The crux of this paper is to examine those special rules of law which in some cases relieve wives, and in other cases both husbands and wives, from criminal liability for conduct which would render them liable if they were unmarried. Cases of unlawful application of force by one to the person of the other constituted an exception to this general rule! One spouse, accordingly, could maintain criminal proceedings against the other for assault and similar offences; and one spouse could have the other bound over not to commit such offences.
It is apposite to state that those rules originated long before the reforms of the law on the civil side which have removed the legal disabilities of married women in matters of property, contract and family law, and long before those social changes which, in modern times, have reduced the discrimination to which women have been subjected in respect of education and economic opportunities. Women, prior to the enactment of the Married Women Property Act of 1882 were seen as mere chattels and incapable of owning properties as they themselves are objects capable of being owed by their men counterparts.
However, today the reverse is the case as women can own any property of their choice and in their name. Dealings in properties of one’s spouse constitutes one of the areas the law ascribes special consideration. Thus, the general provision of law under a Christian marriage is that neither of the spouses can incur criminal responsibility for doing any act in respect of each other’s property. In other words, a husband could not be charged with willfully setting fire to his wife’s house. This rule applies strictly to property offences and no other as earlier noted that a husband can be held liable for assaulting his wife.
Section 36 of the Criminal Code Act provides thus:
When a husband and wife of a Christian marriage are living together, neither of them incurs any criminal responsibility for doing or omitting to do any act with respect to the property of the other, except in the case of an act or omission of which an intention to injure or defraud some other person is an element, and except in the case of an act done by either of them when leaving or deserting, or when about to leave or desert, the other.
Subject to the foregoing provisions a husband and wife are, each of them, criminally responsible for any act done by him or her with respect to the property of the other, which would be an offence if they were not husband and wife, and to the same extent as if they were not husband and wife.
But in the case of a Christian marriage neither of them can institute criminal proceedings against the other while they are living together.
In this section, the term “property” used with respect to a wife means her separate property.
It was also the law that one spouse could not be guilty of stealing from the other, at least while they were living together. By the Married Women’s Property legislation these special rules of the criminal law were altered to the extent of providing that husband and wife should have, against each other, the same remedies and redress by way of criminal proceedings for the protection and security of their property as if they were unmarried. This made it possible in law for one spouse to be guilty of stealing from the other and enabled the victim to prosecute the thief; but it was expressly provided that no criminal proceedings should be taken by one spouse against the other by virtue of the legislation unless;
(a) they were living apart when the proceedings were taken, -and-
(b) either they were living apart at the time of the acts charged or else the property in question was wrongfully taken when leaving or deserting or when about to do so.
Again, where the act is done is such a way as to injure a third party this special rule will not apply. The spouses will not institute criminal proceedings against each other while they are living together. However, it does not bar the police from proceeding if a crime is committed.
Since our criminal jurisprudence still parades archaic and outdated laws, it remains the law that spouses of a Christian marriage are not criminally responsible for anything done against each other’s property while living together. This position of the Nigerian law has been amended in some other jurisdictions to the effect that a wife can be held liable for stealing the husband’s property and vice versa.
There were a lot of limitations against the women folk in the past and these limitations are dwindling every day, thus, making it possible for women to compete healthy with the men in every endeavor. We hope that the Legislative arm will become aware of some of these obnoxious and archaic provisions of our Criminal Code Act and take appropriate steps to amending them in line with the present development.
Written by Gabriel Chikwado Eze, Esq.