law of tort

This article is written by T.PREETHI, student from government law college, Tirunelveli. In this article the student had explained about the torts in domestic relations and laws relating to its evolution.


Relation had been evolving and the torts under this arena deals with family’s inner working. The evolution in this tort hasn’t only shaped the way families may collect for damages or the interference to the family unit itself resulting from tortious conduct;

This has framed the way husbands, wives, kids and legal guardians are seen as legal entities. Also known as “doctrine of legal entity”

The natural law identified the concept of family as a unit of government with the husband, physically the stronger, as the head, children and wives were treated as chattels and functioned under the man’s proprietary rights.

Prior to 1990s the courts had sustained the right of a wife to sue her husband for tort against her separate property. But, in the 1990s several advances in family law came up and gave women and children the legal rights to act as a distinct legal entity from their spouse/ father.

Earlier in family law, a tort was recognised as a similar right to sue much like the secondary liability, in which a superior/ the head act on behalf of his/ her inferior/ subordinate. The husband or father whoever was the head recovered the damages for injuries to the members of his family from the tortfeasor under the proprietary rights. The father or husband could recover for his family on the grounds of loss of “services”. ‘Service’ includes household chores namely cleaning, childcare, companionship, and other responsibilities that no longer available from the wife or child.

Between Husband and Wife

If a man commits any tortious act against his wife or he body, he is no longer exempt from the liability to her on the ground that he vowed at the alter to “love, cherish and protect her”. The personal liability between husband and wife can be dealt with two scenarios.

  • The husbands liability for wife’s tort and;
  • The action between the husband and wife

The Husband’s Liability for Wife’s Tort

It was impossible for a spouse to be civilly liable to the other for an act which would be a tort in the absence of a marital relationship between the two. This was removed after the introduction of married women’s property act, 1882 and the land reform (married women and tortfeasor) act, 1935. These acts expressly gave the married women separate legal estate, with the rights and duties necessary to its maintenance.

It also opened the way either to sue or to be sued as an individual. However, if the parties are jointly involved in a tort, they’ll be jointly held liable. In case of joint tortfeasors, the one (tortfeasor) who paid the full amount of damages for the wrong, couldn’t claim contribution from the others. This liability was abolished on the introduction of The land reform (married women and tortfeasor) act, 1953. The law changed to the effect that when a partner sues a third party, the other one can claim contribution from the other spouse who was a joint tortfeasor.

Action Between Spouses

Under the common law, there was no action for a torn between husband and wife. If one of the spouses commits any tort, the other party can’t sue the one who committed the; neither the husband nor the wife can sue the other. This was changed after the introduction of married women’s property act, 1882. This gave the women, right to sue her property. Property includes actions which are given in section 24 of the act. The women right to sue for property under this act, but it did not give her rights to sue her husband for causing personal injuries. But after

CURTIS VS WILMAX (1948) 2KB 474 (CA) people agreed with McCardie’s view that a thing in action dissented from his decision that “thing in action” as used to define separate property in section24 of the act was used in a limited sense. Accordingly, a wife can now sue her husband for a personal tort.

In BROOM VS MORGAN (1953) IQ.B.597 case, it was held that, if a husband commits a tort against his wife in the course of his employment of his master and the master was held liable for the same. DENNING.L.J observed that if the servant is immune from an action at the suit of the injured party owing to some positive rule of the law and the master is thereby absolved. The master’s liability will be his own liability and stays with him, notwithstanding the immunity of the servant.

The rule of prohibiting spouses from taking action between them has been taken back by the law reform (husband and wife) act, 1962. After this act, the husband and wife can sue each other like any other party. This act places a restriction on action during the marriage by one spouse against another and the court gave power to stay the actions if it appears that no substantial benefits will accrue to either party from the proceedings or it can be more conveniently disposed under section 17 of the married women’s property act, 1882.

In India, the capacity to sue and be sued is governed by their personal laws. Further, the constitution of India removed all anomalies of marital statues and personal capacity present in common law.

Parental and Quasi Parental Authority

Parents and the persons in charge have the right to administer the punishment on a child to prevent him/her from doing a mischievous act to him and to others. As per law the parent, teacher or guardian who has lawful control over the child or a younger person is allowed to administer the punishment on the child. Parents have the right to delegate their authority to the teacher when the child is sent to school. Such a delegation warrants the use of reasonable punishment only and if there is excess use of force, the person to whom the authority was given may be held liable for assault, battery or false imprisonment, as the can may be. 

Torts in the Family

In the early period, the right to sue under family law was, more similar to that of the tort law, where the superior acts on behalf of the inferior/ subordinate. As said earlier, the damages were recovered by father/ husband under the ground loss of “service”.

Vicarious Liability

The system considers a family unit as a collective identity, rather than separate legal identities of the parties. The interests and relations of the family are considered proprietary to degree and by right. Therefore, if there is any interference or intervention that change, infringe or jeopardize the unit is considered as a tortious act under family.

Interference with Family Relations

Family tort in domestic relations are quite complex as the structure of the family and its working are after at the core of arguments put forth by the either parties. Tort in domestic relationship can be between husband and wife or parents and children. This may also include vicarious liability and negligence of the parent or legal guardian for torts committed by minor under the guardianship of an adult.

Injuries to Family Members

Superior parties being held liable for the actions of the subordinate parties is vicarious liability. Thus, a tort against the legally guarded will get vicariously transferred to the superior party for litigation purpose. In terms of domestic relations, parents are responsible for their children’s act, this also extents to legal guardians as well for the juvenile wards.


In the eyes of law, tort is a civil wrong, where one person infringes the duty owned to another one, and the duty arose just because of the existence of the relationship. It can be established that rights and liabilities doesn’t get affected by marriage.

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