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This article is written by Sonali Chauhan, a student of Lloyd Law College, Greater Noida. The author, in this article, has discussed the concept of Torts to Domestic Relations. 

Domestic Relations is an evolving area of Tort Law dealing with the internal functions of a family. The evolution of Domestic Relations Tort has not only influenced the manner in which family members can collect as a result of tortious behavior for damages or interference with the family unit itself; it has influenced the manner in which husbands, wives, kids, and legal guardians are seen as legal entities.

Children and wives were originally regarded as chattels under common law and worked under the proprietary rights of a man. Several advances in family law in the 1900s provided for women and children’s legal rights to act as separate legal entities from their husbands/fathers.

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Husband and Wife

In the case of husband and wife, the issue of personal liability can be dealt with two scenarios. First, the husband’s liability for wife’s torts and Second, the action between the husband and wife.

i) Husband’s Liability for Wife’s Torts

Under common law, a married woman could not sue any person for any tort in the earlier phase of development of tort, unless and until her husband joined her as a party to the plaintiff. In addition, a wife could not be sued without making her husband a defendant’s party.

These anomalies were removed by the legislative acts, i.e., The Married Women’s Property Act, 1882, and the Law Reform (Married Women and Tortfeasors) Act, 1935. After these acts, a wife may sue or be charged without making her husband a joint party to the suit.

However, if the husband and wife are joint tortfeasors, then they can be made jointly liable.

This case, explains the point. There a lady was injured because of the combined negligence from her husband and a third party. She recovered the full amount of compensation from the third party. The third-party could not recover any contribution from the husband as the husband could not be made liable towards his wife for personal injuries. 

Regarding the contribution between the wrongdoers, the original rule in England was known as the rule in Merryweather v. Nixon. It stated that in the case of joint tortfeasors, the one tort-feasor who paid the full amount of damages for the wrongdoing could not claim contribution from the others.

The Law Reform (Married Women and Tortfeasors) Act, 1953 abolished this disability and enabled the joint tortfeasors to recover their contribution. The Law Reform (Husband and Wife) Act, 1962 has changed further and in this regard, the law has changed to the effect that when a spouse sues a third person, the latter can claim contribution from the other spouse who was a joint tort-feasor.

ii) Action between Spouses

At common law, there could be no action between husband and wife for tort. If the other spouse committed a tort, neither the wife could sue her husband nor the husband could sue his wife. The change has been brought up by the Married Women’s Property Act,1882 and permitted the married woman to sue her husband in tort for protection and security of her property. The property includes chose in action which is given in Section 24 of Married Women’s Property Act, 1882. 

As a wife could sue her husband only for the protection and security of her property, she could not sue her husband if he caused her personal injuries. Thus, if the husband damages her watch, she could sue for the same but if negligently fractured her legs, she could not bring any action for the same. The husband has no right for an action for any kind of harm caused by his wife to him.

The defendant by his negligent driving injured the plaintiff, a passenger in his car. After the issue of her writ, claiming, inter alia, damages for pain and suffering, but before the hearing of the action, the plaintiff married the defendant. The defendant, in substance the husband’s insurance company, pleaded that the claim for general damages was barred by the marriage.

Oliver J. held that he was bound by the judgment of McCardie J. in Gottliffe v. Edelston [1930] 2 K.B. 378, and disallowed the claim for general damages. The Courts of Appeal (Scott, Wrottesely L.JJ., Wynn-Parry J.) in a considered judgment per Wynn-Parry J., allowed the appeal and overruled Gottliffe v. Edelston. They agreed with Mccardie J.’s view that a thing in action includes a right of action in tort, but they dissented from his decision that ‘thing in action’ as used to define separate property in the Married Women’s Property Act, 1882, Section 24, was used in a limited sense. Accordingly, a wife is now entitled to sue her husband for a purely personal antenuptial tort.

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In this case, it was held that if a husband committed a tort against his wife in the course of his employment of his master, the master was liable for the same. DENNING L.J. observed: “If the servant is immune from an action at the suit of the injured party owing to some positive rule of law, nevertheless the master is not thereby absolved. The master’s liability is his own liability and remains on him, notwithstanding the immunity of the servant. The rule prohibiting action between spouses has been abolished by the Law Reform (Husband and Wife) Act, 1962. Now, the husband and wife can sue each other as if they are unmarried. The Act, however, places a restriction on the action during the marriage by one spouse against another and the court has been given a power to stay the action if it appears that no substantial benefit will accrue to either party from the proceedings, or the case can be more conveniently disposed of under Section 17 of the Married Women’s Property Act, 1882. Under Indian law, personal capacity to sue and be sued in tort between husband and wife is governed by their personal laws, be they Hindus, Sikhs, Jains or Muslims. For Christians, the Married Women’s Property Act, 1874, removed various anomalies.

