Tort Law and Domestic Dispute

Tort law defines what constitutes wrongful conduct and dictates how tortfeasors have to be legally compensated and provide damages for their wrongful conduct. Under common law, tort law has been given required importance to safeguard society from civil wrongs. The domestic disputes, the relationship between the husband-wife, parent-child has been given equal status and has also safeguarded them by understanding the in-depth status and relationship governing factors.

To understand the status and factors determining the tortious behaviours and actions of a collective unit, certain relaxations freedom has to be provided to allow them to function smoothly, however, the court system does provide necessary restrictions and required checks and balances to maintain a system where remedies for civil wrongs are provided to the injured parties.

Keywords- Domestic dispute, Husband-Wife relationship, Parent-Child relationship, Tortious behaviour and actions, tort law, common law.

Introduction

Domestic relations or domestic dispute scenario’s in the area of tort law is evolving area of law since it has a diverse set of rules under the governance by common law and in India, today Tort law is known to be uncodified law however still provide essential liabilities and damages if any right is infringed. Tort law concerning the domestic dispute has evolved not only by providing damages for interference in the family issues but also has imposed liabilities and understanding of the tortious relation between the family itself i.e. Husband & Wife, Parent and Child and these relations are also seen as separate legal entities.

This Article on Tort law and Domestic Dispute shall highlight the relationship of liabilities, within the family members, their rights to seek damages, the collective liabilities in case of husband and wife relationship, Injury to family relations, tortious remedies in case of domestic violence and will also outline the essential precedents governing the tort law in domestic relations and disputes.

Husband & Wife Relationship

Tortious Actions Between Husband and Wife

Under English Common law, it was established that a husband and a wife were considered to be a united entity. The husband and wife cannot sue one another since they were governed by the doctrine of unity. By the fiction of unity, the wife merged into the identity of her husband and they were called as a single entity.

Thus, it can be said that a husband and wife are considered to be a single person. So, any tort committed by a wife makes husband liable and also led to the impossibility of wife to sue husband as they both were plaintiff and defendant. The husband and wife cannot sue each other.

But these anomalies were abolished by the enactment of different legislative acts like The Married Women’s Property Act,1882 and the Law Reform Act,1935. After the enactment of these acts, the identity of wife and husband were recognised individually, and wife can be individually sued or be charged with liability without making her husband jointly liable for the same.

Actions Between the Spouses

Under the common law rule, there could be no action between a husband and a wife for tort they were considered as a single entity. There was no provision for a wife or a husband to sue each other too. However, after the enactment of Married Women’s Property Act,1882 it was permitted that the married woman can take an action in tort against their husband for protection and security of her property but not for other negligent behaviours like assault or battery as she did not have any right to sue her husband in these cases.

But this scenario changed with proceeding cases as mentioned earlier in the case of Curtis v. Wilcox[1] the defendant by his negligent driving injured the plaintiff. The plaintiff claimed damages for pain and sufferings but before the hearing, the defendant got married to plaintiff and pleaded that the claim for damages is disbarred by the marriage between them. But the apex court in an appeal held that a thing in action includes that thing in action too so to make it clear and broaden the nature of women’s right and liability in tort law and accordingly, a wife was now entitled to sue her husband for personal negligent tortious behaviours too.

As held in the case of Broom v. Morgan[2], the prohibition rule of action between spouses was abolished by the Law Reform Act.1962. After this a husband and a wife can sue each other as they are unmarried, they are no longer considered as a single identity.

Under Indian law, a personal capacity to sue and be sued in tortious cases are governed by personal laws as well as the Constitution of India guarantees under Article 14 right to equality without any biases and partiality.

Parent-Child Relationship in Torts

Parents and the persons in loco parentis have the right to administer the activities and punish their children to prevent him from doing any tortious or mischief to himself as well as others. The law makes the parents and legal guardians to act accordingly with the lawful control and administer the punishment on them.

Parents or the legal guardians are presumed to delegate their authority and control to the teachers when the children are sent to the schools for education. As per section 1 (7), Child and Young Person’s Act 1993 says that a parent or a legal guardian or a teacher having the lawful authority and control over the child or a minor is allowed to punish him for his tortious behaviour.

In the case of Cleary v. Booth[3], it was stated that two boys on the way back to their home were fighting with each other. Booth (school headmaster) also the defendant charged them with assault and battery. However, it was questioned whether the headmaster has the authority over the boys outside the school premises or not? It was held that since it is within the delegated rights given by their parents, the defendant has the right to punish the boys.

Torts liabilities within the family

Under common law, tort law acknowledges the comparable right to sue where a superior can act on the behalf of his/her subordinate. The application of property rights in case of tortious behaviours gives the husband or the father of the family to seek damages from the tortfeasors for injury to the family members.

The loss of ‘services’ including the household chores and duties of wives or children are included in the case to seek damages for the non-performance of these duties.

Vicarious Liability and Injuries to Family Members

Despite the evolution of the tort law which started considering each individual as a separate legal entity, the court system still retained the family unit as a collective unit or identity. The entire family is considered as a single unit. The interference between the family members of the respective family members exist.

Tort in the family includes vicarious liability and negligence on the behalf of the legal guardian or a parent for the tortious acts of a minor. This means that in domestic dispute tort law, parents or legal guardians are responsible for the tortious offences committed by their children or their juvenile wards.

Immunity

Even though the Parent-Child relationship clearly stated that the parent or legal guardian has full authority over the child or ward to control and punish them for tortious actions, yet the ides of ‘parental discretion’ is not absolute, the court may find a parent guilty of tortious behaviour towards the child and can set child’s separate legal entity and hold the parent liable.

The same doctrine is followed by the court in the case of tortious actions between husband and wife relationship. The court can infringe a certain amount of confidentiality of the marriage and can pass orders or judgement as the court may deem fit.

Conclusion

To sum up the entire concept of tort law and domestic dispute, it can be comprehended that early in the times of governance by common law, the family issues and their relationships were given full immunity from any legal sanctions as it was considered to be their personal and confidential matters.

But, ever since the development and enactment of various Act’s which recognised the importance and need of individual identity the situation changed.

Even though Parent-Child relationship in tortious actions is based on full authority of a parent or legal guardian but still there is some sort of court powers, where the court may realise that child should be considered as a single identity and the parent should be made liable for tortious actions. Similarly, in Husband-Wife relationship, the court can pass some sort of judgement if they deem fit which might infringe marriage confidentiality too. Tort law is the civil wrong in which one person has infringed the duty that he owes to another person, as the duty arose because of the existence of a relationship.

Thus, to conclude the topic it can be stated that tort law is uncodified law but still holds major accountability in matters of civil wrongs and provide the necessary remedies for damages as well.

FAQ’S

Q.1. What Is the Status of Husband and Wife in Case of Tortious Actions?

Q.2. What Is the Status of The Parent-Child Relationship in Case of Tortious Actions?

Q.3. Are the Family Members Vicariously Liable for The Tortious Actions?

References

[1] (1948) 2 K.B 474 (C.A.)

[2] (1953) 1 Q.B. 597

[3] (1893) 1 Q.B. 465