him, if the man who married her in levirate was a benevolent husband who cared about her and her children, then everything would be fine. An older married woman or widow who had adult sons and daughters often had a decisive say in family matters and used her influence to choose the wives for her sons, preferably a daughter of her brother. Her influence could reach further than that, as the wife of an influential raja or of a parbaringin, officiating together with her husband at religious ceremonies as a paniaran or as a spirit medium.

But when faced with a rupture in matrimonial life, women could suffer greatly if they took more freedom than customary law allowed them. Daughters were molested by their fathers, and when forced to marry, sometimes saw no other way out than suicide. Wives who desperately wanted to leave their husband found that they had no legal means to do so without the support of their parboru. Unfaithful wives were at the mercy of their husband and parboru. Divorced women had to leave their children behind. A widow could find herself married by her in-laws to a relative of the husband whom she did not like, or who was indifferent to her, or worse, used the inheritance of her husband for himself and other wives, leaving her and the children with little to live on. The law was harsh on women who did not abide by the rules and lacked support, although the law’s implementation may have been often more benign than the letter of the law.

The Batak Mission, and subsequently the colonial administration, led by their own views on women’s rights, tried to introduce changes in Toba Batak customary law to alleviate the problems which unfortunate Toba Batak women faced and to curb the prerogatives of Toba Batak men. Part II is devoted to their efforts and the reactions of Toba Batak rajas and commoners.

PART II.

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