Furthermore, the Indian Constitution removes all anomalies of marital status and personal capacity present in common law. Article 14 embodies a guarantee against arbitrariness and unreasonableness, taking into account the case of Ajay Hasia v. Khalid Mujib (1983).

Parental and Quasi-parental Authority

Parents and persons in loco parentis have a right to administer punishment on a child to prevent him from doing mischief to himself and others. The law is that a parent, teacher, or other person having lawful control or charge of a child or young person is allowed to administer the punishment on him. Parents are presumed to delegate their authority to the teacher when a child is sent to the school.

Such an authority warrants the use of reasonable and moderate punishment only and, therefore, if there is excessive use of force, the defendant may be liable for assault, battery or false imprisonment, as the case may be.

In England, as per Section 1 (7), Child and Young Person’s Act, 1933 a parent, a teacher, or other person having lawful control or charge of a child or young person is allowed to administer the punishment on him.


Booth (Defendant), a school headmaster, administered corporal punishment on two boys after learning that they had fought on the way to school. The defendant was charged with assault and battery and convicted for it. He appealed.


The authority of a teacher to correct his students is not limited only to the wrongs which the student may commit upon the school premises but may also extend to the wrongs done by him outside the school, for “there is not much opportunity for a boy to exhibit his moral conduct while in school under the eye of the master, the opportunity is while he is at play or outside the school”.

There is no question that, while at home, a child is under a parent’s authority. It is also clear that while at school, a child is under the head master’s authority. The question is under what authority the child is when he was on his way from home to school. Likely, the child may be said to be under the headmaster’s authority through the parent’s delegated duty. In that case, if necessary, the headmaster has the right to inflict punishment on the child in order to correctly raise the child. The authority of the headmaster extends not only to acts performed by children while they are at school but also on the way going to and fro from school to home. Here, the two boys were on their way to school when they are engaged in fighting. The defendant was well within his right to punish the boys.

The Maryland High Court ruled that school counselors were negligent in not revealing their knowledge of a student’s threatened suicide to the child’s parents. The counselor’s negligence was not for failure to physically prevent the student’s suicide, but rather for not communicating information regarding the child’s intent.

Torts in the Family

In early family law, tort law acknowledged a comparable right to sue, comparable to secondary liability, where a superior can act on behalf of his/her inferior/subordinate. This application of property rights to family law cases enabled husbands and fathers to recover damages from tortfeasors for injury to family members.  A loss of “services” from his wife or child included the grounds on which a husband or father could recover for his family. Usually, the “services” included household duties such as cleaning, childcare, companionship, and other “marital responsibilities” that the wife or child no longer had.

Vicarious Liability

Despite the parties ‘ distinct legal identities, the court system retained the family unit as a collective identity. The family unit’s interests and relations are deemed to be proprietary to a certain extent and “by right.”  Any interference or action that alters, changes, infringes or threatens the family unit is therefore possibly a tortious interference in family law. Importantly, interference with family relationships between members of the respective family unit may occur.  For example, a husband may be liable for family-related interference with his wife and child’s relationships.

Interference with Family Relations

A particularly challenging subject of tort law is family torts in domestic relations. The reason for this is that the family structure itself and its functionalities are often at the core of the complainant’s and the defendant’s arguments.  Family torts may be associated with tortious action between husband and wife, or between parent and child. Tort in the family may also include vicarious liability and negligence on behalf of the parent or legal guardian for tortious actions committed by a minor under an adult’s legal guardianship.

Injuries to Family Members

Vicarious Liability is a secondary liability that accounts for the actions of its subordinate parties. Thus, torts raised against legal subordinates are vicariously transferred for litigation purposes to the superior party.  This usually means that in Domestic Relations tort, parents are responsible for tortious offenses committed by their kids. This Vicarious Liability also extends to legal guardians, who are vicariously liable for their juvenile wards ‘ tortious actions.


Torts between parent and child now tend to revolve around the “parental discretion” concept that is left to review by the court. Usually, a jury is not justified to second guess the right of a parent to act for their own child in their judgment.  The idea of “parental discretion” is not absolute, however, a court may find a parent guilty of tortious behavior towards his or her child as a separate legal entity and may, therefore, find the parent liable. The same principle works for family torts for husband/wife, which warrants a certain amount of cause to infringe marriage confidentiality and pass judgment.


In the law, a tort is a civil wrong in which one person has infringed a duty owed to another person, where the duty arose because of the mere existence of the relationship. In a simple sense, torts are often the civil wrongs associated with a criminal wrong.

It can be duly established that marriage does not affect the rights and liabilities of any of the spouses in regard to any tort done by any of them by a third party.


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