THE DOCTRINE OF COVERTURE
Adultery, as an offence, was not a crime under Common Law, in England. It was punishable by the ecclesiastical courts which exercised jurisdiction over sacramental matters that included marriage, separation, legitimacy, succession to personal property, etc.
In England, coverture determined the rights of married women, under Common Law. A feme sole transformed into a feme covert after marriage. Feme covert was based on the doctrine of Unity of Persons i.e. the husband and wife were a single legal identity. This was based on notions of biblical morality that a husband and wife were one in flesh and blood. The effect of coverture was that a married woman’s legal rights were subsumed by that of her husband.
A married woman could not own property, execute legal documents, enter into a contract, or obtain an education against her husband’s wishes, or retain a salary for herself.
The principle of coverture was described in William Blackstone’s Commentaries on the Laws of England as follows:[1]
“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.
Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquires by the marriage.
For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all contracts made between husband and wife, when single, are voided by the intermarriage.”
On this basis, a wife did not have an individual legal liability for her misdeeds, since it was legally assumed that she was acting under the orders of her husband, and generally a husband and wife were not allowed to testify either for, or against each other.
Medieval legal treatises, such as the Bracton, described the nature of coverture and its impact on married women’s legal actions. Bracton states that husbands wielded power over their wives, being their rulers and custodians of their property. The institution of marriage came under the jurisdiction of ecclesiastical courts. It made wives live in the shadow of their husbands, virtually invisible to the law.
The principle of coverture subsisted throughout the marriage of the couple. It was not possible to obtain a divorce through civil courts, which refused to invade into the jurisdiction of the church. Adultery was the only ground available to obtain divorce.
An allied consequence of the wife’s coverture was that she was not legally able to enter into a contract. Apart from anything else, she had no property against which to enforce any order against her for payment under a contract; so it was only a small step for the law to conclude that she did not have the ability to enter into the contract in the first place. If, however, the wife went into a shop and ordered goods, say of food or clothing, which the law regarded as necessary for the household, the law presumed, unless the husband proved to the contrary, that she had entered into the contract authorised agent. So the shopkeeper could sue him for the price if the wife had obtained the goods on credit.
In the seventeenth century there was a development in the law relating to this so-called agency of necessity. It was an attempt to serve the needs of wives whose husbands had deserted them.
The law began to say that, if a deserted wife had not committed adultery, she could buy from the shopkeeper all such goods as were necessary for her and, even if (as was highly likely) the husband had not authorised her to buy them, he was liable to pay the shopkeeper for them. But the shopkeeper had a problem. How was he to know whether the wife at the counter had been deserted and had not committed adultery? Sometimes a husband even placed a notice in the local newspaper to the effect, true or untrue, that his wife had deserted him or had committed adultery and that accordingly he would not be liable to pay for her purchase of necessaries.
Criminal Conversation
The remnants of coverture sowed the seeds for the introduction of Criminal Conversation as an actionable tort by a husband against his wife’s paramour in England.
Criminal Conversation as a tort, gave a married man the right to claim damages against the man who had entered into a sexual relationship with his wife. The consent of the wife to the relationship, did not affect the entitlement of her husband to sue.
The legal position of matrimonial wrongs underwent a significant change with the passing of the Matrimonial Causes Act, 1857 in England. Section 59 of this Act abolished the Common Law action for criminal conversation. Section 33 empowered the Courts to award damages to the husband of the paramour for adultery. The claim for damages for adultery was to be tried on the same principles, and in the same manner, as actions for criminal conversation which were formerly tried at Common Law.
Pritchard v. Pritchard
The case Pritchard v. Pritchard and Sims, [1966] 3 All E.R. 601, reconfirmed the origins of adultery or criminal conversation as under:
“In 1857, when marriage in England was still a union for life which could be broken only by private Act of Parliament, there existed side by side under the common law three distinct causes of action available to a husband whose rights in his wife were violated by a third party, who enticed her away, or who harboured her or who committed adultery with her. In the action for adultery known as criminal conversation, which dates from before the time of BRACTON, and consequently lay originally in trespass, the act of adultery itself was the cause of action and the damages punitive at large. It lay whether the adultery resulted in the husbands losing his wife’s society and services or not. All three causes of action were based on the recognition accorded by the common law to the husband’s propriety interest in the person of his wife, her services and earnings, and in the property which would have been hers had she been feme sole.’
In England, Section LIX of the Divorce and Matrimonial Causes Act, 1857 abolished the common law action for criminal conversation while retaining, by Section XXXIII of the same Act, the power to award the husband damages for adultery committed by the wife. This position continued right till 1923, when the Matrimonial Causes Act, 1923 made adultery a ground for divorce available to both spouses instead of only the husband. The right of a husband to claim damages for adultery was abolished very recently by the Law Reforms (Miscellaneous Provisions) Act, 1970.
Reference
Joseph Shine v. Union Of India (2018)
[1] Blackstones Commentaries on the Laws of England, Books III & IV (8th Edn.), 1778