ABSTRACT
Legal Status of women always remained important in any legal system. In English Common Law has a significant history in this regard. The status of a married woman is absorbed under her husband after marriage. In other words two persons become one person under legal identification. This concept influenced most parts of the world, including Pakistani Legal System, which is adopted from the colonial rule of England. The coverture had almost diminished the status of a married woman under influence of her husband. Such married women had not legal identity of her won rather she would be titled with legal identity of her husband only. The concept of coverture is derived from French origin which means “cover”. Coverture had deep impacts on certain legal rights and entitlements of women during her marriage i.e inheritance, execution of contracts, ownership of property. In late 1870s and 1882 legislations were made to give some rights to women to the property rights as if a coverture woman is a single woman. The international community has now recognized the legal status of women in all spheres of life including their civic, political and other rights by introduction of different conventions and treaties. Such conventions and treaties bound the signatories and ratifying member states to introduce legislation and amend the existing laws to comply with such conventions. The criminal liabilities in a coverture situation shall be separately discussed in another article.
Keywords: Coverture, legal Status, marriage, legal identity, husband, English Common Law, Pakistan, Islam, CEDAW.
INTRODUCTION
The doctrine of coverture, originating from English common law, represents a significant chapter in the history of women's legal status. This concept, which subsumed a married woman's legal identity under her husband's, profoundly influenced legal systems across the world, including that of Pakistan. This article delves into the historical roots of coverture, its evolution in England, and its implications and adaptations within the Pakistani legal framework. Islam emphasizes the independency of women in all spheres of life including in property rights and other civil rights and liabilities. The Constitution of the Islamic Republic of Pakistan guarantees the rights of women as an equal citizen of the state. It protects rights against discrimination on basess of sex in jobs and other fields of life. Coverture is not only utenable in the modern society, legally so also religiously. Despite of religious protection and protection of the constitution, in Pakistani society the impact of coverture, as derived from the colonial system, prevail due to lack of education of rights of women and societal pressure and male dominance. The constitutional framework has now rejected the notion of coverture . The Convention on the Elimination of All Forms of Discrimination against Woman has elaborated the forms of discriminations against women. Pakistan has ratified all these conventions time to time and formulated the law of land accordingly.
UNDERSTANDING
COVERTURES IN ENGLISH COMMON LAW
ORIGINS AND MEANING
Coverture, derived from the French term coverture meaning "covering," was a legal doctrine in English common law that dictated a woman's subordinate legal status during marriage. Upon marriage, a woman's legal existence was considered merged with that of her husband. This meant that a married woman, referred to as a feme covert, had no independent legal identity; her rights and obligations were subsumed by those of her husband.
LEGAL IMPLICATIONS
The coverture has almost disguised and lost the legal identity of married women. If the woman had any property prior to her marriage, it would become under the husband independently. Under coverture, a married woman could not own property independently in her name. She was not entitled to purchase, sell or inherit the property in her name. Married women could not enter into any agreement or contract herself as a contractor or party individually. The most civil right and liabilities were bore by husband of a wife on behalf of wife. All torts and other civil wrongs were liability of husband, if committed by his wife. In some criminal cases it was presumed that the wife acts under coercion of her husband, hence wives were not criminally liable due to coverture concept. However we will discuss the criminal liability of women under coverture concept separately in some other article. As for as inheritance and Wills are concerned, the women had limited rights subject to protection of trust or mutual settlement. The women, if had some earnings, then she had no right on it, rather the husband had the right to utilize the same. The locus standi of wife was not accepted in cases. She could not sue and could not be sued independently. It was only husband who could join her in all litigations conjointly to sue or to be sued in the court of law. These restrictions rendered married women legally invisible, with their rights and duties entirely dependent on their husbands in English Legal System which erected till 19th Century with its full flung.
HISTORICAL CONTEXT
The roots of coverture can be traced back to feudal Norman customs and were later codified in English Common Law. Influential legal scholars like Sir William Blackstone described the legal status of married women as being "covered" by their husbands, emphasizing the patriarchal nature of the legal system. He has said, "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. "
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Chapter 2: The Evolution of Coverture in England
2.1 The Married Women's Property Acts
The oppressive nature of coverture led to legal reforms aimed at restoring women's rights. The Married Women's Property Act of 1870 allowed married women to own property in their own name, and the Married Women's Property Act of 1882 further expanded these rights, enabling women to acquire, hold, and dispose of property as if they were single women .
2.2 Abolition of the Marital Rape Exception
Coverture also influenced the legal understanding of marital rape. Under coverture, a husband had an absolute right to sexual access to his wife, and marital rape was not recognized as a crime. This legal fiction persisted until the landmark case of R v. R in 1991, where the House of Lords abolished the marital rape exception, acknowledging that a wife could refuse sexual intercourse and that rape within marriage was a criminal offense .
THE INFLUENCE OF COVERTURE ON BRITISH COLONIES
COLONIAL LEGAL SYSTEMS
As the British Empire expanded, English common law, including the doctrine of coverture, was introduced to its colonies. This imposition often disregarded local customs and legal traditions, embedding patriarchal structures into the legal systems of colonized nations.
