Abstract
In the Ottoman Empire, non-Muslims with the status of d̲h̲immī had the opportunity to solve their cases named civil status such as marriage, divorce, alimony, and inheritance in the community courts according to their own laws. On the other hand, they also had the right to apply to the ḳāḍī court for the aforementioned cases. In the Ottoman Empire, d̲h̲immīs applied to the ḳāḍī court mostly on social issues such as marriage, divorce, dowry, alimony, child custody, and inheritance. In Ottoman history, the significance of the ḳāḍī registers, which contain the records of the cases held at the ḳāḍī court and which is the main source on social life, economy, law and similar issues, is known to everyone. The shari’a registers belonging to the Trabzon court, which were used as the main source in this study, have reached the present day in series. According to the s̲h̲arīʿa records, it is understood that d̲h̲immī men and women applied to the ḳāḍī court for many matters such as marriage, divorce, inheritance, bailment, alimony, purchase-sale, and receivables-payables. In this article, the practice of using the ḳāḍī court by d̲h̲immīs in Trabzon, where Muslim and non-Muslim populations live together, is discussed. An attempt was made to clarify the reasons why d̲h̲immīs use the ḳāḍī courts instead of applying to the community courts accordaning to their own legal norms for their cases that fall within the field of private law.
In the Ottoman Empire, d̲h̲immīs had the right to apply to their own community court on issues that fell in scope of ahval-i şahsiye (civil status). Furthermore, d̲h̲immīs had the right to marry, divorce, enter into debt relationship, acquire movable and immovable property and become heirs within the scope of Islamic law. While Islamic law enabled d̲h̲immīs to be subjected to their own religious law rules in some matters, it also allowed them to apply to the ḳāḍī courts. D̲h̲immīs applied to the ḳāḍī court mostly on social issues such as marriage, divorce, child custody, and inheritance. In this study, the applications by d̲h̲immīs to the ḳāḍī courts in subjects that fall under the private law were examined by using the s̲h̲arīʿa records of Trabzon in the first half of the XVIII. century. In the Ottoman Empire, individuals could apply to the court directly to resolve their legal issues, and sometimes they had the right to be represented in the court through their representatives. Those who did not or could not come to the court for different reasons made their applications through the attorneys. There was no limit on representation by an attorney in court. In the classical period of the Ottoman Empire, there was a practice of Muslims performing marriage contracts in the presence of a ḳāḍī or by a religious official with the permission of the ḳāḍī. Non-Muslim clerics, who were officially appointed for d̲h̲immīs, had been given the power to carry out marriage procedures. However, despite this privilege, the d̲h̲immīs sometimes performed their marriage in a ḳāḍī court. What are the reasons for the d̲h̲immīs to use the ḳāḍī court for divorce rather than marriage? This question can be answered differently according to time and place. It should be said in the first place that it was very easy to divorce by agreement in the kadi court. The attribution of sanctity to marriage in Christianity made divorce difficult. The strict and conservative attitude of the Christian legal norms regarding divorce should have directed the d̲h̲immīs to the ḳāḍī court. The d̲h̲immīs are not subject to the rules of Islamic law in their contracts. However, they have the right to bring disagreement arising from such contracts to the ḳāḍī court. The d̲h̲immīs often used the ḳāḍī court for property sales or leasing of real estate. Although it is a private law area, the d̲h̲immīs used the ḳāḍī court from time to time for inheritance sharing. The d̲h̲immīs preferred the ḳāḍī court in inheritance cases because Islamic inheritance law was more advantageous for them (especially for women). The d̲h̲immīs also used the ḳāḍī court for alimony. Alimony valuation was made in court on the condition that alimony needs of the children with decedent father were paid from their father's inheritance. One of the reasons why d̲h̲immīs use the court is related to the foundation issues. One of the reasons for non-Muslims to use the ḳāḍī court is conversion. Those who chose Islam as the new religion registered this stuation by applying to the ḳāḍī court. There are many records on this subject that are reflected in the documents.