明治民法施行以前における離婚裁判の一考察

京都(始審・地方)裁判所判決を中心として

抄録

In earlier studies about judicial divorces before the enforcement of the Meiji Civil Code, on the one side, survive of custom of "Arbitrary divorce by husband" (_??__??__??__??__??_) has been emphasised, however the highly appraisal of the Proclamation No. 162 and No. 247 of "Dajokan"(_??__??__??_) which recognized the right of wife to sue for divorce.
It is true that causes of divorce in "Ukagai-Shirei" (_??_·_??__??_) (inquiries from the prefectures and instructions by the government) were very restrictive; when husband was not "Adopted son-in-law" (_??__??__??_), recognized causes were only (1) Disappearance more than two years of husband (2) Punishment of penal servitude or grave imprisonment more than one year of husband (3) Disappearance of wife.
But as for judicial divorces of the District Court in Kyoto (_??__??_[_??__??_·_??__??_]_??__??__??_), sources of decisions were not merely "Ukagai-Shirei"; when husband was not "Adopted son-in-law", causes of judicial divorces were (1) Punishment of husband (include of penal servitude or grave imprisonment less than one year) (2) Violence and cruelty to wife by her husband (3) Adulty of husband (4) Disappearance of wife (5) Adulty and punishment of wife (6) Misconduct of wife. We think that as sources of decisions, the Old Civil Code of 1890 (_??__??__??_) and French Civil Code of 1804 or 1884 were occasionally applied.
However, we can't be maintained that the custom of "Arbitrary divorce by husband" was wholly vanished in the Former Meiji Era.
For the number of suit for divorce from husband was very few and there were many cases that turned out against wife who had suited for divorce because of violence and cruelty by her husband.