135. If a man has been taken captive, but there was no maintenance in his house for his wife, and she has entered into the house of another, and has borne him children, if in the future her [first] husband shall return and regain his city, that woman shall return to her first husband, but the children shall follow their own father.
The view of the ancients. A man goes away and is taken captive. His wife left destitute becomes the wife of another and bears him children. Now her first husband is set free; she must under the law return to him. Her children remain with her second husband. This law is brilliant in its understanding of incentives. A woman is faced with the tough decision should she choose to treat her husband as though he were dead (perhaps he is). She is facing an unknown and must carefully measure the risk of starting a new life with the risk of losing her children and being compelled to return to her husband. I think sometimes the ancients understood human nature better than we. Today, the state is the new husband in a situation like this for good or for bad. She can take a new lover but not marry, bear him children should she be so inclined and if her husband return from war (captivity) return to him or divorce him. What are the consequences for any of these actions? They are borne by the children alone.