Coverture in India and Pakistan
In the Indian subcontinent, the legal system was heavily influenced by British colonial rule. The principles of coverture were incorporated into the legal framework, affecting women's property rights and legal status during marriage. Even after the partition in 1947, Pakistan inherited these legal structures, which continued to impact women's rights.
Post-Independence Developments
India
After independence in 1947, India undertook significant legal reforms to dismantle remnants of coverture:
• The Hindu Succession Act (1956) granted daughters equal rights in inheritance.
• The Hindu Marriage Act (1955) emphasized equality and mutual consent in marriage.
• The Constitution of India (1950) guarantees equality before the law under Article 14 and prohibits discrimination based on sex under Article 15.
However, personal laws (Hindu, Muslim, Christian, etc.) still influence marriage, divorce, and inheritance, often retaining patriarchal biases.
Pakistan
In Pakistan, coverture's influence persisted more strongly due to the continued reliance on Islamic jurisprudence and colonial laws. Some key developments include:
• The Muslim Family Laws Ordinance (1961) introduced limited reforms, such as requiring registration of marriage and permission for polygamy.
• The Constitution of Pakistan (1973) recognizes gender equality under Article 25, but enforcement remains weak.
• Family courts adjudicate cases under personal law, often reinforcing male guardianship and control in practice.
Although Pakistani law does not formally recognize coverture, cultural and procedural practices continue to disadvantage married women, particularly in rural and conservative areas
INHERITANCE LAWS
Pakistan's inheritance laws, primarily governed by Islamic principles, provide women with rights to inherit property. However, the application of these laws has been inconsistent, and cultural practices often undermine women's inheritance rights. The remnants of coverture can be seen in the societal norms that limit women's control over inherited property.
MARRIAGE AND RIGHTS OF WOMEN
Under Pakistani law, a married woman retains the right to own property. However, traditional practices and societal expectations sometimes restrict a woman's ability to exercise this right fully. The influence of coverture is evident in the limited autonomy women have in financial and property matters within marriage. In Pakistan the constitution 1973 has provided a number of Articles which negate the proposition of coverture. Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 gaurantees the equality of all citizens of the state. The protection against discrimination in public service is also provided under Article 27 of the Constitution, 1973. The discrimination, though tried to have been eliminated in the legislation to some extent but practically it is at its skies. In a recent case Re-Zahida Parveen vs Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education, Civil Secretariat, Peshawar and others, CPLA NO.566-P/2024 , the Honourable Supreme Court of Pakistant has turned down the concept of coverture. In this case the Education Department has appointed Zahida Parveen on the basis of son/daughter quota under Rule 10 (4) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion, and Transfer) Rules 1989 on 17.03.2023. later on the District Education Officer (Female) of District Karak has withdrawn the appointment of Zahida Parveen on the basis that the said quota under Rule 10 (4) ibid, does not apply to the female who ha contracted marriage. (coverture female)
4.3 Legal Reforms and Challenges
Pakistan has undertaken various legal reforms to enhance women's rights, such as the Protection of Women (Criminal Laws Amendment) Act, 2006, and the Prevention of Anti-Women Practices (Criminal Law Amendment) Act, 2011. Despite these efforts, challenges remain in fully eradicating the remnants of coverture, particularly in rural areas where traditional norms prevail and where education level is miserable.
THE PATH FORWARD: EMPOWERING WOMEN IN PAKISTAN
Strengthening Legal Frameworks
To dismantle the remnants of coverture, Pakistan must continue to strengthen its legal frameworks, ensuring that women's rights are protected and upheld. This includes enforcing inheritance laws and property rights consistently and equitably. The Islamic Law of Inheritence must be ensured to be applied while mutation and transfer of the inherited property. Generally a consent or written relinquishment deed is executed on behalf of the women legal heirs by the male legal heirs in their favor while mutation or transfer of property before the concerned registrar office or revenue offices.
CULTURAL AND EDUCATIONAL INITIATIVES
Beyond legal reforms, cultural and educational initiatives are crucial in changing societal attitudes towards women. Promoting gender equality through education and awareness programs can challenge traditional norms that perpetuate the influence of coverture.
ROLE OF CIVIL SOCIETY AND INTERNATIONAL BODIES
Civil society organizations and international bodies play a vital role in advocating for women's rights and supporting legal reforms. Their efforts can help amplify women's voices and ensure that legal changes translate into tangible improvements in women's lives.
CONCLUSION
The doctrine of coverture, though formally abolished in England, continues to cast a long shadow over legal systems worldwide, including Pakistan. While significant strides have been made in recognizing and protecting women's rights, the legacy of coverture persists in societal attitudes and practices. By understanding this historical context and continuing to push for legal and cultural reforms, Pakistan can move towards a more equitable society where women have full autonomy and equal rights under the law. Islamization of Laws have given rights to women but practically Pakistan has to do much more practically so that the benefits of the legislation may come into reality.
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