The purpose of this article is to determine the status of the contractual relationships between spouses. The development of tort law led to the development of common law. This paper discusses the spouses’ standing in tort law and how it evolved into common law. When common law developed, it gave the husband the upper hand in terms of property and other contractual duties, but it also made the husband liable. Later, as women were recognised as being capable of owning property and being liable for obligations, the situation shifted dramatically, putting the woman on more equal footing with her husband. This paper depicts the evolution of common law and its current state.
Secondary materials, such as books, online journals, articles, and other papers, were used to write this paper. Our research is limited to the growth of common law, including the position of spousal agency in India and statutory legislation governing marital relations, with an in-depth explanation of its position supported by cases.
Evolution Under Common Law
Evolution From Tort Law
In common law, the husband was responsible for the wife’s acts (torts). This isn’t because he was blamed for them; rather, the husband & wife were treated as “one legal entity” in the eyes of the law (doctrine of unity). This basic principle of common law is stated in the well-known passage from Blackstone’s commentaries: “By marriage, the husband & wife become one person in law; that is, the woman’s very being or legal existence is suspended during the marriage, or at the absolute least is merged or consolidated into that of the husband; thus she performs everything under his wing, protection, as well as cover.
If the wife is injured in her person or property, she cannot seek remedy without her husband’s permission & also in his name as well as hers; she also cannot be sued without naming the husband as a defendant”.
“Action may be taken against the wife if the husband passed away, & action could be taken against the husband if the wife died.” The Supreme Court of India recognised such legislation as being gender biased as recently as 2018 in the well-known case of Joseph Shine v Union of India. The Hon’ble Court noted a remark by Lord Wilson  on page 188 of the judgement, in which the fact that women were not legally authorised to enter into contracts & the “doctrine of necessity” were acknowledged.
This fundamental tort law principle provides rise to contract law in the context of spousal relationships. The old common law, with its traditions of man’s superiority over woman as the lesser of the race, gave the husband nearly unrestricted power over his wife’s person and property while also charging him with her welfare & support.
Agency, Express & Implied
A husband owes it to his wife to provide for her. Under common law, a wife living with her husband has the implicit authority to make purchases of domestic necessities based on the principles of agency. “As long as people continue to live in houses, the wife will generally do the domestic shopping, & the husband will pay the bills, Hornby writes. The law of principle and agent will always separate the law of husband and wife.” There are two types of agency: express (in fact) and implied (by law). When a spouse expressly authorises himself to bind himself for his wife’s purchases, this is known as express agency.
When there is a presumption that the wife can bind her husband for specific purchases, even though the husband has not provided express authority, it is called implied agency. Even the breadth of express power must be determined based on the wording used. For ex. -When a husband authorised his partner to run the business & his wife to accept invoices on his behalf for his own business, he was not bound when his wife took bills on his behalf for the business that the partner was authorised to work on. The purchases made by the wife are usually covered by the latter sort of agency. She has the legal power to tie her spouse by her credit purchases, but only under certain circumstances.
Express & Implied Agency in India
In comparison to common law, India takes a very similar stance. India, like the United States, recognises two types of agencies, as stated in the Indian Contracts Act of 1872. According to Section 186 of the Act, agency might be express or inferred. Section 187 distinguishes between express and implied contracts. “An authority is considered to be expressed when it is delivered through words spoken or written,” it says. When things spoken or written, or the customary way of business, are accounted circumstances of the case, it is said to be implied authority.” If the husband provides the wife express authorization to act on his behalf, either verbally or in writing, she has express agency. The law allows a married woman to promise her husband’s credit on the basis of necessity in specific circumstances, even though she does not have her husband’s permission to bind him.This is a case of implied agency in action.
This study analyzed the role of a wife under common law (including India), with a focus on statutory agency in both English and Indian law. Because it offered more privileges to the husband, the legislation dealing to spouses was gendered prejudiced and patriarchal. Although the woman’s obligation was imposed on the husband through implied agency, the fact that the wife was not treated as a separate creature by the law indicates that the law regarded her incapable of entering into contracts without the assistance of her husband. Obviously, this stance has evolved throughout time to allow women to engage into contracts and maintain their property even if they are married, thanks to legislation such as The Married Woman’s Property Act. Under common law, a wife can only bind her husband implicitly for necessities. India adopts a common law viewpoint that is comparable to that of the United States.
 R. W. Shannon, Husband’s Liability for Wife’s Tort, 4 Can. B. Rev. 567, 573 (1926).
 Vol I, William Blackstone, Commentaries on the Laws of England, (1765), p 442
 Joseph Shine v. Union of India, (2018) Indlaw S.C. 899.
 Lord Wilson, Out of his Shadow: The long struggle of wife under English Law, The Supreme Court of UK http://www,supremecourt.uk/docs./speech-121009.pdf. accessed on (02 June, 2022)
 Percy Edwards, Is the Husband Entitled to His Wife’s Earnings, 13 Can. L. Times 159, 176 (1893)
 Hanbury, The Principles of Agency (1952) p 32
 Attwood v Munnings (1827) 7 B&C 278
 Montague v Benedict 3 B. & C. 631
 Indian Contracts Act, 1872, No. 09, Imperial Legislative Council 1872.
 Kanhayalal v Indarchandji, A.I.R. (1974) Nag. 84
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